: NELA : Whistleblower Protection Blog

This Week on Honesty Without Fear

Posted on November 7, 2011 by Lindsey Williams

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

In the first half hour, Dave Colapinto discusses breaking developments in Congress on the Whistleblower Protection Enhancement Act to strip federal employee whistleblowers of a right to jury trial. TAKE ACTION to protect federal employees.

Dave interviews EPA whistleblower Dr. Marsha Coleman-Adebayo about her recently released book No FEAR: A Whistleblower’s Triumph Over Corruption and Retaliation at the EPA. The book is a first-hand account of Dr. Coleman-Adebayo’s experience as a federal employee whistleblower and the racism and sexism she faced trying to protect the lives of South African miners.

In the second half hour, Eric M. Gutiérrez, Legislative & Public Policy Director for the National Employment Lawyers Association (NELA), will be interviewed by Dave Colapinto, and Dr. Coleman-Adebayo will also join the discussion. They discuss how the Civil Rights Tax Relief Act (CRTR) addresses the excessive and unfair tax treatment of settlements and awards in employment cases.

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

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

Tags: Dr. Marsha Coleman-Adebayo, Eric M. Gutierrez, Honesty Without Fear, Honesty Without Fear Radio, NELA, Radio

Civil Rights Tax Relief Act introduced in House and Senate

Posted on November 7, 2011 by Richard Renner

Representatives John Lewis (D-GA) and James Sensenbrenner (R-WI) introduced the Civil Rights Tax Relief Act in 2009. This bill would provide that compensatory damages awarded in whistleblower and other cases would be excluded from the definition of “income” for income tax purposes, just as other personal injuries are excluded. The Civil Rights Tax Relief Act will also permit whistleblowers and civil rights plaintiffs to pay taxes based on the tax rates of the years the wages would have been earned but for the unlawful discrimination.

They have now reintroduced this bill as the Civil Rights Tax Relief Act of 2011, H.R. 3195. Last week, Senators Jeff Bingaman (D-NM) and Susan Collins (R-ME) introduced a companion bill, S. 1781.

This bill has positive outcomes for both employers and employees. The CRTRA will help employers by reducing the costs of employment and civil rights litigation by enabling more cases to be settled before trial. This will free up valuable court time for other cases. It also helps the employees by not requiring that they pay taxes on non-economic damages.

"The reintroduction of the CRTRA in both the House and the Senate is an excellent development and a great opportunity for Congress to level the playing field for employment plaintiffs who have to deal with illegal discrimination and pay higher taxes on their settlements or awards. We laud all the sponsors and look forward to making the CRTRA law," stated Bruce A. Fredrickson, who guided advocacy for the CRTRA on behalf of the National Employment Lawyers Association (NELA).

This bill failed to pass in the last session of Congress, but has the potential to pass this time around if enough people contact their representatives to advocate for it!

Intern Sravani Nichanamatlu wrote this blog entry.

Tags: CRTRA, Legislation, NELA, Tax Justice for Whistleblowers

NELA to host webinar on new whistleblower remedies

Posted on January 19, 2011 by Richard Renner

NELA banner 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.

Topic for the webinar include:

* The whistleblower reward provisions in the Dodd-Frank Wall Street Reform and Consumer Protection Act and the proposed regulations implementing those provisions.
* Dodd-Frank Act amendments strengthening the anti-retaliation provisions of the Sarbanes-Oxley Act and the False Claims Act.
* Three new whistleblower retaliation causes of action in the Dodd-Frank Act.
* Recent case developments under Section 806 of the Sarbanes-Oxley Act, including the Fourth Circuit's decision in Stone v. Instrumentation Lab. Co., 591 F.3d 239 (4th Cir. 2009) clarifying the right to de novo review in federal court.
* New legislation protecting whistleblowing on food safety.
* Recent developments under the False Claims Act, including legislation closing loopholes.
* Recent case developments in federal employee whistleblower protection, including the MPSB's recent decision in Conyers v. Dep't Defense, 2010 MSPB 2047, December 22, 2010).
* An overview of recently enacted federal whistleblower protection laws protecting workers in the transportation and health care industries.

NELA's expert faculty will address these new whistleblower protection laws and offer practical tips for representing whistleblowers.

Using New Developments In Whistleblower Laws To Your Client's Advantage
Thursday, March 10, 2011
11 am Pacific /2 pm Eastern (90 minutes)
Members: $85
Nonmembers: $125

Register Now

Speakers:
Tom Devine
Legal Director, Government Accountability Project
Reuben A. Guttman
Director, Grant & Eisenhofer
Stephen M. Kohn
Executive Director, National Whistleblower Center and Founding Member of Kohn, Kohn & Colapinto, LLP

Moderated by Jason Zuckerman, Principal, The Employment Law Group

Tags: Corporate Whistleblowers, Devine, Dodd-Frank, Events, FSMA, False Claims / Qui Tam, Food, Legislation, NELA, SOX, Whistleblower FAQ

NWC joins with NELA and GAP for ARB amicus on SOX subsidiary coverage

Posted on July 16, 2010 by Richard Renner

In April, I wrote here about the request of the Department of Labor's Administrative Review Board (ARB) for amicus (friend of the court) briefs on whether the Sarbanes-Oxley Act (SOX) protects employees of subsidiaries. The National Whistleblowers Center (NWC) joined with the National Employment Lawyers Association and the Government Accountability Project to submit an amicus brief as requested by the ARB. That brief is now available here. The brief argues that the language Congress originally used, and the legislative history and context (can you spell Enron), make clear that SOX protects all employees of all subsidiaries of publicly traded companies. I want to thank Michael T. Anderson of Murphy Anderson in Boston for his insights and talent in helping with the writing of this brief and the final edits and production (while I was busy with another matter). I also appreciate the contributions of Ann Lugbill, Rebecca Hamburg, Karen Gray and Jason Zuckerman. As noted in yesterday's blog entry, Congress has now amended SOX to make explicit what it had always intended. Still, many SOX whistleblowers have cases pending that are affected by the ARB's determination of this legal issue. Best wishes to Carri Johnson whose SOX case before the ARB will be the test case to resolve this issue.

Tags: ARB, Department of Labor, GAP, Johnson, NELA, NWC, SOX, amicus, subsidiaries

NELA training on appellate advocacy, Dallas, March 12-13

Posted on February 22, 2010 by Richard Renner

The National Employment Lawyers Association (NELA), is presenting "Effective Appellate Advocacy In Employment Cases." Using a mock case, the seminar will feature workshops on brief writing and oral argument. This program will be held on March 12 - 13, 2010, at the Crowne Plaza Hotel Dallas Downtown, in Dallas, Texas. Use this link to register now.

"No matter who wins below, a lot of employment cases wind up on appeal. In the twelve months ending September 30, 2008, about one out of every eight employment cases wound up on appeal. Settlement value is influenced by how the parties thought the case would turn out if it were litigated all the way up to an appeal." - Rick Seymour

This program will equip plaintiffs' employment lawyers with the necessary skills and tools to represent their clients successfully in the appellate courts. This skills-based training seminar will examine strategies and practical tips in preparing for, writing, and arguing employment cases at the appellate level. Topics include:

* preserving your evidence and arguments in the trial court;
* strategies and techniques for effective brief writing;
* preparing for and structuring your oral argument;
* the use of moot courts; and
* when to seek assistance from appellate specialists and amici curiae.

Important Dates:

* The member rate of $500 has been extended! Register now and save $150 off the on-site rate.

* The last day to take advantage of the seminar hotel rate of $129 per night for single and double occupancy is Friday, March 5.

Tags: Events, NELA, appellate, seminar

IRS rule to clarify taxation of personal injury compensation

Posted on December 17, 2009 by Richard Renner

The Internal Revenue Service (IRS) is now considering a proposed regulation that would expand the types of personal injury compensations that are exempt from income tax. The proposed rule would eliminate the requirement that compensation be paid as part of a tort remedy. However, the proposed rule would not go so far as to make clear that compensation for enduring a hostile work environment would be exempt, as noted in a comment submitted this week by Bruce Frederickson of the National Employment Lawyers Association (NELA).

Bruce Frederickson's comment to the IRS states in part:

Non-economic damages for these types of injuries are indeed “damages for emotional distress attributable to a physical injury or physical sickness [that] are excluded from income under section 104(a)(2),” § 1.104–1(c) of the proposed rule, 74 Fed. Reg. 47153. The only difference between the physical injuries often suffered in hostile environment and employment discrimination cases (as opposed to those incurred in automobile accidents, for example) is that the physical manifestations in employment cases may not be quite so obvious to a third-party observer as are broken bones or bruises. Damages for non-tangible physical injuries are awarded to make victims whole, not to enrich them. Accordingly, such damages should be excluded from gross income and the IRS should add to the final regulation a clear statement that such damages are covered by the term “damages on account of personal physical injuries or physical sickness” in § 104(a)(2) of the Internal Revenue Code.

Tags: NELA, Tax Justice for Whistleblowers, personal injury

Cliff Palefsky testifies on mandatory arbitration

Posted on September 17, 2009 by Richard Renner

San Francisco attorney Cliff Palefsky testified on Tuesday about the need for legislation to protect workers from losing their right to trial by jury through employer-imposed pre-dispute binding arbitration agreements. Palefsky testified to the House Judiciary Committee on behalf of the

National Employment Lawyers Association (NELA)

, and a copy of his testimony is now available. The Committee is currently considering the Arbitration Fairness Act of 2009, HR 1020, which would prohibit employer-imposed arbitration agreements from having any effect on employment discrimination and retaliation claims that arise after the agreement is signed. Too many whistleblowers have lost their right to a trial by jury because of employer policies that require employees to sign away this right as a condition of employment. Hopefully, Congressional action passing this bill will restore the right to trial by jury for whistleblowers and for all of America's working men and women.

Tags: Arbitration Fairness Act, Legislation, NELA

Civil Rights Tax Relief Act (CRTRA) re-introduced

Posted on July 7, 2009 by Richard Renner

On June 25, 2009, Representatives John Lewis (D-GA) and James Sensenbrenner (R-WI) reintroduced the Civil Rights Tax Relief Act of 2009 (CRTRA). It is now numbered as H.R. 3035. On the same day, Senators Jeff Bingaman (D-NM) and Susan Collins (R-ME) reintroduced the CRTRA in the Senate, where it is now known as S. 1360. The Senate and House bills are identical. They differ from last Congress's CRTRA only in the effective date. The bill would provide that compensatory damages awarded in whistleblower and other cases not involving physical injuries would be excluded from the definition of "income" for income tax purposes. The bill would also permit whistleblowers and civil rights plaintiffs to pay taxes based on the tax rates of the years when the wages would have been earned but for the unlawful discrimination. The National Employment Lawyers Association (NELA) provides more information about these bills. NELA also has an Action Page from which you can ask your legislators to co-sponsor CRTRA.

Tags: CRTRA, Civil Rights Tax Relief Act, Legislation, NELA

Summary Judgment misses the "point-counterpoint"

Posted on April 21, 2009 by Richard Renner

In a victory for whistleblowers, and all parties who believe in civil jury trials, the federal Advisory Committee on the Rules of Civil Procedure has rejected a series of proposals that defense lawyers had advanced to modify the rules for "summary judgment."

Rule 56 of the Federal Rules of Civil Procedure (FRCP) permits judges to grant "summary judgment" when they find that there is no "genuine dispute" as to any "material fact." All inferences from the facts are supposed to be drawn in favor of the non-moving party so that the jury can make the decision in all cases where the facts permit more than one conclusion. Whistleblower advocates, and other civil rights attorneys, have long complained that judges are abusing summary judgment by taking the boss' word that an adverse decision was not made on account of discrimination or retaliation. Companies can then avoid a jury trial, and get a case dismissed with an order finding they are not liable at all. Many employment and whistleblower cases are decided on appeal on the issue of whether the record supports an inference that the boss is lying to cover up discrimination.

Defense lawyers, however, were hoping they could change the rules of summary judgment so they could win even more cases. Their major proposal would have them list all the facts they claim are "undisputed." It would then be up to the employee's attorney to explain, with citations to the record, how they contest each and every factual claim. If they failed to respond to one, or if the judge found their response was not sufficiently specific, then they could lose the whole case. In districts where local rules already require "point-counterpoint," civil rights attorneys complain that the process is slanted in favor of the big defense firms who have the staff to look through voluminous records to find points that are burdensome to oppose. The result has been that under "point-counterpoint," more cases are dismissed at summary judgment without ever getting to a jury.

Meeting today in Chicago, the federal Advisory Committee rejected this defense proposal. Whistleblowers are indebted to the American Association for Justice (AAJ) and the National Employment Lawyers Association (NELA) for mobilizing public comment against the defense bar proposals. I am indebted to the AAJ's John Vail for alerting me to today's decisions.

The Advisory Committee also rejected a proposal to say that entry of summary judgment is mandatory when a judge finds there is no "genuine dispute." Currently, summary judgment is discretionary, and judges can decline to enter a summary judgment if they think a case should go to a jury. Even though judges normally find a "genuine dispute" in cases where summary judgment is denied, defense lawyers wanted to take away a judge's option of declining summary judgment as a matter of discretion. Defense lawyers also wanted discovery of all communications between lawyers and their experts. The Advisory Committee rejected this proposal to keep discovery focused on the conclusions, and not on the communications. However, discovery will be permitted of communications of experts who are employed by one of the parties.

While civil rights and whistleblower interests will benefits from today's decisions, a new hurdle approaches. The Advisory Committee has scheduled a major retrospective on the civil rules. It is scheduled for May 10-11, 2010, at Duke University. New York Judge John G. Koeltl will lead the event. A series of papers and conferences are planned on discovery, electronic discovery, pleadings and motions, and other topics. By opening the door to a larger revamping of civil rules, the Advisory Committee has set the stage for a new round of advocacy and public participation on what we need to preserve our civil rights.

Tags: AAJ, Advisory Committee, American Association for Justice, FRCP, Federal Rules of Civil Procedure, Legislation, NELA, National Employment Lawyers Association, summary judgment

Employee Rights Advocacy Institute receives grant for opinion research

Posted on February 12, 2009 by Richard Renner

The Employee Rights Advocacy Institute For Law & Policy (The Institute), has received a grant from The Public Welfare Foundation for a research project on public opinions about issues affecting America's workers.

The "Project to Assess Public Support for Stronger Enforcement of Workplace Protections" will examine existing attitudes about government oversight and private enforcement, particularly the issue of ensuring meaningful protections in the workplace. While we know that public opinion is shifting, we do not know the extent of the shift, and whether it extends beyond specific failed industries to laws regulating workplace conditions and to private attorneys' role in enforcement of those laws. The project will assess public attitudes and communications strategies about strong workplace protections.

The Institute is the public interest organization affiliated with the National Employment Lawyers Association (NELA).

Tags: Employee Rights Advocacy Institute, NELA, News, Survey, opinion

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