Whistleblower Law Blog

OSHA Orders Charles Schwab to Reinstate Two Whistleblowers

October 29, 2008

The U.S. Department of Labor ordered Charles Schwab to reinstate two employees who allege they were terminated for blowing the whistle on a scheme to falsify entries in a Schwab database system.  OSHA investigated their claims under the whistleblower provision of the Sarbanes-Oxley Act of 2002 and is ordering Charles Schwab to reinstate the whistleblowers and award them back pay with interest, compensatory damages, attorneys’ fees and other relief. 

For information on The Employment Law Group® law firm’s Sarbanes-Oxley practice, click here.    

Ninth Circuit Strengthens Public Employee Whistleblower Protection

October 20, 2008

In Garcetti v. Ceballos, the Supreme Court held that whistleblowing by public employees in the course of performing their official job duties is not protected under the First Amendment as a matter of law.  As a result of the Garcetti decision, many public employee whistleblower retaliation claims have been dismissed on summary judgment.  In a recent decision, Posey v. Lake Pend, the Ninth Circuit held that the question of whether a public employee is speaking on matters of public concern pursuant to her official duties is a mixed question of fact and law, and therefore should be decided by the jury.  This decision is significant because it increases the odds of public employee whistleblower retaliation claims surviving summary judgment where they can prove that:  (1) they spoke on a matter of public concern; (2) the state lacks adequate justification for treating the plaintiff differently from other members of the general public; and (3) there is a genuine issue of material fact as to whether the employee blew the whistle outside the scope of their job responsibilities. 

The Employment Law Group® Law Firm Speaks on Whistleblower Law at National Employment Lawyers Association Conference

October 20, 2008

The Employment Law Group® law firm Principal Jason Zuckerman spoke at a National Employment Lawyers Association Conference titled “Litigating Harassment Retaliation Claims” in Chicago, Illinois.  Zuckerman’s presentation addressed new whistleblowers laws and offered tips for litigating whistleblower retaliation cases.

ARB Adopts Burlington Northern Standard for Whistleblower Retaliation Claims

October 20, 2008

In Melton v. Yellow Transp. Inc., the Department of Labor’s Administrative Review Board (ARB) clarified that it will apply the Burlington Northern standard to whistleblower cases when determining whether an employer violated a whistleblower retaliation protection provision.  This decision is significant because under Burlington, an employment action is materially adverse if it is capable of dissuading a reasonable employee from engaging in whistleblowing activity, a broad standard focused on the chilling effect of an adverse employment action.  While the concurring opinion purports to apply the Burlington Northern standard, it concluded that the issuance of a warning letter did not affect the terms of Melton’s employment and hence is not an actionable adverse action.  Melton’s attorney is appealing the ARB’s decision on the ground that the warning letter had a chilling effect on Melton, i.e., it would deter Melton from engaging in further protected conduct, and therefore constitutes actionable retaliation.

The Employment Law Group® Law Firm Testifies Before the DC Council About Recommendations for Strengthening the DC Whistleblower Protection Act

October 13, 2008

On October 8, 2008, Jason Zuckerman, a Principal at The Employment Law Group® law firm, testified before the DC Council’s Committee on Workforce Development and Government Operations about recommendations to strengthen the DC Whistleblower Protection Act.  Due in part to former tax assessments manager Harriette Walters’ scheme to steal $48 million from DC taxpayers, the DC Council is exploring options to encourage employees of DC agencies to identify and report waste, fraud, and abuse and unlawful conduct.  The Employment Law Group® law firm recommends that the Council amend the DC Whistleblower Protection Act to authorize retaliation claims against individual supervisors and managers and clarify that employees are protected when they blow the whistle in the course of performing their job responsibilities.  In addition, The Employment Law Group® law firm recommends that the DC Council enact the Private Employee Whistleblower Protection Act of 2007, which has been co-sponsored by 11 D.C. Council Members.

Legal Times Reports About The Employment Law Group® Law Firm’s Landmark Success in Whistleblower Protection Act Case

October 13, 2008

Legal Times reports about the October 7, 2008 decision in Drake v. Agency for International Development, where the Federal Circuit held that a foreign service investigator and client of The Employment Law Group® law firm did not need to prove actual violations of the law to be protected under the Whistleblower Protection Act (“WPA”).  The decision is significant for whistleblowers because it establishes that to be protected under the WPA, a whistleblower need only prove that he had a reasonable belief that there was a violation of a law, rule or regulation.

The Employment Law Group® Law Firm Prevails in Appeal of Whistleblower Protection Act Case

October 08, 2008

In Drake v. Agency for International Development, the Federal Circuit held that the Merit Systems Protection Board (“MSPB”) erred in concluding that Drake’s disclosures were not protected under the Whistleblower Protection Act (“WPA”).  Drake, a Foreign Service Investigator with the U.S. Agency for International Development (“Agency”), alleged that he was retaliated against for blowing the whistle about agency personnel consuming alcohol while on duty. 

The MSPB held that Drake’s disclosures were not protected under the WPA because Drake could not prove that the behavior he observed was a result of intoxication.  The Federal Circuit reversed, concluding that the standard for determining whether an employee’s disclosure is protected under the WPA is “not whether [the employee] was able to prove [a violation], but rather could a disinterested observer with knowledge of the essential facts known to and readily ascertainable by [the employee] reasonably conclude that agency personnel were [engaged in] a violation.”  Finding that Drake had a reasonable belief that agency personnel were intoxicated, the Federal Circuit remanded the case to the MSPB.

Mr. Drake is represented by R. Scott Oswald and Nicholas Woodfield of The Employment Law Group® law firm.  For more information about The Employment Law Group® law firm’s whistleblower practice and the Whistleblower Protection act, click here.

The Employment Law Group® Establishes Favorable Precedent in a False Claims Act Retaliation Case

October 07, 2008

Today The Employment Law Group® law firm prevailed on a motion to dismiss a claim of retaliation under the False Claims Act (“FCA”) and a defamation action.  Jason Mann alleged that his former employer Heckler & Koch Defense, Inc. (“HKD”) retaliated against him because he investigated and raised concerns about HKD’s submission of a potentially fraudulent bid for the sale of rifles to the U.S. Secret Service.  HKD moved to dismiss, asserting that Mann failed to state a claim under the retaliation provision of the FCA because he did not allege that HKD submitted a false claim to the government.  Relying in part on the Supreme Court’s holding in Graham County Soil & Water Conservation Dist. v. U.S. ex rel. Wilson, 545 U.S. 409 (2005), Judge Cacheris rejected HKD’s narrow construction of the FCA, concluding instead that an FCA retaliation plaintiff need not allege an actual violation of the FCA.  Judge Cacheris also noted that protected activity under the FCA should be interpreted broadly and that FCA retaliation claims are subject to Rule 8(a)’s notice pleading standard, not to the heightened requirements of Rule 9.  The full text of the opinion is available here.

Judge Cacheris also denied HKD’s motion to dismiss Mann’s defamation claims.  HKD asserted that Mann’s defamation claims were deficient because he did not allege the exact defamatory words spoken or written and because one of the alleged defamatory statements was literally true.  Consistent with well-established precedent, Judge Cacheris rejected both assertions, holding that a heightened pleading standard does not apply to defamation claims, and that the meaning of a defamatory statement may come not only from the actual words used, but also from any “inferences fairly attributed to them.”  Judge Cacheris also rejected HKD’s contention that a defamation plaintiff must specifically allege facts demonstrating that a company is vicariously liable for defamatory statements made by an agent of the company.  To the contrary, once an employment relationship is established, the burden is on the employer to prove that the employee was not acting within the scope of his employment when he committed the act.

California Governor Signs into Law New Whistleblower Protections for City and County Employees

October 03, 2008

On September 26, 2008, California Governor Arnold Schwarzenegger signed into law a new whistleblower protection bill to extend whistleblower protections to city and county employees who report waste, fraud and abuse of government funds.  The new law authorizes cities and counties to create and maintain whistleblower hotlines to receive calls from employees who have information regarding possible violations of state, federal or local statutes, rules or regulations.  The new law also requires city and county auditors and controllers to maintain the confidentiality of a whistleblower’s identity throughout the investigation process.

Medicare Pays Billions for False Claims

September 29, 2008

A recent congressional investigation revealed that from 2001 to 2006, the federal government paid more than $1 billion for fraudulent claims under the Medicare program.  According to investigators, medical suppliers defrauded Medicare by using Medicare ID numbers for doctors who were deceased or retired, and by submitting bills with invalid diagnosis codes.  To prevent future payment of fraudulent claims, investigators encourage the Centers for Medicare and Medicaid Services (CMS) to consider new procedures in determining whether diagnosis codes are medically related to the supplies being reimbursed, and to deny claims with invalid codes.  Investigators suggest that if CMS does not change its review process, Medicare will continue to be at risk for fraud, waste and abuse.

The Employment Law Group® law firm routinely represents relators in qui tam actions to recover fraud against the government.  For more infromation about qui tam litigation, click here.