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

One of the most pernicious forms of exploitation today is the abuse of undocumented immigrant workers. It has been a long time since our immigration laws matched the aspiration of the Statue of Liberty, and millions of immigrant workers are forced into an undocumented status that leaves them vulnerable to all manner of violations.

This week, the Superior Court for the District of Columbia set a bright line of protection for immigrants seeking to vindicate their rights on the job. The Court barred the employer's lawyers from asking the plaintiffs and witnesses any questions about their immigration status.  The lawyers are not allowed to ask about "immigration status, birthplace, entry into the United States, social security numbers or cards, a “green card” or alien residence card, passports, driver’s licenses, and any other inquiry intended to elicit information with regard to the immigration status of a plaintiff, witness, or person affiliated with a plaintiff or witness in this case."

• Print
• Comments
• Trackbacks
• Share Link

We are pleased to have even more interns joining us this semester. You can see our first group of interns (who are still with us) here.

 Standing are Christopher, Jesse, David, David, Zach, Shane, Milan and Naoki. Seated are Sabeen, Karen, Ryan, Sabrina and Whitney.

Thank you all for your dedication to our cause. To learn more about our internship program, follow this link.

• Print
• Comments
• Trackbacks
• Share Link

The United States Court of Appeals for the Fourth Circuit is expected to rule shortly on the constitutionality of a key provision of America's most successful and powerful whistleblower protection law, the False Claims Act (FCA). ACLU v. Holder, Fourth Circuit Case No. 09-2086. The attack against the FCA is the most serious constitutional challenge to the law in over ten years.

The FCA allows whistleblowers to bring claims on behalf of the government to recover damages for fraud committed by government contractors and grant recipients. Last year alone, the U.S. government recovered over $3.1 billion as a result of FCA claims filed by whistleblowers under this law.

• Print
• Comments (1)
• Trackbacks
• Share Link

The U.S. Department of Labor has finally issued its responses to comments submitted in 2007 about its interim regulations for nuclear and environmental whistleblowers. Codified at 29 CFR Part 24, these regulations have been trendsetters for regulations affecting other whistleblower statutes. The Department had issued interim regulations in 2007, and received a variety of comments, including comments made by the National Whistleblowers Center (NWC), and comments that attorney Jason Zuckerman and I made (before I came to work for NWC in 2008).

One of the most significant new changes is that oral complaints to OSHA will now be allowed. This is particularly helpful in environmental cases where the statute of limitations remains terribly short at 30 days. Still, it will be advisable for whistleblowers or their advocates to make out a written complaint and fax it in to OSHA to document how they are meeting the time limit. Where a whistleblower has merely called into OSHA, OSHA is now required to reduce the complaint to writing and document the date of the call. 29 CFR § 24.103(b). If the call was within the 30 day time limit, it can save a case that would otherwise be dismissed. Complaints can also be made in languages other than English.

The final regulations became effective on January 18, 2011, and they are published at 76 FR 2808 (page 2808 of volume 76 of the Federal Register).

• Print
• Comments
• Trackbacks
• Share Link

Last week, the U.S. Court of Appeals for the Ninth Circuit issued an opinion holding that a social worker is protected from retaliation for his courtroom testimony about  a former client. The case is Clairmont v. Sound Mental Health and Wilson, No. 09-35856 (9th Cir. 2011).

From 2005 to 2007, Sound Mental Health (SMH) of Seattle, Washington, employed Richard Clairmont as a domestic violence  program manager. He supervised a treatment program for offenders and members of the public.  SMH had a contract with the Seattle Municipal Court. In exchange for providing the services and making regular reports to the Court, the Court gave SMH office space and equipment. Joni Wilson was the Manager of Probation Services for the Court.

In 2007, a criminal defense attorney subpoenaed Clairmont to provide expert testimony in her client's case.  The client spoke Spanish, and had been terminated by a competing treatment program. Clairmont agreed to provide the testimony about the possibility that the client was treated differently because of the language issue. The Court's probation office was seeking a court determination that the client had violated the terms of probation such that the court should revoke probation and impose a jail sentence. When Wilson learned about Clairmont's testimony, Wilson called Clairmont's supervisor at SMH. Two weeks later, SMH fired Clairmont because of "critical feedback from the City of Seattle Domestic Violence Probation Officers Unit about your performance." The letter noted that "The program is in jeopardy. They have proposed a stop-referral beginning immediately. This leaves SMH with no option but to terminate your employment effective today.

• Print
• Comments
• Trackbacks
• Share Link

Today the Supreme Court issued a landmark decision that prohibits employers from retaliating against a whistleblower's family members or other associates. The decision in Thompson v. North American Stainless LP is unanimous, and reverses an en banc decision of the Sixth Circuit Court of Appeals in Cincinnati, Ohio. The decision makes clear that victims of retaliation do not have to show that they themselves engaged in any "protected activity." Instead, they must show that they are "person[s] aggrieved" by unlawful retaliation. The Supreme Court declines to identify any "fixed class of relationships for which third-party reprisals are unlawful." Instead, courts will have to decide the application in each case, based upon "the particular circumstances." In the decision, the Supreme Court relies heavily on its 2006 decision in Burlington N. & S. F. R. Co. v. White, 548 U. S. 53. The Court today reiterates that employers are not allowed to take any action that would dissuade a "reasonable worker" from engaging in protected activity. The Court recognizes that this standard "must be construed to cover a broad range of employer conduct." The Court said that it is "obvious" that allowing employers to fire a fiance would discourage employees from raising concerns about violations of the law.

Until recently, I thought this issue had been well settled.  The EEOC had long held that employers may not retaliate against those associated with others who engaged protected activity. Courts, including the Sixth Circuit, had agreed that spouses, for example, had a right to sue when they suffered retaliation prompted by the other spouse's protected activity.  See, for example, EEOC v. Ohio Edison, 7 F.3d 541 (6th Cir. 1993). The National Labor Relations Board (NLRB) had also held that retaliation against relatives was against the law. See NLRB v. Advertisers Mfg. Co., 823 F.2d 1086, 1088-89 (7th Cir. 1987). Since then, a series of more hostile appellate court decisions have barred such claims. Today, that era of hostility is over.

• Print
• Comments (1)
• Trackbacks
• Share Link

Today's Washington Post, Metro section, leads with a story by Rosalind Helderman called "Democrats try to curb Cuccinelli's powers." The story reports on an effort by some Virginia Commonwealth Senators to change state law so that the state Attorney General must get court approval before issuing a "civil investigative demand" (CID). The proposal is an obvious response to concerns that Virginia's current Attorney General, Ken Cuccinelli, is abusing the power to issue CIDs by focusing on a global warming scientist.

Mr. Cuccinelli's office issued a statement suggesting that the proposed limit on CIDs could lessen Virginia's share of recoveries for false claims actions. The article mentions an increased share for states "when they win fraud cases." This may be a reference to the Grassley Amendment to the Deficit Reduction Act. Under the Grassley Amendment, states that have their own "Little FCA" Acts that meet federal standards will get a bigger share of federal recoveries from fraud claims in their states. Virginia's law already meets these standards. (Maryland does not; read here about why.) The federal government is still working to get states to adopt their own Little FCAs, and has not excluded any state for limits on CIDs. For Mr. Cuccinelli to use the Grassley Amendment to deflect criticism of, or limits on, his use of CIDs is a misuse of the FCA.

"My general opinion is that this is what happens when political hacks in both parties step into the FCA arena -- good law gets hacked up," says Patrick Burns of Taxpayers Against Fraud. "The Civil Division at DoJ has never engaged in partisan politics or open-ended witch hunts, and what Cucineill is doing here feels very much like that."

• Print
• Comments
• Trackbacks
• Share Link

The National Employment Lawyers Association (NELA) has scheduled a webinar called Using New Developments In Whistleblower Laws To Your Client's Advantage.  It will be on March 10, 2011, 11:00 am Pacific, 2:00 pm Eastern. This 90-minute webinar will address new developments in whistleblower law, including recent decisions strengthening the rights of federal employee whistleblowers. Speakers will include Tom Devine of the Government Accountability Project, Reuben Guttman of Grant & Eisenhofer, and Stephen M. Kohn, Executive Director of the National Whistleblowers Center. The registration fee for members of the public is $125. The live program will provide audio and video connections via computer, or the audio portion only via telephone. Participants can ask questions, answer surveys, and post comments from their computer during the program.

• Print
• Comments
• Trackbacks
• Share Link

Today the Department of Labor's Administrative Review Board (ARB) held its first oral argument in a case under the Sarbanes-Oxley Act (SOX). Last November, the ARB gave notice of today's oral argument, and invited interested groups to submit friend-of-the-court (or "amicus") briefs. The ARB asked the parties to address issues of how specific OSHA complaints have to be, whether Administrative Law Judges (ALJs) can grant motions to dismiss on the pleadings, and the nature of protected activity under SOX. A prior blog post covered the amicus briefs, including the briefs of the National Whistleblowers Center and Doug Evans. Pictured here are ARB Board Members Luis Corchado, Paul Igasaki (Chair), E. Cooper Brown (Vice-Chair) and Joanne Royce.

• Print
• Comments
• Trackbacks
• Share Link

The Internal Revenue Service (IRS) is publishing today a new proposed regulation for its whistleblower reward program. In today's Federal Register, the new regulation makes clear that whistleblowers can receive a reward for providing information that prevents the IRS from issuing a refund that is not actually owed under law.   The new regulation resolves an issue raised last year by Iowa Senator Charles Grassley.  In a statement to IowaPolitics.Com, Sen. Grassley said:

These regulations are good news for whistleblowers. The Commissioner made the common-sense decision of ensuring that individuals who blow the whistle on improper refund claims will be rewarded, as I intended when I wrote the law. These new regulations will help the IRS target tax fraud. This is an issue of fairness for honest taxpayers. I hope these new regulations mean the IRS has turned the corner on encouraging whistleblowers and that this program will be a success. Next, the IRS needs to finalize these regulations quickly so they will apply to all the whistleblowers who filed claims after the 2006 law and have been waiting for their awards.

The IRS explained the proposed regulation as follows:

This regulation clarifies the definitions of proceeds of amounts
collected and collected proceeds for purposes of section 7623 and that
the provisions of Treas. Reg. Sec. 301.7623-1(a) concerning refund
prevention claims are applicable to claims under section 7623(a) and
(b). In clarifying the definitions of proceeds of amounts collected and
collected proceeds, this regulation provides that the reduction of an
overpayment credit balance is also considered proceeds of amounts
collected and collected proceeds under section 7623.

The regulation is proposed to be an amendment to 26 CFR Section 301.7623-1.

• Print
• Comments
• Trackbacks
• Share Link

The Food and Drug Administration’s (FDA) mission is to protect and promote the health and safety of all Americans. Scientists at the FDA have the critical role of ensuring that the FDA fulfills this mission. Unfortunately, when scientists and researchers put the said health and safety of Americans before corporate interests, they are met with brutal retaliation. 

Over the past two years, distinguished FDA scientists and physicians have disclosed to Congress that managers have used intimidating and coercive tactics to push the approval of unsafe and defective medical devices. These approvals, based on illegitimate procedures and data, have led to unnecessary risks, cancers, and even death. The health and safety of millions is on the line. 

In the forefront of this, a 23-year veteran medical doctor and Ph.D scientist at the Food and Drug Administration (FDA) is on the verge of losing her job. She blew the whistle to Congress in order to protect our health and safety, threatening her whole career. 

FDA employees should not be afraid to speak up about misconduct. The National Whistleblowers Center encourages everyone to TAKE ACTION now! 

Please visit this Action Alert to send messages to a panel of recipients at the FDA. The culture at the FDA needs to undergo drastic changes and it is up to US to make this happen. 

This American hero should not be fired.

*Sabeen Khanmohamed (a NWC intern) contributed to this posting

• Print
• Comments
• Trackbacks
• Share Link

In an editorial today, the Savannah Morning News is calling on Georgia state legislators to expand the state's whistleblower law to protect the employees of cities and counties. The paper cites the case of Gwen Warren and Maria Colon.  Ms. Warren was the deputy county manager. She supervised Ms. Colon who investigated complaints of waste and abuse in county programs.  Ms. Colon uncovered evidence that four county employees embezzled $180,000 for their party planning business. The county rewarded her by slashing her pay $45,000.  The county also fired Ms. Warren. When Ms. Colon and Ms. Warren sued, the county claimed that it is protected by the doctrine of sovereign immunity and that the state's whistleblower protection law applies only to state employees, not city or county employees. The Savannah Morning News "Taxpayers need people who are looking out for precious tax dollars to remain employed. They should be protected for blowing whistles, not punished," the paper says. "Lawmakers must amend the Georgia Whistleblower Act to extend protection to the employees of city and county governments who cry foul, which will better prevent taxpayers from being fleeced." 

With the help of my friend, attorney Janet Hill of Athens, Georgia, I learned that Georgia's law on "fraud, waste and abuse in state programs" DOES cover city and county employees. Since a 2007 amendment, O.C.G.A. 45-1-4(a)(1) defines “Government agency” as "any agency of federal, state, or local government charged with the enforcement of laws, rules, or regulations."

Here's an idea, though.  How about expanding the law to protect everyone?  Georgia is one of the few states where courts will not recognize any exceptions to "employment-at-will" (where bosses can fire workers for any reason, or no reason at all, as long as it is not for an illegal reason), and there is no whistleblower protection, except for state employees. You can see how your state shapes up with the interactive state map of the National Whistleblowers Center.

• Print
• Comments
• Trackbacks
• Share Link

In 2003, Teresa Chambers was Chief of the U.S. Park Police. She spoke to a Washington Post reporter and expressed her concerns about the lack of resources to protect U.S. parks. Her supervisors were upset and ordered her not to speak to the media without pre-clearance for her remarks. They placed her on administrative leave and then fired her. They cited her remarks and accused her of failing to "follow the chain of command."

Yesterday, the Merit System Protection Board (MSPB) issued an order requiring the National Park Service to reinstate Chief Chambers. The order grants her back-pay and attorney fees.  Congratulations to Chief Chambers and her attorney, Paula Dinerstein of Public Employees for Environmental Responsibility (PEER).

• Print
• Comments
• Trackbacks
• Share Link

TAKE ACTION!

The new Congress gives whistleblower advocates an opportunity to make a new start on the Whistleblower Protection Enhancement Act ("WPEA"). The National Whistleblowers Center (NWC) today calls on legislators and advocates to get it right this time.  Legal protections for federal employees should be enhanced without any provisions that would take away presently existing rights.  If any poison pills are included in new legislation, federal employees will continue to suffer when they raise concerns about waste, fraud and abuse in the federal government.

The obituaries over the defeat of the WPEA in the last Congress (S. 372), have taken on an air of nostalgia over how the forces of "good" were defeated by one lone anonymous Senate "hold," that somehow caused a major landmark whistleblower rights bill for federal employees to be defeated. It is a great political story -- if only it was half-true.  In reality, the final, compromised version of S. 372 was the worst and weakest whistleblower protection law approved by the Senate or the House over the past 30 years.  It was fatally flawed and divisive legislation. 

• Print
• Comments
• Trackbacks
• Share Link

On Saturday, January 8, 2011, Stephen M. Kohn, National Whistleblowers Center Executive Director, appeared on CBS Evening News. The news segment covered the United States Department of Justice subpoena of private information on select WikiLeaks supporters. The government may have the right to this type of information, but it is vital to weigh First Amendment rights as well. Listen in on this short clip and judge for yourself.

*Sabeen Khanmohamed (a NWC intern) contributed to this posting

• Print
• Comments
• Trackbacks
• Share Link

Terrence Blocker worked for the Metro-North Commuter Railroad Company in New Haven, Connecticut, since 2003. He was a laborer in Metro-North's maintenance shop (called the MU Shop), and a union member.

On July 27, 2008, Blocker was operating a shuttle wagon. It tipped over and fell into a repair pit. Blocker suffered a small cut on his forehead, and he had stiff muscles starting the following day. On July 30, 2008, Blocker saw a doctor who discovered he had sprained his spine and right shoulder. When Blocker later asked for a copy of the company's report of the accident, he discovered there was none. On August 25, 2008, Blocker's doctor recommended physical therapy. That same day, Metro North management decided to conduct a trial to determine if Blocker was responsible for the accident. Blocker stopped going to his physical therapy because he thought the company would not pay for it. Metro North found Blocker guilty of unsafe operation of the shuttle wagon and imposed a 10-day suspension on him.  Blocker promptly complained to OSHA that this suspension was unlawful retaliation in violation of the Federal Railroad Safety Act (FRSA), 49 U.S.C. § 20109. Management then gave notice that they would conduct another trial against Blocker, accusing him of providing false information to OSHA. Blocker filed an amended complaint with OSHA alleging that the new trial was unlawful retaliation for filing his original OSHA complaint. Management then amended its notice for the hearing to claim that he was guilty of failing to report his injury and submit his medical substantiation. After the trial, management imposed a 30-day suspension on Blocker, for the offense of filing "a false statement in your complaint to [OSHA] claiming violations of the [FRSA]." Management explained to OSHA that this was a typographical error.

OSHA has now ordered Metro North to pay Blocker $75,000 in punitive damages, and to pay Blocker's attorney, Charlie Goetsch. "Taking repeated disciplinary action against an employee who exercised his legal right to report an on-the-job injury and voiced a complaint about retaliatory treatment by his employer is unconscionable," said Marthe Kent, OSHA's New England regional administrator in a press release. "Such treatment instills a culture of silence in which hazardous conditions are masked because employees will be fearful of reporting them."

• Print
• Comments (1)
• Trackbacks
• Share Link

The Commodities Future Trading Commission (CFTC) has proposed a series of regulations to implement the Dodd-Frank Wall Street Reform and Consumer Protection Act. Members of the public are invited to comment on the proposed whistleblower regulations until February 4, 2011.

We can expect a replay of the conflict generated by the rulemaking of the Securities and Exchange Commission (SEC). Industry representatives wanted the SEC to establish exclusions, limits, reductions and hurdles for whistleblower rewards. They wanted to regulate the fees of whistleblower attorneys and threaten those attorneys with sanctions. You can read our prior blog posts about this controversy here and here. The National Whistleblowers Center prepared a report showing that whistleblower rewards encouraged the detection of fraud and did not hinder internal compliance programs. We also submitted comments on the SEC regulations. Hopefully, the CFTC will not be swayed by the SEC's proposed rules, and will take a fresh look at what regulations will actually encourage employees to come forward with information to assist in the detection of frauds and other violations.

• Print
• Comments
• Trackbacks
• Share Link

Two decades ago, John Green was a regular customer at a Denny's restaurant in Miami, Florida. He saw manager Asif Jawaid treat one of the employees, Floride Norelus, “as a slave.” On December 28, 2010, the 11th Circuit issued an opinion affirming a $387,738 sanction against Norelus' attorneys, Karen and Bill Amlong. The 74-page opinion and 24-page dissent, offer an opportunity to see how our courts respond to slavery today. The case is Norelus v. Denny's, Inc., 2010 U.S. App. LEXIS 26286 (11th Cir. Dec. 28, 2010).

• Print
• Comments (1)
• Trackbacks
• Share Link

Today, Stephen Kohn, Executive Director of the National Whistleblowers Center, issued the following statement expressing his concern about the rise in retaliatory investigations in the wake of the WikiLeaks scandal:

The WikiLeaks scandal is being used to justify a witch hunt against federal employees suspected of being whistleblowers. Currently, the NWC has obtained information documenting abusive investigatory tactics being used against federal employees, including monitoring the private emails and seizing computer hard-drives from employees who disclosed non-classified information to Congress.  The U.S. Constitution protects government workers who report waste, fraud and abuse to the American people.  However, in the first two years of the Obama presidency, more Americans have been indicted for alleged media leaks then under any other president in U.S. history, including Richard Nixon.

• Print
• Comments (1)
• Trackbacks
• Share Link

The BBC is reporting today that the Obama administration is developing a "test" to detect whistleblowers. "Clearly there are different reasons why people leak information, the public spirited uncovering of wrong-doing being one of them," BBC reporter Olivia Lang writes. Based on documents obtained by Mike Isikoff of MSNBC, the new program will use sociologists and psychiatrists to discover potential leakers. Perhaps these experts will be so smart that they can find whistleblowers before the whistleblowers find wrongdoing to blow the whistle on. Call me old fashioned, but I would have thought that it would be a better use of money to find what is wrong with the government programs and fix that so no one will have to blow the whistle.

The report says that the program has already been used by the intelligence agencies, and now the administration wants to expand the program to other federal departments. The program will also use polygraph examinations and look for foreign travel and contacts. Another indicator of risk is if the employee is unhappy. Perhaps the polygraph exam will cheer them up.

How accurate can such a test be? Is it good enough to use in court to prove that a whistleblower really is a whistleblower? "[N]othing is foolproof, and there is a lot of wishful thinking being portrayed as science," says Shari Pfleeger, director of research at the Institute for Information Infrastructure Protection at Dartmouth College.

Proponents of the "insider threat program" will look for "concerning behavior." This is a concern itself. What would such a program think of an employee who believes that agency managers engaged in illegal race or gender discrimination? How would the program distinguish between a civil rights advocate and a threat to national security?  Smart employees will learn to keep their eyes focused on the floor in front of them, and their mouths shut. "If employees are coerced and intimidated into remaining silent when they should speak out, the result can be catastrophic."  Rose v. Secretary of Department of Labor (6th Cir. 1986), 800 F.2d 563, 565 (J. Edwards concurring). That is the real cost of a witch hunt, and the cost is too high.

• Print
• Comments
• Trackbacks
• Share Link

On Monday, the United States Court of Appeals for the Fourth Circuit ruled in favor of a sickle cell disease researcher who blew the whistle on improper cloning of blood cell lines. The decision clears the way Dr. Duane Bonds (pictured) to proceed with her claim that the National Institutes of Health fired her in retaliation for blowing the whistle on the improper cloning of cell lines without consent.

This is the first case in which a federal employee will be allowed to pursue a whistleblower lawsuit in federal district court. Dr. Bonds' attorney is Michael Kohn, president of the National Whistleblowers Center. Kohn said: "This decision expands the rights of some federal workers to pursue their whistleblower claims in federal district courts around the country. Unfortunately, since Congress continues to treat federal employees as second-class citizens this right is only available to federal employees who are able to bring a race, sex, age, national origin or religion claim in conjunction with a whistleblower claim. Otherwise, a federal employee has no right to a federal court hearing."

• Print
• Comments
• Trackbacks
• Share Link

The National Whistleblowers Center received a new group of interns today.  They arrived with marked enthusiasm to help individuals and the common good.  Here they are:

In the top row are David, Sabrina, Whitney and Zach. Seated are Katie, Andrew and Sabeen.  Welcome and thank you for your decision to work with us.

• Print
• Comments
• Trackbacks
• Share Link

Today, President Obama signed the FDA Food Safety Modernization Act (H.R. 2571), which contains landmark whistleblower protections for food safety employees.

Highlights of the Food Safety Whistleblower Provision:

•   Covers all employers "engaged in the manufacture, processing, packing, transportation, distribution, reception, holding or importation of food;"
• Allows workers have their case heard before a jury in federal court;
• Provides for reinstatement, back pay and compensatory damages.

I issued the following statement in a press release by the National Whistleblowers Center:

The Food Safety Modernization Act (FSMA) will save American lives by protecting the millions of American workers who grow, process, store and deliver our food. Those workers now have modern whistleblower protections when they raise concerns about the safety of our food.

It is important for working people to know that all legal claims have time limits. The time limit under FMSA to file a written complaint with OSHA is 180 days. For raising concerns about toxic chemicals, though, the time limit is still 30 days. Whistleblowers usually get better results when they work with an attorney experienced in employment discrimination law.

The FMSA fills an important loophole left by the Consumer Product Safety Improvement Act (CPSIA) in 2008. CPSIA does not cover food or medical devices. FMSA is the first law to provide whistleblower protections for workers covered by regulations of the Food and Drug Administration (FDA). While tainted food kills about 5,000 Americans a year, medications may kill as many as 100,000 Americans every year. Yet Congress has not extended whistleblower coverage to workers who raise concerns about violations of the FDA's pharmaceutical regulations.

It is time to end the patchwork protection of whistleblowers and pass a law that protects all workers when they raise concerns about health, safety, fraud, illegality, and dangers to the environment.

 Jason Zuckerman has written an excellent guide to the FSMA whistleblower protection. I previously commented on the FSMA and its place in our patchwork in this blog.

• Print
• Comments
• Trackbacks
• Share Link

My colleague, Stephen M. Kohn (Executive Director of the National Whistleblowers Center) and I spent New Year's Eve racing the clock to file two friend-of-the-court "amicus" briefs with the Department of Labor's Administrative Review Board (ARB). Last November, the ARB issued an invitation to file amicus briefs to address a series of questions about the requirements for valid whistleblower complaints. In an amicus brief on behalf of my client, Douglas Evans, we answered the questions about the whether whistleblower complaints to OSHA have to meet the standards for pleading claims in federal court, and what procedure Administrative Law Judges (ALJs) should follow before considering whether to dismiss a claim without a hearing. In a separate amicus brief on behalf of the National Whistleblowers Center (NWC), we answer the questions about the scope of protected activity under the Sarbanes-Oxley Act (SOX). Specifically, we trace the long history of Department of Labor and court decisions that broadly applied a variety of whistleblower protections.  We note how Congress relied on the body of law when it enacted SOX.  We argue that the ARB and Court decisions of the last five years made a mistake, and violated congressional intent, by narrowing the scope of protection. We specifically ask the ARB to reject the requirement that protected activity must "definitively and specifically" relate to a violation of law. We examine the difference between raising concerns outside of established channels, and the "exceptionally broad" protection that activity has when it is pursued through established channels. We also dispute the claim that SOX claims should connect to some "fraud" or meet some standard of "materiality." Finally, we show that the concerns raised by Ms. Kathy Sylvester and Ms. Theresa Neuschafer (breaches of Good Clinical Practices or GCPs) are at the core of Parexel's business as set out in its Form 10-k, and is, therefore, material.

These briefs would be a good reference for any whistleblower or lawyer facing a challenge to any whistleblower claim on grounds of pleading standards, or the scope of protected activity.  Enjoy the new year.

• Print
• Comments (3)
• Trackbacks
• Share Link