One of the many issues still to be decided
for whistle-blowing claims under Sarbanes Oxley is how far does the law extend,
if at all, for conduct outside the United States.
A Colombian national who had alleged his
employer, an affiliate of a U.S. company, was violating Colombian tax law hoped
to find the answer to that question.
OSHA had rejected his complaint, finding that because the adverse
employment actions, the denial of a pay raise and his termination, had occurred
outside the U.S. it had no jurisdiction.
Following his appeal, the Administrative Law Judge agreed, finding §806
of SOX has no extra-territorial application. The Administrative Review Board
agreed, primarily because there was no connection between the alleged violation
of Colombian law and U.S. securities or financial disclosure law.
Undaunted, he turned to the
5th Circuit Court of Appeals, but fared no better. Agreeing his
complaint failed because it failed to allege a violation of “one of the six enumerated provisions of U.S.
The question of extraterritorial application? A decision for a
Because we affirm on this
narrower ground, we need not reach the argument, advanced by the government and
Core Labs, that § 806 does not apply extraterritoriality.
by Michael Fox
The statute that among many other things marked the beginning of employment law as a discipline, passed a major hurdle 50 years ago today when it passed the House of Representatives by a vote of 290 to 130.
According to a study of the Civil Rights Act's legislative history, The Longest Debate by Charles and Barbara Whalen, the final vote was 290 to 130.
Supporting the bill were 152 Democrats and 138 Republicans. Opposing it were 96 Democrats (including 86 from the 11 states of the Confederacy) and 34 Republicans, including 10 from the South.
Hard to imagine in light of today's partisan divide in both chambers of Congress.
Regarding Title VII, the bill that was passed and sent to the Senate was actually stronger than the one originally introduced. It had gone beyond enforcement by persuasion to creating for the first time a private cause of action, albeit one that was much more limited than it would become with the passage of the Civil Rights Act of 1991.
While the passage by the House of Representatives was a major feat standing alone, it was by no means certain that it would amount to more than a grand gesture as the bill now went to the Senate where it awaited a certain filibuster.
I am quite certain that on this date 50 years ago when I was looking forward to the end of 8th grade at Sulphur Springs Junior High School, and the prospect of actually being in high school, I had no idea that legislation which would change the world as we knew it had achieved such a major step. And certainly no thought that legislation was moving through Congress that would create a new field of law that would ultimately be the way I would spend my entire professional life.
by Michael Fox
Fifty years ago, on another February Saturday, after what had been a grueling fight to pass a strengthened Civil Right bill out of the House, Representative Howard Smith (D-VA) who had lost his battle to bottle the bill in the Rules Committee that he chaired, offered an amendment on the floor of the House to expand the protected categories from race, color, national origin and religion, by adding sex.
Some have viewed his amendment as one last ditch effort to sink the bill, others a slightly more nuanced version that seeing that the bill was ultimately going to pass, Representative Smith sought to make the bill better.
Although there was initial push back from the Democratic floor managers, and much joking colloquy, the amendment ultimately passed.
Whichever view is true, there is no doubt how the world has changed because of what happened 50 years ago today.
by Michael Fox
Not to ruin the Christmas season, but when you get through the holidays and start focusing again on looming legal issues, you might want to read this article, Lawsuit Raises FCRA Fears, by Kristen Fratsch in Human Resource Executive On Line.
The basis for the lawsuit is a class action suit against Disney, based on alleged failure to notify an applicant that he was not being hired because of a criminal conviction that showed up on a background check. According to the plaintiff's side of the story, the assault occurred when he was 19, was expunged from his record and the credit reporting agency ultimately removed it. Disney has not answered, so it may well have complied with the Fair Credit Reporting Act.
However, according to Fratsch since 2010 there have been been 368 class action lawsuits filed under the FRCA.
In employment law, most litigation has traditionally involved termination of employment. Which makes sense because in those cases an employee at one time got the job, performed for some period of time, and the employer had to make a conscious decision and carry it out appropriately. Plus, the employee has a vested interest based on his investment in time with his ex-employer and a track record of earnings that will support a damage claim. Not to mention the emotional involvement that comes out of being terminated.
By contrast, hiring claims are not as economically viable. There are lots of applicants for most positions and courts are reluctant to second guess hiring decisions if it seems to be a reasonable choice. Plus applicants generally don't know why they weren't hired, and don't have the emotional level of investment they have when someone has terminated them, plus damages are problematic.
But when you throw in the possibility of a class recovery, with the dollar signs that inevitably follow class litigation, now you have an incentive, not so much for individual employees, but for law firms that focus on class or collective action based employment litigation.
So, for now enjoy the holidays, but in the not too distant future, remind yourself of an employer's obligations under the FCRA and make sure that you are in compliance.
by Michael Fox
It will be interesting to see what the response is to today's announcement by the Department of Labor that complaints under any of the 22 federal whistleblowing statutes that OSHA enforces may now be filed on line.
Here's the gist of the DOL press release:
Whistleblowers can now file complaints online with
Agency launches online form to provide workers a new
way to file retaliation complaints
WASHINGTON – Whistleblowers covered by one of 22 statutes
administered by the U.S. Department of Labor’s Occupational Safety and Health
Administration will now be able to file complaints online. The online form will
provide workers who have been retaliated against an additional way to reach out
for OSHA assistance online.
Currently, workers can make complaints to OSHA by filing a
written complaint or by calling the agency’s 1-800-321-OSHA (6742) number or an
OSHA regional or area office. Workers will now be able to electronically submit
a whistleblower complaint to OSHA by visiting www.osha.gov/whistleblower/WBComplaint.html.
The new online form prompts the worker to include basic
whistleblower complaint information so they can be easily contacted for
follow-up. Complaints are automatically routed to the appropriate regional
whistleblower investigators. In addition, the complaint form can also be
downloaded and submitted to the agency in hard-copy format by fax, mail or
hand-delivery. The paper version is identical to the electronic version and
requests the same information necessary to initiate a whistleblower investigation.
Unlike some other government websites that have been in the news recently, this one at least opens.
If you are now curious about the form, click here.
It will be interesting to see how quickly individuals learn of this availability and what happens with the number of complaints. The discrimination/retaliation section is unusual because the individual does not have to designate which statute the complaint is filed under, nor is there any description of what the 22 laws cover.
On the information you are suggested to read before completing the form, OSHA says what is going to happen when the complaint is submitted:
Upon receipt of a complaint, OSHA will contact the complainant to determine whether to conduct an investigation. It is very important that a complainant respond to such contact; if a complainant is unresponsive, OSHA cannot proceed with an investigation and the complaint will be dismissed. If OSHA proceeds with an investigation, the complainant will have an opportunity to offer documents and other evidence in support of the complaint, and the employer will be notified of the allegation and permitted to submit a response.
OSHA does include this admonition:
BY LAW, A COMPLAINANT'S INFORMATION, INCLUDING HIS/HER IDENTITY, MUST BE PROVIDED TO THE EMPLOYER. A WHISTLEBLOWER COMPLAINT FILED WITH OSHA CANNOT BE FILED ANONYMOUSLY.
The announced intention is that everyone who submits a form will be contacted by OSHA.
This is going to be interesting; for employers, not necessarily in a good way.
by Michael Fox
But if you are at all interested in what may be coming out of new NLRB General Counsel Richard Griffin's office, and if you are an employer you should be, then you should at least know of Jennifer Abruzzo and Rachel Lennie, the new deputy general counsel and assistant general counsel respectively. See Corporate Counsel's, New NLRB GC Begins Building Labor Legal Team.
Because the GC controls what cases are initiated the legal judgments as to what kinds of cases and the theories on which they will be brought will rest primarily in the hands of these three for the next four years.
by Michael Fox
One of the many changes that have happened since I first started practicing law in 1975, is the appearance of services which monitor the filings of new lawsuits and send summaries to law firms. One such excellent service is Courthouse News Service, which actually does a lot more than just prepare summaries of new lawsuits. In the first paragraph of their "about us" they note:
Courthouse News Service is a nationwide news service for lawyers and the news media. Based in Pasadena, California, Courthouse News focuses on civil litigation, from the date of filing through the appellate level. Unlike other Internet-based publishers that simply aggregate information prepared by other content providers, Courthouse News publishes its own original news content prepared by its staff of reporters and editors based across the country.
In any event, one of their recent reports of a filing of a lawsuit by a pro se plaintiff in Harris County, Texas was the following:
Plaintiff points to ... an executive assistant, as the source of such office
hostility that plaintiff gave her an article titled "De-clawing cattiness
at work." She was fired the next day. She wants $600,000 damages.
And just in case you are wondering, it is at least theoretically possible that this did happen as a Google search reveals a 2005 article by Executive Coach Kay Cannon, De-clawing Cattiness in the Workplace.
Apparently, no matter how good the advice, it was not appreciated.
However, with Speaker John Boehner in opposition, it seems unlikely that the bill will be put to a vote, much less pass the House. Although this is one issue on which big business is generally neutral, so stranger things have happened.
In a speech last month, I predicted ENDA as one of the first pieces of employment legislation I expected, if the legislative gridlock ever melted.
I will stick with the prediction, but I would be surprised if this were an issue that made gridlock disappear, even temporarily.
Back in the mid 80’s, at the height of the AIDS epidemic breakout, an employee in a Woolworth store filed a claim with the NYC Human Rights Commission alleging that he was gay and had been discriminated against on a perceived handicap as the store thought he had AIDS because of his orientation. (He was fired for refusing to obey the directives of his black supervisor, saying he "won’t work for N#%&*%s!”) Undaunted the Commission set the matter for a hearing, and invited the local TV stations to video the hearing. Before the hearing, I had filed an answer that, inter alia, denied having knowledge sufficient to form a belief for the allegation that the CP was gay. You’d have thought it was the day a cake of Ivory Soap sank at P & G! When pressured as to why I would not admit the obvious, my reply was Gay discrimination was one area of the law where the plaintiff can self identify his or herself as a member of the protected class without actually being Gay, and it should be incumbent upon the CP to prove his or her orientation as a condition of proceeding further. No one had an answer to my contention, nor have they given me one since. As to the case, discretion being the better part of valor, I settled the case for $2500.00 with a non admission and, more important, a gag order on the CP and the Commission as to publicity. I have often wondered how the hearing would have been had it gone forward.
What caught my attention was the mention of this statistic:
A 2005 North Carolina-based study in the American Journal of Public Health showed that workplaces that allowed guns were about five times more likely to have a worker get killed on the job compared to workplaces that prohibited all kinds of weapons.
For guns, the linkage was actually 5 to 7 times more likely. For those who want to get into the weeds, a link to an abstract of the study is here.
Now one study alone is not enough to dictate policy, but if I am an employer responsible for assembling a large group of humans 300+ times a year, it would certainly give me sufficient pause to ask for a concrete explanation of why such a legislative action makes sense.
And like any other habit, it is much easier to fall out of than create. I am always amazed how after working out regularly for several months, missing a couple of weeks can put me back to ground zero in terms of the work out “habit.”
That has certainly happened to me with blogging as well. But with the first Monday of October, which of course is the opening of the current term of the U.S. Supreme Court, it seems a like a good time to try to kick the habit back in gear.
And there’s more in store. This Friday in Austin, Angie Marshall and I will be speaking at our firm’s seminar on:
TITLE VII AND EMPLOYMENT LAW: THE FIRST FIFTY YEARS
When Congress passed the Civil Rights Act of 1964, it marked not only a turning point in civil rights, but the beginning of the imposition of an adversary system in the workplace. Trace the history of the development of anti-discrimination law, obtain a greater understanding of current cutting edge issues, and gain an insight into the future during this informative session.
Trial Techniques for In-House Counsel: Don’t Make Juries Mad
Taking a case before a jury can be a nerve-wracking prospect for in-house counsel. The stakes are high and the results can be gratifying . . . or astonishing. This session will cover multiple trial issues and strategies, including juror insights and strategies for voir dire, challenging evidentiary issues, preparing witnesses, selecting experts, and more.
And hopefully, by then I will also be back in the blogging habit.