Articles Posted in Retaliation Claims

At the 20th Annual Convention of NELA, the National Employment Lawyers Association, I recently had the pleasure of moderating a panel discussion of some of the country’s top “whistleblower” lawyers. The topic was “The Most Pressing Issues in Representing Whistleblowers.”

Joining me in this panel discussion were Richard Renner and David J. Marshall. Richard is an attorney with Kohn & Colapinto in Washington, DC. and also serves as Legal Director of the National Whistleblowers Center. David is a partner with Katz, Marshall & Banks, LLP in DC.

The discussion included:

Today, we were excited to hear that the Senate Judiciary Committee has sent long-needed amendments to the False Claims Act to the full Senate, as part of the “bailout” and “stimulus” inspired “Fraud Enforcement and Recovery Act” (FERA).

Where there are taxpayer funds being spent, there will be attempts to engage in fraud to cheat the public. As hundreds of billions of dollars are poured into federal and state programs through the “economic stimulus” package, the continuation of the Troubled Assets Relief Program (“TARP”), the many federally funded health care programs such as Medicare and Medicaid, and the vast defense procurement industry that is servicing two wars, opportunities for fraud will only increase. The speed at which the “stimulus” funds will be spent will only increase the opportunities for fraud.

Senator Grassley has been steadfast in his efforts to ensure that these taxpayer funds receive the protection of the False Claims Act, which is the primary civil weapon to combat fraud and false claims. This bipartisan legislation would restore the False Claims Act to its original intent by “undoing” several attempts by judges to limit its reach. Among the goals of the Amendments are:

I am very excited about co-chairing the Annual “Whistleblower Law Symposium” once again this week.

From Atlanta, Boston, Chicago, New Orleans, San Antonio, and Washington, D.C., many of the country’s leading attorneys in whistleblower cases under the “qui tam” statute, the False Claims Act, the Sarbanes-Oxley statute, and the IRS Whistleblower Program will gather in Atlanta on March 4 to discuss some of the more challenging aspects of representing whistleblowers (or defending against whistleblower claims) under these laws.

We are honored to have one of the officials of the IRS Whistleblower Office, Dawn Applebaum, join us in person to discuss the progress of the new IRS Whistleblower Rewards Program. The IRS Whistleblower Office has just celebrated its second anniversary.

We are also privileged to have the top state enforcement officials in health care fraud cases from Texas, Florida, and Georgia, to explain how they coordinate state and federal health care fraud whistleblower cases under the federal and state False Claims Acts.

Also joining us is Rep. Edward Lindsey, the Legislative Sponsor both of the Georgia State False Medicaid Claims Act, and recent legislation to solidify Georgia’s Office of State Inspector General.

Because of the wave of new whistleblower statutes that have been inspired by the successes of the False Claims Act, our firm instituted the Whistleblower Law Symposium. Once again, top-notch speakers will address a broad variety of issues that arise under these whistleblower laws, including:

–Whistleblowers in Health Care: Recent Cases and Strategies for Healthcare Providers and Counsel When a Whistleblower Calls

–Recent Developments in Qui Tam Cases Under the False Claims Act-The Relator’s Perspective
–Current Issues in Defending Qui Tam Claims
–Coordinating State and Federal Whistleblower Cases Under the State and Federal False Claims Acts-Current Priorities and Recent Results
–Federal Priorities and Procedures in Qui Tam Cases
–Plaintiffs’ & Defendants’ Approaches to Sarbanes-Oxley Claims
–Update on the IRS Whistleblower Program

We are fortunate to have such excellent faculty members from around the country join us. Our faculty members and their topics are listed below.
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On July 31, Congress enacted a new Whistleblower Law designed to promote consumer product safety. The new federal legislation specifically was enacted to protect public and private sector employees who disclose to their employers, a regulatory agency or a state Attorney General any perceived violation of the Consumer Product Safety Commission. The law also provides protection for employees who refuse to participate in violations of the Consumer Product Safety Commission Act. Obviously, the purpose of this legislation was to protect employees who, in good faith, report potential safety problems connected with consumer products and to prevent retaliation against such an employee either in the private or public sector. Any employee who, in good faith, reports or discloses potential violations of the Consumer Product Safety Commission Act, is protected from retaliation by this legislature.

Under the new whistleblower legislation, an employee who believes that they have been unlawfully retaliated against for disclosing a violation of the Consumer Product Safety Commission Act must file with the Occupational Health and Safety Administration (OHSA) a complaint of retaliation within 180 days of becoming aware of the retaliatory action. Afterwards, on an administrative basis, OHSA will conduct an investigation. Either the employee or the employer can request a hearing before an Administrative Law Judge (ALJ) and can appeal an adverse decision to the Department of Labor’s Administrative Review Board. If the Department of Labor has not issued a final decision within 210 days after the filing of the complaint, an employee may remove the complaint to Federal Court and ask for a jury trial.

Under the new Act’s provisions, in order to deter employers from retaliating against employees who, in good faith, report violations or potential violations of the Consumer Product Safety Commission Act, a prevailing employee who has been unlawfully retaliated against will be entitled, among other things, to reinstatement, back pay, compensatory damages and litigation costs including reasonable attorney’s fees.

This past week, more than 450 of the country’s best employment lawyers who represent individuals gathered in Atlanta for the National Employment Lawyers Association’s Annual Conference.

I had the pleasure of appearing with a group of excellent attorneys on a panel of that discussed “Strategic Thinking in Whistleblower Cases,” moderated by Robin Potter of Chicago (who won a major victory last week).Speakers at the 2008 NELA Conference panel on “Strategic Thinking in Whistleblower Cases” were (front row) David Marshall and Bryan J. Schwartz, and (back row) Michael A. Sullivan and Mark Kleiman.

David Marshall of D.C.’s Katz, Marshall & Banks, LLP began by discussing how nesessary whistleblowers are, as well as important considerations in pursuing Sarbanes-Oxley whistleblower cases.

Two days ago on 1/28/08 President Bush signed into law the National Defense Authorization Act for the fiscal year 2008. This legislation includes a provision protecting defense contractor employees who blow the whistle on contracting fraud. 10 U.S.C. § 2409 has specifically been amended via Section 846 to protect employees for disclosing “information that the employee reasonably believes is evidence of gross mismanagement of a Department of Defense contract or grant, a gross waste of Department of Defense funds, a substantial and specific danger to public health or safety, or a violation of law related to a Department of Defense contract (including the competition for or negotiation of a contract) or grant.” Obviously, this new whistleblower protection encourages defense contractor employees to come forward if they have knowledge of such misconduct.

The new whistleblower law is intended to protect all defense contract employees to come forward in good faith so that they need not fear reprisal if they do so. If the employee who blows the whistle on contractor fraud is retaliated against, the affected employee may file a complaint with the Inspector General of the Agency and unless the complaint is determined to be frivolous, the Inspector General will conduct an investigation. If the employee is not satisfied with the Inspector General’s handling of the complaint, the employee may bring an action in federal court and is entitled to a jury trial. If the complainant is retaliated against for bringing legitimate good faith complaints of government contract fraud out in the open, then his or her remedies would include reinstatement, back pay, compensatory damages, attorneys fees and costs.

This new law is a giant step forward when it comes to protecting whistleblowers who are brave enough to come forward and expose defense contractor misconduct. By protecting such employees from retaliation, the law is intended to encourage their coming forward to expose waste, fraud and mismanagement. If the employee who does come forward is retaliated against as a result of blowing the whistle, this law is intended to make sure that they will be fully compensated for any damages sustained as a result of such retaliation including reinstatement of the job taken from them or reimbursement for wages and benefits lost as a result of any retaliation. As stated, the employee is also entitled to have his or her attorneys fees and costs paid should they be retaliated against for blowing the whistle.

While there are many specific retaliation provisions unique to claims filed under the False Claims Act, with the Equal Opportunity Commission and/or arising out of Sarbanes-Oxley provisions, all of which protect informant employees from being retaliated against by their employer, a little known fact is that there is a general statute (42 U.S.C. § 1985) which makes it unlawful for two or more persons to conspire to “deter” a witness from testifying in Federal Court. This statute also makes it unlawful to “retaliate” against a witness for having so testified. The “deterrence” provision makes it unlawful for two or more persons to conspire to deter by force, intimidation or threat, any witness in any court in the United States from testifying to any matter pending therein freely, fully and truthfully. The “retaliation” provision makes it unlawful to injure a witness on account of his having testified in a court in the United States. Conspiracy to retaliate consists of two or more people acting in concert to retaliate against a witness for having testified in a judicial proceeding and injury as a result of the conspiracy, and an nexus between the act of testifying and the conspiracy.

The typical case where this statute might apply is one where a company employee testifies against the employer in a federal proceeding and then is terminated as a result of the testimony. Even a threat to take retaliatory actions against a witness should they provide truthful testimony is actionable under this statute. Thus, if a company employee is testifying before a federal body and is “advised, counseled or warned” that should they testify unfavorably to the company they may be subject to reprisal, this would be an actionable case under this statute.

In the United States Supreme Court of Haddle v. Garrison, 525 U.S. 121, 119 S. Ct. 489, 148 L. Ed. 2d 502 (1998), (a case arising in Georgia which involved this firm) the Supreme Court held that third party interference even with an “at will” employment relationship states a claim for relief under § 1985. The Court reasoned that because “the gist of the wrong at which § 1985 is directed is not deprivation of property, but intimidation or retaliation against witnesses in federal court proceedings,” the loss of at will employment can injure a plaintiff for purposes of the statute. Thus, even in an “at will” state such as Georgia, if an employee is intimidated by an employer in such a way as to interfere with their ability to provide testimony against the employer in a federal court context, then such a case is actionable notwithstanding the restrictions of a state “at will” employment doctrine.

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