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

On April 24, Senate Democrats delayed a confirmation vote on Labor Secretary nominee Thomas Perez. Committee Chairman Tom Harkin of Iowa was concerned that Republicans would use a threatened separate hearing as a forum to attack Perez in his absence. Read more.

Senate Republicans have criticized Perez for his involvement in a deal with the city of St. Paul, MN that left a whistleblower with nothing.  Senator Chuck Grassley, Ranking Member of the Senate Judiciary Committee in coordination with Issa and House Judiciary Chairman Bob Goodlatte, released a joint staff report about how Perez orchestrated a controversial quid pro quo with the city that prevented the Justice Department from recovering hundreds of millions of dollars back to the taxpayers, and left a whistleblower who filed the suit out in the cold.  

Here is an excerpt from the joint staff report. 

"In early February 2012, Assistant Attorney General Thomas E. Perez made a secret deal behind closed doors with St. Paul, Minnesota, Mayor Christopher Coleman and St. Paul’s outside counsel, David Lillehaug. Perez agreed to commit the Department of Justice to declining intervention in a False Claims Act qui tam complaint filed by whistleblower Fredrick Newell against the City of St. Paul, as well as a second qui tam complaint pending against the City, in exchange for the City’s commitment to withdraw its appeal in Magner v. Gallagher from the Supreme Court, an appeal involving the validity of disparate impact claims under the Fair Housing Act."

According to the joint staff report, this deal cost the U.S. Government the opportunity to recover as much as $200 million.

The Department of Labor’s OSHA Whistleblower Protection Program enforces the whistleblower provisions of more than twenty whistleblower statutes protecting employees who report violations of various workplace safety, airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health insurance reform, motor vehicle safety, nuclear, pipeline, public transportation agency, railroad, maritime, and securities laws. Rights afforded by these whistleblower acts include, but are not limited to, worker participation in safety and health activities, reporting a work related injury, illness or fatality, or reporting a violation of the statutes.

Read the full joint staff report here. 

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On January 10, 2013, the U.S. Department of Labor filed a lawsuit in federal court against S.E.M. Villa II Inc., a nonprofit corporation that operates S.E.M. Terrace, a retirement facility in Milford Ohio. The lawsuit claims that S.E.M. Villa violated the whistleblower provisions of the Occupational Safety and Health Act of 1970.  The alleged violation occurred when the employer terminated a resident manager for filing a complaint with the Clermont County General Health District stating that S.E.M. Villa II had been ineffective in handling a bedbug infestation at the retirement home.

The manager was dismissed Oct. 5, 2011. The suit seeks reinstatement of the worker, in addition to an undetermined amount of back wages and benefits, and the removal of all derogatory information related to the dismissal from the worker’s employment record. The suit also seeks to permanently enjoin the employer from violating the OSH Act in the future and require that a notice be posted for employees regarding their rights under the act.

“The Occupational Safety and Health Administration is committed to protecting the rights of America’s workers who are penalized or terminated for filing complaints seeking to improve the safety and health of their work environment and those affected by it,” said Nick Walters, OSHA’s regional administrator in Chicago.

OSHA Press Release 

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In a January 15, 2013 press release, the U.S. Department of Labor announced that OSHA and BNSF Railway Co. had reached an agreement for the company to revise personnel policies that violate the whistleblowers provisions of the Federal Railroad Safety Act and discourage employees from reporting work-related injuries.

"Protecting America's railroad workers who report on-the-job injuries from retaliation is an essential element in OSHA's mission. This accord makes significant progress toward ensuring that BNSF employees who report injuries do not suffer any adverse consequences for doing so," said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. "It also sets the tone for other railroad employers throughout the U.S. to take steps to ensure that their workers are not harassed, intimidated or terminated, in whole or part, for reporting workplace injuries."

The major terms of the accord are listed in the OSHA press release.

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Today, the U.S. Department of Labor issued a summary of the September 2012 decisions of its Administrative Review Board (ARB).  The twelve decisions issued in September cover important procedural issues involving the time limits for filing complaints and petitions for review to the ARB, considering motions for summary decision, and approving settlement agreements. Read more about these decision in the continuation of this blog post.

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On October 5, 2012, the Third Circuit U.S. Court of Appeals conducted oral arguments in Wiest v. Lynch, a case that tests the scope of protection for whistleblowers under the 2002 Sarbanes Oxley Act (SOX). Harrisburg, Pennsylvania, attorney Richard Angino argued the case for Jeffrey Wiest.  He generously shared his time with attorney Stephen M. Kohn, Executive Director of the National Whistleblowers Center (NWC). The panel of three judges consisted of Chief Judge Theodore A. McKee, Judge Kent A. Jordan and Judge Thomas I. Vanaskie. In the earlier arguments that day, Judge Jordan was the most active questioner of lawyers on both sides of each case.  The Court was running late as the questioning exceeded the time allotted for all the attorneys.

You can read the continuation of this blog post for a more detailed report of the judge's questions and the issues that arose.  However, I want to emphasize a moment at the end of Stephen Kohn's rebuttal argument.  Judge Jordan had been questioning all the attorneys on whether any whistleblower protection can protect disclosures employees make as part of their official duties.  Stephen Kohn answered that many frauds and violations are discovered by employees performing their duties and raising a concern to their supervisor. Therefore, whistleblower laws would lose much of their effectiveness if they did not protect this most common form of raising concerns. He cited the nuclear whistleblower case, Mackowiak v. University Nuclear Systems, Inc., 735 F. 2d 1159, 1163 (9th Cir. 1984) (employers may not discharge employees engaged in quality control because they do their jobs too well). He got Judge Jordan to agree that establishing protected activity is "a low bar." Stephen Kohn emphasized how the Department of Labor opinion in Sylvester v. Parexel International LLC, ARB No. 07-123, ALJ Nos. 2007-SOX-39 and 42 (ARB May 25, 2011), is entitled to deference, and how the legislative history showed that in enacting SOX, Congress relied on the Third Circuit's decision in Passaic Valley Sewerage Comm. v. U.S. Department of Labor, 992 F.2d 474, 478-79 (3d Cir. 1993). Past the official time limit, he even pointed to the roots of protecting employee communications to supervisors in the old Mine Safety Act cases, Phillips v. Interior Bd. of Mine Operations Appeals, 500 F.2d 772, 778 (D.C. Cir. 1974), cert. denied, 420 U.S. 938 (1975), and Munsey v. Federal Mine Safety and Health Review Comm’n, 595 F.2d 735, 741 (D.C. Cir. 1978). Finally, Judge Jordan said, "I gotcha" and the argument concluded. To me, the persistence of the argument, Stephen Kohn's determination to draw on all the available authority, and his keen understanding of the practicalities of whistleblower protection, made it possible for us to believe that all three judges might agree to reinstate Jeffrey Wiest's case. It will probably be months before we get the Court's opinion, but I am already convinced that this oral argument had a positive effect on the outcome of this case and on the state of the law.  Bravo!

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Tune in today at 5:00pm EDT to Honesty Without Fear on Progressive Radio Network.

In the first half, Lindsey Williams and Richard Renner talk about whistleblower news, how whistleblowers can get legal assistance and answer your questions.

In the second half hour, Richard Renner and OSHA whistleblower Gregg Stoerrle tackle the question of why the Occupational Safety and Health Administration (OSHA) whistleblower law is the worst federal whistleblower law. Richard explains what health and safety whistleblowers can do to protect their rights without using OSHA and what legislative fixes are in the works.

Submit Your Question to be asked on air during the show or call in to 1-888-874-4888.

Missed last week's episode?? You can listen to the podcast.

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Tune in today at 1:00pm EDT to Honesty Without Fear on Progressive Radio Network.

Jane Turner interviews attorney Paul Taylor, principal of the Truckers Justice Center. Mr. Taylor has spent over 20 years helping workers get justice for their employment-related problems. He has dedicated his career to make our roads safer by protecting whistleblowers. Tune in to learn anything you ever wanted to know about trucking whistleblower laws.

Submit Your Question to be asked on air during the show or call in to 1-888-874-4888.

Missed last week's episode?? You can listen to the podcast.

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My client, Doug Evans, just won a remand from the Department of Labor's Administrative Review Board (ARB). In a rare en banc decision, all five ARB judges joined in holding that Iqbal and Twombly do not apply to OSHA whistleblower complaints. Thus, the ARB's 2010 decision in Evans' case is finally overruled.  The ARB also made clear that Evans' decision to initiate the OSHA process is itself protected, and his employer cannot retaliate against him for having commenced his original whistleblower complaint.

Douglas Evans (left in photo, with me) was an employee of the U.S. Environmental Protection Agency (EPA) in Las Vegas, Nevada, for 17 years. He was a technician who repaired equipment. EPA managers in Las Vegas were under pressure to get a high rate of their employees to “volunteer” for emergency response work. Evans recalls getting an order to participate. He wrote a letter to the EPA Administrator, and his supervisors never forgave him for it. Evans' letter complained about the lack of training for the emergency response work, and about other aspects of the plan. I recognized that a concern about lack of training for emergency response work is an environmental concern. I filed Evans' complaint with OSHA under the federal environmental laws. Shortly thereafter, Evans' bosses fired him on trumped up charges. I filed a supplemental complaint against the discharge. OSHA dismissed. I requested a hearing before an Administrative Law Judge (ALJ). I asked for discovery from EPA. EPA made a motion to dismiss, and to stay discovery while its motion is pending. I opposed the motion to dismiss, citing the DOL's rule that there is “no particular form of complaint.” I also provided statements from Evans' co-workers supporting his complaint, and explained how the discharge in retaliation for his first OSHA complaint is certainly protected. Still, the ALJ dismissed the case, and in 2010 the ARB has affirmed. Evans petitioned for review to the U.S. Court of Appeals for the Ninth Circuit.  During that review, the ARB issued its landmark decision in Sylvester v. Parexel International, ARB Case No. 07-123 (ARB May 25, 2011), Evans had submitted an amicus brief in the Sylvester case, explaining how the Iqbal standard had been so harmful to his whistleblower case. The Solicitor of Labor agreed that Evans' case should be returned to the ARB for reconsideration, and the Ninth Circuit agreed. Back at the ARB, the Solicitor of Labor filed a brief in support of Evans. Now we finally have the ARB's reconsideration.

Judge Brown's dissent makes some important points for whistleblowers and practitioners who face motions to dismiss before an Administrative Law Judge (ALJ). He notes that the majority's discussion of how ALJ's can handle motions to dismiss is "but dicta." Page 19. He finds that the majority "cites neither statutory nor regulatory authority prescribe new procedures by which ALJs are now to resolve motions seeking dismissal of whistleblower retaliation complaints for failure to state a claim for relief." Page 20.  Thus, whistleblowers and their lawyers can cite to this concurring and dissenting opinion in response to any motion to dismiss, and preserve an issue for which the Department of Labor will be poorly equipped to refute on further review.

Judge Corchado explains what he will be looking for in reviewing complaints.  To allege protected activity, he wants Evans to allege "facts about what activities his co-workers might be expected to do and why Evans believed that such acts would violate one or more of the environmental laws." Page 18. "Not much is required," he adds on page 19. It is a lesson about the importance of making clear exactly what is the whistleblower's protected activity.

The case is Evans v. United States Environmental Protection Agency, ARB No. 08-059, ALJ No. 2008-CAA-3 (ARB July 31, 2012), Decision and Order of Remand.

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We are pleased to repost, with permission, this blog entry by Charlie Goetsch from trainlawblog.com, announcing a favorable and precedent-setting decision by the Department of Labor's Administrative Review Board (ARB). Congratulations to Charlie Goetsch for obtaining the outstanding result for his client, and for ending the era of railroad interference in the medical care of its workers.

By Charlie Goetsch:

In a decision that will send shock waves reverberating throughout the railroad industry, railroad medical departments now are prohibited from doing anything that directly or indirectly interferes with the treatment prescribed by an injured worker's treating doctor for the entire period of medical treatment, not just immediately after an injury. Once again, thanks to the Federal Rail Safety Act, the balance of power is shifting from management to rail labor, and railroad medical departments will never be the same.

Here's the context. When a chair at his Metro North Railroad work place collapsed as he sat down, my client Anthony Santiago suffered an injury to his low back. Metro North ordered him to go to its Medical Department, which confirmed he had an occupational back injury and advised him to see an orthopedic physician. For two months Metro North followed its policy of paying the medical bills for occupational injuries. However, when a MRI scan confirmed Santiago had a herniated disc and his doctor prescribed treatment for the disc, Metro North's Medical Department immediately reclassified Santiago's occupational back injury as "non-occupational" and refused to pay for the treatment. As a result, Santiago suffered a four month delay in his prescribed treatment and was forced to pay $16,520 in medical expenses out of his own pocket.

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The Department of Labor today issued final regulations for handling whistleblower complaints under the Consumer Product Safety Improvement Act (CPSIA), 15 U.S.C. § 2087. On behalf of the National Whistleblowers Center (NWC), I submitted comments on the proposed regulations in 2010.  Today, DOL adopts some of my recommendations, and adopts a change in response to another recommendation.  DOL also added a new change that was not in the interim regulations, and is worthy of objection.  Specifically, DOL is making explicit that Administrative Law Judges (ALJs) may limit discovery to expedite a whistleblower case. 29 CFR § 1983.107(b). This provision could be used to deny whistleblowers the full opportunity to obtain the discovery that would win their cases. In cases where discovery is necessary, for example, to show that the employer's stated reasons are pretextual, the whistleblower would likely waive the time limits for adjudication so that discovery can be completed. It is unfortunate that DOL is adding this unnecessary line that would work a disservice to the whistleblowers who have a hard enough time proving their cases.

Helpfully, DOL now provides in 29 CFR § 1983.104(c) that complaints or their attorneys should receive employer submissions (except for material protected by confidentiality laws), and should have an opportunity to respond. At page 40497 of the summary, OSHA states that it agrees with the comments about the importance of keeping the complainant informed and giving the complainant an opportunity to help the investigation. On page 40498, OSHA states that it, "anticipates that the vast majority of respondent submissions will not be subject to confidentiality laws." It also links to the OSHA Whistleblower Investigations Manual where OSHA provides a list of the applicable confidentiality laws. See pages 1-19 to 1-21 for the discussion on confidentiality laws.

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