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

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.

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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.

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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.

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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.

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