Whistleblower Law Blog

US Senator Opens Email Address For Government Whistleblowers

July 23, 2015

A change in duties, suspended security clearance, or isolation from other employees—these are just some of the types of reprisals federal whistleblowers have suffered for exposing fraud to Congress.

On June 11, 2015, U.S. Senator Ron Johnson (R-WI), Chairman of the Senate Homeland Security & Government Affairs Committee, held a hearing on retaliation experienced by federal employees for reporting government waste, fraud, and abuse.

Senator Johnson, emphasizing the importance of protecting whistleblowers who report fraud to Congress, has created an email address, whistleblower@ronjohnson.senate.gov, to ensure that whistleblowing government employees have a clear line of communication to Congress.

“These men and women take great risk to stand up and expose wrongdoing,” said Johnson. “They sacrifice their careers, their reputations and often their financial security. Congress—and this committee in particular—must support federal whistleblowers and ensure that they are adequately protected from retaliation.”

Whistleblowers play a valuable role in fighting waste, fraud, and abuse, and ensuring the financial health of our nation. According to a 2013 report prepared by the Taxpayers Against Fraud Education Fund, the federal government recovers more than $20 for every dollar it spends to pursue whistleblower cases.

According to Johnson, more than 130 whistleblowers have reported waste, fraud, and abuse in 2015 through his Senate-sponsored email address.

Contract to Share Qui Tam Awards is Enforceable

July 21, 2015

In Fair Lab. Practices Assocs., et al., v. Riedel, et al., the United States District Court for the District of New Jersey ruled that a contract providing that two parties share potential qui tam awards is enforceable.

Plaintiffs Fair Laboratory Practices Associates (FLPA) and NPT Associates are both Delaware partnerships formed for the purpose of prosecuting qui tam actions. Defendant Hunter Laboratories, LLC is a California limited liability company in the commercial reference laboratory business; and Defendant Chris Riedel is Hunter’s sole managing member.

In 2005, Plaintiffs FLPA and NPT filed a qui tam action against Quest Diagnostics, Inc. and Unilab Corporation in the Southern District of New York (New York action). Shortly thereafter, Defendants Hunter and Riedel filed a qui tam (false claims) action against Quest, Unilab, and others in California state court (the California action).
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ARB Reverses ALJ and Finds Pilot Engaged In Protected Activity Under AIR-21

July 21, 2015

The Department of Labor’s Administrative Review Board (ARB) found that Dawn Sewade, a helicopter pilot for Halo-Flight, Inc., engaged in protected activity under AIR-21 when she reported what she reasonably believed to be unsafe aircraft conditions to Halo-Flight. The ARB also held that Sewade’s allegations of constructive discharge following a retaliatory warning for her report were actionable under AIR-21. The ARB decision reversed a prior decision by the DOL’s Office of Administrative Law Judge s (ALJ) that Sewade’s complaint was not protected activity under AIR-21.

The ARB found that Sewade engaged in protected conduct when she reported a safety concern about her aircraft and refused to fly, claiming that her aircraft was violently pitching and that fuel sampling techniques used by Halo-Flight were not proper. Sewade also reported a mechanic who threatened Sewade’s job security after Sewade made her complaints.
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Supreme Court to Hear Key Employment Law Cases in October 2015 Term

July 20, 2015

While Supreme Court analysts are still considering the impacts of a number of rulings from the Supreme Court’s October 2014 term, including an important ruling for religious accommodation of employees under Title VII in E.E.O.C. v. Abercrombie & Fitch Stores, the Court has already granted certiorari in a number of cases that could have sweeping impacts on employment law.

In Tyson Foods v. Bouaphakeo, the Court will examine what effect, if any, differences in individual members of classes certified under a class action lawsuit or collective action suit under the Fair Labor Standards Act should have when damages are calculated by use of statistical sampling. In this case, a class of workers in a meat processing plant seek unpaid overtime for the time spent each day to put on (donning) and remove (doffing) protective equipment before and after shifts and before and after lunch breaks. To prove liability and damages at trial, the plaintiffs presented timesheets for the individual plaintiffs as well as average donning and doffing times derived from observations of more than 700 employees. The Eighth Circuit affirmed the use of statistical sampling in this case because the plaintiffs all worked in the same location, used similar equipment to perform their jobs, and the company used a common pay scheme regarding their “donning and doffing” times. The Eighth Circuit also pointed to the fact that since the company had failed to keep adequate records of specific times spent on “donning and doffing” for each specific plaintiff, reasonable inferences drawn from average times and individual timesheets were sufficient.

In Bouaphakeo, the Supreme Court will also examine whether class certification should survive when some members of the class suffered no actual damages from the employer’s activities. This case will be important for determining the outcomes of future cases involving unpaid overtime and employee misclassification, especially given the increase in these types of claims in recent years.
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Multi-Agency Guide Updates LGBT Discrimination Protections for Federal Workers

June 30, 2015

On June 3, 2015, four U.S. Government agencies released a guide on rights and protections afforded to federal employees and applicants who allege sexual orientation or gender identity discrimination. The guide reflects a growing body of case law that supports the proposition that Title VII of the Civil Rights Act of 1964 and other statutes offer substantial protections for lesbian, bisexual, gay, and transgender (LBGT) employees.

The U.S. Office of Personnel Management (OPM), the U.S. Equal Employment Opportunity Commission (EEOC), the U.S. Office of Special Counsel (OSC), and the U.S. Merit Systems Protection Board (MSPB) collaborated on the guide, titled “Addressing Sexual Orientation and Gender Identity Discrimination in Federal Civilian Employment: A Guide to Employment Rights, Protections, and Responsibilities.” The guide provides federal workers with a description of employee rights and agency responsibilities under Title VII, the Civil Service Reform Act of 1978, and other agency and union procedures.
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District Court Upholds Disability Claim for Employer’s Failure to Perform an Individualized Inquiry into Employee’s Medical Condition

June 30, 2015

In EEOC v. Kyklos Bearings Int’l, LLC, the United States District Court for the Northern District of Ohio denied summary judgment for Kyklos, an Ohio bearings manufacturer, in an Americans with Disability Act (ADA) case. The district court held that a company doctor’s “sparse” and “superficial” examination was insufficient to support the employer’s claim that it had fulfilled its legal responsibility to conduct an individualized inquiry into the medical condition of an employee it subsequently fired. The Court also held that even though the employee originally complained only of failure to accommodate, the EEOC could bring charges in the case on a different theory.

Dominque Price worked at Kyklos Bearings as a “tugger,” a position which required her to use a motorized scooter to move materials and productions, including “trains” of carts. Price’s job also involved lifting up to fifty pounds. In 2007, Price was diagnosed with breast cancer; she recovered and returned to her job. In August 2011, Kyklos laid off Price for business-related reasons but rehired her in April 2012. Upon her rehiring, Kyklos’s company doctor determined that Price was fit to return to work as a tugger.
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DaVita to Pay $450 Million to Settle Wasted Medication Allegations

June 30, 2015

On June 24, 2015, DaVita Kidney Care, a division of DaVita Healthcare Partners and one of the largest U.S. kidney dialysis providers, agreed to pay the U.S. government nearly half a billion dollars to settle allegations brought by two former employees that it violated the False Claims Act by intentionally wasting dialysis medications in order to receive higher Medicare payments.

In 2007, two whistleblowers – Dr. Alon Vainer and nurse Daniel Barbir – brought a qui tam action against DaVita after observing that DaVita was throwing out good medicine for which it then billed Medicare. In March 2011, the Justice Department decided not to intervene in the case, but the whistleblowers continued to litigate the case. This settlement is one of the largest recoveries in which the Justice Department did not intervene. The whistleblowers are entitled to 25% to 30% of the nearly half a billion dollar settlement. DaVita’s settlement comes on the heels of two other recent settlements by the company: one in 2014 for $350 million for alleged kickbacks, and one in 2012 for $55 million for the alleged overbilling of a drug.

Canada’s Securities Commission Adopts U.S. Whistleblower Reward Framework

June 30, 2015

The Ontario Securities Commission (OSC), Canada’s regulatory agency for securities, has backed proposed legislation that draws directly from the U.S. whistleblower reward program. On June 9, 2015, the CBC, Canada’s national public broadcaster, reported that the OSC, which is similar to the U.S. Securities and Exchange Commission, held a roundtable to discuss proposals to protect and reward corporate whistleblowers.

OSC commissioner Mary Condon specifically stated that the proposed legislation takes from the “apparent successes” of the U.S. whistleblower reward program. Since the U.S. whistleblower reward program was enacted, the number of investigations and findings of corporate wrongdoing increased significantly. As a result, the U.S. recovered hundreds of millions of dollars in taxpayer money, and whistleblowers received rewards as high as tens of millions of dollars.
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Fourth Circuit Holds that McDonnell-Douglas Survives Nassar for Prima Facie Retaliation Cases

June 30, 2015

In a recent case, Foster v. University of Maryland-Eastern Shore, the Fourth Circuit held that the familiar McDonnell Douglas burden-shifting framework survives the but-for causation standard articulated by the Supreme Court in University of Texas Southwestern Medical Center v. Nassar in 2013. The Fourth Circuit held that Nassar does not alter the burden for Title VII plaintiffs at summary judgment because McDonnell Douglas already incorporates a but-for standard. This case is important for plaintiffs, as it sheds light on questions raised by the Supreme Court in Nassar as to how plaintiffs carry their burdens in employment litigation.

Iris Foster worked for the University of Maryland-Eastern Shore as a campus police officer. The University placed her on a standard probationary period of six months upon hiring. The University did not contest that Foster faced significant sexual harassment from a colleague even before she began her employment. Foster complained of the harassment within the first month of her employment, and the University disciplined Foster’s co-worker, transferring him to a different role, requiring him to attend sexual harassment training, and putting him on a “Last Chance Agreement.”
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Sixth Circuit Finds Teleworking a Reasonable Accommodation Depending on the Situation

June 09, 2015

In EEOC v. Ford Motor Co., the Sixth Circuit ruled that Jane Harris, a resale buyer at Ford who suffers from irritable bowel syndrome (IBS), was not qualified for her position, and therefore Ford did not discriminate against Harris when it denied her request to telework as a reasonable accommodation.

The EEOC brought claims on Harris’s behalf under the Americans with Disabilities Act, alleging that Ford failed to reasonably accommodate Harris when it denied her request for a schedule with maximum flexibility to telework, and retaliated against her for reporting this denial to the EEOC. The District Court granted summary judgment to Ford on both claims.

The Sixth Circuit reversed the District Court and held that whether teleworking is a reasonable accommodation was a question for a jury. In an en banc review, the Sixth Circuit affirmed the District Court’s grant of summary judgment. In the en banc opinion, the Sixth Circuit determined that no reasonable jury could find that telecommuting was a reasonable accommodation under this particular set of facts, but also held that telecommuting could be a reasonable accommodation under a different fact pattern.

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