Last week CBS News reported that Jay Palmer, a former principal consultant for Infosys Limited, filed a whistleblower retaliation lawsuit against the information technology firm, sparking a federal investigation by the Department of State and Homeland Security and Senator Charles Grassley (R-Iowa).

Palmer alleges that Infosys used the H-1B and B-1 visa programs to commit visa fraud. According to Palmer, the company used these visa programs to bring to the U.S. Indian workers who would be willing to work for less than American worker:

“[Infosys] could outbid everyone or underbid everybody on every contract (because they were paying less.) For example… if I’m gonna pay you $15,000 a year why would I pay an American or a legal worker $65,000 a year? It makes no – it’s just economics.”

In order to bring Indian workers to the U.S., Infosys first used H-1B visas, a program intended for foreign workers with specialized skills or technical abilities that cannot be found among American workers. However, Palmer states, many workers that Infosys brought to the U.S. under this program lacked the specialized skills necessary to qualify for the H-1B visa program.

Furthermore, Palmer alleges that once the U.S. State Department began to limit the number of H-1B visas issued, Infosys began bringing workers to the U.S. under B-1 visas, which are meant for foreign employees traveling to the U.S. to attend training seminars or conventions.  Because the B-1 program prohibits holders from using the visa to work in the U.S., Infosys maintained a list of “do’s and don’ts” on how to obtain B-1 visas for that prohibited purpose. Palmer says that once he blew the whistle on the company’s illegal practices, Infosys executives retaliated against him.

The Employment Law Group® law firm has an extensive nationwide whistleblower practice  representing employees who have been victims of retaliation.

On January 31, 2012, the Department of Labor’s Administrative Review Board (ARB) affirmed the decision of the Administrative Law Judge (ALJ) in the case of Luder v. Continental Airlines which found that Continental Airlines retaliated against a pilot who blew the whistle on perceived violations of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21). Additionally, the ARB held that the ALJ had improperly granted both back and front pay to former pilot Roger Luder, and remanded the case in order to determine the proper amount of damages.

In 2007, Mr. Luder and a co-pilot were scheduled to fly a Continental flight from Miami to Houston. Prior to departure, Mr. Luder’s co-pilot informed him that the plane had experienced turbulence during the previous flight that had gone unreported. Federal regulations require that planes be inspected after experiencing turbulence and, accordingly, Luder insisted that the plane be inspected prior to taking off and wrote a log entry regarding the turbulence. Subsequent to the incident, Continental temporarily suspended Luder and issued him a “termination warning” letter due to his ostensibly “unprofessional behavior.” Luder eventually claimed to suffer from Post-Traumatic Stress Disorder (PTSD), depression, and anxiety that arose from the retaliation he endure which, in turn, caused him to fail a flight simulator test and then be disqualified from flying.

The ALJ found that Luder’s actions constituted protected activity and that the airline’s actions were ‘materially adverse’ and retaliatory under AIR 21. The ALJ ordered Continental to pay Luder front and back pay as a result of the time he missed from work due to his health problems and also awarded the pilot monetary damages for having suffered retaliation.

Continental appealed the decision to the ARB claiming that Luder’s entry of the turbulence into the logbook was not a protected activity, citing Fabre v. Werner Enters which held that an action undertaken as “an integral part of compliance with the regulations” without further steps does not constitute a protected activity. The ARB, however, rejected this claim and distinguished Luder’s action from the situation in Fabre because Luder had gone above and beyond merely noting the turbulence in the logbook by insisting that the aircraft be inspected and refusing to fly until an inspection had been performed.

In addition to affirming the sufficiency of Luder’s protected activity under AIR 21, the ARB also found that the ALJ had properly ruled that Continental’s temporary suspension of Luder constituted an adverse action under the ‘materially adverse standard’ as the suspension resulted in a loss of wages. The ARB also held that while in some instances a warning letter does not necessarily constitute an adverse action, here the warning letter to Luder constituted an adverse action because having such a letter on file rendered Luder ineligible for an internal transfer according to company policy. Finally, the ARB viewed as significant the ALJ’s finding that the warning letter threatened Luder with further disciplinary action, including termination, and as a result, Luder “would be extremely reluctant to question airline safety because engaging in similar unacceptable behavior would result in his being fired.”

This most recent decision on what constitutes an adverse action against a whistleblower under AIR 21 comes after the Menendez v. Halliburton decision in September 2011 in which the ARB adopted a broad interpretation of the anti-retaliation provision of the Sarbanes-Oxley Act. In Menendez, the ARB noted that adverse actions “[refer] to unfavorable employment actions that are more than trivial, either as a single event or in combination with other deliberate employer actions alleged.”

The Employment Law Group® law firm has an extensive nationwide whistleblower practice  representing employees who have been victims of retaliation, including employees in the airline industry.

Last week the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) ordered Rowan Business Forms, a Salisbury, North Carolina-based commercial printing company, to reinstate and pay over $83,000 in back wages and compensatory damages to a former truck driver after OSHA found reasonable cause to believe that Rowan violated the whistleblower provision of the Surface Transportation Assistance Act (STAA).

The former truck driver alleged that Rowan retaliated against him after he raised concerns in 2009 that the company’s dump truck was leaking brake fluid. According to the former employee, the leaking brake fluid almost caused him to hit a car because the brake pedal went all the way down to the truck floor. He reported this incident to his supervisor and was told by the company manager that the leak would be repaired before the next delivery. However, when the truck driver discovered that the repair had not been performed, he refused to drive the truck because he was concerned about his safety. The company terminated him the following day.

The Employment Law Group® law firm has an extensive whistleblower practice and represents employees nationally who have been victims of retaliation.

Elmwood Place, Ohio Police Sergeant Gary Darty filed a lawsuit two weeks ago in the U.S. District Court for the Southern District of Ohio against Chief William Peskin, who Darty claims retaliated against him after he disclosed to local officials that Peskin had engaged in police misconduct.

Darty wrote a letter to the Elmwood Place Village Council and mayor in July 2011 citing instances in which the Chief of Police committed “unlawful and immoral acts” in the workplace. According to Darty, Peskin destroyed evidence, allowed uncertified officers to use radar guns and chemical spray, poked a handcuffed man until the man’s nose bled, and mistreated officers by firing plastic bullets at them.

Darty claims that Peskin became aware of the allegations in September and suspended Darty for three days for allegedly “lying about how a shift was covered.” According to Darty’s complaint, Peskin continued to retaliate by scheduling Darty to work unfavorable and additional shifts, including on Christmas and weekends. When Darty told Peskin that he could not work a third shift because of his childcare obligations, Peskin responded, “Maybe it’s time to a find a new job.”

The lawsuit also alleges that Elmwood Place Mayor Stephanie Morgan was negligent in investigating the incidents of police misconduct that Darty described in his July 2011 letter.  Under Ohio law, it is mandatory that government officials act upon claims of this nature.

The Employment Law Group® law firm represents employees nationally who have blown the whistle on hostile work conditions and have been the victims of retaliation.

Roy Fastabend, a welder and inspector, alleges that he was fired after reporting that in order to save time and money, a subcontractor cut corners in the construction of the new stadium that will be home to the Florida Marlins.  Fastabend claims to have witnessed  Mike Garcia, a fellow inspector , routinely ignoring engineering specifications and falsifying records, signing off on welds that were never examined.

When Miami-Dade County Inspector General (IG), Chris Mazzella, learned of Fastabend’s complaints, the IG sent the Marlins a letter asking detailed questions about the welding done in the ballpark. The Marlins general contractor, Hunt/Moss, reported that after receiving the Inspector General’s letter, it had many parts of the stadium redone or replaced .  Miami-Dade County then had its engineer of record sign off on the final inspection.

“If people knew what was going on there or how they did things, I mean, I won’t go to that stadium… I won’t take my kids into that place,’’ said Fastabend. “Sadly, it looks beautiful, but there are questions.”

Last week, the Department of Labor’s Occupational Safety and Health Administration (OSHA) sued retail food store chain Whole Foods Market for terminating marketing specialist Bridget Hobart in November 2009 because she had reported health concerns to OSHA after a sewer line ruptured in the Whole Foods store in Miami Beach.  The lawsuit follows an OSHA investigation which found that Whole Foods violated the whistleblower protection provisions of Section 11 (c) of the Occupational Safety and Health Act for terminating Hobart.

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.

The U.S. Office of Special Counsel (OSC) announced its conclusion last week that the Defense Contract Audit Agency (DCAA) violated the Whistleblower Protection Act when it retaliated against Diem-Thi Le for blowing the whistle on fraudulent DCAA practices.

Ms. Le worked for the DCAA as a Senior Auditor for 17 years. In September 2005 Le was performing a routine audit when, according to her statement before the Senate Committee on Homeland Security and Government Affairs, she found “that the accounting system was inadequate in part and, as a result, the contractor was misallocating and mischarging costs to the Government.” Le reported this discrepancy to her supervisor; however, the DCAA ignored her findings and altered them in favor of the contractor. Le contended that supervisors approved findings of compliance not supported by audit work papers or simply changed or deleted findings of noncompliance, because DCAA operated on a metrics-oriented culture, focusing on the quantity of audits performed rather than the quality of the audits.

On November 13, 2005, Ms. Le filed a complaint with the Department of Defense Office of Inspector General (OIG) alleging that DCAA violated the Generally Accepted Government Auditing Standards (GAGAS). According to the U.S. Office of Special Counsel, Le subsequently made the same allegations to the U.S. Government Accountability Office (GOA) and the Defense Criminal Investigative Service (DCIS). However, due to the number of complaints OIG was processing, Le’s complaint was erroneously referred back to DCAA managers.

The OSC executive summary states:

Once DCAA supervisors came to believe that Le made the disclosures about [DCAA’s Santa Ana Branch Office’s] auditing practices, they took a series of retaliatory actions against her. They denied her a cash award for the performance year ending June 30, 2006, although she had received an outstanding performance rating. Then, they lowered Le’s performance ratings in 2007 and 2008 to fully successful, although she had received outstanding performance ratings in each of the four preceding years. They also failed to give Le performance awards in 2007 and 2008.  

The OSC conducted a two year investigation and determined that DCAA “engaged in a pattern and practice of retaliation against Ms. Le for her disclosures.”  The OSC determined that DCAA must take full corrective action, which includes changing Le’s performance ratings to the highest level of achievement, awarding her retroactive performance awards, and lifting a gag order that had been imposed on her. DCAA also offered Le a promotion and the officials that retaliated against Le either reassigned or were disciplined.

The U.S. Occupational Safety and Health Administration (“OSHA”) awarded $99,000 to Gy Bennar, a former Head Greens Keeper at an Oklahoma golf course, for blowing the whistle on illegal wastewater treatment practices. Southwestern Oklahoma Development Authority (“SWODA”) managed the public golf course.

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.

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• TELG Principal Quoted in Law360 on Landmark ARB Decision for SOX Whistleblowers (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

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• 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)
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• Bribery and the Gathering Storm Over Compliance (dealbook.nytimes.com)

In an ADA and FMLA action, a former-Baker & McKenzie LLP associate succeeded in shielding his records of mental health treatment.  Judge Jeffrey Cole held that where a discrimination plaintiff seeks damages for “garden variety” emotional distress and has not put his mental state at issue, i.e., by seeking damages for “severe” emotional distress or claiming a mental disability, records of mental health treatment are shielded by the psychotherapist-patient privilege.  This decision will be helpful for whistleblowers when combating an aggressive defense counsel using a mental examination to harass or intimidate the whistleblower or to buttress the employer’s portrayal of the whistleblower as off balance.

OSHA has ordered Utah Transit Authority (UTA) to reinstate a whistleblower and pay more than $130,000 in back wages with interest and attorney’s fees.  According to the complaint, the UTA fired the whistleblower in retaliation for raising security concerns, which violates the Federal Railroad Safety Act.

For more information about the firm’s Whistleblower Law Practice, click here.

According to the Washington Examiner, a D.C. jury awarded Sean McLaughlin damages for retaliation in violation of the DC Whistleblower Protection Act.  McLaughlin alleged D.C. Police Chief Cathy Lanier, a district commander at the time, threatened police officers with “consequences” if they pursued their claims that the police department’s off-duty reimbursable overtime security detail at Gallery Place was illegal.

For more information about the firm’s Whistleblower Law Practice, click here.

A Warren County Circuit held that a fraud investigator can sue her employer for wrongful discharge under Bowman when the employer interferes with her fraud investigations and subsequently fires her for appearing before a grand jury.  Click here for the full opinion.

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.