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Best Law FirmsThe Employment Law Group® law firm represents employees who stand up to wrongdoing in the workplace. If you did the right thing but were punished as a result — even fired — our attorneys can provide a thorough evaluation that may help you get the career protection and financial compensation to which you are entitled. Contact our firm.

Disclaimer

THE RESULTS OF ALL CASES DEPEND ON A VARIETY OF FACTORS UNIQUE TO EACH CASE. PAST SUCCESSES DO NOT PREDICT OR GUARANTEE FUTURE RESULTS.

The Employment Law Group, P.C. produces this blog to provide general news and information about the field of employment law; the blog does not contain any legal advice upon which you should rely or act. If you need advice on a particular issue or problem, please contact an attorney. Use of this Web site does not create an attorney-client relationship between you and The Employment Law Group.

Obama Administration Asks Supreme Court to Review MacLean Decision

The Obama administration asked the U.S. Supreme Court to review a lower court’s 2013 ruling that a former federal air marshal could claim he was illegally fired for leaking sensitive information to the media.

The case, MacLean v. Department of Homeland Security, raises technical — but critically important — questions about the scope of the Whistleblower Protection Act (WPA), which forbids most retaliation against federal employees who disclose suspected illegal or dangerous acts by the government.

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The Top Ten Whistleblower Decisions of 2013: Part 1

For whistleblowers and their advocates, 2013 was a whipsaw year: Big advances followed sharp letdowns in quick rotation — sometimes from the same source. (Ahem, Supreme Court and White House.)

Plus there was the Snowden sideshow. But since NSA leaker Edward Snowden was never a real whistleblower — he acted outside the law and fled the consequences — his headline-grabbing revelations taught us no useful legal lessons.

Instead, the true news of 2013 was choppy-but-clear progress toward more employee-friendly readings of federal whistleblower laws. After two years of success at the administrative level, retaliation victims started getting their day in ever-higher courts. The U.S. Supreme Court put a cherry on the trend by hearing arguments in Lawson v. FMR LLC, its first whistleblowing case under the crucial Sarbanes-Oxley Act (SOX).

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Justices Seek Middle Ground in Whistleblower Case

NOTE: A version of this post first appeared on Law360.com.  The author, R. Scott Oswald, was counsel of record on an amicus curiae brief filed in this case.

In oral arguments for the first whistleblower case they have heard under the Sarbanes-Oxley Act (SOX), justices of the U.S. Supreme Court quickly locked onto the important issue: How to interpret SOX’s anti-retaliation provisions without gutting the law — or expanding it without limit.

Led by Justice Stephen Breyer, the hour-long discussion on November 12 — here’s the official transcript — paid scant attention to the most extreme formulations of both sides in Lawson v. FMR LLC. Instead the Court seemed to spend its time groping toward a middle ground that would mostly favor employees.

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After Nassar: Title VII Retaliation Claims Are Tougher — But Still Viable

This June, in a blistering dissent from the bench, Justice Ruth Bader Ginsburg decried the U.S. Supreme Court’s “misguided judgment” in University of Texas Southwestern Medical Center v. Nassar and called on Congress to restore to employees the rights stripped by a decision that “defies logic.”

A law to reverse Nassar certainly would be welcome, but it’s not the sole hope for employee advocates. True, Nassar makes it harder to prove that an employer’s action amounted to unlawful retaliation against a whistleblowing employee under Title VII of the Civil Rights Act of 1964.

But, Justice Ginsburg’s pessimism notwithstanding, it’s hardly fatal to such a claim.

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SEC Makes Another Whistleblower Payout — This Time at Maximum 30%

The U.S. Securities and Exchange Commission (SEC) announced its second whistleblower award in a month, saying it will give the maximum 30% share of penalties in an unidentified case to a tipster who helped in the enforcement action.

Coming after a huge $14 million award earlier in October, the more modest payout of more than $150,000 suggests that the SEC’s whistleblower office is systematically nailing all of its prescribed metrics: Successive announcements have emphasized payout speed (payment in August on an award made in June); payout size (the $14 million award); and, here, payout percentage.

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Federal Judge Rejects Asadi Limits on Whistleblower Protection

A federal judge ruled that the Dodd-Frank Act protects whistleblowers from retaliation even if they’re punished by an employer before bringing their concerns to the Securities and Exchange Commission (SEC).

The ruling is the first explicit repudiation of July’s high-profile Asadi decision by the U.S. Court of Appeals for the Fifth Circuit, which held that Dodd-Frank starts protecting employees only after they report corporate misdeeds to the SEC.

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SEC Whistleblower Program Makes Its Bones With $14 Million Award

The U.S. Securities and Exchange Commission (SEC) awarded an unnamed tipster more than $14 million, obliterating all doubt about the resolve of the agency’s whistleblower program.

The SEC didn’t identify the underlying enforcement action in either its press release or a related order, but the award’s enormous size  indicates that the U.S. government may reap as much as $140 million in penalties as a result of the whistleblower’s information.

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Maryland’s High Court Finalizes Verdict In “Cat’s Paw” Case

DISCLAIMER: THIS POST CONCERNS A CLIENT OF THE EMPLOYMENT LAW GROUP® LAW FIRM. THE RESULTS OF ALL CASES DEPEND ON A VARIETY OF FACTORS UNIQUE TO EACH CASE. PAST SUCCESSES DO NOT PREDICT OR GUARANTEE FUTURE SUCCESSES.

Maryland’s highest court finalized the reinstatement of a jury’s $650,000 award to Donna Jackson for her former employer’s retaliation after she reported a subordinate’s gender discrimination complaint.

By declining to review a lower court decision, the Maryland Court of Appeals also solidified the state’s adoption of “cat’s paw” liability, under which an employer may be held liable for retaliation against an employee even if the actual decision-maker was unaware of a retaliatory motive.

Ms. Jackson was represented by The Employment Law Group® law firm.

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Tax Court Sheds Light on Whistleblower’s Denied Award

What can whistleblowers do when the IRS Whistleblower Office denies them an award for helping the government to recover money from a suspected tax cheat?

They can do what Albert G. Hill, III, did — challenge the denial in tax court.

But such challenges are difficult without access to information that the IRS used to deny the award in its often-opaque decision process. In Mr. Hill’s case, the IRS took a common — yet extreme — position on taxpayer confidentiality, refusing to allow Mr. Hill to review documents from the administrative file of the taxpayer he had targeted.

This week the U.S. Tax Court ordered the IRS to hand over the documents under strict conditions — and, in doing so, provided a sensible model for how such appeals should be handled.

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Fifth Circuit Narrows Definition of “Whistleblower” Under Dodd-Frank

By holding the Dodd-Frank  Act to a literal reading of its language — and rejecting any consideration of the statute’s goals — a federal appeals court has set up a battle over who may claim protection as a corporate “whistleblower” under the law.

“We start and end our analysis with the text of the relevant statute,” the U.S. Court of Appeals for the Fifth Circuit said in Asadi v. G.E. Energy (USA) L.L.C. — and indeed, the court parsed Dodd-Frank with the cold eye of a professional copy editor, concluding that the law protects employees against retaliation only if they have reported corporate wrongdoing to the Securities and Exchange Commission (SEC) via prescribed channels.

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MSPB: New Whistleblower Standard Applies to Pending Cases

The U.S. Merit Systems Protection Board (MSPB) ruled that a key provision of the Whistleblower Protection Enhancement Act (WPEA) should apply retroactively to any federal whistleblower case that was pending on the effective date of the statute: December 27, 2012.

The decision in Day v. Department of Homeland Security—which the MSPB said would affect a “substantial number” of cases—concerned Section 101 of the WPEA, which offers protection to federal employees who face retaliation for disclosing government wrongdoing under certain circumstances.

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Maryland Appeals Court Restores $650,000 Jury Verdict for Whistleblower

DISCLAIMER: THIS POST CONCERNS A CLIENT OF THE EMPLOYMENT LAW GROUP® LAW FIRM. THE RESULTS OF ALL CASES DEPEND ON A VARIETY OF FACTORS UNIQUE TO EACH CASE. PAST SUCCESSES DO NOT PREDICT OR GUARANTEE FUTURE SUCCESSES.

A Maryland appeals court has reinstated a jury’s 2011 award of $650,000 to Donna Jackson, a plaintiff represented by The Employment Law Group® law firm, for her former employer’s retaliation after she reported a subordinate’s gender discrimination complaint.

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ARB Again Holds that SOX Protects Employees Who Warn of Future Wrongdoing

The U.S. Department of Labor’s Administrative Review Board (ARB) upheld all aspects of a $1.2 million award to a whistleblower in a retaliation case under the Sarbanes-Oxley Act (SOX), echoing a recent Third Circuit decision and lending further authority to the ARB’s landmark Sylvester decision from 2011.

In Barrett v. e-Smart Technologies Inc., the ARB again held that SOX bans retaliation against employees who flag illegal activity that they believe is likely to occur — not just illegal activity that is already occurring.

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Tax Court Blasts IRS for ‘Obfuscation’ in Whistleblower Case

In an unusually blunt opinion, the U.S. Tax Court rebuked the Internal Revenue Service for continuing to fight award claims made by two anonymous whistleblowers — even as the agency was reopening the same claims in a related investigation.

In a dismissal order issued on May 10, 2013, Judge Maurice Foley slammed the IRS for providing “incomplete, misleading, and possibly inaccurate information” in the case.

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Court Won’t Review Wiest; “Reasonable Belief” Is Law in Third Circuit

The U.S. Court of Appeals for the Third Circuit won’t grant an en banc review of an earlier panel decision that made it easier for whistleblowers to claim protection under the Sarbanes-Oxley Act (SOX).

As a result, SOX whistleblowers in that jurisdiction — which includes Pennsylvania and Delaware — now are shielded from retaliation as long as they acted under a “reasonable belief” that their company was acting fraudulently.

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