TELG Principal Moderates D.C. Bar Event on the Dodd-Frank Act’s Whistleblower Reward Programs and Anti-retaliation Provisions

Jason Zuckerman, a principal at The Employment Law Group®, will moderate a D.C. Bar Brown Bag titled “Dodd-Frank Act: Robust Protections and Substantial Rewards for Whistleblowers” on November 9, 2010.  The panel of speakers will discuss:

  • The whistleblower reward provisions;
  • The scope of the new whistleblower ant-retaliation provisions;
  • The amendments to the Sarbanes-Oxley Act and False Claims Act;
  • Tips for employers to prevent retaliation claims;
  • Tips for plaintiffs regarding claim and forum selection; and
  • The impact of the new provisions on internal reporting.

Click here for more information about this D.C. Bar event.

DOL ARB Holds Truck Driver’s Refusal to Drive Unsafe Truck is a Discharge under STAA

In Klosterman v. E.J. Davies, Inc., the Administrative Review Board (ARB) held that an employee who left work after refusing to drive an unsafe truck had suffered an adverse action under the retaliation provision of the Surface Transportation Assistance Act (STAA), even though the employer interpreted his conduct as voluntary resignation.   The ARB articulated the standard determining whether there for an adverse action under STAA:

…under [ARB] precedent, “an employer who decides to interpret an employee’s actions as a quit or resignation has in fact decided to discharge that employee.”  Minne, ARB No. 05-005, slip op. at 14.  See also Ass’t Sec’y & Vilanj v. Lee & Eastes Tank Lines, Inc., 1995-STA-036, slip op. at 4-6 (Sec’y Apr. 11, 1996) (employer violated the STAA when it reacted to complainant’s refusal to drive by “consider[ing] [complainant] to have voluntarily quit” rather than by addressing condition complainant had raised, thus by implication employer engaged in adverse action by deciding that complainant had “quit”); Ass’t Sec’y & Lajoie v. Envtl. Mgmt. Sys., Inc., 1990-STA-031, slip op. at 5-6 (Sec’y Oct. 27, 1992) (overturning ALJ’s determination that employee had “voluntarily quit,” the Secretary held that employer had “engaged in adverse action” by “[discharging]” employee when employer “was not willing to address [employee’s] complaint and considered [complainant] discharged if he failed to capitulate” by driving even though employer had not addressed complainant’s concern); Fronczak v. N.Y. State Dep’t of Corr. Servs., 2 Fed. Appx. 213, 215-17 (2d Cir. 2001) (unpublished).

The ARB applied this standard to the facts in Klosterman, finding that it was the employer’s behavior rather than the employee’s which led to the end of the employment relationship.  The employer told the employee to drive the truck or go home.  The employee chose to go home.  Since the employer did not address the employee’s complaints regarding safety, the employer effectively discharged the employee and incorrectly considered the employee’s refusal to drive the unsafe truck as the employee having quit. 

The ARB further held that a phone conversation with an OSHA representative is sufficient to meet the 180 day statute of limitation for filing a complaint.  STAA does not require the complaint to be in writing.  For more information about The Employment Law Group® and its Whistleblower Law Practice, click here.

DOL ARB Vacated ALJ’s Decision Where ALJ Was Unaware Complainant Responded to Request for Admissions

The Department of Labor’s Administrative Review Board (ARB) vacated an Administrative Law Judge’s summary decision in Williams v. Dallas Independent School District where the Complainant, unbeknownst to the ALJ, responded to requests for admission but did not file that response with the ALJ.  Having assumed that the Complainant did not respond to the requests to admit on time, the ALJ mistakenly granted all of the Respondent’s requests for admission and dismissed the case.  The ARB properly reversed and remanded the ALJ’s decision.

Former Ameriprise Branch Manager Files Whistleblower Lawsuit Alleging Fraud

According to the Star Tribune, former Ameriprise branch manager Michael Loscalso filed a federal lawsuit alleging he was fired in retaliation for reporting fraud and other violations of regulatory rules.  Under the Dodd-Frank Act, whistleblowers similar to Loscalso are entitled to protection from retaliation and may even be entitled to a monetary reward in return for their reporting of fraud and other violations committed by their employer.

CA Court of Appeals Upholds Sanctions Against Caremark for Underhanded Electronic Discovery Tactics in False Claims Act Case

A California Court of Appeals upheld sanctions against Caremark Rx, LLC for failing to preserve electronic databases of their prescription drugs in a readily-accessible format even though Caremark knew for over two years that lawsuits based on that data were imminent.  The trial court found that:

  1. The electronic data evidence was vital to the litigation;
  2. Caremark had “acted in bad faith in all aspects of the production of their prescription data base;
  3. Caremark had consistently failed to be candid with this court as to the cost and difficulty of retrieval of their prescription data base; and
  4. That in light of the multiple disparate cost estimates, “given without foundation” by Caremark, the court “no longer [had] faith” in Caremark’s ability or willingness to state an accurate estimate for cost of retrieval.

The court granted plaintiff’s motion for sanctions including $43k in attorney’s fees and costs.