Whistleblower Law Blog
Topic: Whistleblower Laws (State/Local)
Brian Royster, a former New Jersey State Police trooper, has been awarded $1.06 million by an Essex County Superior Court jury; however, because of a cap on damages for emotional distress under the Americans with Disabilities Act (ADA) his award will be limited to $860,000.
Royster filed his lawsuit against the New Jersey State Police, Superintendent Rick Fuentes, and others, in 2005 under the New Jersey Conscientious Employees Protection Act, and the state’s Law against Discrimination, as well as Title VII of the federal Civil Rights Act of 1964. His lawsuit was dismissed in 2006 but revived upon appeal in 2007.
Royster alleged that that the police department not only failed to act on his race discrimination complaints, but also failed to provide him reasonable accommodations for his inflammatory bowel disease. According to Royster, he was subjected to a pattern of disparate and racially-motivated treatment by his supervisor, and the police department’s Equal Employment Opportunity/Affirmative Action unit did not properly investigate his complaints. When he began complaining about the department’s alleged practices, he was denied a promotion and given a poor performance evaluation.
The Employment Law Group® law firm has an extensive nationwide whistleblower practice representing employees who have been victims of retaliation.
The Employment Law Group® principal attorneys David Scher and R. Scott Oswald wrote an article entitled “Blowing the Whistle,” which appeared in the October 2011 edition of California Lawyer. In the article, Scher and Oswald discuss the California Whistleblower Protection Act (CWPA), referring to it as a “robust law that…has limitations and administrative hurdles.” They explain how the CWPA is widely respected, but cluttered with restrictive policies. Although the CWPA does provide robust protection for employees and whistleblowers, its technical requirements can make the filing of a claim somewhat complicated. By far, the biggest restriction is the fact that CWPA only covers those employed by the state and not those employed by the local government.
Under the CWPA, a state employee must file an administrative claim with the State Personnel Board (SPB), which would then investigate the claim. For state university employees, they must file their claims either to their supervisor or to an internal staff member before they take the matter to a civil court.
If the claimant is seeking damages, the CWPA stipulates that after the State Personnel Board investigates, the employee must bring the matter to the Victim Compensation and Government Claims Board. The board has 45 days to respond to a claim and if it the board rejects the claim, the claimant (employee) has six months to file a lawsuit. If the board denies the claim because there was no timely response, the claimant has two years to bring the issue before a court.
Oswald and Scher recommend that employees and whistleblowers file their complaints with both the SPB and the claims board. They also recommend that due to the complexities involved, only attorneys with strong knowledge of the administrative requirements of the CWPA handle these cases.
According to a Department of Justice Press Release, Oracle Corp. and Oracle America Inc. have agreed to pay $199.5 million plus interest for failing to meet their contractual obligations to the General Services Administration (GSA).
This settlement relates to a contract Oracle entered into in 1998 to sell software licenses and technical support to government entities through GSA’s Multiple Award Schedule (MAS) program. The MAS program provides the government and other GSA-authorized purchasers with a streamlined process for procurement of commonly used commercial goods and services. To be awarded a MAS contract, contractors must agree to disclose commercial pricing policies and practices, and to abide by the contract terms. The settlement resolves allegations that, in contract negotiations and over the course of the contract’s administration, Oracle knowingly failed to meet its contractual obligations to provide GSA with current, accurate and complete information about its commercial sales practices, including discounts offered to other customers, and that Oracle knowingly made false statements to GSA about its sales practices and discounts.
Tony West, Assistant Attorney General for the Civil Division of the Department of Justice sates:
“Companies that engage in unlawful or fraudulent practices to secure government business undermine the integrity of the procurement process and create an unfair advantage against the majority of companies that are playing by the rules. Resolutions like this one – the largest GSA false claims settlement in history – demonstrates our commitment to ensure taxpayers are not overpaying for the products and services they receive.”
The settlement resolves a lawsuit filed on behalf of the U.S. government by former Oracle employee, Paul Frascella, who will receive $40 million as his share of the recovery in the case. Under the whistleblower provisions of the False Claims Act, private citizens can bring lawsuits on behalf of the United States and share in any recovery obtained by the government.
TELG Principals Publish Authoritative Article on D.C.’s Amended Whistleblower Protection Act in Bureau of National Affairs
The Employment Law Group’s © Managing Principal R. Scott Oswald and former Principal Jason Zuckerman have published a whistleblower article in the Bureau of National Affairs, Inc. Daily Labor Report titled “D.C.’s Amended Whistleblower Protection Act: The Gold Standard for Public Sector Whistleblower Protection.”
The article highlights changes to Washington D.C.’s recently amended Whistleblower Protection Act (D.C. WPA); changes which make it the “strongest public sector whistleblower protection statute in the country” and a model for other states to follow. Messrs. Oswald and Zuckerman point out that in order “to encourage public sector employees to blow the whistle on waste, fraud, and abuse, states must provide robust whistleblower protections to employees.”
These changes were brought about after the D.C. Council investigated Harriette Walters, a former employee at the Office of Tax and Revenue, and discovered she had embezzled over $48 million over the course of 18 years. Her co-workers remained silent the entire time because they feared reprisals for blowing the whistle.
Now, “the D.C. WPA protects any current or former employee, applicant for employment, as well as employees of independent and subordinate agencies….[Furthermore,] authorizing actions against individuals is critical to deterring retaliation against whistleblowers.”
Changes to the D.C. WPA include:
- Broad Scope of Protected Conduct: The D.C. Whistleblower Protection Act protects an employee who lawfully discloses information which he or she reasonably believes evidences gross mismanagement, waste of public funds, abuse of authority in connection with the administration of a public program or the execution of a public contract, a violation of law, regulation, or contractual term, or a substantial danger to public health and safety. The D.C. WPA also protects and employee’s refusal to comply with an illegal order…. [Defined as] a directive to violate or assist in violating any federal, state, or local law, rule, or regulation.
- Protecting ‘Duty Speech’: The amended D.C. WPA also eliminated the “duty speech” loophole. Foreseeing the assertion of the “duty speech” defense from Garcetti v.Ceballos, the D.C. Council clarified that employees are protected even if their disclosure is made during the course of performing their job duties.
- Prohibited Types of Retaliation: The D.C. WPA forbids a wide range of retaliatory adverse actions, including “recommended, threatened, or actual termination, demotion, suspension, or reprimand; involuntary transfer, reassignment or detail; referral for psychiatric of psychological counseling; failure to promote or take other favorable personnel action.
- Causation Standard and Burden-Shifting Framework: The D.C. WPA applies a causation standard and burden shifting framework that is mare favorable to employees than Title VII of the 1964 Civil Rights Act’s McDonnell Douglas standard. To prevail under the D.C.WPA, an employee must show by a preponderance of the evidence that her protected conduct was a contributing factor in the adverse employment action.
- Statute of Limitations and Right to Jury Trial: Under the D.C. WPA, a whistleblower may seek a trial by jury within three years after a violation occurs or within one year after he or she first learns of the violation, whichever comes first.
- Remedies: Remedies available to a whistleblower include injective relief, reinstatement to the same or equivalent position with all seniority rights and benefits, back pay, interest, compensatory damages, attorneys’ fees, and costs.
- Financial Incentive for Whistleblowing: The District is encourage employees to become whistleblowers by creating financial incentives while simultaneously prohibiting retaliation and holding those who participate in retaliation personally responsible for their acts.
- Protection for Employees of D.C. Contractors: The District extends similar protections to the employees of District contractors and instrumentalities.
Messrs. Oswald and Zuckerman conclude that more states should adopt whistleblower protection statutes similar to the District of Columbia’s because strong whistleblower protection laws like the D.C. WPA will incentivize more people to come forward and blow the whistle.
In Saunders v. District of Columbia [link to opinion], Judge Colleen Kollar-Kotelly for the United States District Court for the District of Columbia held that the Federal False Claims Act has a three year statute of limitations when bringing a lawsuit against the District of Columbia. Congress recently passed the Dodd-Frank Act, which included a provision setting the statute of limitations of the False Claims Act to three years. However, the court did not address whether this provision retroactively applied to the pending case. Instead, the court used the old method of applying the statute of limitations of the most similar state law to the Federal False Claims Act. The court found the D.C. False Claims Act was nearly identical to the Federal False Claims Act, and therefore applied the three year statute of limitations of the D.C. law to the present Federal False Claims Act lawsuit. Whistleblowers Theresa Saunders, who blew the whistle on deficiencies in how the Office of Chief Technology was using federal funding, may proceed to trial.
New York recently amended its False Claims Act (FCA) by expanding the Act’s coverage and strengthening the Act’s whistleblower protections. The New York FCA now applies to violations of New York tax law when the violator’s income from sales exceeds one million for the year in which the violation took place. Furthermore, whistleblower protections are now afforded to contractors and agents in addition to employees, and whistleblowers are now protected when they are “harmed or penalized by an employer, or prospective employer” because of “lawful acts done by the employee, contractor, agent, or associated others.” The amendments explicitly confirm that the keeping of documents evidencing fraud or transmitting those documents to the government or the whistleblower’s attorney is a “lawful act” even when the activity violates a contract or a duty of the employee so long as that activity furthers efforts to stop one or more FCA violations.
For information about The Employment Law Group® and its False Claims Act Whistleblower Practice.
According to the Washington Examiner, a D.C. jury awarded Sean McLaughlin damages for retaliation in violation of the DC Whistleblower Protection Act. McLaughlin alleged D.C. Police Chief Cathy Lanier, a district commander at the time, threatened police officers with “consequences” if they pursued their claims that the police department’s off-duty reimbursable overtime security detail at Gallery Place was illegal.
According to the Government Accountability Project’s blog, D.C. Superior Court Judge Leonard Braman held that a recent amendment to the D.C. Whistleblower Protection Act (WPA) exempting whistleblowers from the requirement of notifying the District of a claim within six months of the adverse employment action should apply retroactively. Therefore, the notice requirement in D.C. Code §12-309 will not bar relief in pending D.C. WPA claims.
For information on The Employment Law Group® law firm’s Whistleblower Practice, click here.
The Attorney General of New York has settled its lawsuit against Sodexo, a provider of school lunches, for $20 million. Two whistleblowers, John and Jay Carciero, filed the qui tam action alleging Sodexo received illegal kickbacks from the vendors it selected for school lunch programs. Under New York law, whistleblowers are entitled to a reward of up to 20% of the recouped funds.