DOL employees say Ciao to Chao

Posted on January 9, 2009 by Richard Renner

Ciao to ChaoTonight I celebrated with members of Local 12 of the American Federation of Government Employees (AFGE).  These employees of the U.S. Department of Labor held a party to welcome the end of the current administration, led in their department by Secretary of Labor Elaine Chao.  So here is their cake, saying Ciao to Chao.  They served this cake on the very day that the Senate heard testimony from President-elect Barack Obama's nominee, Rep. Hilda Solis.

Ironically, employees of the Department of Labor know all too well the stuggles working Americans face all over the country.  Perhaps that is why they were eager to sign the National Whistleblower Center's petition to Support Oversight and Accountability, Enact Whistleblower Legislation Now.  Over two dozen signed up on the spot.

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Fourth Circuit leaves SOX whistleblower out in the cold

Posted on December 15, 2008 by Richard Renner

The Fourth Circuit U.S. Court of Appeals has affirmed an administrative appeal decision that leaves corporate whistleblower Stacy Platone out in the cold.  The December 3, 2008, opinion affirms a decision of the U.S. Department of Labor's Administrative Review Board that took away Platone's order from an Administrative Law Judge.  The Court held that under the Sarbanes-Oxley (SOX) employee protection, whistleblowers have to be specific about their allegations of fraud to be protected from retaliation.

 

In 2002, Atlantic Coast Airlines (ACA) lured Stacy Platone away from her career position with the Airline Pilots Association (ALPA) to become a labor relations manager.  Platone soon noticed that the company was not billing the union for flight-loss time.  Flight-loss time arises when pilots miss flying time to attend meetings on behalf of the union.  Platone discovered that the company continued to pay the pilots, even though they did not fly.  She raised the issue to her superior in the company and was promptly fired.

Platone filed a whistleblower complaint with the U.S. Department of Labor. The company claimed it was not aware of Platone's concern, but the notes of an assistant to the director confirmed that Platone had raised the flight-loss issue in a meeting shortly before she was fired. An administrative law judge (ALJ) issued a decision finding that Platone had a reasonable basis to believe that company officials were involved in a fraud.  The ALJ also found that the company's director was not credible, and that he clearly knew about Platone's concern when he fired her.  In 2004, the ALJ ordered ACA to pay backpay and attorney fees.

ACA appealed to the Department of Labor's Administrative Review Board (ARB). Meanwhile, ACA changed its name to Flyi, Inc., and then went out of business. In 2006, the ARB reversed the ALJ and held that Platone had not been specific enough in raising her concern about fraud. The ARB held that when Platone raised the flight-loss issue, she had not specifically informed her boss that the company had created to acquiesced in a scheme to provide improper payments to the union officers.  The ARB required whistleblowers to be specific in raising their concerns about fraud.

Even though the company was out of business, Platone and her lawyers did a favor for whistleblowers by asking the federal Fourth Circuit to overturn the ARB decision.  Sadly, though, the Fourth Circuit approved the ARB decision. The court defered to the ARB's conclusion the Platone had only alerted management to a billing issue, and had not "specifically and definitively" implicated any fraud when she reported the issue.

The "definite and specific" standard for SOX whistleblowing is not in the SOX law.  It is a creation of the ARB.  The ARB used the same rule to overturn another ALJ decision in the very first SOX case. The Fourth Circuit also affirmed that ARB decision. See Welch v. Chao, 536 F.3d 269, 275-76 (4th Cir. 2008). This special SOX rule is a departure from prior ARB decisions in environmental cases that only required employee concerns to touch on and relate to the issues protected by law.  Does the ARB really mean to encourage law-breakers to fire workers at the first sign of conscience and backbone, before that worker can put all the pieces together to make a specific report of a violation?  Apparently yes.

The outcome in the Platone case exemplifies the way that the current ARB has undercut what Congress made clear in passing SOX and other whistleblower protections.  Hopefully, President-elect Obama will move quickly to appoint new members to the ARB, and to the federal circuits courts of appeals, to protect working people and restore a sense of the law's true purpose.

 

DIGG this story here

 
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New Whistleblower Rules Approved for Government Contractors

Posted on December 13, 2008 by Marshall Chriswell

The National Whistleblower Center is reporting that the Civilian Agency Acquisition Council and the Department of Defense have approved new rules governing federal contracting which go into effect today.

 

For the full story on the NWC website, and to read the rules, Click Here.

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Administration's Narrow SOX Interpretation Kills Many Whistleblower Suits

Posted on September 22, 2008 by Marshall Chriswell

SarbanesOxley Signing

In 2002, Congress passed a sweeping corporate reform bill known as the Sarbanes-Oxley Act (SOX). This legislation was a direct result of the crimes committed by publicly traded companies such as Enron and Worldcom. In drafting the bill, lawmakers wisely recognized that SOX would be meaningless without the "teeth" of a strong whistleblower protection provision. And when President Bush signed the bill, it was hailed as a great day for corporate reform, and for corporate whistleblowers. 


 

Unfortunately (yet predictably), since 2002, the Administration has refused to protect corporate whistleblowers in a manner consistent with SOX. Law professor Richard Moberly's disheartening research indicates that only 3.6% of  SOX whistleblowers have been able to obtain relief through the administrative (Department of Labor) process. The problem lies, partly, in the Administration's attempts to thwart whistleblowers by creating a loophole in the law.


A recent Wall Street Journal article  details how the Department of Labor has adopted an overly narrow interpretation of the SOX. The DOL has taken the absurd position that if you are employed by a subsidiary of publicly traded company, then you are not protected by the whistleblower provisions of SOX. I believe that this is an untenable position, and so do a couple of prominent members of the Senate Judiciary Committee. 


Senators Grassley and Leahy, who were principal sponsors of SOX and are longtime champions of whistleblowers, have begun to take action on this issue. They have sent a sternly worded letter to Secretary of Labor Elaine Chao demanding answers on the Administration's position, which is highly inconsistent with the broad language found in the SOX legislation.


For further information on this issue, please view this letter, written to Senator Arlen Specter by Pittsburgh attorney Jason Archinaco. This letter details the problems with the DOL's misguided policy, and includes attachments, such as the above referenced letter authored by Senators Grassley and Leahy.


Mr. Archinaco is a member of our Attorney Referral Service who represented UBS whistleblower Timothy Flynn.
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Department of Labor Whistleblower Cases

Posted on November 14, 2007 by NWLDEF
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Nuclear Whistleblowers FAQ

Posted on November 14, 2007 by NWLDEF

What Federal Laws Protect Nuclear Whistleblowers?

Whistleblowers in the nuclear power and nuclear weapons industries are specifically protected under section 211 of the Energy Reorganization Act.


Who Is Protected?

Private sector employees and federal employees working for the Nuclear Regulatory Commission or the Department of Energy.


Who Can File a Complaint?

Any employee who believes he or she has been discriminated against in retaliation for "blowing the whistle" on a nuclear safety problem.

Nuclear Whistleblowers


What is Illegal Discrimination?

Almost any adverse change to the whistleblower's terms and conditions of employment is prohibited. This includes a wide range of actions from reprimands to terminations and blacklisting.


Where Should Complaints Be Filed?

These laws are administered by the U.S. Department of Labor (DOL). Complaints must be filed in writing and should be filed with the local OSHA Office of the DOL and/or mailed to:

U.S. Department of Labor
Office of the Assistant Secretary
Occupational Safety and Health Administration - Room: S2315
200 Constitution Avenue
Washington, D.C. 20210
(202) 693-2000


What Are the Statutes Of Limitations?

A nuclear industry employee filing a complaint under the Energy Reorganization Act must file within 180 days.


Do Other Laws Protect Whistleblowers?

Many states have enacted laws to protect whistleblowers. Most of these laws have a longer statue of limitations and other benefits unavailable under federal law. If an employee is reporting fraud by a government contractor, these concerns may be covered under the False Claims Act. To report these concerns, please fill out our confidential Attorney Referral / Report Fraud Now form.


Can I file in Federal Court?

The Atomic Energy Act was recently amended to permit employees to file claims in federal court if the DOL fails to issue its final decision within one year.


What remedies are available to employees under the Sarbanes Oxley whistleblower law?

  • Reinstatement
  • Backpay with interest
  • A complete “make whole” remedy (including restoration of seniority/sick leave, etc)
  • Compensatory damages (for emotional distress and loss of professional reputation)
  • Attorneys’ fees and costs
  • “Affirmative Relief” (such as requiring a letter of apology and formal posting of the decision)

Exemplary damages are available under the Safe Drinking Water Act and Toxic Substances Control Act.

To view a major decision on damages in a nuclear case, see Hobby v. Georgia Power Co.

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Environmental Whistleblowers FAQ

Posted on November 14, 2007 by NWLDEF

What Federal Laws Protect Environmental Whistleblowers?

Seven major federal environmental laws (Clean Air, Toxic Substances, Clean Water, Atomic Energy, Solid Waste, Safe Drinking Water and Superfund) have special provisions protecting employee whistleblowers.


Who Is Protected?

Almost any private sector or federal employee can be protected.


Who Can File a Complaint?

Any employee who believes he or she has been discriminated against in retaliation for "blowing the whistle" on a safety problem or environmental violation, or for engaging in other activity protected under the law.


What is Illegal Discrimination?

Adverse changes to the whistleblower's terms and conditions of employment are prohibited. This includes a wide range of actions from reprimands to terminations and blacklisting.


Where Should I File a Complaint?

These laws are administered by the U.S. Department of Labor (DOL). Complaints must be filed in writing and should be mailed to:

U.S. Department of Labor
Office of the Assistant Secretary
Occupational Safety and Health Administration - Room: S2315
200 Constitution Avenue
Washington, D.C. 20210
(202) 693-2000


What Are the Statutes Of Limitations?

A Complaint under six of the environmental statutes must be filed with the DOL in writing within 30 days of the time an employees learns that he or she will be, or has been, subjected to discrimination, harassment or retaliation.


Do Other Laws Protect Whistleblowers?

Many states have enacted laws to protect whistleblowers. Most of these laws have a longer statue of limitations and other benefits unavailable under federal law.

Federal Whistleblower Laws and RegulationsThe National Whistleblower Center, as a matter of public service, has published a compilation of all Federal laws and regulations protecting whistleblowers. This book is available on the National Whistleblower Centers' publication site as a free download for whistleblowers and their political and legal advocates. Donations are recommended, and commercial users are required to purchase the book for $120.

 

 

What remedies are available to employees under the environmental whistleblower statutes?

Employees who prevail are entitled to:

  • Reinstatement
  • Backpay with interest
  • A complete “make whole” remedy (including restoration of seniority/sick leave, etc)
  • Compensatory damages (for emotional distress and loss of professional reputation)
  • Attorneys’ fees and costs
  • Affirmative Relief” (such as requiring a letter of apology and formal posting of the decision)

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