House Holds Hearing on Protecting America's Workers Act

Posted on April 29, 2010 by Lindsey Williams

Dr. Celeste Monforton of George Washington UniversityOn Workers Memorial Day and the 40th anniversary of the creation of the Occupational Safety and Health Administration, the Workforce Protections Subcommittee of the House Committee on Education and Labor held a hearing on pending legislation, the Protecting America’s Workers Act (PAWA), H.R. 2067.

Rep. Lynn Woolsey of California, introduced PAWA to strengthen employee rights to blow the whistle on unsafe working conditions and the rights of family members of workers who have been killed or seriously injured at work.

Several people testified at the hearing; including whistleblower Neal Jorgensen. He was fired by Plastic Industries one week after he filed an OSHA complaint regarding unsafe working conditions. Although OSHA found that his case had merit, the regional Solicitor of Labor refused to take his case to court and he was left with no job and no remedy.

Lynn Rhinehart, General Counsel of the AFL-CIO, testified that, “Whistleblower protections have everything to do with safety and health.” She expressed the AFL-CIO’s support for PAWA saying it will update the whistleblower provisions in the OSHA Act and bring them “into the 21st century.”

PAWA would extend the statute of limitations to file an OSHA complaint from 30 days to 180 days. It would also allow plaintiffs the right to a private action in the event that the Secretary of Labor declines to prosecute their complaint. It would require OSHA to interview the complainant, and strengthen anti-retaliation provisions.

Tonya Ford is the niece of Robert Fitch. He was killed at an Archer Daniels Midland plant in Nebraska, also gave testimony at the hearing. She spoke about how families are often left out of the OSHA investigation process and uninformed on the status of those proceedings. Jordan Barab, Deputy Assistant Secretary of Labor for Occupational Health and Safety, said that H.R. 2067 will address these issues by establishing family liaisons, offering additional training for field officers on dealing with grieving families, and involving a family member or representative of the family in the investigation process. 

Dr. Celeste Monforton of George Washington University (and the Pump Handle blog) testified about how strong whistleblower protections are needed now more than ever. When unemployment is high, workers will be more afraid to speak up unless they have strong legal protection for standing on the side of health and safety.

A number of family members of workers who were killed on the job were present at the hearing to demonstrate their support for enhanced victim’s rights and strengthened whistleblower protections. As industry attorney Lloyd Chinn raised concerns about meritless whistleblower cases, some family members stood up and raised photos of their deceased loved ones. They stood in silence to speak for those who no longer can.

 

 

*Meryl Grenadier (NWC Fellow) attending the hearing and drafted this post.

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NWLDEF to Host Training Seminar April 1, 2010

Posted on March 31, 2010 by Lindsey Williams

JOIN OUR LAWYERS & THE MEDIA
TRAINING SEMINAR
Thursday, April 1, 2010 12:00 - 2:00 pm EST

Sponsored by the National Whistleblowers Legal Defense & Education Fund

Lawyers & the Media: Strategies that Work and Pitfalls to Avoid in Whistleblower Cases
Whistleblowers who come forward to expose wrongdoing are critical sources for journalists. All attorneys who represent whistleblowers and journalists who use them as sources must understand the laws in place to protect whistleblowers when their story reaches the public. Attorneys also need to know how to effectively present their client's cases to journalists. This seminar will cover the 1st amendment protections that attorneys need to know to protect their clients, and journalists need to protect whistleblower sources

This training will take place on April 1, 2010 at the National Whistleblowers Center and via telephone conference

For a full description of the seminar and faculty information click here. To register for this seminar, click here.

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Health Care Bill Enhances Whistleblower Protections

Posted on March 22, 2010 by Lindsey Williams

As part of the anti-fraud provisions of the health care legislation passed yesterday, Congress strengthened the False Claims Act - one of the most effective whistleblower laws in the United States - in order to ensure that whistleblowers can expose fraud under the Patient Protection and Affordable Care Act.
 

Lindsey Williams, Advocacy Director at the National Whistleblowers Center, explained the whistleblower provisions incorporated into the health care law:  "The bill directly addresses the right of whistleblowers to obtain protection under the False Claims Act. A number of courts had significantly narrowed the interpretation of 'whistleblower' under the law, resulting in a chilling effect on employees' willingness to risk their careers to expose fraud against the taxpayers. The health care legislation passed by Congress contains a much-needed provision correcting these narrow, anti-whistleblower rulings."
 
The legislation also ensures that the False Claims Act anti-fraud provisions will apply to the "exchanges" established under the Patient Protection and Affordable Care Act if they use federal funds. Additionally, the False Claims Act is strengthened regarding failure to return overpayments and includes greater anti-kickback provisions. 
 
"Regardless of where you stood on the health care debate, this is a major step forward for fraud prevention and ensures that whistleblowers, who risk their careers to expose fraud in the new health care system and by large pharmaceutical companies, won't have their cases maliciously thrown out of court," added Ms. Williams.


 
 
 
*Meryl Grenadier (NWC Fellow) contributed to this post.
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Federal Employees Have Less than 2% Chance of Success Before MSPB Judges

Posted on March 11, 2010 by David Colapinto

New MSPB case statistics have implications for pending whistleblower legislation.

Things just keep getting worse for federal employees and whistleblowers who challenge adverse actions taken by federal employers. Charlotte Yee recently posted on the Government Accountability Is A Citizen’s Responsibility blog the official Merit Systems Protection Board (MSPB) Fiscal Year 2008 (Oct. 2007 – Sept. 2008) statistics for all non-benefit cases decided by MSPB administrative judges. The results are, once again, astoundingly biased in favor of the federal employers.

The MSPB judges ruled in favor of employees a total of 1.7% of the time out of a total caseload of 4,698 cases nationwide.

In other words, if you are a federal employee and have a whistleblower reprisal claim or otherwise challenge serious discipline or a termination before the MSPB you have more than a 97% chance of losing your case (even after factoring in the cases that settle). 

Even though the MSPB continues to utterly fail to be a fair arbiter of federal employee cases, the Senate is proposing to give the MSPB more power to decide cases in favor of federal employers. In S. 372, the so-called Whistleblower Protection Enhancement Act, the Senate is giving the MSPB new summary judgment procedures (only in whistleblower cases). This will make it even more difficult for employees to prevail in whistleblower cases because unlike cases filed in federal court, the MSPB has very limited discovery tools available.   Summary judgment is a procedure that is available in court cases, under the Federal Rules of Civil Procedure. However, those federal rules for court cases also provided for broad discovery. Not so at the MSPB. If enacted, the new MSPB summary judgment procedures will result in a more efficient way for the MSPB to dispose of cases and rule against federal employees without holding a hearing. 

If that is not bad enough, the Senate has proposed in S. 372 a very limited right to seek a jury trial in federal court in only some whistleblower cases (e.g., where there is a suspension of 14 days or more or a removal) if the employee files a request with the MSPB at an early stage of the case. However, the federal employer will be permitted to file a motion under Federal Rule Civil Procedure Rule 12(d), forcing the employee to survive summary judgment before the MSPB can permit a case to go to federal court. At that stage, the employee will have the benefit of no discovery, or may be forced to litigate the merits of a case on summary judgment, before the MSPB rules, in its discretion, whether or not the employee should be permitted to take the case to federal court and seek a jury. The same MSPB judges who rule currently rule for employees 1.7% of the time will be making these decisions under this convoluted procedure.

Finally, the MSPB statistics are revealing with respect to how the Senate proposes to “enhance” the whistleblower rights of employees who work for intelligence agencies and the FBI. In S. 372, employees who work in the field of national security will get no court access. Instead, they will be provided an administrative procedure that is even worse than the MSPB. In S. 372 the Senate proposes that FBI, CIA, NSA and other intelligence agencies will assign their own judges to decide the cases. Once the very agency that fired or disciplined the employee for whistleblowing makes the ruling as to whether there was retaliation the employee can appeal to a new Board that must defer to the agency’s decision. It is hard to imagine how anyone could devise a system that is worse than the current MSPB system to decide whistleblower cases, but that is precisely what the Senate and the Obama administration are proposing in S. 372.

The proposals in S. 372 are doomed to fail because they will further bias the system in favor of the employer. We already know the track record of the MSPB with over 30 years of statistics where employees now win only 1.7% of the time. Giving the MSPB more power, without providing employees full access to court, will not make much difference in these statistics. As for the FBI and intelligence agency employees, creating an entirely new administrative system that is even more biased in favor of the employer than the MSPB, without any court access for trials, is an insult to the brave employees who protect our national security. Accused terrorists have more rights in court than any employee of the FBI or intelligence agency blowing the whistle on illegal conduct, fraud or waste and abuse.

There is a solution to this problem. The House of Representatives with broad bi-partisan support has twice passed a bill that, while not perfect, addresses most of these problems in federal employee whistleblower cases in a constructive way based on other laws, such as Title VII of the Civil Rights Act, that provide court access for federal employees in addition to administrative remedies. The House bill (HR 1507), introduced by Rep. Chris Van Hollen (D-Md) and Rep. Todd Platts (R-Pa), provides important reforms to the MSPB and permits full court access for employees to obtain jury trials in federal court. 

Tell your Senator to strengthen the Senate bill by removing the poison pill provisions of S. 372 that are an impediment to real reform before it passes the Senate.
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False Claims Act Whistleblower Puts a Stop to Abuse at PA Psychiatric Hospital

Posted on May 20, 2009 by Marshall Chriswell

Yesterday, I blogged about a pending multi-million dollar False Claims Act (FCA) lawsuit agains Pharm giant Wyeth. Today's news brings another example of how the FCA can be used to bring gross misconduct to light. This case, involving a western Pennsylvania psychiatric institution has settled for far less money than many of the more highly publicized FCA cases, but the shocking allegations are what really caught my attention.


The whistleblower in this case, Dr. Stefan Kruszewski, was a psychiatrist reviewing records of the Southwood Psychiatric Hospital. Southwood is a private facility that houses over 100 juvenile boys who are wards of the state. For the care of these kids, Southwood is paid through state and federal contracts. Dr. Kruszewski reported that Southwood, in order to inflate their government payments, "...held juveniles who did not require hospitalization, prescribed and administered unnecessary medication to increase government reimbursements, and billed the government for care that was not provided." (Pittsburgh Tribune Review)


The Department of Justice has settled this lawsuit and Southwood is paying $150,000 and is being forced to make necessary changes to raise its standard of care and clean up its act. Under the settlement, Southwood is not admitting any wrongdoing, but it is unthinkable that a hospital would take advantage of, indeed abuse,  vulnerable young children in order to make a quick buck off of the taxpayers. The story also shows how valuable the False Claims Act can be in bringing to light all kinds of misconduct when government money is involved. Congress should continue to work to pass current legislation which is designed to strengthen the FCA.

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U.S. Government and 16 States Join False Claims Act Lawsuit Against Pharm Co. Wyeth

Posted on May 19, 2009 by Marshall Chriswell

The United States Government, along with the governments of 15 states and the District of Columbia, have joined with two whistleblowers who allege that drug manufacturer Wyeth bilked US taxpayers out of hundreds of millions of dollars. As reported in the Wall Street Journal and the FierceHealthcare website, Wyeth is accused of overcharging Medicare and Medicaid programs nationwide for purchases of it's acid-reflux drug Protonix. Under federal law, drug companies are required to offer prescriptions to federal aid programs at the lowest possible price. Wyeth, however, the suit alleges, was offering Protonix at a 90% discount to private hospitals, while charging the federal government much higher rates.

 

The lawsuit was filed under the False Claims Act, which has its roots in the civil war era, and remains  the United States' most powerful tool for rooting out fraudulent government contracts. President Obama's administration has recently expressed its support for strengthening the law, and legislation to do so is currently pending in Congress.

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Obama Administration Supports The Fraud Enforcement and Recovery Act

Posted on April 23, 2009 by Lindsey Williams

Here is an update to our earlier posting on S. 386.

The Office of Management and Budget issued a Statement of Administration Policy to the Senate on Monday, April 20th stating that the Obama Administration “strongly supports enactment of S. 386.”  The statement explained that the Fraud Enforcement and Recovery Act of 2009 (S. 386) would “benefit U.S. taxpayers by both addressing existing fraud and deterring waste, fraud, and abuse of public funds.”  It also pointed out that the bill would “amend the False Claims Act (FCA) in several important respects so that the FCA remains a potent and useful weapon against the misuse of taxpayer funds.”

Notably, the statement supporting the Fraud Enforcement and Recovery Act is the only statement the Office of Management and Budget has sent to the Senate since the beginning of the Obama Administration.

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Senator Grassley Expresses Support For Stronger Anti-Fraud Legislation

Posted on April 22, 2009 by Lindsey Williams

On Monday, Senator Grassley (R-IA) expressed his support for the Fraud Enforcement and Recovery Act of 2009 (S. 386) saying “we simply cannot allow unscrupulous individuals to defraud the government and rip off taxpayers.” The bill provides new tools for the federal government to fight fraud and makes much needed amendments to the Federal False Claims Act.

Under the False Claims Act, whistleblowers bring lawsuits against companies who defraud the federal government. As a reward for their courageous actions, whistleblower receive a portion of the amount the federal government recovers.  As Senator Grassley correctly pointed out in his floor statement,  “we would not have the case or the money returned if it wasn’t for the information of the whistleblower.”  This law has been used to recover more than $22 billion since 1986 and has deterred an incalculable amount of fraud.  

The amendments to the False Claims Act correct loopholes created by recent court decisions, including the Allison Engine case, which allow companies to avoid liability for fraud.  These amendments are absolutely necessary to protect taxpayer dollars – especially in light of the billions of dollars spent in the economic stimulus and TARP legislation.  However, Senator Grassley reminds us “you’re going to find those same special interests that have been around for the last 20 years, trying to gut the legislation. Why? Because it’s one of the most effective tools against fraud.”  We will be following this legislation and will keep you updated on its progress.  

In addition to the amendments to the False Claims Act, the bill authorizes funding for law enforcement and prosecutors, makes changes to federal criminal laws, redefines “financial institution” to include mortgage lending businesses, and adds commodities futures to the securities fraud statute.  The bill also makes it illegal to make false statements on mortgage applications and appraisals and ensures that economic relief funds and TARP funds are included in criminal law prohibiting fraud against the government.
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Study Released Today on State Whistleblower Laws

Posted on April 16, 2009 by Lindsey Williams

Today, the Public Employees for Envirnonmental Responsibility (PEER) released a study and ranking of state whistleblower laws.  PEER found that more than 20 states have broadened their whistleblower laws since 2006.  Please click here to read the highlights of the study.

If you are looking for more information on state whistleblower laws please visit the new interactive map of the U.S. on the National Whistleblowers Center website.  The map shows the qui tam laws, whistleblower statutes, and common law remedies for each state.

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Wisconsin Whistleblower Case Highlights Lack of Employee Protections

Posted on April 14, 2009 by Marshall Chriswell

The Madison Wisconsin Capitol Times has this story today about Tom Nanstead, an electric company whistleblower who was terminated in 2005 after reporting that his employer routinely overbilled its customers for their utilities. Now, four years later, it has been determined by the Wisconsin Public Service Commission, that Xcel energy did indeed overbill their customers, but Mr. Nanstead has found no legal recourse that can return him to work or provide him with compensation. This well-written story highlights the need for a national whistleblower protection  law, and especially the trouble faced by private-sector whistleblowers.

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