Whistleblower Law Blog

New York Expands False Claims Act and Strengthens Whistleblower Protections

September 22, 2010

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.

GAO Reports Weaknesses in DOL OSHA Whistleblower Program and Provides Recommendations

September 16, 2010

The Government Accountability Office (GAO) reported to Congress its findings on the OSHA whistleblower program in its report titled “Whistleblower Protection: Sustained Management Attention Needed to Address Long-standing Program Weaknesses.”  The GAO concludes that OSHA has neglected its whistleblower program and has failed to implement GAO’s prior recommendations.  Sens. Tom Harkin (D-IA) and Patty Murray (D-WA), and Reps. George Miller (D-CA) and Lynn Woolsey (D-CA) responded to the GAO report with a press release stating:

The GAO found that for the last two decades, the Labor Department has not provided adequate management attention to the whistleblower program. The independent watchdog agency said the program’s training for investigators and their supervisors is inconsistent from region to region, that internal controls are lacking to monitor compliance with policies and procedures, and that few of the GAO’s previous recommendations from 2009 have been implemented.

The GAO also noted that despite an increased workload over the years, the number of inspectors has remained relatively flat, and urged the program establish a separate budget for the whistleblower program. In fiscal year 2009 more than 2,100 whistleblower complaints were filed with OSHA.  Congress provided the Labor Department with funds for 25 additional whistleblower investigators in fiscal year 2010 to deal with a growing caseload.

In the report, the GAO provides the Secretary of Labor with the following recommendations for strengthening its whistleblower program:

To improve program performance and oversight, we are recommending that the Secretary of Labor require OSHA to take several actions:

• Ensure that all investigators complete mandatory training. 
• Require staff who supervise investigators to complete the mandatory investigator training. 
• Track whistleblower program expenses, including FTEs, separately from other OSHA programs, and annually report these expenses to Congress. 
• Develop an action plan, with specific milestones, for addressing identified internal control weaknesses. This plan should include mechanisms for strengthening the whistleblower national office’s control over the program. 
• Incorporate strategic goals specifically for the whistleblower program into Labor’s strategic plan, and develop performance measures to track progress in achieving these goals.

For more information about The Employment Law Group® and its Whistleblower Law Practice, click here.

Federal Circuit Holds that Whistleblower Protection Act Plaintiff Need Not Prove Actual Violation of Law

September 13, 2010

In Kahn v. Dep’t of Justice, the Federal Circuit, relying on the Drake decision, held that a WPA plaintiff need not demonstrate that he blew the whistle on an actual violation of law:

We reiterate, however, that “[t]he test is not whether [the petitioner] was able to prove [a violation], but rather could a disinterested observer with knowledge of the essential facts known to and readily ascertainable by [the petitioner] reasonably conclude . . . that a violation did occur.” Drake, 543 F.3d at 1382 (alterations added).

U.S. Court Rules Whistleblower’s Investigation is Protected Conduct under the False Claims Act

September 13, 2010

In Williams v. Basic Contracting Servs., Inc., the U.S. District Court for the Southern District of West Virginia affirmed the broad scope of protected conduct under False Claims Act (FCA) by holding that a whistleblower who investigates alleged fraud committed by her employer is protected from retaliation under the FCA even if the whistleblower does not pursue a qui tam action against her employer.  The Plaintiff, Williams, alleges that her employer suspended her because she investigated her employer’s alleged practice of overbilling the government for its cleaning services.

For information about The Employment Law Group® and its False Claims Act Whistleblower Practice.

Win for Whistleblower Clarifies Joint Employer Liability

September 07, 2010

On September 1, 2010, Administrative Law Judge Robert Rae issued an order holding that a joint employer’s “‘ability to exercise control’ by hiring, transferring, promoting, reprimanding or discharging [a whistleblower], or the ‘ability to influence’ another employer to take such actions is sufficient to establish joint employer liability under the [Surface Transportation Assistance Act].”  The order was issued in the consolidated cases of Myers v. AMS/Breckenridge/Equity Grp. Leasing 1 and Baxter v. AMS/Breckenridge/Equity Grp. Leasing 1.   We originally blogged about ALJ Rae’s denial of the Respondent’s motion to dismiss here.

The Respondent contracted with New Rising Phoenix, Inc., a trucking company, to provide payroll, benefits, and human resource services.  The contract contained language required by Florida law which provided the Respondent with the authority to hire, terminate, and reassign leased employees, and the right to control the safety, risk, and hazards which affect leased employees.  The contract also specified that the responsibility for payment of wages and management of workers’ compensation and unemployment claims lay with the Respondent.

The respondent argued that while the contract contained such language, it did so only because the language was mandated by Florida law.  In practice, the respondent did not actually exercise any authority over the complainants or any of their co-workers.  ALJ Rae found this argument unconvincing, holding that “Respondent affirmatively contracted for the authority to exercise control over employment . . . any ambiguity created thereby should be construed against Respondent, the party that drafted the contract.”

Complainants Baxter and Myers were each awarded $25,000 for emotional distress as well as $20,363.20 and $11,035.20 respectively for back pay plus attorneys’ fees and costs.

The Surface Transportation Assistance Act (STAA) protects bus drivers, truckers, and other employees who blow the whistle about the unsafe operation of commercial motor vehicles.  To learn more about The Employment Law Group® law firm’s Commercial Motor Carrier Whistleblower Practice, click here.

Ethics Resource Center Publishes Study Providing Advice On Increasing Internal Disclosures

September 07, 2010

On September 7, 2010, the Ethics Resource Center (ERC) published a study about internal disclosures of misconduct titled “Who’s Telling You What You Need to Know, Who Isn’t, and What You Can Do About It.”  According to the study:

1. Women tend to report more than men;

2. Members of unions are less likely to report than nonunion workers;

3. Managers report more than nonmanagement employees;

4. Reporting rates rise along with management level;

5. Reporting rates are lower in foreign-owned companies with U.S. operations;

6. Reporting rates are similar at privately-held and publicly-traded companies; and

7. Most employees contact a supervisor and only a small percentage use the hotline. 

The study also gives several pieces of practical advice on how to increase reporting.  For more information about the ERC study and a downloadable copy, click here.

If you have information about unethical or illegal conduct in the workplace, contact the whistleblower lawyers at The Employment Law Group® today!

OSHA Publishes Interim Final Rules For Filing Whistleblower Complaints

September 02, 2010

OSHA announced its new interim final rules for filing whistleblower complaints and invited the public to submit comments.  In a news release, OSHA stated:

“When workers believe their employers are violating certain laws or government regulations, they have the right to file a complaint and should not fear retaliation. Silenced workers are not safe workers,” said Assistant Secretary of Labor for OSHA David Michaels. “Changes in the whistleblower provisions make good on the promise to stand by those workers who have the courage to come forward when they believe their employer is violating the law and cutting corners on a variety of safety, health and security concerns in the affected industries.”

The regulations, which cover workers filing complaints in the railroad, public transit, commercial motor carrier, and consumer product industries, also create greater consistency among various OSHA complaint procedures. The interim final rules establish procedures and time frames for handling complaints under the whistleblower sections of the Implementing Recommendations of the 9/11 Commission Act of 2007 and the Consumer Product Safety Improvement Act of 2008.

For more information about the firm’s Whistleblower Law Practice, click here.

White House Delays Release of Secret Database Listing Contractor Fraud and Substandard Performance

September 02, 2010

According to the Boston Globe, the White House announced that it will delay the release of a database containing records of contractor fraud and substandard performance, stating “legal and practical issues” must first be addressed.  The database, named the Federal Awardee Performance and Integrity Information System, was established in 2008 and includes information companies must enter regarding their failures on federal government contracts.  President Obama signed into law a provision that requires the database’s release to the public.

The Globe quotes a statement issued by Senator Bernard Sanders saying:

We hand out over $500 billion a year to federal contractors, many of which have well-established histories of systemic illegal, fraudulent, and incompetent behavior.  We cannot let these corporations continue to rip off American taxpayers.  I strongly expect that this new public awareness will go a long way toward putting an end to handing out taxpayer-financed contracts to corporations with a history of fraud.

For more information about the firm’s Whistleblower Law Practice, click here.

OSHA Orders Utah Transit Authority to Reinstate Whistleblower

September 02, 2010

OSHA has ordered Utah Transit Authority (UTA) to reinstate a whistleblower and pay more than $130,000 in back wages with interest and attorney’s fees.  According to the complaint, the UTA fired the whistleblower in retaliation for raising security concerns, which violates the Federal Railroad Safety Act.

For more information about the firm’s Whistleblower Law Practice.

DC Jury Finds Police Chief Retaliated Against Whistleblower

September 02, 2010

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.

For more information about the firm’s Whistleblower Law Practice, click here.