Whistleblower Law Blog

Topic: P.C.

A Virginia Jury Awards over $819,000 to The Employment Law Group® Law Firm Client Dr. Weihua Huang in False Claims Act Whistleblower Retaliation Verdict

On October 12, 2012, a federal jury in Virginia awarded Dr. Weihua Huang $819,830 in his False Claims Act suit which accused two University of Virginia administrators of retaliating against him when he blew the whistle on purported misuse of a federal research grant.  In his suit, the former National Institute of Health (NIH) research grant recipient and University of Virginia scientist alleged that his supervisors declined to renew his contract because he had raised questions about the alleged misuse of research grant funds to his supervisors.

In 2009, Dr. Huang was awarded a NIH grant for research relating to the genetics of nicotine addiction and smoking.  Dr. Huang claimed that grant funds were charged without authorization and for work that was never actually performed.  After speaking out about the alleged misused of federal research funds, Dr. Huang’s supervisors terminated him citing performance issues.

According to Dr. Huang’s attorney, Adam Augustine Carter, “this case should encourage other whistleblowers that know of abuse in federal grants to come forward – while it may be tough for people to come forward in such situations, Dr. Huang’s courage has set an example.”

Dr. Huang’s recent jury award is of particular significance to whistleblowers as it is one of the only lawsuit tried to verdict since Congress amended the anti-retaliation provisions of the False Claims Act in 2009.

The presiding judge, Judge Norman K. Moon of the U.S. District Court for the Western District of Virginia, has yet to determine whether or not to grant Dr. Huang’s reinstatement to his prior position or whether he will be compensated with his lost earnings.

The Employment Law Group® law firm’s whistleblower attorneys have helped many clients file suit against employers that fraudulently bill the U.S. government, and have established favorable precedents under the retaliation provision of the False Claims Act.

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Recent Kramer Decision in Favor of a Dodd-Frank Whistleblower Likely to Strengthen Anti-Retaliation Lawsuits Brought by Financial Whistleblowers, Law360 Reports

Law360 recently indicated in its lead story the broad implications of the recent ruling in Kramer v. Trans-Lux for financial whistleblowers.  The Kramer decision marked the first time a Dodd-Frank whistleblower’s retaliation claim has survived a motion to dismiss when, earlier this week, a federal judge embraced an expansive definition of whistleblower under Dodd-Frank.

The Kramer decision joins three other court decisions that have focused on the anti-retaliation provisions of Dodd-Frank as the latest in a series of decisions that broadly interpret who qualifies as a whistleblower.  According to Law360’s report, many whistleblower advocates believe that the Kramer decision will result in an uptick in the filing of whistleblower claims against employers.

These developments are favorable for financial whistleblowers who face retaliation from their employers for reporting fraud or illegal conduct because by filing a retaliation claim under Dodd-Frank rather than the Sarbanes-Oxley Act, plaintiffs have a longer statute of limitations and may bring their claims directly in federal court without having first to proceed through an administrative process at the Department of Labor.

In sum, the Kramer decision will serve as additional authority for employees who seek to bring Dodd-Frank complaints after having suffered retaliation when reporting violations to their employers internally, as well as to the Securities and Exchange Commission (SEC).

The article, “Dodd-Frank Whistleblower Ruling May Spark Retaliation Suits” appeared in the September 27, 2012 edition of Law360.

The whistleblower who brought the suit, Richard Kramer, is represented by The Employment Law Group® law firm’s Nicholas Woodfield and R. Scott Oswald.

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Law360 Quotes Nicholas Woodfield on First-of-Its-Kind Ruling in Whistleblower Protection Case under Dodd-Frank

Law360 recently reported in its lead article on Kramer v. Trans-Lux Corp. , the first court decision allowing a Dodd-Frank Act retaliation suit to survive a motion to dismiss.  In the article, Law360 quoted Nicholas Woodfield, principal at The Employment Law Group® law firm and attorney for Richard Kramer, the whistleblower who brought the lawsuit.

Mr. Kramer, a former executive for Trans-Lux, was fired after reporting to the company’s board of directors and the Securities and Exchange Commission that his supervisors has run afoul of the company’s pension plan.

Trans-lux had argued that Kramer was not a whistleblower as defined in the Dodd-Frank law.  The court, however found that Kramer was protected by against retaliation as a whistleblower and that “Trans-lux’s interpretation would dramatically narrow the available protections to potential whistleblowers.”

Kramer’s attorney, Mr. Woodfield told Law360 that he is “pleased” with the decision and that he regards it as “a fair decision that accurately reflects the goals of the legislators in implementing Dodd-Frank.”  Woodfield also noted that “whether Mr. Kramer will prevail at trial is another issue, but [the decision] fairly recognizes that it was the intent of Congress to protect [whistleblowers] like him.”

The article, “Judge Backs Broad Whistleblower Definition Under Dodd-Frank” appeared in the September 26, 2012 edition of Law360.

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

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Kramer v. Trans-Lux Corp., First Dodd-Frank Claim to Survive Motion to Dismiss in Federal Court

On Tuesday, September 25, the U.S. District Court for the District of Connecticut ruled that the definition of “whistleblower” under the Dodd-Frank Act encompasses individuals who make disclosures required or protected under the Sarbanes-Oxley Act or the Securities Exchange Act of 1934.  Plaintiff’s Richard Kramer’s case against former employer Trans-Lux is the first Dodd-Frank claim to survive a motion to dismiss in federal court.  Kramer v. Trans-Lux Corp., 3:11cv1424 (D. Conn. Sept. 25, 2012).   Scott Oswald and Nick Woodfield, principals with The Employment Law Group, represent Mr. Kramer.

Background

Kramer served as Vice President of Human Resources and Administration for Trans-Lux for eighteen years.  He reported to Chief Financial Officer Angel Toppi.  Kramer and Toppi comprised Trans-Lux’s pension plan committee.  Trans-Lux’s pension plan requires at least three members on the committee, and Kramer repeatedly advised Toppi that the committee needed at least one additional member.  Toppi repeatedly rejected Kramer’s advice.  In addition to serving on the committee, Toppi served as the sole trustee of the pension plan.  Kramer was concerned that this created a conflict of interest.

On four occasions between 2008 and 2011, Trans-Lux amended its pension plan.  On two of those occasions the two-person committee approved the amendments, although the plan requires approval by a three-person committee.  In addition, Toppi failed to bring the 2009 amendments to the board of directors for approval and failed to file them with the SEC.

In March 2011, Toppi ordered Kramer not to notify the Pension Benefit Guaranty Corporation that the company had missed a contribution.  This notification would have resulted in an immediate penalty to Trans-Lux.  Later that month, Kramer notified Trans-Lux executives of all his concerns with Trans-Lux’s failure to adhere to its pension plan.  In May 2011, he brought his concerns to the board of directors’ audit committee.  Finally, he sent two letters to the SEC, notifying them of Trans-Lux’s violations.

As soon as Kramer expressed his concerns, Trans-Lux executives began to retaliate against him.  They reprimanded him, reassigned his subordinates to other executives, stripped him of his responsibilities, and finally terminated him.

“Whistleblower” Under Dodd-Frank

Trans-Lux argued in its motion to dismiss that Kramer did not report Trans-Lux’s violations in the manner that the SEC requires, and therefore did not meet the definition of a “whistleblower.”  Kramer argued that individuals who make disclosures  that are required or protected under the Sarbanes-Oxley Act or the Securities Exchange Act of 1934 meet this definition regardless of the manner in which they make their disclosure.

The court agreed with Kramer’s argument, citing to a final rule promulgated by the SEC on August 12, 2011.  The court explained:

Trans-Lux’s interpretation would dramatically narrow the available protections available to potential whistleblowers. In order to have provided information in the manner provided by the SEC, an individual would have either had to submit the information online, through the Commission’s website, or by mailing or faxing a Form TCR (Tip, Complaint or Referral). Mailing a regular letter is insufficient…. Such a reading seems inconsistent with the goal of the Dodd-Frank Act, which was to “improve the accountability and transparency of the financial system,” and create “new incentives and protections for whistleblowers.”

The court found that Kramer’s disclosures were required under Sarbanes-Oxley and relate to violations of securities laws and therefore are protected under Dodd-Frank regardless of the manner in which they were made.  The court further clarified that the Dodd-Frank Act expands the protections of Sarbanes-Oxley, and that this expansion is a permissible construction of the statute.

Related U.S. District Court Decisions

On April 3, 2012, the U.S. District Court for the Middle District of Tennessee confirmed that the term “whistleblower” includes individuals who make internal disclosures of security law violations, as long as the disclosures are made in accordance with the “certain laws within the SEC’s jurisdiction.”  Nollner v. S. Baptist Convention, Inc., 852 F. Supp. 2d 986, 993 (M.D. Tenn. 2012).  However, the court found that plaintiffs Ron and Beverly Noller were not whistleblowers under Dodd-Frank, because their employer does not issue stock and was not subject to the SEC’s jurisdiction.   Id. at 997.

On May 4, 2011, the U.S. District Court for the Southern District of New York reached the same decision as the Noller court regarding internal disclosures and therefore granted plaintiff Patrick Egan leave to amend his complaint to include a claim for retaliation under Dodd-Frank.  Egan v. TradingScreen, Inc., 10 CIV. 8202 LBS, 2011 WL 1672066 (S.D.N.Y. May 4, 2011).

On June 28, 2012, the U.S. District Court for the Southern District of Texas declined to decide whether plaintiff Khaled Asadi met the definition of a “whistleblower” under Dodd-Frank for making protected disclosures under Sarbanes-Oxley.  Asadi v. G.E. Energy (USA), LLC, CIV.A. 4:12-345, 2012 WL 2522599 (S.D. Tex. June 28, 2012).  Instead, the court decided that the statute did not protect plaintiff Asadi’s disclosures because they occurred outside of the United States.  Id.

Richard Kramer is represented by The Employment Law Group law firm’s Nicholas Woodfield and R. Scott Oswald.

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Law360 Interviews R. Scott Oswald on Increase in Whistleblower Retaliation Claims Brought by Defense Contractors

R. Scott Oswald, managing principal of The Employment Law Group® law firm, was recently interviewed by Law360 regarding a reported increase in whistleblower retaliation claims brought by defense contractors.  The Law360 article credited the increased amount of reprisal complaints by defense contractors who to recent changes to federal law and regulations.

In addition to “changes to the law [that] may have added more protections,” Mr. Oswald also cited “the amount of defense-related work that’s been outsourced to private companies in connection with the war efforts in Iraq and Afghanistan [as another] also a key factor in the rise in defense contractor retaliation claims.”

Whistleblower attorney Oswald noted that “companies may use standards or practices that are perfectly acceptable in the private realm but don’t work when dealing with defense contracts.”  This often “puts employees in a bind [as] managers or executives may ask for classified information about projects they aren’t authorized to have access to, and take umbrage when a subordinate won’t comply with that request.”

“We have individuals who are paid by U.S. government contractors while at the same time take an oath to the U.S. government to maintain national security secrets, so there is this inherent conflict,” Oswald said.

Oswald pointed out the case of William Holowecki, a former Avaya Government Solutions security professional who confronted such a conflict when his manager requested classified information.

The Employment Law Group® represents Mr. Holowecki and recently filed a lawsuit against Avaya which alleges that the company ran afoul of the anti-retaliation provision of the False Claims Act by terminating him for voicing concern that security guards having access to restricted areas.  Holowecki also claims he was fired because he complained to his employer that failing to disclose the security guards’ access to restricted areas amounted to fraud against the U.S. government.  Finally, Holowecki alleged that Avaya terminated him on account of his refusal to disseminate classified material to a company manager.

According to attorney R. Scott Oswald, “employers would also be well-served to have a clearly articulated complaint procedure that requires managers to make higher-ups aware of potential violations and ensures that the company gets notified officially and directly about complaints.”

Without such a procedure, “a corporation may not be aware that there was has been a complaint because it is not brought to the attention of compliance or risk management professionals.”

Oswald also highlighted the importance complaint procedures for workers, saying that it is “important for employees to know that the company is going to effectively investigate, evaluate and remediate their complaints” as ensuring worker confidence in an employer’s handling of complaints makes workers less likely to seek out outside counsel or go to an outside government agency, and more likely to keep their complaints within the company.

The article, entitled “Defense Contractors Face Rising Wave Of Retaliation Claims”, appeared in the August 10, 2012 edition of Law360.

The Employment Law Group® law firm’s whistleblower attorneys  have helped many clients file suit against employers that fraudulently bill the U.S. government, and have established favorable precedents under the retaliation provision of the False Claims Act.

 

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Former Avaya Government Solutions Employee Claims He Suffered Retaliation and Termination for Blowing the Whistle on Unauthorized Security Practices

According to Law360, a former employee of Avaya Government Solutions, William Holowecki, recently filed a whistleblower lawsuit against Avaya in the U.S. District Court for the Eastern District of Virginia.  Mr. Holowecki alleges that Avaya terminated his employment in retaliation for revealing what he claims were fraudulent reports that Avaya sent to federal agencies, in violation of the False Claims Act.

Mr. Holowecki alleges that Avaya eliminated his position as an information systems security officer in retaliation for his discovery and reporting of false reports that Avaya allegedly made to a government contractor relating to unauthorized access to restricted facilities at Avaya’s Virginia location.  Holowecki alleges that Avaya’s failure to report the security violations was in violation of its government contracts and, as a consequence, resulted in the government paying claims under the false information – a violation of the False Claims Act.  Mr. Holowecki’s suit also claims that Avaya fired him because of his refusal to allow unauthorized employees access to classified information.

In addition to claiming that Avaya terminated his employment because of his protected activities as a whistleblower under the FCA, Holowecki also claims that the company violated the Age Discrimination in Employment Act (ADEA) by replacing him with a younger and allegedly less-qualified employee.

Mr. Holoweck is seeking reinstatement to his prior position, as well as back pay and damages.  Mr. Holowecki is represented by attorneys at The Employment Law Group® law firm.

The Employment Law Group® law firm focuses in the areas of employment law and whistleblower protection law, has helped many clients file suit against employers that fraudulently billed the U.S. government, and has established favorable precedents under the retaliation provision of the False Claims Act.

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Department of Labor’s Administrative Review Board Reverses Administrative Law Judge’s Ruling in Favor of Nuclear Whistleblower and Client of The Employment Law Group®

The U.S. Department of Labor’s Administrative Review Board (ARB) recently issued a decision in favor of William Smith, a client of The Employment Law Group® law firm and whistleblower at a nuclear power facility in South Carolina.  In the case, Smith v. Duke Energy Carolinas, LLC & Atlantic Group, d/b/a DZ Atlantic, Mr. Smith claimed that Duke Energy had terminated his employment because he reported a coworker’s alleged failure to comply with workplace safety regulations mandated by the Energy Reorganization Act (ERA).

The ARB’s decision reverses an earlier decision by an administrative law judge (ALJ) that held that Smith’s protective activity of bringing safety concerns in a nuclear plant to the attention of his supervisors was not the reason for his termination.  In its recent decision, the ARB reversed the ALJ’s decision and remanded the case for further proceedings.

Background

In early 2007, Mr. Smith began working for DZ Atlantic – a contractor to Duke Energy – as a security office at the Catawba nuclear power plant.  As part of his duties, Smith performed routine fire inspections in the power plant and recorded his signed observations in a company log.  In February 2008, Smith arrived to work approximately 1 hour prior to the beginning of his shift and saw that a co-worker, Chris Borders, had already signed the inspection sheet for an inspection that had not yet occurred.

Smith told Borders that if she would not alter the inspection log entry he would report the ostensibly falsified log entry to their supervisors.  Borders responded to Smith by saying that if Smith reporter her, she would then file a sexual harassment complaint against him.  Later that week, Borders filed a sexual harassment complaint against Smith and, during an investigative meeting with HR following the complaint, Smith reported Borders’ incorrect entry in the inspection log.  While the company found no evidence backing Borders’ sexual harassment claims, Duke Energy eventually terminated both Smith and Borders, citing Borders falsification of the inspection log and Smith’s failure to report the false entry in a timely fashion after learning of it.

The ALJ previously held that while Smith had engaged in protected activity by reporting his coworker’s failure to follow ERA guidelines, his employer, Duke Energy, had demonstrated that the decision to terminate his employment had been motivated by the company’s wanting to punish a lack of trustworthiness by employees and not because of Smith’s whistleblowing.  Accordingly, the ALJ held that Smith’s protected activity had not been a contributing factor in Duke Energy’s decision to terminate his employment.

The Administrative Review Board’s (ARB) Reversal and Remand

The central issue on appeal to the ARB was “whether Smith’s protected activity was a contributing factor in [Duke Energy’s] decision” to fire him.  The ARB reversed the ALJ’s decision, citing Marano v. Dep’t of Justice, an appellate case involving a Drug Enforcement Agency (DEA) agent who reported misconduct his workplace which led the DEA to undergo a reorganization of his office.  While the DEA agent was not found to have engaged in any wrongdoing, as a result of the office reorganization, he ultimately lost his job.  The Federal Circuit held that but for the agent’s reporting of the misconduct he would not have been terminated and, therefore, the Court held that the agent’s protected activity was indeed a contributing factor in his termination.

In this case, the ARB found the Marano case to be analogous to Smith, holding that Smith’s blowing the whistle on the inspection log entry was a contributing factor to his termination because Duke Energy would never have fired Smith had it not known that Smith failed to make his report in a timely manner.  The ARB held that Smith’s report was “inextricably intertwined” with the investigatory process that led to his termination and that his protected activity was a contributing factor in his termination.  With this reversal of the ALJ’s decision, the ARB remanded the case for further proceedings and held that the burden of proof will now fall on Duke Energy to prove that it would still have terminated Smith even in the absence of Smith’s protected activity.

Significance for Whistleblowers

The ARB’s decision in Smith is important for whistleblowers because its holding supports the proposition that when an employer admits that the reason it took action against an employee is that individual’s protected activity, this is sufficient to demonstrate causation without further analysis.

The ARB’s decision should also put employers on notice that when management decides to make a so-called ‘clean sweep’ – terminating all employees who might be tainted with wrongdoing – that it cannot terminate the employee who disclosed the wrongdoing, as this would constitute terminating the employee because of his or her protected disclosure.

The Employment Law Group® law firm has substantial experience representing employees and whistleblowers in the nuclear industry in proceedings before the Department of Labor (DOL) and Nuclear Regulatory Commission (NRC).

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R. Scott Oswald and David Scher, Principals of The Employment Law Group®, Publish Article on Expanded False Claims Act Liability for Improper Healthcare Kickbacks under The Patient Protection and Affordable Care Act (PPACA)

R. Scott Oswald and David Scher, principal attorneys of The Employment Law Group® law firm, recently published an article in Westlaw’s Health Care Fraud Journal entitled “Health care law expands False Claims Act liability under Anti-Kickback Statute”.

In the article Oswald and Scher provide an outline of the various provisions of the Anti-Kickback Statute and illustrate how violations of the law can subject violators of the statute to liability under the False Claims Act (FCA).

Expansion of Liability

The Patient Protection and Affordable Care Act (PPACA), passed in 2010, has given the Anti-Kickback Statute “more teeth than ever before,” according to Oswald and Scher.  “Now violations of the statute are per se violations of the False Claims Act. This means that even unintentional violations of the statute can be grounds for fraud liability.”

Additionally, even unwitting and non-benefiting parties who are within the stream of a reimbursement claim to Medicaid or Medicare may now have liability for fraud if unlawful kickbacks are part of the claim.  As a means of enforcing this shift in the law, as of January 1, 2011, all drug, medical device, and medical supply manufacturers covered under the various federal health care programs have been required to keep records of “all transfers of value.” Failure on the part of these entities to keep record of these transfers of value now opens up the possibility of fraud litigation.

Measure of Damages

In such situations, the measure of damages for fraud claims under the Anti-Kickback Statute is, “the full value of the services provided,” even if the patients in question receive the medical benefits claimed.  Any funds received from the federal government will now be forfeited in the presence of any unlawful kickback as the inappropriate kickback now renders physicians and other healthcare providers ineligible under federal programs. Notably, physicians who submit claims for reimbursement tainted by kickbacks may now be individually liable for violations of the FCA.

Implied False Certification Theory Now Obsolete

Prior to the passage of PPACA, the primary theory underpinning the interpretation of the False Claims Act as meaning that claims submitted as a result of Anti-Kickback Statute violations were false claims rested on the so-called ‘implied false certification theory’. Under this doctrine, a claim for payment is considered false when based on a false representation of compliance with a relevant federal law and such false certifications can be either express or implied.

In order to obtain reimbursements from Medicare and Medicaid, healthcare providers must certify that they are in compliance with all applicable laws, including the Anti-Kickback Statute.  According to Oswald and Scher, “PPACA renders moot any reliance on a false certification theory for an Anti-Kickback Statute False Claims Act claim.  In effect, the PPACA codifies as law more than 17 years of federal court decisions affirming fraud liability for Anti-Kickback Statute violations.”

Summary

Oswald and Scher summarize the effect of PPACA’s amendments to Anti-Kickback Statute as providing:

  • Criminal penalties for physicians and other healthcare providers who engage in improper financial relationships involving kickbacks;
  • A viable basis for False Claims Act liability for both parties that does not rely upon the controversial ‘implied-certification’ theory and the elimination of the requirement to demonstrate intent to defraud;
  • That violations of the Anti-Kickback Statute are per se violations of the False Claims Act.

Finally, the authors note that while physicians have largely “stayed under the radar in terms of False Claims Act liability” this may “[have] less to do with legal hurdles” and is “more likely the effect of the government’s desire to prosecute only big, asset-rich violators”.  This trend “may soon change”, Oswald and Scher surmise, with the PPACA amendments to the Anti-Kickback Statute eliminating the requirements to demonstrate intent for False Claims Act liability.

The Employment Law Group® law firm focuses in the areas of employment law and whistleblower protection law, has helped many clients file suit against employers that fraudulently billed the U.S. government, and has established favorable precedents under the retaliation provision of the False Claims Act.

 

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Law360 Interviews R. Scott Oswald, Managing Principal of The Employment Law Group®, on the Significance of OSHA’s Recent Call to Establish a Whistleblower Protection Advisory Committee

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.

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Law360 Interviews R. Scott Oswald, Managing Principal of The Employment Law Group®, on the Potential Impact of the Senate-Approved Whistleblower Protection Enhancement Act (WPEA)

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.

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