After a sewage line ruptured on November 1, 2009, Hobart alerted her supervisor that the sewage was spilling into the workplace, including store restrooms and the specialty cheese department. Hobart alleges that despite her report to her supervisor and the company’s anonymous tip line, no corrective actions were taken. On November 5, Hobart voiced her concerns to another manager and was subsequently fired “for allegedly making false and malicious statements,” according to OSHA.

OSHA is asking that the federal government issue an order against Whole Foods that includes a permanent injunction in order to prevent future violations of whistleblower protections. OSHA is also asking that Whole Foods reinstate Hobart with full benefits and provide her with back pay as well as punitive and compensatory damages.

Over the course of four years, Bennar allegedly witnessed SWODA using water from an adjacent sewage treatment plant to irrigate the golf course. Since the water was not properly chlorinated patrons and workers were exposed to harmful toxins. Bennar reported this to his supervisors but his complaints were ignored.

In March 2010, while Bennar was working towards his wastewater-treatment license from the Oklahoma Department of Environmental Quality (DEQ) Bennar discovered that SWODA was engaging in unlawful irrigation practices. In August 2010, he reported SWODA to Oklahoma’s DEQ, the Environmental Protection Agency (EPA) and the Governor of Oklahoma. A week after he blew the whistle, SWODA terminated Bennar.

OSHA held that the events surrounding SWODA’s termination of Bennar were violations of both the Clean Water Act and the Safe Drinking Water Act. Both acts prohibit retaliation against an employee for reporting violations of antipollution laws. In accordance with federal whistleblower law, OSHA ordered SWODA to pay $99,040 in damages and attorneys’ fees under federal whistleblower law. SWODA must also remove any negative information in Bennar’s file and must refrain from giving any negative references to prospective employers. To prevent future violations, OSHA ordered that SWODA disseminate whistleblower rights material to all of its present and future employees.

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The National Whistleblower Center, National Employment Lawyers Association, and The Employment Law Group® law firm filed an amicus brief in Villanueva v. Core Laboratories NV, a case before the Department of Labor Administrative Review Board (ARB).  Our amicus brief argues that whistleblowers at overseas subsidiaries remain protected under the Sarbanes-Oxley Act (SOX) when the protected activity includes emails to the U.S., and the decision to fire the whistleblower is made in the U.S.

Whistleblower William Villanueva was CEO of Saybolt Columbia, a subsidiary of Core Laboratories NV – a publicly traded company based in Houston, Texas.  In 2008, Villanueva warned executives in Houston that other executives were engaging in illegal tax schemes.  After Villanueva refused to sign a false tax return, Core fired him.  The Sarbanes-Oxley Act prohibits publicly traded companies and their subsidiaries from retaliating against an employee that reports wrongdoing related to:

1. Mail, wire, bank, or securities fraud;
2. Fraud against shareholders; or
3. Violations of any Securities and Exchange Commission rule or regulation.

Related articles

• TELG Principal Quoted in Law360 on Landmark ARB Decision for SOX Whistleblowers (employmentlawgroupblog.com)
• S.E.C. Recoups Bonus of Former Beazer Executive(dealbook.nytimes.com)
• Summary Decision Overturned for Whistleblower in Failure to Hire Case(employmentlawgroupblog.com)

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On May 24, 2010, Mr. Joe Oglesby, a former United States Marine, filed a complaint with the U.S. Department of Labor (DOL), alleging that his former employer, Foresight Transportation Group (Foresight), pressured truck drivers to work more hours than safely allowed and then to falsify their log books to avoid suspicion.  Overturning the findings of a U.S. DOL investigation, Administrative Law Judge (ALJ) Richard Morgan held that Oglesby’s refusal to work more hours than permitted or to falsify records was a “protected activity” under the whistleblower provisions of the Surface Transportation Assistance Act of 1982 (STAA) and Oglesby’s protected activity was the reason Foresight fired him.  The ALJ ordered Oglesby to be immediately reinstated and awarded him $26k in damages, including another $20k in punitive damages.

Joe Oglesby communicated to the U.S. Department of Labor that Foresight fired him for pointing out violations and subsequently refusing to drive his truck in violation of the U.S. Department of Transportation (DOT) hours-of-service rules.  Hours-of-service rules regulate how many hours a truck driver is permitted to drive each day or each week.  For example, a truck driver transporting property may drive a maximum of 11 hours after 10 consecutive hours off duty and must keep a record of his or her hours.  The U.S. DOL investigated Oglesby’s claims; however, DOL determined that Foresight had not violated the whistleblower protections under STAA and dismissed Oglesby’s complaint.  Oglesby appealed the DOL’s findings, and a hearing before an ALJ commenced on March 29, 2011.

At the hearing, Oglesby accused company President Mr. Oleksadr “Alex” Sardak of telling him that his mileage was inadequate and of instructing him on how to falsify his log books so that it would appear he was not violating the hours-of-service regulations.  The disagreement over hours came to a head on March 15, 2010 when Oglesby radioed Sardak to decline a new assignment that would cause him to exceed the maximum hours-of-service.  He had already driven three days with “little to no rest” according to his testimony.  Upon returning to base, he informed the dispatcher, Jerry Rack, that he would not falsify his logs.  He was subsequently summoned to a meeting with Rack and Sardak.  It is Jerry Rack’s statements during that meeting that most clearly illustrate the kind of pressure some companies place on their truck drivers to violate the law:

In this business, I don’t care where you go, what you gonna do. It’s all… one big lie.  Everybody knows it.  Do you think those guys go straight with those log books?  I’ve been doing this for twenty years.  Nobody, not one person ever, did their log books right, nobody.  If I gotta run this truck, and have it straight with the log books, then we’re all out of a job, every single one of us.  Then this business will go down.  You think the customer gives a **** about log books?  Not a tiny bit.  They want their **** picked up in New Jersey in the afternoon and delivered in Chicago the following day.

Oglesby was subsequently fired.  He was also refused his final paycheck.

Protected Whistleblower Activity

Oral complaints to a supervisor, such as the ones made by Oglesby, are protected disclosures under the whistleblower protections of STAA.  Accordingly, the ALJ held:

I find Oglesby’s testimony credible considering his demeanor and consistency, particularly in light of the fact that he admitted, under oath, that he had in fact falsely recorded his times and the fact, recognizing the potential consequences, he challenged a job which would have continued to either require or, at least encourage, him to violate the law.

Furthermore, Oglesby’s refusal to drive a truck in violation of DOT regulations is also protected under STAA.  The ALJ held:

I find, given that Mr. Rack was Mr. Sardak’s “right-hand man”, that the latter knew or reasonably should have known that Mr. Rack was coercing drivers to falsify log books and disregard DOT hours-of-service regulations, which he admittedly did not know. Given that Mr. Rack also acted as a dispatcher, it was imperative he understand hours-of-service rules.  Mr. Rack was not completely ignorant about the general limitations of hours of service rules and explained that Foresight could not operate in compliance with the rules and make money.  He admitted his comments were inappropriate.…Thus, I find Mr. Oglesby established protected activity under the refusal to drive provision.

Adverse Action, Termination, or Discharge

Since Oglesby was fired, it is clear that he received “an adverse employment action.” However, whistleblowers do not have to show that they were fired in every case – they only have to show that their employer took an “adverse employment action” against them.  ALJs apply the whistleblower-friendly “materially adverse” test from the case Burlington Northern & Sante Fe Ry. Co. v. White.  The materially adverse test merely requires that the employer’s action “could well dissuade a reasonable worker from” reporting violations.  In addition, whistleblowers do not have to show that the employer intended to force a resignation.  They only have to show that the employer intended the employee to work under intolerable conditions.

Remedies and Damages

Having found that Oglesby is a whistleblower under STAA, the ALJ reinstated him to his former position.  Additionally, back pay is mandated.  The ALJ awarded Oglesby roughly $26k in back pay including interest.  The ALJ further punished Foresight for its blatant efforts to pressure truck drivers to violate the law by awarding Oglesby an additional $20k in punitive damages.  Lastly, Foresight is required to post a copy of the ALJ’s decision in a prominent location at the facility where Oglesby worked for a period of 180 days.

This case serves as one of many examples of how the United States Department of Labor Occupational Safety and Health Administration (OSHA) has doubled its efforts to combat unsafe working conditions and to reward those whistleblowers who speak out against abuses of authority.

This case was reported as Oglesby v. Foresight Transp. Grp., 2011-STA-16 (June 22, 2011).

Related articles

• DOL ARB Clarifies Broad Scope of Protected Conduct for SOX Whistleblowers in Sylvester v. Parexel International LLC(employmentlawgroupblog.com)
• DOL Decision Expands SOX Whistleblower Protection(lawprofessors.typepad.com)
• U.S. DOL Affirms Undocumented Workers Are Entitled to Unpaid Minimum Wage and Overtime under FLSA (unpaidovertimeblog.com)

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Washington, D.C. — Voices for Corporate Responsibility is hosting a Whistleblower Seminar on Tuesday, May 10, 2011 at the Fairmont Hotel.  The seminar will include whistleblower attorney Jason Zuckerman as a panellist and will consist of two sessions: Will Internal Compliance Requirements Strengthen or Weaken the Law? and Can the SEC Handle the Whistleblower Law? To register for the event and learn how the proposed SEC rules will affect the implementation of the Dodd-Frank Act, click here.

Related articles

• Banker & Tradesmen Quotes TELG Attorney on SOX Ruling in Pezza (employmentlawgroupblog.com)
• Fiscal Times Quotes TELG Attorney About Dodd-Frank Whistleblower Provisions (employmentlawgroupblog.com)
• TELG Attorney Quoted on CFO.com regarding Dodd-Frank Whistleblower Program (employmentlawgroupblog.com)
• Bribery and the Gathering Storm Over Compliance (dealbook.nytimes.com)

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The employment lawyers at The Employment Law Firm® have extensive experience representing those wrongfully discharged.  To learn more about the firm’s practice areas, click here.

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[T]here is nothing in the language of the ERA that carves out an exception limiting whistleblower protection based on an employee’s job duties. To the contrary, the statute protects “any employee” who engages in protected activity. Congress passed the ERA in 1974 as part of its continuing effort to regulate the production, use, and control of nuclear energy. An employee protection provision was added in 1978 to protect employees who assist or participate in any proceeding to administer or enforce the requirements of the ERA or the Atomic Energy Act of 1954. Nuclear safety is encouraged by protecting workers from retaliation because they report safety concerns. “The whistleblower provision in the [ERA] is modeled on, and serves an identical purpose to, the provision in the Mine Health and Safety Act [sic]. They share a broad, remedial purpose of protecting workers from retaliation based on their concerns for safety and quality.” As the court in Mackowiak observed, “The [Secretary's] ruling simply forbids discrimination based on competent and aggressive inspection work. In other words, contractors regulated by [the ERA] may not discharge quality control inspectors because they do their jobs too well.” Congress amended the ERA in 1992 to expand its whistleblower protection to workers who report safety violations to their employers. Because the ALJ erroneously concluded that Vinnett had not engaged in protected activity because he was just doing his job, the ALJ committed reversible error.

This is a significant rejection of the “duty speech” defense and likely applies to all whistleblower protection actions litigated before DOL.

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

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

Procaccini told the court that he loves his work and that he enjoyed this particular case. He said that he respects lawyers who are passionate about their work, calling the trial a “hard fought case” on both sides.

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

R. Scott Oswald, Managing Principal with The Employment Law Group® law firm, stated for the Providence Journal that:

Ms. O’Neill respects the jury’s decision.  She hopes that the jury trial will provide the impetus for the Warwick School Committee to investigate Ms. O’Neill’s grade changing allegations which the evidence at trial showed have not yet been adequately investigated.  She is gratified by the jury’s service and it’s time.

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

“Protected conduct” is to be interpreted broadly and the First Circuit defines it to mean

activities that reasonably could lead to an FCA suit[,] in other words,  investigations, inquiries, testimonies or other activities that concern the employer’s knowing submission of false or fraudulent claims for payment to the government.

United States ex rel. Karvelas v. Melrose-Wakefield Hosp., 360 F.3d 220, 237 (1st Cir. 2004).  A plaintiff, however, need not have known that his actions could lead to a qui tam suit under the FCA, or even that a False Claims Act existed, in order to demonstrate that he engaged in protected conduct. Id.

This opinion confirms the broad scope of protected conduct under the FCA.  Click here for the court’s full opinion.

The whistleblower lawyers at The Employment Law Group® law firm have experience protecting whistleblowers and litigating qui tam actions brought under the False Claims Act.  For more information about TELG’s False Claims Act Practice, click here.