Today the Supreme Court, by a 5-4 vote, held that one provision of the Sarbanes-Oxley Act (SOX) is unconstitutional. However, it also held that this one provision is "severable" so that the other provisions of SOX, including the whistleblower protection, are still in force. The case is Free Enterprise Fund v. Public Company Accounting Oversight Board, No. 08-861 (June 28, 2010). The unconstitutional provision of SOX limited the president's power to remove members of the Public Company Accounting Oversight Board.Continue Reading...
Patricia Smith (pictured at the podium) is now finally confirmed as the Solicitor of Labor, the official legal counsel for the U.S. Department of Labor. On June 25, 2010, she spoke to the annual convention of the National Employment Lawyers Association (NELA). "Labor rights are civil rights," Smith told us, making clear that she intends to elevate labor policy to the moral level of the Civil Rights Movement.
She stated that the Department will issue new rulesthat will call on employers to "plan, prevent and protect." The goal is to stop the culture of noncompliance, the "catch me if you can" mentality. Employers will be required to issue safety plans, then implement the plan (prevent) and review and change the plan (prevent) as indicated by implementation. Employers themselves will have to look for risks and ways to reduce them.
In the wage and hour area, new rules will increase the employer's duty of recordkeeping and give employees a right to have the information collected about them.
The Department of Labor will address the "epidemic of misclassification that is going on in this country."
The Solicitor's office is now issuing more general Administrative Interpretations instead of the more specific opinion letters used in the past.
Ms. Smith wants to "reinvigorate" its amicus program. In the wage and hour area, private litigants file 15,000 cases a year. The Department of Labor files 150. So, the Solicitor's office would like to have more impact, without the burden of conducting litigation, by submitting amicus briefs. Attorneys are invited to submit requests for amicus briefs from the Solicitor's office.
Finally, the Secretary of Labor, Hilda Solis, did an outreach PSA on wage and hour rights. She said that employees should be paid fairly, "regardless of status." Ms. Smith said, "I want to say publicly that I stand by that statement. The FLSA [Fair Labor Standards Act] applies to everyone regardless of status."
The Department of Labor's Administrative Review Board (ARB) held a public meeting today to hear from stakeholders about the how it might craft rules of practice. Last Friday, the ARB released a preliminary draft of its proposed Rules of Practice and Procedure. All three ARB members attended to hear comments. Pictured here are Vice-Chair E. Cooper Brown, Chair Paul M. Igasaki, and Member Wayne C. Beyer. The National Whistleblowers Center (NWC) sent Executive Director Stephen M. Kohn, General Counsel David Colapinto, and myself, Legal Director Richard Renner. Three labor union attorneys attended. Five other complainant-side attorneys and four employer-side attorneys also attended. ARB Chair Igasaki explained that his experience at the Equal Employment Opportunity Commission (EEOC) taught him the wisdom of hearing from stakeholders before adopting rules. He and Vice-Chair Brown explained that the ARB wants to work down its backlog. Initially, the ARB hopes to decide this year all its cases that have been pending over two years. The ARB plans to announce the appointment of two new members soon, and plans to hire more staff attorneys. The ARB continues to invite written comments from stakeholders and members of the public, and asks that they be submitted by June 30, 2010. "The more input we have, the better off we are," Mr. Igasaki said.Continue Reading...
National Public Radio (NPR) is reporting that a federal administrative judge has ordered that the Massey Coal Company temporarily reinstate whistleblower Ricky Lee Campbell while his retaliation case is pending. Campbell drove coal shuttle cars and bolted mine roofs at the Upper Big Branch and Massey's Slip Ridge Cedar Grove mine. He complained about problems with the brakes and power pedals. He was fired before the April 5 explosion killed 29 of his coworkers.
The Federal Mine Safety and Health Act, 30 U.S.C. § 815(c), contains one of the best preliminary reinstatement provisions for whistleblowers. Unless the administrative judge finds that the complaint is frivolous, then the law requires that the whistleblower get a preliminary reinstatement order to keep working while the case proceeds. That is the order Campbell has just received.
The Mine Safety and Health Act has a short statute of limitations, though -- just sixty (60) days. This type of unevenness (laws strong on some points and weak on others) shows why we need a comprehensive whistleblower law that will give all whistleblowers the benefits of modern whistleblower laws. Massey, meanwhile, is promising to appeal the order reinstating Campbell.