One Stop Shopping for Whistleblowers
Posted
12:49 PM
by Michael Fox
A hat tip to Today's Workplace, the blog of the Outten & Golden firm, for their link to OSHA's new whistleblower website, Office of the Whistleblower Protection Program.
It is worth its weight in gold, if for no other reason than to find a link to all 18 statutes that OSHA currently is responsible for:
Section 11(c) of the Occupational Safety and Health Act, 29 U.S.C. §660The statutes are up to date through the health care bill, but don't yet include those included in the Financial Reform Act which will not be signed into law until tomorrow. For a preview of those, which I am sure will be joining the list soon, see my earlier post, Financial Reform Passes - Major Whistleblowing Changes as Well.
Surface Transportation Assistance Act (STAA), 49 U.S.C. §31105
Asbestos Hazard Emergency Response Act (AHERA), 15 U.S.C. §2651
International Safe Container Act (ISCA), 46 App U.S.C. §1506
Safe Drinking Water Act (SDWA), 42 U.S.C. §300j-9(i)
Federal Water Pollution Control Act (FWPCA), 33 U.S.C. §1367
Toxic Substances Control Act (TSCA), 15 U.S.C. §2622
Solid Waste Disposal Act (SWDA), 42 U.S.C. §6971
Clean Air Act (CAA), 42 U.S.C. §7622
Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. §9610
Energy Reorganization Act (ERA), 42 U.S.C. §5851
Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21), 49 U.S.C. §42121
Corporate and Criminal Fraud Accountability Act, Title VIII of the Sarbanes Oxley Act (SOX), 18 U.S.C. §1514A
Pipeline Safety Improvement Act (PSIA), 49 U.S.C. §60129
Federal Rail Safety Act (FRSA), 49 U.S.C. §20109
National Transit Systems Security Act (NTSSA), 6 U.S.C. §1142
Consumer Product Safety Improvement Act (CPSIA), 15 U.S.C. §2087
Section 1558 of the Affordable Care Act (ACA), P.L. 111-148
And for two final tidbits, before the next OSHA investigation into a whistleblower complaint, you might want to look over the 190 page Whistleblower Investigations Manual and when you get ready to settle check out OSHA's policy for Approval of Settlements with Future Empoyment Waivers. Spoiler alert, it's on a case by case basis and they look at five factors.
Labels: whistleblower
Financial Reform Passes - Major Whistleblowing Changes as Well
Labels: whistleblower
Stimulating Whistleblowing
A gross waste of stimulus funds; A substantial and specific danger to public health or safety related to the implementation or use of stimulus funds; An abuse of authority related to the implementation or use of stimulus funds; or A violation of a law, rule, or regulation that governs an agency contract or grant related to stimulus funds. Labels: whistleblower
No Re-employment Clauses in Settlement Agreements
Although there is nothing wrong with such review, as a practical matter such clauses are standard in the settlement of any employment dispute. It mirrors the reality, that very few are served by forcing parties whose last dispute ended up in the court house, to have a second try. Let's hope it is the rare day that OSHA turns down such agreements. Hat tip to the folks at the DLR for calling this to my attention. Labels: whistleblower
Intervening Events - A Classic Example
Labels: whistleblower
Whistleblower Still Whistling in the Dark
Labels: whistleblower
Posted
5:13 PM
by Michael Fox
Thanks to Jacob Zuckerman at the Employment Law Group for his on the spot reporting about the new whistleblowing provisions contained in the major financial bill that was passed earlier today. See Dodd-Frank Bill Provides Robust Whistleblower Protection, including a link to a download of all the whistleblower provisions contained in the legislation.
Among the interesting provisions:
Given that it takes a number of years for employment law legislation to work its way into the framework of the law of the workplace, it may be a few years before the impact of today's legislative action is really determined. And because they are statutory and industry specific, it may even take longer for these particularl statutes.
But it is a pretty impressive body of new law and those in the affected industries would do well to take note.
Posted
1:34 PM
by Michael Fox
The Whistleblower Law blog, an advocate for whistleblowers has a detailed look at the McCaskill Amendment to the stimulus passed by Congress last week, Congress Enacts Robust Whistleblower Protections to Prevent Fraud in Stimulus Spending.
It analyzes protected conduct under the bill as including: Gross mismanagement of an agency contract or grant relating to stimulus funds;
It is not just a public sector bill but also covers private contractors where the source for their payment are stimulus funds. It seems it is not only bank executives who will be picking up restrictions when they pick up newly allocated government monies.
Posted
11:14 AM
by Michael Fox
On July 23rd, OSHA Administrator Edwin G. Foulke, Jr. issued a memo regarding OSHA's Policy for approving settlement agreements containing future employment waiver causes in whistleblower cases. Basically, OSHA will decide on a case by case basis whether to approve settlements containing an agreement on the part of the complaining employee that he or she will not be re-employed (or I assume apply for re-employment), under any of the 14 federal whistleblower statutes it administers.
The factors that will be considered are:
Posted
8:49 PM
by Michael Fox
When a co-CEO claimed he was terminated in violation of the Minnesota Whistleblower statute less than one month after he reported a possible violation by the company of federal income tax laws in the way it paid its Board members for mileage, he probably thought the timing alone would get him past the prima facie case stage. Two problems -- one, the court pointed out, as not all courts do clearly enough, that generally timing alone is not sufficient to meet even a prima facie case; secondly, in this case intervening events "undermined any causal inference that a reasonable person might otherwise have drawn from temporal proximity." Freeman v. Ace Telephone Association (8th Cir. 11/1/06) [pdf].
And just what were the intervening events: Two weeks after Mr. Freeman made his report to the board about the mileage issue, he admitted, in a sworn statement, to having a sexual relationship with the female employee and continuing that relationship after he promised the board that he would end it. He also admitted, moreover, that he lied to the board president, his co-CEO, and the company's human resources director about the relationship, that he used a company credit card to buy Viagra to continue the sexual relationship, and that he purchased private cell phones for himself and the female employee so that they could communicate secretly.
This case may also be part of a new employment law maxim - any time you see Viagra mentioned in the opinion, the employee is likely to lose.
Posted
2:08 PM
by Michael Fox
Back from an extended holiday, nice to note that some things haven't changed, including the inability of the first whistleblower ordered reinstated under Sarbanes Oxley -- David Welch -- to get reinstated. Instead he has lost round two before federal district judge Glen Conrad of the Western District of Virginia. CFO.com has the story, Judge Won't Enforce Whistle-blower Ruling.
A concise overview:Welch's case seems to be caught in a perpetual game of legal ping pong. In 2004, two years after he was fired, Cardinal appealed a "recommended decision and order" by DoL Administrative Law Judge Stephen Purcell to reinstate Welch as CFO and award him back pay. The bank's appeal was denied in June by DoL's administrative review board.
Judge Conrad's opinion is that he does not have authority to force Cardinal Bankshares to reinstate Welch because there is no "final administrative order." Although his refusal to act is based on the limited jurisdiction of a federal court, he does note the problems that could be caused if a district court were allowed to intervene: “immediate enforcement at each level could cause a rapid sequence of reinstatement and discharge, and a generally ridiculous state of affairs.”
Judge Conrad agrees his ruling does not result in the speedy resolution intended by Congress, but he lays the fault at the DOL's door. He also notes Welch is not totally without remedy in this situation as he could file suit in district court, but with the unfortunate result that the review would be de novo. Technically true, but given Welch is currently seeking to uphold a favorable decision -- starting afresh is really only a Hobson's choice.
If Judge Conrad is correct, that means one of the early enforcement mechanisms of Sarbanes Oxley is of little significance. This is clearly not the last word, certainly not on Welch's case, or even on how the statute will ultimately be interpreted, but federal courts seem to guard their jurisdiction zealously, so it is by no means certain that Judge Conrad's view will not carry the day.
For a more detailed overview of Welch's frustrating journey see this earlier post, Latest Step in First SOX Reinstatement Case.
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