In an article titled, “Labor Issues Loom Large,” Human Resource Executive Online reports on the potential impact of President Obama’s 2011 budget on the enforcement of employment laws.  The article discusses the potential impact of Congress providing OSHA with additional funding for investigations and enforcement.

While employment practitioners speculate that increased OSHA enforcement will have a negative impact on employers, Mr. Zuckerman notes that increased enforcement benefits public interest.  Zuckerman observes that misclassification of employees harms the public interest in that employers fail to pay unemployment taxes and to provide health insurance.  Mr. Zuckerman also notes an important benefit of in enforcing discrimination laws.  “An employer who discriminates against employees on the basis of race or gender loses the competitive advantage of having diverse perspectives in its workforce.” 

Mr. Zuckerman is optimistic that increased resources will allow OSHA to improve upon what in his experience are often “inadequate investigations of whistleblower complaints.”  He hopes “that with more financial recourses, OSHA will comply with the statutory mandate to enforce whistleblower-protection laws.”

For more information on Mr. Zuckerman and The Employment Law Group® law firm, click here.

Monday, the DC Council approved the Whistleblower Protection Amendment Act of 2009, which strengthens the DC Whistleblower Protection Act (DC Code § 1-615.51 et seq.) and The Employees of District Contractors and Instrumentality Whistleblower Protection Act of 1998 (DC Code § 2-223.01 et seq.).  The Whistleblower Protection Amendment Act of 2009 eliminates loopholes in the existing DC statutes and provides critical enhancements, including the following:

• Clarifying that a whistleblower need not be an original source of a protected disclosure.  The legislative history states: “prospective whistleblowers should not have to guess about whether a supervisor already knows about misconduct in government.”

• Eliminating the “duty speech” loophole, i.e., protected conduct includes blowing the whistle in the course of performing one’s job duties.  Protected acts under the DC WPA include “disclosure[s] made in the ordinary course of an employee’s duties.”

• Clarifying that retaliatory investigations are a form of actionable retaliation.  The DC WPA now defines retaliation to include “conducting or causing to be conducted an investigation of an employee or applicant for employment because of a protected disclosure made by the employee or applicant who is a whistleblower.”  An investigation includes a fitness for duty examination.

• Extending the statute of limitations to 3 years and clarifying that § 12-309 (the pre-suit notice provision) does not apply to DC WPA claims.  Under the revised DC WPA, a “civil action shall be filed within 3 years after a violation occurs or within one year after the employee first becomes aware of the violation, whichever occurs first.” 

• Clarifying that a DC WPA action can be brought against a DC supervisor or official having personal involvement in the prohibited personnel action.  “Any person” who is found to have participated in prohibited retaliation may be “subject to appropriate disciplinary action including dismissal.”

• Providing a financial incentive for whistleblowing.  In particular, a whistleblower may receive an award of up to $50,000 for providing information that enables the District to recover or prevent the loss of more than $100,000 in public funds. 

• Increasing the civil penalty for retaliation from $1,000 to $10,000.

For information on The Employment Law Group® law firm’s Whistleblower Retaliation Practice, click here.

On November 30, 2009, Judge Jeffrey S. White of the U.S. District Court for the Northern District of California partially denied the defendants’ motion to dismiss in Galli v. Pittsburg Unified School District.  The Court held that an employee’s wrongful termination constitutes an ongoing violation and that reinstatement is prospective injunctive relief from unconstitutional state action.  Accordingly, a request for reinstatement is not barred by the Eleventh Amendment.  The Court also held that since damages sought from Superintendent Barbara Wilson and board member Percy McGee as individuals will not come from public funds, they are not immune from claims that they deprived Mr. Galli of federal rights under the color of state law.  Accordingly, Mr. Galli may proceed against them in their individual capacitates and seek punitive damages. 

This decision is an important victory for public employees.  It shows that it is possible to pierce the veil of immunity surrounding government officials, holding them personally responsible for their violations of individuals’ rights and the law.  Mr. Galli is represented by David Scher, a principal at The Employment Law Group® law firm.  For information on The Employment Law Group® law firm’s Wrongful Discharge Practice, click here. 

On October 22, 2009, a D.C. Superior Court awarded Colin Browne over $282,000 for his former employer’s violations of the D.C. Whistleblower Protection Act (WPA).  This is one of the highest awards under the D.C. WPA to date.  The award comes after a 5 day jury trial.  We first blogged about the verdict in Mr. Browne’s case here.

 Browne was the program coordinator for UDC’s federally funded Career Counseling and Development Center where he worked with UDC’s at-risk students.  He discovered that his supervisors were intentionally misrepresenting the program’s success to secure federal funding.  He took a stand against this fraud and in return he was retaliated against and ultimately fired. 

Regarding the verdict, R. Scott Oswald, Managing Principal with The Employment Law Group® law firm said, “This case is an extraordinary victory for whistleblower protection in the District of Columbia.  I especially wish to acknowledge Mr. Browne who demonstrated tremendous courage and fortitude throughout his tenure at UDC and the course of this litigation.”

For information on The Employment Law Group® law firm’s Whistleblower Practice, click here.

In Thomas v. City of Blanchard, the Tenth Circuit held that the district court erred in concluding that Thomas’s speech was outside the scope of First Amendment protections under Garcetti v. Ceballos, 547 U.S. 410 (2006).  Thomas, a former building code inspector for the City of Blanchard, alleged that he was terminated for blowing the whistle about what he perceived to be false certifications of home inspections.  The district court granted the City’s motion for summary judgment, concluding that Thomas’s speech was not protected under the First Amendment because his report to the Oklahoma State Bureau Investigation (“OSBI”) was made pursuant to his professional duties. 

The Tenth Circuit reversed, concluding that Thomas’s official duties did not include a duty to report perceived criminal violations to the OSBI and thus, his disclosure was protected under the First Amendment.  Finding genuine issues of material fact as to whether Thomas was fired for exercising his First Amendment rights, the Tenth Circuit remanded the case to the district court. 

In Garcetti v. Ceballos, the Supreme Court held that whistleblowing by public employees in the course of performing their official job duties is not protected under the First Amendment as a matter of law.  As a result of the Garcetti decision, many public employee whistleblower retaliation claims have been dismissed on summary judgment.  In a recent decision, Posey v. Lake Pend, the Ninth Circuit held that the question of whether a public employee is speaking on matters of public concern pursuant to her official duties is a mixed question of fact and law, and therefore should be decided by the jury.  This decision is significant because it increases the odds of public employee whistleblower retaliation claims surviving summary judgment where they can prove that:  (1) they spoke on a matter of public concern; (2) the state lacks adequate justification for treating the plaintiff differently from other members of the general public; and (3) there is a genuine issue of material fact as to whether the employee blew the whistle outside the scope of their job responsibilities.