Presentation on theme: "New Whistleblower Protection Laws and Cross-Cutting Issues in Whistleblower Retaliation Litigation Jason M. Zuckerman The Employment Law Group® Law Firm."— Presentation transcript:
1 New Whistleblower Protection Laws and Cross-Cutting Issues in Whistleblower Retaliation Litigation Jason M. ZuckermanThe Employment Law Group® Law FirmTel:Fax:
2 New Whistleblower Protection Provisions 9/11 Act for Transportation EmployeesCPSC Reform Act for Manufacturing, Private Labeler, Retail and Distribution EmployeesWhistleblower Protections for DoD Contractor EmployeesDoD Directive
3 9/11 Act Transportation Whistleblower Protections Public Transportation Employees§ 1413 establishes National Transit Systems Security Act of 2007 (“NTSSA”) to protect public transportation employeesRailroad Employees§ 1521 amends the Federal Rail Safety Act (“FRSA”), 49 U.S.C. § 20109Commercial Motor Carrier Employees§ 1536 amends the Surface Transportation Assistance Act (“STAA”), 49 U.S.C. § 31105
4 The Implementing Recommendations of the 9/11 Commission Act of 2007 Enacted August 3, 2007Public Law NoNew Cause of Action:Whistleblower coverage for public transportation employees (§ 1413)Significant Enhancement to Existing WB Protection Laws:Whistleblower coverage for railroad employees (§ 1521) and commercial motor carrier employees (§ 1536)
5 9/11 Act Coverage Public Transportation Employees Section 1413 of the Act protects public transportation employeesApplies to a public transportation agency, a contractor or subcontractor of such agency, or an officer or employee of such agencyModeled on employee protection provisions of Federal Rail Safety Act (49 U.S.C. § 20109) and Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (“AIR21”) (49 U.S.C. § 42121)
6 9/11 Act Coverage Railroad Employees Section 1521 amends the Federal Rail Safety Act (“FRSA”), 49 U.S.C. § 20109Applies to a railroad carrier engaged in interstate or foreign commerce, a contractor or subcontractor of such a railroad carrier, or an officer or employee of such a railroad carrier
7 9/11 Act Coverage Commercial Motor Vehicle Employees Section 1536 amends the Surface Transportation Assistance Act (“STAA”), 49 U.S.C. § 31105Amendments conform the STAA to the procedure and burden of proof set forth in the NTSSA and the amended FRSA (which are essentially derived from AIR21)STAA protects drivers of commercial motor vehicles, mechanics, freight handlers, or any other person employed by a commercial motor vehicle carrier who affects safety and security during his or her employment.
8 Elements of a Transportation Retaliation Claim Protected ConductKnowledge of Protected ConductAdverse ActionProtected activity contributing factor in decision to take adverse action
9 Public Transportation Employees: Protected Conduct NTSSA covers employees who:Provide information or assist an investigation regarding conduct which the complainant reasonably believes constitutes a violation of Federal law relating to public transportation safety or security, or fraud, waste or abuse of federal grants or other funds intended to be used for public transportation safety or securityRefuse to violate or assist in the violation of a federal lawFile employee protection complaints under NTSSACooperate with a safety or security investigation conducted by the Department of Transportation (“DOT”), Department of Homeland Security (“DHS”) or National Transportation Safety Board (“NTSB”)
10 Public Transportation Employees: Protected Conduct NTSSA also covers employees who:Furnish information to the DOT, DHS, NTSB or any federal, state or local enforcement agency regarding an accident resulting in death or injury to a person in connection with public transportationRefuse to work under certain conditionsReport hazardous safety or security conditionsRefuse to authorize the use of any safety or security related equipment, track or structures
11 Railroad Employees: Protected Conduct The amended FRSA protects employees who:Notify or attempt to notify the railroad carrier or DOT of a work related illness or personal injury of an employeeFurnish information to the DOT, DHS, NTSB or any federal, state or local enforcement agency regarding an accident resulting in death or injury to a person in connection with railroad transportationRefuse to work under certain conditionsReport hazardous safety or security conditionsRefuse to authorize the use of any safety or security related equipment, track or structuresComplainant’s actions must be lawful and in good faith.
12 Railroad Employees: Protected Conduct FRSA protects:Providing information or assisting an investigation regarding conduct which the complainant reasonably believes constitutes a violation of Federal law relating to railroad safety or security, or fraud, waste or abuse of federal grants or other funds intended to be used for railroad safety or securityRefusing to violate or assist in the violation of a federal lawFiling a complaint under FRSAComplainant’s actions must be lawful and in good faith.
13 Commercial Motor Vehicle Employees: Protected Conduct STAA prohibits an employer from retaliating against an employee because the employee:filed a complaint or began a proceeding related to a violation of a commercial motor vehicle safety or security regulation, standard, or ordertestified or will testify in such a proceedingrefused to operate a vehicle because the operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety, health or securitycooperated or is about to cooperate, with a safety or security investigation by the DOT, DHS or NTSB about an accident or incident that resulted in injury or death to an individual or damage to property occurring in connection with commercial motor vehicle transportation
14 Protected Conduct “Reasonable Belief” To prove protected conduct, complainant need not report an actual violation of a transportation safety or security rule.“Reasonable belief” standard appliesObjective component assesses whether a person with the complainant’s knowledge and experience would have believed the reported conduct violated the relevant statute
15 Adverse Action Prohibits a broad range of adverse actions: TerminationBlacklistingDenying benefitsFailure to hire or rehireBurlington applies
16 Knowledge of Protected Conduct ALJs will impute knowledge of protected conduct to the decision-maker where a person with knowledge of the protected conduct influenced the decision
17 Causation Burden of proof favorable to employees Contributing factor is “any factor, which alone or in connection with other factors, tends to affect in any way the outcome of the decision.”
18 ProcedureUnder the three transportation whistleblower protection laws, a retaliation claim must be filed with the Department of Labor (“DOL”) within 180 days of the employee first learning of the adverse actionSOL does not run from the date on which the adverse action is implementedOSHA conducts investigation and can order preliminary reinstatementEither party can request a de novo hearing before an ALJ
19 Procedure Formal rules of evidence do not apply Either party can request ARB review of ALJ decisionIf DOL has not issued a final decision within 210 days after the filing of the complaint, the complainant can file suit in federal district court.Either party can request a jury trial
20 Remedies Reinstatement Back pay Attorney Fees Punitive Damages capped at $250,000
21 CPSC Reform Act of (H.R. 4040)Protects employees in the manufacturing, private label, retail and distribution industries (§ 219)Enacted August 14, 2008Comprehensive CPSC reform prompted by concerns about lead-based toys and other hazardous consumer products
22 CoverageSection 219 of the CPSC Reform Act protects employees in the manufacturing, private labeling, distribution and retail industries who disclose information to an employer, a regulatory agency, or a State Attorney General about a reasonably perceived violation of the Consumer Product Safety Commission Act (“CPSCA”) or any act enforced by the Consumer Product Safety CommissionAlso protects an employee’s good faith refusal to violate the CPSCA
23 Elements of CPSC Retaliation Claim Protected ConductKnowledge of Protected ConductAdverse ActionCausation
24 Protected Conduct An employee engages in protected activity by: Providing information relating to a violation of the CPSC Reform Act or any Act enforced by the Commission, to the employer, the Federal Government, or the attorney general of a stateTestifying or assisting in a proceeding concerning a violation of the CPSC Reform Act or any law enforced by the CommissionRefusing to participate in an activity that violates the CPSCA
25 Protected Conduct Specific examples of protected conduct include: Reporting violations of the standard for the flammability of children’s sleepwearReporting violations of safety specifications for bicyclesReporting choking incidents involving marbles, small balls, latex balloons and other small parts
26 Adverse Action Prohibits a broad range of adverse actions “discharge an employee or otherwise discriminate against an employee with respect to compensation, terms, conditions, or privileges of employment”Burlington standard applies
27 Causation Burden of proof favorable to employees Contributing factor is “any factor, which alone or in connection with other factors, tends to affect in any way the outcome of the decision.”
28 Remedies Reinstatement Back Pay Attorney’s Fees Punitive damages not authorized
29 Procedure 180-day statute of limitations Applies AIR-21/SOX procedures OSHA investigatesALJ hearingAppeal to ARBIf DOL does not issue a final decision within 210 days of the employee filing the complaint, employee can remove the claim to federal court and is entitled to a trial by jury.
30 Whistleblower Protections for DOD Contractor Employees Section 846 of National Defense Authorization Act for Fiscal Year 2008 (H.R. 4986) amends 10 U.S.C. § 2409Protects disclosures to Congress, an Inspector General, the Government Accountability Office, or a Department of Defense contractor oversight employee concerning information that the employee reasonably believes evidencesgross mismanagement of DOD contract or grantgross waste of DOD fundssubstantial and specific danger to public health or safety, orviolation of law related to a Department of Defense contract
31 Whistleblower Protections for DOD Contractor Employees Complaint filed with the IGIG can order reinstatement, back pay, compensatory damages, and attorney fees and costs.210 days after filing, plaintiff can remove complaint to federal court and can elect a jury trialPlaintiff can also pursue FCA retaliation claim
32 Updates policy and responsibilities for NAFI whistleblower protection DoD Directive : Further Protection for Employees of DoD ContractorsProvides Reprisal Protection for Nonappropriated Fund Instrumentality (NAFI) Employees/ApplicantsUpdates policy and responsibilities for NAFI whistleblower protectionEncourages NAFI employees to engage in whistleblowing activity without fear of reprisalClarifies corrective and disciplinary actions regarding allegations of reprisal against a NAFI employee who engages in whistleblowing activity
33 Coverage Office of the Secretary of Defense Military Departments Office of the ChairmanCombatant CommandsOfficer of Inspector General of DoDDefense AgenciesAny other organization of the DoD
34 Other Remedies for Employees of DoD Contractors Employees of DoD Contractors can pursue a claim for retaliation under the following statutes:IG StatuteFalse Claims ActCommon Law Wrongful Discharge
35 Cross-Cutting Issues in Whistleblower Litigation Cross-Cutting Issues in Whistleblower ProtectionObjective Reasonableness of Plaintiff’s DisclosureSpecificity of DisclosureDuty SpeechChoice of ForumPreemptionCounterclaims and After-Acquired Evidence
36 Objective Reasonableness DOL ARB and two Circuit Courts have imposed a high standard of “objective reasonableness”Allen v. Administrative Review Board, No (5th Cir. Jan. 22, 2008)Livingston v. Wyeth, Inc., No (4th Cir. Mar. 24, 2008)Welch v. Cardinal Bankshares Corp., ARB No , ALJ No SOX-15 (ARB May 31, 2007)Objective reasonableness may be decided as a matter of lawUnderscores importance of expert witness testimony
37 Specificity of Disclosure DOL ARB has amended whistleblower protection laws to require that complainant’s disclosure implicate the substantive law “definitively and specifically.”Under ERA, disclosure must implicate nuclear safety definitively and specificallyPlatone v. FLYi, Inc., ARB , 2003-SOX-27 (ARB Sept. 29, 2006)To constitute protected conduct, a complainant's protected communications "must relate 'definitively and specifically' to the subject matter of the particular statute under which protection is afforded (mail fraud, wire, radio and TV fraud, bank fraud, securities fraud, or any rule or regulation of the SEC)FCA retaliation cases requiring very specific disclosure about presentment of false claim
38 Duty SpeechDefense bar has sought to apply Garcetti v. Ceballos, 126 S. Ct (2006) “duty speech” doctrine to staturoy whistleblower protection claimsSOX does not exclude duty speech claims.Deremer v. Gulf Coast, 2006-SOX-2 (ALJ June 29, 2007)The Act contains no language excluding one’s job duties from protected activity. . . one’s job duties may broadly encompass reporting of illegal conduct, for which retaliation results. Therefore, restricting protected activity to place one’s job duties beyond the reach of the Act would be contrary to Congressional intent.Leznik v. Nektar Therapeutics, Inc., 2006-SOX-93 (ALJ Nov. 16, 2007)
39 Duty Speech Plead how complainant’s disclosure went beyond job duties ERAMackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984) – QC control inspectors vital to the regulatory scheme for nuclear plants and therefore cannot be discharged when “they do their jobs too well.”False Claims ActEmployee tasked with the internal investigation of fraud against the government must clearly put the employer on notice that a qui tam suit is a reasonable possibility. Eberhardt v. Integrated Design & Constr., Inc., 167 F.3d 861 (4th Cir. 1999)Plead how complainant’s disclosure went beyond job duties
40 Choice of ForumNineteen states have adopted statutes protecting whistleblowers in the private sector.Many state whistleblower statutes limit protection to external disclosures43 states recognize public-policy exception to employment at willPunitive damages available in state common law wrongful discharge actions
41 Choice of Forum DOL formal rules of evidence do not apply broad scope of discoveryProtective orders disfavoredCounterclaims cannot be brought in DOLFederal courtwhistleblower retaliation claim can be combined with tort claimsJury trialBroader discoverySubpoena power
42 PreemptionDOL Whistleblower Protection Statutes do not preempt state actionsEnglish v. General Electric Co., 496 U.S. 72 (1990).18 U.S.C. § 1514A(d) (“Nothing in this section shall be deemed to diminish the rights, privileges, or remedies of any employee under any Federal or State law ”)Common law wrongful discharge action generally unavailable where there is a remedy under federal law.
43 Counterclaims and After-Acquired Evidence Counterclaims more commonMisappropriation or disclosure of trade secret informationBreach of fiduciary dutyBreach of contract/confidentiality policyAfter Acquired EvidenceMcKennon v Nashville Banner Publishing Co, 513 U.S. 352 (1995)
44 Future Developments Amending the Whistleblower Protection Act of 1989 H.R. 985 and S. 274Private Sector Whistleblower Protection Streamlining Act of 2007 (H.R. 4047)False Claims Act Correction ActS and H.R. 4854
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