R. Scott Oswald, managing principal of The Employment Law Group® law firm was recently interviewed by Law360 regarding the Department of Labor’s Occupational Safety and Health Administration’s (OSHA) announcement last week that it plans to establish an a Whistleblower Protection Advisory Committee dedicated to improving OSHA’s whistleblower protection efforts.

The proposed committee would fulfill and advisory role and make recommendations to the Secretary of Labor on ways to improve the effectiveness and transparency of OSHA’s administration of whistleblower protection laws.  The committee would advise on the development and implementation of “improved customer service models” for both whistleblowers and employers, as well as recommend changes to investigator training, and regulations governing OSHA investigations.  The move, according to commentators, highlights the government’s reinvigorated focus on protecting employees who report unsafe working conditions, violations of financial and securities law, or other violations.

The proposed committee would likely be comprised of a cross-section of stakeholders representing both employee and management perspectives and would function as a public forum to discuss the whistleblower program.

According to Mr. Oswald, “a committee that includes a broad range of perspectives would also serve to continue the discussions that OSHA had with stakeholders in its efforts to develop the changes it has made so far to improve the process for whistleblowers and corporations.”

Last year OSHA, which enforces the whistleblower provisions of 21 statutes that protect employees who blow the whistle on violations, completed an exhaustive internal review of its whistleblower program and subsequently announced a restructuring of the program, as well as new updates to OSHA’s investigator manuals.

Furthermore, Oswald commented that OSHA’s establishment of an advisory committee “is a continuation of that process meant to ensure that the pragmatic changes that OSHA has established do not in any way erode over time because there will be a group of individuals that have a vested interest in whistleblower programs’ success.”

The article, entitled “OSHA Steps Up Efforts To Revamp Whistleblower Program”, appeared in the May 21, 2012 edition of the web-based legal news service, Law360.

The Employment Law Group® law firm is a leader in the field of whistleblower law and has an extensive nationwide whistleblower practice representing employees who have exposed illegal activity by their employer.

R. Scott Oswald, managing principal of The Employment Law Group® law firm, was recently interviewed by Law360 regarding the Whistleblower Protection Enhancement Act (WPEA), which the U.S. Senate unanimously passed last week.

If also passed by the U.S. House of Representatives, the WPEA would expand whistleblower protections against retaliation by making it easier for whistleblowers to claim protected status, by eliminating the Federal Circuit’s exclusive appellate jurisdiction over certain whistleblower cases for a period of five years, and by allowing jury trials under certain circumstances for employees who sue agencies that retaliate against whistleblowers.  Additionally, if enacted, the WPEA would extend whistleblower rights to approximately 40,000 airport baggage screeners.

Since 1994, whistleblowers have only prevailed in 3 out of 220 retaliation lawsuits heard by the Federal Circuit.  According to Mr. Oswald, “The Whistleblower Protection Enhancement Act takes direct aim at the Federal Circuit precedents by [extending] protection to several new classes of employees, including employees of the Transportation Security Administration and intelligence agencies”.

“This is a critical reform,” Oswald stated, “Whistleblowers will know their disclosures won’t be held against them if they come forward with that information in good faith.”

Oswald also emphasized that the WPEA would “restore protections intended by the original Whistleblower Protection Act by protecting communications related to an employee’s official duties and communication with supervisors.”  This, according to Oswald, “[could] help agencies deal with fraud or other problems internally”.

“We want individuals to make disclosures at the lowest possible level and not feel like they have to file a complaint with the inspector general in every instance,” Oswald said.

Finally, Oswald noted, the law would also “expressly prohibit relocation or revoking an employee’s security clearance as retaliation for blowing the whistle, which can amount to retaliatory firing by other means for some employees.”

The article, entitled “Senate Bill Would Boost Whistleblowers’ Chances In Court”, appeared in the May 15, 2012 edition of the web-based legal news service, Law360.

The Employment Law Group® law firm is proud to announce that two of its principal attorneys – Adam Augustine Carter and Nicholas Woodfield – have been selected as 2012 Washington, D.C. Super Lawyers.

Adam Augustine Carter has spent most of his 20 year career as a litigator representing employees and whistleblowers.  Mr. Carter has been praised by clients, counsel, and courts for his effective advocacy and his tremendous problem solving abilities.  Mr. Carter is very experienced representing employees who bring claims against their employers involving wrongful termination, retaliation, contract disputes, employment discrimination, Sarbanes-Oxley (SOX), for violations of USERRA, FMLA, and for violations of other federal and/or state civil rights laws

Nicholas Woodfield is a veteran trial attorney who concentrates his practice on Fair Labor Standards Act wage non-payment and misclassification claims, state law wage non-payment claims, Sarbanes-Oxley whistleblower complaints, False Claims Act (qui tam) claims, and discrimination and retaliation cases. Mr. Woodfield has recovered millions of dollars in unpaid overtime and wages for his clients and currently serves as President of the Virginia Employment Lawyer’s Association

Super Lawyers is a rating service of attorneys who have obtained a high degree of professional achievement and peer recognition.  Super Lawyers selects attorneys using a multiphase, rigorous rating process that includes peer nominations, peer evaluations, as well as independent research.

R. Scott Oswald, managing principal of The Employment Law Group® law firm was recently interviewed by Law360 on a recent Department of Labor Administrative Review Board (ARB) decision establishing a lighter burden of proof for whistleblowers under the Sarbanes-Oxley Act (SOX).

The decision, Zinn v. American Commercial Lines Inc., ARB No. 10-029, ALJ No. 2009-SOX-25 (ARB Mar. 28, 2012), involved an in-house attorney, Angela Zinn, who blew the whistle on allegedly unsafe maritime transport practices while employed by the shipping company American Commercial Lines Inc.  The ARB’s decision held that whistleblowers need not establish that their employer’s allegedly legitimate reason for taking action against them was pretextual.

According to Oswald, who represents employees and whistleblowers, “management-side lawyers have fought to graft this tougher burden-shifting standard onto SOX cases, but the decision demonstrates that the DOL is not having it.”

In the decision the ARB “rejected emphatically the notion that an employee has a burden to demonstrate that the employer’s proffered reason is pretextual,” Oswald noted.

Regarding the effect of the ARB’s decision, Oswald stated: “I think this makes it clear that there will be fewer and fewer of these kinds of cases that can and should be adjudicated before an evidentiary hearing.”

According to the rationale underlying the ARB’s recent decision, DOL Administrative Law Judges should now let cases proceed “unless the employer meets its burden to show through clear and convincing evidence that the same adverse action would have been taken regardless of the alleged protected activity at issue, and that,” according to Oswald, “[was] what Congress intended.”

The article, entitled “DOL Ruling Makes SOX Whistleblower Cases Harder To Beat”, appeared in the May 1, 2012 edition of the web-based legal news service, Law360.

The Employment Law Group® law firm is a leader in the field of whistleblower law and has an extensive nationwide whistleblower practice representing employees who have exposed illegal activity by their employer.

R. Scott Oswald, managing principal of The Employment Law Group® law firm, was recently interviewed by Law360 and provided commentary on a report that the U.S. Securities and Exchange Commission (SEC) may have inadvertently exposed the identity of a corporate whistleblower.  Last week the Wall Street Journal reported that the SEC had unintentionally revealed the identity of a whistleblower during the course of the agency’s investigation of Pipeline Trading Systems LLC.

Some commentators have predicted that because of the SEC’s purported slipup, whistleblowers may be less likely to come forward, fearing that their anonymity may be compromised.  However, in his interview on the subject with Law360, Oswald, who represents employees and whistleblowers, noted that the reason that many whistleblowers decide to file a complaint with the SEC is because the whistleblowers have already complained to their employers to no avail.

Specifically, according to Oswald, “once [whistleblowers] have made the decision that the company is not going to act responsibly, they’re going to go to the SEC.”

“If anything”, Oswald said “the SEC’s goof would persuade potential whistleblowers to file anonymous complaints through counsel, rather than going directly to the commission”.

The article, entitled “SEC Whistleblower Reveal Won’t Sink Program, Attys Say”, appeared in the April 25, 2012 edition of the online legal news and commentary service, Law360.

The Employment Law Group® law firm is a leader in the field of whistleblower law and has an extensive nationwide whistleblower practice representing employees who have exposed illegal activity by their employer.

According to The Employment Law Group® law firm’s managing principal, R. Scott Oswald, “2011 marked a sea change for whistleblowers at the Department of Labor’s Administrative Review Board (ARB).”  The Sarbanes-Oxley Compliance Journal recently published an article by Mr. Oswald which discusses the impact of recent ARB decisions on whistleblower protection and describes why “2011 was an important year for whistleblowers.”

In the article, Oswald highlighted 2011’s significant developments in whistleblower law, noting that “the ARB changed the standard of proving protected activity, embraced the concept of corporate knowledge, established the most generous standard for an adverse action in employment law, and established the fact that most Sarbanes-Oxley cases should proceed to an evidentiary hearing.”

Specifically, Oswald discussed the significance of the following 2011 ARB decisions:

• In Sylvester v. Parexel International LLC, ARB No. 07-123, ALJ Nos. 2007-SOX-039, 042 (May 25, 2011), the ARB affirmed that whistleblowers are protected under SOX even when mistaken and held that an employer’s disclosure of the whistleblower’s identity constitutes an adverse employment action, and, finally, found that whistleblowers can establish causation by showing that their whistleblowing activity was merely a contributing factor in the employer’s decision to take the adverse employment action.
• In Funke v. Federal Express Corporation, ARB No. 09-004, ALJ No. 2007-SOX 043 (ARB July 8, 2011), the ARB expanded whistleblower protections by confirming that an employee’s disclosure that a FedEx customer was using FedEx services to engage in mail fraud was protected activity under SOX, as was the whistleblower’s reporting of the customer’s conduct to local law enforcement.
• In Vannoy v. Celanese, ARB No. 09-118, ALJ No. 2008-SOX-064 (ARB September 28, 2011) the ARB “relieved whistleblowers from the heavy burden of proving their claims without using any of the employer’s confidential information,” whereas previously, Oswald noted, “whistleblowers could be subject to serious penalties for doing so.”
• In Menendez v. Halliburton, ARB Nos. 09-002, 09-003, ALJ No. 2007-SOX-005 (ARB September 13, 2011) the “ARB affirmed that whistleblowers are protected under SOX even when they are mistaken about the nature of their complaints” and held that an employer’s disclosure of the whistleblower’s identity constitutes an adverse employment action.
• In Johnson v. Siemens Bldg. Techs, Inc., ARB No. 08-032, ALJ No. 2005-SOX-015 (ARB March 31, 2011) the ARB “declared that whistleblowers may seek SOX’s protections from non-publically traded subsidiaries of publically traded companies.”
• Finally, in Villanueva v. Core Laboratories, ARB No. 09-108, ALJ No. 2009-SOX-006 (ARB December 22, 2011) the ARB “found that SOX can protect disclosures of violations of United States law by foreign whistleblowers who work for foreign branches or subsidiaries of United States companies”.  In the article, Mr. Oswald noted that, “as a result” of this decision, “even complaints to foreign compliance offices should be taken seriously and investigated when the violation claimed refers to U.S. law” because “foreign offices or subsidiaries can still violate U.S.s securities laws and resolutions.”

In addition to ARB decisions expanding whistleblower protections, 2011 also saw “the Consumer Financial Protection Bureau extend whistleblower protections to new industries pursuant to the Dodd Frank Act of 2010 – most recently payday lenders, student loan companies and mortgage finance companies”.

With this expansion of whistleblower protection, according to Oswald, “the ARB’s influence over the scope and contours of whistleblower protection, articulated in its precedents in 2011, will be felt for years to come by employers in areas of the US economy that may have had few, if any, whistleblower protections before.”

The article, entitled “More Protection for Whistleblowers”, was published in the April 25, 2012 edition of the Sarbanes-Oxley Compliance Journal and was also syndicated in Compliance Daily, as well as Governance, Risk Management & Compliance Daily.

The Employment Law Group® law firm is a leader in the field of whistleblower law and has an extensive nationwide whistleblower practice representing employees who have exposed illegal activity by their employer.

R. Scott Oswald, managing principal of The Employment Law Group® law firm will serve as a panelist in an upcoming presentation to the District of Columbia Bar on April 18, 2012.

In the seminar – “Recent Developments in Whistleblower Rules: Opportunities and Risks” – Mr. Oswald will speak as part of a panel comprised of government whistleblower enforcement officials and private practitioners including:

• Carolyn Hahn, Consumer Financial Protection Bureau (CFPB)
• Vincent Martinez, U.S. Commodity Futures Trading Commission (CFTC)
• Larry Ellsworth, Jenner & Block
• Thomas Willcox, Law Offices of Thomas C. Willcox
• Michael G. McLellan, Finkelstein Thompson LLP (Moderator)

The seminar will focus on recent developments in federal whistleblower law and regulations in the areas of whistleblower protection, enforcement actions, and monetary awards for whistleblowers.  Additionally, the panelists will discuss the opportunities and risks provided by these developments and will provide guidance to practitioners in the field of whistleblower law.

The program is being held at Weil, Gotshal & Manges LLP in Washington, D.C. from 6:00 to 8:00pm.  The D.C. Bar’s Antitrust and Consumer Law Section is sponsoring the event, in conjunction with the Administrative Law and Agency Practice Section, the Corporation, Finance and Securities Law Section, the Litigation Section, the Taxation Section, and the Tort Law Section.

The Employment Law Group® law firm is a leader in the field of whistleblower law and has an extensive nationwide whistleblower practice representing employees who have been victims of retaliation.

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.

In detailing its recent announcement of a major restructuring of the Occupational Safety and Health Administration’s (OSHA) Office of the Whistleblower Protection Program, the U.S. Department of Labor thanked The Employment Law Group® for its input in the program restructuring project.

The acknowledgement came in a Department of Labor report entitled “OSHA’s Whistleblower Protection Program Review: Findings and Recommendations”. In the Acknowledgements section of the report, OSHA thanked The Employment Law Group® for “providing its thoughts and ideas on how to improve the program”.

The Department of Labor consulted with The Employment Law Group® and other outside stakeholders and requested their views on OSHA’s administration of its whistleblower program. The Department of Labor’s team assigned to the restructuring project met with R. Scott Oswald, managing principal of The Employment Law Group® on September 16, 2010 and Mr. Oswald shared his opinions regarding the state of the OSHA whistleblower program.

Among the observations and suggestions Oswald offered to the Department of Labor and listed in the restructuring report were the following:

• Whistleblower investigators need to be trained and held accountable for their work
• There is a level of hostility by some investigators
• In some whistleblower investigations, decisions are made before the complainant or witness interviews take place. When interviews do take place, there are no probing questions
• Within the whistleblower program and during investigations there is a lack of transparency within OSHA
• Investigators are not fully testing the evidence
• OSHA is not affording witnesses and employees the opportunity to speak with OSHA without the presence of management. This step would help keep interviews confidential
• OSHA needs to form a greater partnership with the complainant’s attorneys
• OSHA should emphasize early resolution of whistleblower complaints
• Believe in mediation. Mediation should be mandatory
• OSHA should create a national mediation office
• OSHA creates roadblocks to access of information obtained during the investigation
• General attitude by whistleblower investigators is how can they get the case off their desk
• Investigators need training on conflict resolution
• During the course of an investigation, if there are additional claims of adverse action, OSHA must amend the complaint and notify the respondent of the amendment
• Under all the new statutes the burden of proof was changed from motivating to contributing, we find that investigators are either not trained on the difference, have not applied the difference or refuse to accept the difference
• OSHA should provide investigators with annual legal training

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

Dave Scher, Principal of The Employment Law Group® law firm, was recently interviewed and quoted by Lawyers USA, a national newspaper focused on news and trends in litigation, as well as law practice management.

Commenting on recent media attention given to corporate rule-breaking and the employees who report it, Mr. Scher noted that “[as] retaliation claims become more and more prevalent, whistleblower type claims are expanding.”

Indeed, the Department of Justice (DOJ) recently announced that it recovered a record-setting $3 billion in False Claims Act settlements for fiscal year 2011, bringing the total recovered since 2009 to $8.7 billion. Similarly, the Department of Health and Human Services (HHS) announced last month that federal agencies succeeded in recovering over $4 billion in fraudulent healthcare payments in 2011.

Noting the variety of whistleblower statutes under federal and state law, Mr. Scher said that the difficulty faced by whistleblowers seeking to bring lawsuits for retaliation against their employers often depends on state laws that specifically cover the conduct reported by whistleblowers. For example, in Virginia, Mr. Scher commented that “you have to have an express statute” and that “[it’s] very, very difficult” to link reported conduct to a covered activity.

The article, entitled “Whistleblower Claims Fueled by Unemployment”, appeared in the February 2012 edition of Lawyers USA.

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

On December 22, 2011, the Department of Labor’s Administrative Review Board (ARB) issued a 3-2 en banc decision that limits the application of the Sarbanes-Oxley Act (SOX) outside of the United States.

The case, Villanueva v. Core Laboratories, ARB No. 09-108, ALJ No. 2009-SOX-006 (ARB December 22, 2011), centered around a whistleblower complaint filed by Colombian citizen William Villanueva. Mr. Villanueva was the CEO of Saybolt Colombia, a subsidiary of Core Laboratories NV, a Dutch company which maintains an office in Houston, Texas and whose securities are publically traded on the New York Stock Exchange.

In 2008 Villanueva alleged that he was the victim of adverse employment actions, including termination from his job, after he warned executives in Houston that other executives were engaging in illegal tax schemes. After Villanueva refused to sign a fraudulent tax return, Core Laboratories purportedly terminated him.

Villanueva then filed a complaint with the Occupational Safety and Health Administration (OSHA) alleging that the Saybolt had violated SOX by retaliating against him and that SOX should protected him as a whistleblower since Core Laboratories is based in the U.S. OSHA dismissed Villanueva’s complaint, after which Villanueva requested a hearing with an Administrative Law Judge (ALJ).

The ALJ dismissed Villanueva’s complaint for a lack of subject matter jurisdiction, reasoning that while the case had domestic components, the principal part of the case was extraterritorial and that SOX did not apply extraterritorially.

On August 6, 2009, Villanueva appealed the ALJ dismissal to the ARB arguing that because executives working at the Core Laboratories headquartered in the U.S. had engaged in fraudulent practices and retaliation, the case did not require extraterritorial application of SOX.

The ARB affirmed the ALJ’s dismissal of the lawsuit, ruling that SOX applies only to disclosures relating to U.S. laws and that the fraud Villanueva alleged involved only Colombian laws with no stated violation or impact on U.S. securities or laws. Additionally, the ARB wrote that the fact that Villanueva reported the alleged misconduct to Core Laboratories executives in Houston does not change the foreign nature of the alleged fraud.

The primary result of the Villanueva decision – and one that has surprised many commentators – is that the ARB rejected the “cause” or “decision-maker” test which had previously been used in favor of an “effects” test. The effects test looks to the effect of the conduct at issue and whether it implicates U.S. law, rather than the origin of the conduct, as the relevant factor for determining whether SOX applies internationally.

Because the ARB’s focus in Villanueva was that the whistleblower had only complained of violations of foreign laws, the ARB required the whistleblower to prove an actual violation of law in order to have a viable whistleblower retaliation claim under SOX.  This conflicts with the ARB’s recent decision in Sylvester v. Parexel Int’l, ARB No. 07-123, ALJ No. 2007-SOX-039 (ARB May 25, 2011), in which the ARB held that a complainant need not prove or identify the law believed to have been violated in order in order to constitute protected activity under SOX.

Judge E. Cooper Brown, Deputy Chief Administrative Appeals Judge, dissented from the majority’s decision in Villanueva, writing that the primary focus of SOX is not the underlying fraud, or even the location of the protected conduct, but rather the retaliation against an employee for blowing the whistle on potential fraud. The majority’s view, according to Judge Brown, was inconsistent with Congress’ intent in passing the Dodd-Frank Act’s strengthening amendments to SOX. According to Judge Brown:

“To construe the legal presumption against extraterritoriality as a bar to claims such as that presented by Villanueva constitutes, in my estimation, a legally indefensible restriction on the protection that Congress intended Section 806 to afford to covered employees.”

Additionally, Judge Brown wrote that the majority’s decision in Villanueva ignores the public policies underlying the original intent behind SOX, the recent amendments broadening SOX, the new causes of action under Dodd-Frank, and the ARB’s own recent decision in Sylvester.

Villanueva’s attorneys intend to file a petition for review of the ARB’s decision with the U.S. Court of Appeals for the Fifth Circuit by the filing deadline on February 17, 2012.

As a result of the ARB’s decision, compliance professionals would now need to investigate and take seriously any complaints that relate to or implicate U.S. laws or have an effect within the U.S. Additionally, foreign offices or subsidiaries can still violate U.S. securities law and regulations, as long as an alleged violation refers to U.S. law.

The Employment Law Group® law firm is a leader in the field of whistleblower law and, together with the National Whistleblower Center and the National Employment Lawyers Association, filed an amicus brief in the Villanueva case.

R. Scott Oswald, managing principal of The Employment Law Group® law firm will serve as a panelist in an upcoming presentation to the Northern Virginia Chapter of the Federal Bar Association on March 7, 2012.

The topic of the Continuing Legal Education (CLE) seminar is “Blowing the Whistle in 2012: New Developments in Qui Tam Litigation” and will focus on a discussion of recent developments in qui tam litigation including:

• New law on the false certification theory;
• The first-to-file bar;
• The public disclosure bar;
• Other elements and defenses for False Claims Act (FCA) cases in the Eastern District of Virginia

The seminar will include both relators’ counsel and defense attorneys who will discuss FCA liability following amendments and regulatory changes in recent years.  In addition, the talk will include a discussion on practical considerations in qui tam relator suits including:

• What relators’ attorneys consider in choosing potential claims;
• The factors used by the U.S. Attorney’s Office in deciding whether to intervene;
• Litigation of FCA retaliation claims along with pending relator lawsuits

The seminar is being held in at the Westin in Alexandria, VA from 12:00-2:30pm.  Registration will remain open until February 29, 2012.  The Northern VA Chapter of the Federal Bar Association is offering a discount on registration fees to government attorneys to encourage participation

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

R. Scott Oswald, Managing Principal of the The Employment Law Group® law firm, was recently interviewed by Federal Times, a weekly newspaper focused on providing insight into issues affecting U.S. government managers and other decision makers.

On January 25, 2012, six current and former Food and Drug Administration (FDA) employees filled a lawsuit in the U.S. District Court for the District of Columbia alleging that the FDA violated their constitutional privacy rights. The employees claim that the FDA monitored the employees’ emails sent from private accounts over a period of two years. The lawsuit also alleges that the employees were targeted for their whistle-blowing after they expressed concern to Congress that the FDA has approved purportedly unsafe medical devices.

The FDA terminated two of the employees and did not renew the contracts of another two following the whistleblowers’ decision to come forward and report the approval of medical products they believed were unsafe.

Responding to the FDA’s alleged intrusion into the whistleblowers’ private emails, Mr. Oswald told the Federal Times:

“I think the FDA went too far in its zeal to monitor these employees. Employers who access [and] retain emails or other electronic stored information from a third-party server risk violating an employee’s privacy interest.”

The article, “When Can Agencies Monitor Your Email? FDA Case Sparks Debate Over Policy”, appeared in the February 5, 2012 edition of the Federal Times.

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

Morris Jones of Capital Insider interviewed The Employment Law Group® law firm attorney Adam Augustine Carter on the recent changes in whistleblower and employment law that will affect employees in 2012.

The points Mr. Carter makes are that:

1. There are almost 2 million home health aides and in-home care providers working in our country. Now with new regulations these workers will get overtime and minimum wage protections.
2. There are now in effect regulations that implement the amendments to the Americans With Disabilities Act (ADAAA) that broaden the definition of who is covered as having a disability and the key change is that an impairment does not need to prevent or severely or significantly restrict a major life activity to be considered to be “substantially limiting” the activity.
3. Revisions to the Sarbanes-Oxley whistleblower regulations clarify and improve the procedures for handling Sarbanes-Oxley whistleblower complaints and implement statutory changes enacted into law as part of the 2010 Dodd-Frank Wall Street Reforms.
4. The Department of Labor’s Administrative Review Board has changed the landscape in 2011 for whistleblowers under Sarbanes-Oxley and the new Dodd Frank amendments to make these laws more powerful for whistleblower claims to succeed and for whistleblowers to be protected so that they don’t have to choose between their job and doing the right thing.

Related articles

• TELG Principal Quoted in Law360 Regarding New Sarbanes-Oxley Whistleblower Regulations (employmentlawgroupblog.com)
• TELG Principal Attorney Adam Augustine Carter Quoted in Bloomberg Article (executivecounselblog.com)
• U.S. DOL ARB Ends Landmark Year Holding Summary Decision Improper Unless Employer Proves Sarbanes-Oxley Act Does Not Apply (employmentlawgroupblog.com)

The U.S Department of Labor’s Occupational Safety and Health Administration (OSHA) is suing RockTenn Corporation, a consumer packaging manufacturer based in Norcross, Georgia for allegedly violating whistleblower protection laws at its Fernandina Beach plant.  The lawsuit alleges that an employee at the plant had repeatedly raised serious and credible safety concerns with managers, and that those managers ignored the employee’s concerns.

On June 1, 2009 the employee called the local OSHA office and relayed his continued safety concerns regarding plant operations.  RockTenn suspended the employee on June 18 and then terminated him on June 23 for allegedly giving inaccurate and untruthful testimony during an internal investigation. OSHA concluded that the company had unlawfully and intentionally terminated the worker’s employment for engaging in activity protected by the Occupational Safety and Health Act.

Teresa Harrison, OSHA’s acting regional Administrator in Atlanta stated:

“Employees have the congressionally-mandated right to engage in safety-related matters at their workplace, including participating in accident investigations and contacting OSHA at any time.  We will hold employers accountable for limiting or deterring any employee who exercises these rights.”

The lawsuit asks the court to order remedies that include reinstating the employee; paying back wages and benefits; paying punitive and compensatory damages; and expunging the employee’s personnel records with respect to the matters at issue in the case.  The suit also requests a permanent injunction against future violations of this law by the employer.