Whistleblower Protection Blog : Whistleblower Lawyer & Attorney : National Whistleblower Legal Defense and Education Fund : Whistleblower Protection, Fraud Claims : Washington DC

Today the Department of Labor has issued new regulations for whistleblower claims under four new laws. These laws include two laws included in the 2007 law that adopted recommendations of the 9/11 Commission, the National Transit Systems Security Act (NTSSA) and the Federal Railroad Safety Act (FRSA). This law also updated provisions of the Surface Transportation Assistance Act (STAA) which protects truck drivers, and DOL has announced new interim regulations on STAA whistleblower cases. Finally, DOL has issued new regulations for whistleblower claims under the 2008 Consumer Product Safety Improvement Act. The Occupational Safety and Health Administration (OSHA) issued the regulations, and will receive public comments until November 1, 2010. You can access all the rules through the Federal Register.

I have complained before to OSHA about rules that add hurdles for whistleblowers, and can derail a case away from being decided on the merits.  The one that irks me the most is the rule in 29 CFR 24.110 that requires parties appealing an judge's decision to the Administrative Review Board (ARB) to list in the petition for review every issue they will raise on appeal. This listing of issues is not required in appeals from federal court. The time to list all the issues is when the lawyer has finished reviewing the record to write the brief. If the ARB wants to assess from the petition whether the case is worthy of further review, then it is sufficient to require that an appellant list enough issues to justify review.  There is no reason to add that any issue omitted from the petition is waived -- other than to create a hurdle that can justify dismissing some issues or cases on grounds other than the merits.  That is a purpose contrary to the remedial purpose of protecting employees who put the public interest ahead of their own job security. Sadly, the new rules expand the requirement for detailed petitions for review, and the waiver of issues not raised.  See, for example, 29 CFR 1983.110(a) for CPSIA claims. Perhaps more significant, the new rules prevent the ARB from reversing an ALJ's factual findings whenever the ARB finds "substantial evidence" to support the ALJ's position. The Secretary of Labor used to conduct de novo review of the whole record, which provided better assurance that the DOL's final decisions reflected the remedial purpose of protecting whistleblowers.  The only reason for the narrower standard of review is to make the ARB's job easier. I think protecting whistleblowers is more important. I am also sad to see that the new rules require giving the DOL 15 days notice before a whistleblower files a lawsuit in U.S. District Court. The purpose of this rule is to give DOL a chance to issue a final order before the case goes to District Court.  That is contrary to the legislative purpose of giving whistleblowers a fresh bite at the apple if DOL has taken too long to decide a case.  While it is helpful to have rules for the many FRSA, NTSSA, STAA and CPSIA cases in the pipeline, these rules fall short of the change I was hoping for. The full OSHA statement about the interim rules follows in the continuation of this post.

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The initial premise of the new Will Farrell and Mark Wahlberg movie is that when the real action hero cops (played by Dwayne "The Rock" Johnson and Samuel L. Jackson) fall flat, then the New York Police Unit will have to turn to "The Other Guys" to fight crime. The film is well cast to take advantage of the comedic opportunities of this premise. It is also well written to provide a deeper meaning for those who look for such things.

When our B-Team heroes get pulled off their corporate crime case for the third time, they get orders to turn over their evidence to the Securities and Exchange Commission (SEC). Will Farrell expresses his respect to the SEC investigator for all the corporate crooks his agency has caught, "except for Enron, Bernie Maddoff, Worldcom, . . .." The Other Guys takes on a whole new meaning. We idolize the cops who go after street criminals who smoke marijuana or steal, but when it comes to policing our economy to prevent a few from getting very rich by cheating, our government assigns "the other guys." I am reminded of all the times I had to tell victims of wage theft that there are no cops who will arrest their thieving bosses the way there are cops to book shoplifters. There is an irony about how we judge which crimes are serious enough to deserve our A-Team.

The final credits are worth sitting for those few extra minutes they take. Our filmmakers provide a few factoids about the role of corporate crime in our current economic downturn, about the disproportionate compensation of executives at the top of the corporate ladder, and about who got the biggest checks from those first government bail-outs.  These fact drive home another metaphor for "The Other Guys." Our society has produced a few super-rich, and then there are "the other guys" -- us. In this light, a few of the throw-away jokes earlier in the movie take on new meaning.  "To do well in school," Rob Riggle's and Damon Wayans, Jr.'s characters tell one class, "do your best not to be Black or Hispanic." It will be a good day when schools are funded sufficiently so this joke has no basis in fact. Oh, there is an outtake at the end of the credits, and I could see why it was taken out.

The final credits reveal that director Adam McKay had a cameo as "Dirty Mike." I also enjoyed seeing the union label and the seal of approval from the American Humane Society, so I could feel good about how all the people and animals were treated in making the film. If parents are trying to protect young children from anything that might be inappropriate, though, this is not a film for them. This is a good film for people who liked Trading Places or Blazing Sadles.

Let me suggest that anyone sensitive to extreme humor should go to the bathroom before seeing The Other Guys.  As we were walking out of the theater, I was still laughing so hard that I had to sit down to recover before I could make it to the bathroom.

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The Department of Labor's Administrative Review Board (ARB) has released eleven (11) decisions issued in July, four (4) of which address substantive law.  That is down from seven (7) substantive decisions issued in July 2009. At this rate, it will be difficult for the ARB to bring its backlog down below two years anytime soon.

In Vinnett v. Mitsubishi Power Systems, ARB No. 08-104, ALJ No. 2006-ERA-29 (ARB July 27, 2010), the ARB made clear that employees are protected when they perform their safety responsibilities too well. The ARB cited long-standing DOL precedent in holding that protected activity is still protected, even if it is part of the employee's normal job duties. William Vinnett began working for Mitsubishi Power Systems (MPS) in 2004 as a field project engineer. MPS assigned him to assess equipment vibrations at the Palisades Nuclear Power Plant in Michigan. Vinnett reported a variety of concerns about technical errors, procedural violations and damage to a pressurized vessel.  He had to pester his supervisor to discuss these concerns. When he finally got his meeting, he received a warning letter about his performance. When he asked for another meeting a month later, he was fired.“The [Secretary’s] ruling simply forbids discrimination based on competent and aggressive inspection work. In other words, contractors regulated by [the ERA] may not discharge quality control inspectors because they do their jobs too well.”

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Last week, the California Supreme Court issued a blunt decision decrying the way that employers and too many lower court abuse summary judgment to prevent employees from getting their cases to a jury.  The case is Reid v. Google, Inc., Case No. S158965 (8/5/2010).

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The Ethics Resource Center has just released a report from its 2009 National Business Ethics Survey. The report, called "Retaliation: The Cost to Your Company and Its Employees," documents how companies that tolerate retaliation suffer increased levels of employee misconduct. The report documents how the employees' mere perception of retaliation is sufficient to deter reporting of misconduct.  It is also an indicator of the level of actual misconduct. The report finds that 15% of employees who report misconduct experience retaliation. The rate is higher for union members (21%) and those in firms of 100 to 500 employees (also 21%, an increase from 14% in 2007). If employees feel "extreme pressure" to compromise standards, then they report retaliation at a rate of 59%.

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I had the pleasure of appearing on Fox Business last week to discuss the historic whistleblower provisions included in the recently passed financial reform bill. The qui tam provisions in the bill provide strong protections and financial rewards for reporting financial fraud. These provisions are designed to encourage private employees to report fraud. The FOIA exemption in the whistleblower provision of the bill is necessary to protect the identity of whistleblowers who step forward. 

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According to Reuters, whistleblower, Ralph Fabiano, sued German pharmaceutical manufacturing company, BAYER AG. Fabiano alleges that he was terminated from his position at the company for refusal to alter the results of particular auditing and accounting tests required under the Sarbanes-Oxley Act. Subsequent to Fabiano’s dogged refusal to falsify data, he was removed from the project and fired shortly thereafter. The plaintiff alleges that his termination was a “breach of contract and breach of good faith and dealing” by BAYER AG defendants, and violates whistleblower provisions as delineated by the SarbAnes-Oxley act.  While, representatives for the company avow that Mr. Fabiano’s claims of misconduct are unsubstantiated, he continues to fight for his rights in U.S. district court, in the Southern District of New York.

*Emily Brundage (a NWC intern) contributed to this posting

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