R. Scott Oswald, managing principal of The Employment Law Group®, was recently interviewed and quoted by Workforce Management Magazine on the subject of expanded whistleblower protection under the Dodd-Frank Wall Street Reform and Consumer Protection Act.

In 2010, Dodd-Frank amended the Sarbanes-Oxley Act (SOX) and expanded whistleblower protections to include “nationally recognized statistical rating organizations” which include credit rating agencies.  Additionally, the new laws provide various financial incentives for whistleblowers who report fraud and provide protection for whistleblowers against employer retaliation.

Commenting on these expanded protections for whistleblowers, Mr. Oswald told Workforce Management Magazine, that it is necessary for employers to have a “robust and responsive internal compliance program” to ensure that employers do not violate the laws designed to protect workers who report fraudulent or illegal practices.

Additionally, Mr. Oswald notes that “employees don’t want to become whistleblowers,” rather they typically “have families to support and careers to maintain” but come forward in order to protect themselves from retaliation by their employers.

The article, “Whistling While You Work”, appeared in the April 1, 2012 edition of Workforce Management Magazine.

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

R. Scott Oswald, managing principal of The Employment Law Group® recently published an article in The Washington Post discussing new expansions of employee rights in the areas of whistleblower protection and wage and hour law.

In the piece, Mr. Oswald discussed recent developments in employee protection law that, if ignored, could result in penalties and other sanctions for employers, including: the miscategorization of workers as independent contractors; expansions in the protection afforded by whistleblower laws; and new wage and overtime protection for home healthcare workers.

On the subject of employee misclassification, Mr. Oswald wrote that:

 “in this tough economy, employers may be tempted to miscategorize an employee as an independent contractor in order to skirt requirements to pay unemployment insurance, Social Security, workers compensation and other employee benefits.”

However, employers could face stiff penalties for misclassifying workers, according to Oswald.  Specifically, in Maryland, employers found to be in violation of the law can be liable to pay both restitution to the misclassified worker and a $1,000 civil penalty.  Other states’ protections provide even more protection to employees, for example, according to a recently enacted law in California, employers can be subject to a fine of up to $15,000 for each violation and even up to $20,000 if the employer is found to have engaged in a “pattern or practice of these violations”.

Mr. Oswald also discussed new federal protections for whistleblowers under the Dodd-Frank Act which “has created a national whistleblower standard that applies not only to employees at publicly traded corporations but also to corporations that are regulated by the Consumer Financial Protection Bureau (CFPB).”  Among the industries now affected by the new whistleblower protections include, according to Oswald, “payday lenders, private education lenders, and mortgage finance companies.”

Also highlighted in the article were recent regulatory changes by the Department of Labor which will assist in “reigning in wage abuses in certain industries not traditionally covered by protections, including the home healthcare industry.”   As a result, more home healthcare workers will soon be protected by federal minimum wage and overtime laws, whereas currently there are nearly 30 states that do not offer such workers minimum wage or overtime protections.

As a result of these new laws and regulations, Mr. Oswald commented that “employers must be more careful in how they pay their workers and must be more rigorous in their human resources compliance.”

The Employment Law Group® law firm has a nationwide whistleblower practice representing employees who have been the victims of retaliation, as well as and extensive wage and hour practice representing employees whose rights have been violated, including nonpayment of wages and denial of overtime pay.

The Employment Law Group® law firm’s managing principal, R. Scott Oswald, has published an article in The Rocket Docket News, entitled “Blowing the Whistle in 2012: New Developments in Qui Tam Litigation”. The article focuses on recent developments in the field of qui tam litigation including:

• Recent interpretations of the Fraud Enforcement and Recovery Act of 2009 (FERA) which hold that no proof of specific intent to defraud is necessary to establish False Claims Act (FCA) liability.
• How the Patient Protection and Affordable Care Act (PPACA) amends both the FCA and the Anti-Kickback Statute (AKS) by providing that claims submitted in violation of the AKS automatically constitute per se false claims under the FCA and that an individual “need not have actual knowledge or specific intent to commit a violation of the AKS.”
• The implication that prosecutors need not rely on the implied false certification theory when litigating claims of AKS violations as such violations are now per se false claims under PPACA.
• The continuing relevance of the implied false certification for all other types of FCA claims.
• The effect of the Supreme Court’s recent decision in Schindler Elevator Corp. v. U.S. ex rel. Kirk on the public disclosure bar in qui tam suits.

The Rocket Docket News is the newsletter of the Northern Virginia Chapter of the Federal Bar Association. Mr. Oswald’s article appears in the publication’s Winter 2012 edition.

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

On January 11, 2011 the Air Forces Times featured The Employment Law Group® law firm principal attorney Dave Scher in a story regarding recent whistle-blowing by U.S. Department of Veterans Affairs (VA) physicians.

The story has since been featured in other Gannet Government Media publications including the Army Times, Navy Times, Marine Corps Times, and Military Times.  In addition, the article was mentioned on the Government Accountability Project’s (GAP) Daily Whistleblower News blog.

Cover of January 16, 2011 print edition of Air Force Times

The Air Force Times and the other Gannet publications are weekly newspapers that serve active, reserve, and retired members of the U.S. military and their families by providing news and analysis that is relevant to members of the military community.  The newspapers are among the most widely purchased publications on U.S. military bases and other military installations and, together, have an average weekly circulation of over 240,000.

The article highlighted a current case that arose following allegations that a whistleblower was fired from a VA facility in Northport, New York after complaining about unsafe patient practices and hazardous working conditions. The Employment Law Group® law firm attorney Dave Scher noted that the U.S. Office of Special Counsel substantiated the allegations and that “the special counsel herself went out of her way to praise [the whistleblower’s] courage in a press release.”

The article also profiled other cases in which The Employment Law Group® law firm has advocated for whistleblowers’ rights by assisting VA doctors who claim that “they were fired or harassed for speaking out about problems affecting patient care”.  In these cases, said Scher, the “former healthcare professionals attempted to point out the dangers patients were facing at VA medical facilities.”

“How such rampant disregard for regulations and respect for patients took place is a travesty.  The whistleblowers are stepping forward to protect these patients’ rights as well as their own.”

The original article, entitled “Whistle-blowers Sue VA, Claim Reprisal”, appeared in the January 16, 2012 print edition of the Air Force Times.

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

Dave Scher, Principal of The Employment Law Group® law firm, was interviewed by the Air Force Times, an independent weekly newspaper for U.S. Air Force personnel, retirees, and their families, regarding recent whistle-blowing by U.S. Department of Veterans Affairs (VA) physicians.

Commenting on the case of Dr. Colin Clarke, a whistleblower who was fired after filing a complaining about unsafe patient practices and dangerous working conditions at the Northport, New York VA Medical Center, attorney Dave Scher noted that in November 2011, the U.S. Office of Special Counsel substantiated the allegations and that “the special counsel herself went out of her way to praise [Dr. Clarke’s] courage in a press release.”

The Air Force Times feature article also profiled other cases in which The Employment Law Group® law firm has been involved in assisting VA doctors who claim that “they were fired or harassed for speaking out about problems affecting patient care”.

Specifically, the article mentioned the case of Shen v. Shinseki, in which The Employment Law Group® law firm succeeding in obtaining a rare order from a federal court that prohibited the VA from terminating a Title 38 physician while her complaint was pending.

Additionally, The Employment Law Group® law firm currently represents Dr. Shanker Raja who alleges that patients received improper doses of radiation, and the firm also helped Dr. Carolyn Gaston overturn her suspension after she was suspended for treating critical patients before those with nonthreatening illnesses in a VA medical center emergency room which she claimed was understaffed.

Principal Attorney Scher noted that such management problems frequently occur throughout the VA and that often times “supervisors either don’t know the rules, they don’t follow the rules or they don’t care.”

The article, entitled “Whistle-blowers Sue VA, Claim Reprisal”, appeared in the January 16, 2012 edition of the Air Force Times.

The Employment Law Group® principal attorneys David Scher and R. Scott Oswald wrote an article entitled “Blowing the Whistle,”  which appeared in the October 2011 edition of California Lawyer.  In the article, Scher and Oswald discuss the California Whistleblower Protection Act (CWPA), referring to it as a “robust law that…has limitations and administrative hurdles.” They explain how the CWPA is widely respected, but cluttered with restrictive policies.  Although the CWPA does provide robust protection for employees and whistleblowers, its technical requirements can make the filing of a claim somewhat complicated. By far, the biggest restriction is the fact that CWPA only covers those employed by the state and not those employed by the local government.

Under the CWPA, a state employee must file an administrative claim with the State Personnel Board (SPB), which would then investigate the claim. For state university employees, they must file their claims either to their supervisor or to an internal staff member before they take the matter to a civil court.

If the claimant is seeking damages, the CWPA stipulates that after the State Personnel Board investigates, the employee must bring the matter to the Victim Compensation and Government Claims Board. The board has 45 days to respond to a claim and if it the board rejects the claim, the claimant (employee) has six months to file a lawsuit.  If the board denies the claim because there was no timely response, the claimant has two years to bring the issue before a court.

Oswald and Scher recommend that employees and whistleblowers file their complaints with both the SPB and the claims board. They also recommend that due to the complexities involved, only attorneys with strong knowledge of the administrative requirements of the CWPA handle these cases.

In an article about the whistleblower provisions of the Dodd-Frank Act, the Wall Street Journal quotes Jason Zuckerman, a principal at The Employment Law Group®, regarding defense counsels’ complaint that SEC rules do not prevent a whistleblower from both collecting an award under the SEC whistleblower reward program and also seeking compensation through a securities class action.  Mr. Zuckerman responded by stating: 

As a general proposition, it’s part of a parade of horribles big business has raised.  If corporations are not engaging in violations of securities laws, they don’t have anything to worry about.

Established in July under the Dodd-Frank Act, the SEC whistleblower reward program requires the SEC to reward whistleblowers up to 30% for information regarding fraud that leads to a recovery exceeding $1 million.  Whistleblowers are not required to disclose the violation to their employer through a Sarbanes-Oxley mandated internal compliance program, but newly proposed SEC rules may increase the whistleblower’s reward for disclosing to their employer first.  For more information about The Employment Law Group® and its SEC Whistleblower Practice, click here.

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.

Jason Zuckerman, a principal at The Employment Law Group®, will lecture on “New Developments in Whistleblower Law and Effective Strategies for Prosecuting Whistleblower Retaliation Claims” on November 3, 2010 in Chicago, IL.  New whistleblower provisions in the Dodd-Frank Act and other recently enacted federal whistleblower protection laws will be discussed.  He will also touch on recent whistleblower case law, new trends in OSHA’s enforcement of whistleblower protection statutes, effective strategies for prosecuting whistleblower retaliation claims, surmounting common defenses, avoiding counterclaims, and pursuing parallel or overlapping claims.  For more information about The Employment Law Group® and its Whistleblower Law Practice, click here.

The U.S. Office of Special Counsel (OSC) issued a press release and a letter addressed to President Barack Obama substantiating Mr. Russ Daul’s allegations that the Department of Defense (DOD), Defense Technical Information Center (DTIC) misappropriated funds.  According to the OSC, DTIC violated the Economy Act, 31 U.S.C. § 1535 by improperly collected fees in excess of its actual costs and did not return the surpluses to its DOD customers.  Mr. Daul is the former Director of the Resource Management Directorate at DTIC and is represented by R. Scott Oswald at The Employment Law Group®.  For more information about The Employment Law Group® and its Federal Employee Representation Practice, click here.

The U.S. Department of Justice filed a brief in U.S. District Court for the Eastern District of Virginia rejecting Nelnet, Inc.’s contention that its settlements with the Department of Education (ED) bar Oberg’s qui tam action.  Dr. Jon H. Oberg, a former employee of the Department of Education, brought a qui tam seeking the return of approximately $1 billion that student loan companies obtained through false pretenses.

Nelnet reached a settlement with the Department of Education under which the company would stop receiving overpayments.  However, the agreement did not require Nelnet to return any of the nearly $1 billion in overpayments it had already received.  In its brief, the U.S. Department of Justice stated, “. . . it is clear from statutory and other authority that Congress has committed exclusive authority to settle claims of fraud, including FCA claims, to the Attorney General” and furthermore that Nelnet has not presented evidence that the Department of Education even intended to release the company from FCA liability.  For the full brief, click here.

The plaintiff is represented by Wiley Rein LLP and The Employment Law Group® law firm.  For more information about the firm’s Whistleblower Law Practice, click here.
 

On December 31, 2009, in a case of first impression, the Fourth Circuit held in Stone v. Instrumentation Laboratory Company that a Sarbanes-Oxley (SOX) complainant may seek de novo review in federal court after the complaint has been pending before DOL for over 180 days without a final decision by the Secretary of Labor.  In Stone, the whistleblower lost a Motion for Summary Decision before the DOL’s Administrative Law Judge (ALJ) and successfully petitioned the Administrative Review Board (ARB) for review.  Before his initial brief was due, Stone followed all necessary procedures and brought an action in federal district court seeking de novo review.  The employer filed a Motion to Dismiss which the district court granted, relying on comments in DOL implementing regulations stating that “the Secretary anticipates that Federal courts will apply [preclusion] principles” when a SOX claim is removed to federal court.  The district court held that allowing de novo review of a “final judgment” would be absurd and an inefficient use of judicial resources.  The district court remanded the case to the ARB for a faster review of the ALJ’s decision. 

On appeal, the Fourth Circuit unequivocally rejected the lower court’s decision, finding that:

• The ARB’s dismissal of a SOX claim due to the complainant’s removal of the case to federal court  does not result in a final decision being issued by the Secretary of Labor;

• Comments from the Secretary of Labor do not inform the literal interpretation of a federal statute, nor do they override congressional intent;

• Congress, in enacting SOX, “expressly provided for de novo non-deferential review in district court;”

• Deferring to an administrative agency, “even if more efficient, is in direct conflict with the unambiguous language of [SOX];”

• “‘Courts do not, of course, have free rein to impose rules of preclusion. . . the question is not whether administrative estoppel is wise but whether it is intended by the legislature.’”

In essence, the Fourth Circuit held that a right to a de novo review means just that.  “The plain language of § 1514(b)(1)(B) unambiguously establishes a Sarbanes-Oxley whistleblower complainant’s right to de novo review in federal district court if the DOL has not issued a ‘final decision’ and the statutory 180-day period has expired.”

Mr. David R. Stone is represented by Adam Augustine Carter and R. Scott Oswald, Principals at The Employment Law Group® law firm.  To learn more about the firm’s Sarbanes-Oxley Whistleblower Practice, click here.

On December 15, 2009, The Employment Law Group® law firm participated in the launch of Voices for Corporate Responsibility (Voices).  Voices is a project sponsored by Grant & Eisenhofer P.A., Mehri & Skalet, PLLC, and The Employment Law Group® law firm.  Its mission is to help and encourage corporate employees to take a stand against corporate wrongdoing and irresponsibility.  The project aims to facilitate participation in legislative and regulatory reform and provide a networking environment for those who have been injured as a result of wrongful conduct. 

Among the speakers at the event were David E. Welch and Jon Oberg.  Dr. Welch is the first whistleblower to win a case before an Administrative Law Judge under the Sarbanes-Oxley whistleblower provision.  The Employment Law Group® law firm wrote an amicus curiae brief in support of Dr. Welch. Dr. Oberg is a TELG client currently bringing suit against several student lending companies seeking the return of $1 billion in “special allowances” wrongfully extracted from the United States Department of Education. 

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

Tom Harrington, an associate at The Employment Law Group® law firm, was quoted in a December 3, 2009 article published by The Raleigh News & Observer.  The article, “Tony Rand accused of insider trading,” discusses accusations of insider trading by Paul Feldman, the former President of Law Enforcement Associates.  Mr. Feldman claims he was unlawfully terminated after leading LEA for more than 19 years.  He has filed an administrative complaint with the Department of Labor alleging LEA fired him because he disclosed information to federal authorities, and participated in investigations by federal authorities, about conduct by LEA that violated rules of the Securities and Exchange Commission, federal laws, rules and regulations relating to securities fraud and fraud against shareholders, and various other federal laws.  His insider trading allegations implicate as many as 50 North Carolina politicians.  North Carolina state senator Tony Rand, chairman of LEA’s board, recently announced that he will step down from his position as Senate Majority Leader. 

Mr. Feldman is represented by The Employment Law Group® law firm.  To learn more about the firm’s Whistleblower 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.