This past Sunday Katharine Whittemore of the Boston Globe published an article entitled “A look at books on whistle-blowing.” Whittemore writes that it is currently “kind of a strange, explosive golden age” for whistleblowers.

The “tipping point” in a cultural shift that favors protecting whistleblowers is the fact that there is now a “self-help book” for potential whistleblowers. She points readers to The Whistleblower’s Handbook: A Step-by-Step Guide to Doing What’s Right and Protecting Yourself by Stephen M. Kohn. Her review calls it “vastly shrewd and practical” tool. She also says it “offers an astute long view of American whistle-blowing” and it is “quite the march of progress” that such a book exists. Read Ms. Whittemore’s full review here.  If you wish to purchase a copy of The Whistleblower’s Handbook visit the NWC Bookstore 

In Nancy M. Modesitt’s recent research article “The Garcetti Virus,” she explains how a doctrine known as the job duties exclusion has come to erode protections once afforded to whistleblowers. She explains that this doctrine allows the discharge of an individual who discovers illegal activities while performing his or her job and then reports those issues to a supervisor. Although one might think the current whistleblower laws would protect such disclosures, Modesitt explains that is no longer the case.
Modesitt details how the the Federal Circuit created the job duties exclusion more than a decade ago in the case of Wills v. Department of Agriculture (1998). The case involved an employee in the Department of Agriculture who reported to his supervisor that a number of farms he had investigated were not complying with a government soil-protection program. The supervisor disagreed with the employee’s findings and overruled him on 6 of the 7 cases. The employee complained about the decision and later claimed that he was retaliated against for his comments. When the case was heard by the Federal Circuit, the court decided that the employees comments did not put him “at personal risk for the benefit of the public good.” As such, the court ruled that his comments could not “constitute a protected disclosure under the [Whistleblowers Protection Act (WPA)].” In later cases involving disclosures made by federal employees, the courts further limited the protection afforded to them for their whistleblower activities.

Continue Reading “The Garcetti Virus” and an erosion of whistleblower’s rights

Last night, I walked into my son’s room to say goodnight. I found him with a black sharpie and a pack of stencils. He had used them on a white t-shirt, which now read, “Vicky is NOT a Snitch.” Vicky is not his friend’s real name but the one I’ll use to relate his story.

High school administrators accused Vicky of starting a fire in the girls’ restroom. She denied it and told them she was innocent. The administrators found new evidence that pointed to another student as the perpetrator of the crime. Vicky says they did not get the information from her. The administrators at this point went off track in their zest for a confession. Instead of telling the accused student that they had a witness, they told her that Vicky was the witness against her. In doing this, the administrators were able to get a complete confession. The guilty student immediately started her campaign of retaliation against Vicky both at school and via social media.

The school administration failed to protect the alleged whistleblower. It doesn’t matter whether or not they got the information from Vicky. They still threw an innocent student under the bus to get the confession. This has created a chilling effect on the entire student body. When other students hear of this story and see the retaliation Vicky is experiencing, they will all think long and hard before reporting anything to the administration. Students will most likely decide not to report what they witness.

It is sad that negative stigma surrounding “snitching” still exists in today’s society. Students should be taught there is honor in doing the right thing. The School administration had an opportunity to create an atmosphere of Honesty Without Fear. Unfortunately, they instead created an environment that is hostile to whistleblowers.

Continue Reading Don’t Be Ashamed to Be A “Snitch”

In a long-awaited ground-breaking decision, the District of Columbia Court of Appeals today held that an employer engages in unlawful retaliation when it adds a new demand for a release as a condition for concluding a consulting agreement. The case is Propp v. Counterpart International and LeLaulu, No. 07-CV-988 (D.C. Mar. 8, 2012).

Counterpart International is a nonprofit development organization. Brian Propp worked for Counterpart from 1995 to 2004. In 2001, Propp was promoted to General Director of Counterpart’s Humanitarian Assistance Program (CHAP). His duties included fundraising.  He also led the Counterpart Communities initiative which became known as his "brainchild." Lelei LeLaulu became Counterpart’s President and CEO in 2002.

In 2004, LeLaulu proposed to the Board that Propp be terminated due to a budget deficit in Propp’s program in Muldova and CHAP’s overall budget reduction.  The Board approved of the termination. Propp was the only person laid off. Before anyone told Propp about his termination, Congress voted to give Counterpart $12 million. In a later meeting with Propp to tell him about his termination, LeLaulu offered him an opportunity to receive three months’ severance pay in exchange for a release of all claims.  Propp refused. Nevertheless, the parties agreed to have Propp continue working for Counterpart as a contractor. LeLaulu sent an email to all staff saying that Propp would now be working on Counterpart Communities and other initiatives, but not on CHAP. A week later, Propp’s attorney sent Counterpart a letter asserting that Propp was opposing practices he believed were discriminatory. Counterpart and LeLaulu then became non-responsive to efforts to conclude the negotiations for a new contract. Instead, they insisted that Propp sign a release, and even gave him a 48-hour deadline to do so. Counterpart also abandoned the $12 million earmark from Congress. On October 7, 2005, Propp filed his lawsuit alleging discrimination and retaliation.

During discovery Counterpart admitted that “Defendants never engaged or otherwise permitted [Propp] to concentrate on Counterpart Communities and other strategic opportunities for the organization because [Propp] refused to sign a separation agreement and release.” The DC Superior Court still dismissed the lawsuit on summary judgment. Propp appealed only the decision that dismissed his retaliation claim. He argued that Counterpart and LeLaulu added the requirement for a release only after Propp opposed unlawful discrimination. Today, the DC Court of Appeals agreed that adding the requirement for a release was retaliatory and unlawful.

Continue Reading DC high court says there is no “safe harbor” for retaliation

This morning, the Supreme Court declined to hear two cases that raise a conflict among the circuits about whether the First Amendment protects government employees who refuse to make false statements.  The Court denied petitions for certiorari by David Bowie, a former official of the District of Columbia (DC) Office of Inspector General (OIG), and by Matthew Byrne, Police Chief of Middletown, New York.  Bowie had lost his First Amendment case in the District of Columbia Circuit.  Meanwhile, the Second Circuit held that Byrne had to answer Jason Jackler’s claim that he suffered retaliation for refusing to make false statements in an excessive force investigation.  The Supreme Court’s decision to avoid the issue means that public employees in New York, Vermont and Connecticut will have protection when they refuse to make false statements, but those in DC will not.  The rights of public employees in other states remains undecided.

The outcome for David Bowie is particularly troubling.  According to the Second Circuit, Bowie was the Assistant Inspector General of the Investigations Division at the OIG from November 1997 until his termination in August 2002. DC officials say they fired Bowie for performance problems. But Bowie says his termination was to punish him for supporting Emanuel Johnson, a subordinate whom the OIG fired over Bowie’s dissent. Bowie and Johnson had worked together in a class action race discrimination lawsuit against the Federal Bureau of Investigation (FBI). Inspector General Charles C. Maddox, told Bowie that FBI Assistant Director Jimmy C. Carter had threatened not to "provide any assistance or cooperation with the [OIG] in investigative matters" if Johnson was involved. Maddox ordered Bowie to fire Johnson, and Bowie complied in 2000. After Johnson filed a race discrimination complaint, DC’s attorney and the OIG’s attorney ordered Bowie to sign an affidavit about Johnson’s performance problems.  Bowie refused, citing "misstatements of fact" and "language that would convey impressions that [he] would not agree with." The OIG attorney invited Bowie to prepare his own affidavit, which Bowie did.  That affidavit cited one performance issue, called Johnson an otherwise "model investigator," and recounted how Bowie wanted to keep Johnson employed. The OIG decided not to use Bowie’s affidavit in defense of Johnson’s claim. Thereafter, Bowie’s performance appraisal’s dropped, he was removed from a high-profile investigation, and a subordinate was promoted to a superior position. Management criticized Bowie for "not stepping up to the plate" and for overprotectiveness toward his subordinates. Eventually, Maddox fired Bowie in 2002.

Continue Reading Supreme Court ducks conflict on Garcetti

This week, the National Labor Relations Board (NLRB) issued a major decision holding that employees have an inalienable right to bring collective and class action lawsuits. The National Whistleblowers Center (NWC) joined with the National Employment Lawyers Association (NELA) and other groups in an amicus brief to urge the NLRB to reach this decision.

This long-recognized right of employees to bring collective and class actions is under attack by forced arbitration agreements. Sophisticated companies demand that all their employees give up these rights as a condition of employment. “An employer’s requirement that its employees prospectively waive their rights to engage in concerted legal activity about their conditions of employment is as much a violation of section 8(a)(1) as a ‘yellow dog contract’ prohibiting unionization altogether,” the amicus brief argued.

In this case, the D.R. Horton company attempted to use a recent Supreme Court decision to block collective actions by employees. In AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), a 5-4 majority held that companies can use the Federal Arbitration Act (FAA) to block consumers from bringing class action arbitrations. However, the Supreme Court was looking at California’s attempt to hold such arbitration agreements unconscionable. The Supreme Court did not consider the effect of the National Labor Relations Act (NLRA), 29 U.S.C. § 157, which specifically protects the right of covered employees to act in concert for their mutual aid and protection. Courts have long held that this federal right specifically protects the right of employees to join together in legal actions against their employer. Eastex Inc. v. NLRB, 437 U.S. 556, 566 (1978). No union is necessary for employees to be protected when they act in concert. Brady v. NFL, 644 F.3d 661, 673 (8th Cir. July 8, 2011). Still, it would be good if Congress would enact the Arbitration Fairness Act (AFA) to prohibit companies from forcing any arbitration agreements on consumers or employees.

The NLRB explained its decision saying:

It is well settled that “mutual aid or protection” includes employees’ efforts to “improve terms and conditions of employment or otherwise improve their lot as employees through channels outside the immediate employe-eemployer relationship.” Eastex, Inc. v. NLRB, 437 U.S.556, 565–566 (1978). The Supreme Court specifically stated in Eastex that Section 7 “protects employees from retaliation by their employer when they seek to improve their working conditions through resort to administrative and judicial forums.” Id. at 565-566. The same is equally true of resort to arbitration.

The NLRB adopted this argument suggested by our amicus brief:

Modern Federal labor policy begins not with the NLRA, but with earlier legislation, the Norris-LaGuardia Act of 1932, which aimed to limit the power of Federal courts both to issue injunctions in labor disputes and to enforce “yellow dog” contracts prohibiting employees from joining labor unions. Thus, Congress has aimed to prevent employers from imposing contracts on individual employees requiring that they agree to forego engaging in concerted activity since before passage of the NLRA. [Footnotes omitted.]

This decision applies only to those employees who work for private companies in the United States and have a right to organize a union. However, it will apply to these employees whether or not they actually have a union.  Additionally, NLRB decision often lead other agencies to adopt the same policies. In the past, some NLRB policies have been overturned once a new president appoints Board members who have different philosophies.

Special thanks go to attorneys Michael C. Subit (of Frank Freed Subit & Thomas LLP in Seattle, Washington), Victoria W. Ni (of Public Justice in Oakland, California) and Rebecca M. Hamburg (of the National Employment Lawyers Association in San Francisco) for leading the organizing and writing for this brief.

Mike DeGuelle

In a landmark ruling in favor of corporate whistleblowers, the U.S. Court of Appeals for the Seventh Circuit gave the green light to Michael DeGuelle’s RICO claim of retaliation. The court’s opinion gives life to a provision in the 2002 Sarbanes-Oxley Act (SOX) that makes it a felony to retaliate against whistleblowers who provide information about corporate fraud to law enforcement officers. I reported earlier on the Seventh Circuit’s extraordinary decision last year to appoint a prominent Chicago corporate and pro bono lawyer to represent DeGuelle in this appeal. DeGuelle’s prior lawyer abandoned his case after the district court dismissed it in 2010.

Mike DeGuelle sent me a message about his victory:

This is a giant step in the right direction for protecting the rights of employees who refuse to participate in unlawful conduct at work and then suffer retaliation. I did the right thing by reporting unlawful conduct to law enforcement. Finally, it is safe to do the right thing for no reason other than because it is the right thing to do. In this case, the court put the rights of the American people ahead of the greed of corporate America. This is an outstanding court decision for all workers to celebrate in the ongoing struggle to take back our country from the greed of corporations that have corrupted American values.

Continue Reading Major Victory for Whistleblowers in Seventh Circuit Says Retaliation is a RICO Violation

Handbook Cover

The NWC is proud to announce the release of the second edition of The Whistleblower’s Handbook: A Step-by-Step Guide to Doing What’s Right and Protecting Yourself. This second edition includes a new 20–page checklist on the procedures for obtaining Dodd-Frank Act rewards from the Securities and Exchange Commission (SEC). The checklist covers the SEC’s regulations that went into effect on August 11, 2011, and provides insights on how whistleblowers can use the new regulations to maximize their potential rewards. See pages 276-296.

The new edition also explains how whistleblowers can use the Dodd-Frank Act to blow the whistle on violations of the Foreign Corrupt Practices Act (FCPA). The FCPA prohibits companies traded in the United States from bribing officials in other countries. The SEC can require that companies caught violating the FCPA “disgorge” the monies received through the violation. As the SEC penalty can be much greater than the amount of the bribe itself, the whistleblower’s reward of 10 to 30 percent of the SEC recovery can also be very large. Whistleblowers anywhere in the world can now submit anonymous reward claims for reporting corruption of local officials. See pages 30-32 and 294-295.

Other new features of the second edition include:

  • How to navigate opportunities to report violations to internal channels and the SEC. Pages 280-281.

  • Tips for employees of corporate compliance and internal audit departments. Page 282.

  • Examples of the types of corporate misconduct that violate SEC rules and can become the basis for Dodd-Frank rewards. Pages 292-293.

  • Managing retaliation claims under both the Dodd-Frank Act and the Sarbanes-Oxley Act (SOX). Page 290.

Continue Reading Whistleblowers Handbook, Second Edition, is released today

On July 25, 2011, one of the nation’s leading whistleblower attorneys, Stephen M. Kohn, will share compelling insights from his newly-released book, The Whistleblower’s Handbook: A Step-by-Step Guide to Doing What’s Right and Protecting Yourself at the Mid-Manhattan New York Public Library. The author talk and book signing will be hosted by “Author @ the Library,” from 6:30 pm to 8:30 pm. This is a unique opportunity to gain invaluable knowledge from one of the foremost experts in whistleblower rights, free of charge.

The Whistleblower’s Handbook is the first-ever step-by-step guide to whistleblowing and protecting your rights. Within its pages, Kohn lays out twenty-one clearly defined steps on how to effectively blow the whistle while protecting oneself. These vital steps will be shared in our author talk, in an effort to educate the public about employee rights. Attendees can also expect to learn about how the latest federal and state laws can be used to achieve full whistleblower protection and monetary rewards.

Mr. Kohn will also discuss his New York Times op-ed, “The Whistle-Blowers of 1777,” which detailed the plight of the first American national security whistleblowers. Based on the final chapter of The Whistleblower’s Handbook, this piece tells the story of sailors who blew the whistle on misconduct by the first Commander of the United States Navy. Rather than persecuting the whistleblowers for threatening “national security,” the Continental Congress sided with the sailors and acted swiftly to protect their rights. The Congress’s prompt and undisputed response is a far cry from how modern-day administrations treat whistleblowers today, such as the recent prosecution of Bradley Manning and Thomas Drake by the Obama Administration.

Take advantage of this chance to learn more about the history of whistleblowing and gain insight on whistleblower protection laws. The event is open to the public, so be sure to show up early to guarantee yourself a seat.

*Cho Hwang (a NWC intern) contributed to this posting

Stephen M. Kohn, Executive Director of the National Whistleblowers Center (NWC), published an op-ed article in today’s New York Times.The article tells the story of Captain John Grannis, and nine other sailors of the Continental Navy. The full story is contained in The Whistleblower’s Handbook. The actual documents from the Continental Congress are linked here.

These courageous sailors and marines petitioned the Continental Congress to relieve the commander of the Continental Navy, Commodore Esek Hopkins. The sailors reported that Hopkins had engaged in misconduct including, the torture of British prisoners of war.

On March, 26, 1777, the Continental Congress accepted the petition and suspended Hopkins as leader of the Navy. he would later be formally discharged.

Hopkins was politically connected, and he retaliated immediately against America’s first whistleblowers. He filed a criminal libel case against the whistleblowers in Rhode Island’s court. Samuel Shaw, a midshipman, and Richard Marven, a third lieutenant, were detained during the proceedings. On July 23, 1778, they pleaded to Congress that they had been “arrested for doing what they then believed and still believe was nothing but their duty.”

Without any recorded dissent, Congress declared:

That it is the duty of all persons in the service of the United States, as well as all other inhabitants thereof, to give the earliest information to Congress or any other proper authority of any misconduct, frauds or misdemeanors committed by any officers or persons in the service of these states, which may come to their knowledge.

Congress did not stop there. It also authorized payment for the legal fees of Marven and Shaw. Kohn calls this act "America’s first whistle-blower-protection law." With the help of attorney William Channing, the whistleblowers won an acquittal.

Kohn points out that today’s America does not go so far in protecting whistleblowers. The Obama Administration is detaining and prosecuting Bradley Manning for allegedly releasing documents to WikiLeaks. It also prosecuted Thomas Drake for disclosing mismanagement of the National Security Administration (NSA) to the Baltimore Sun. Today’s whistleblowers have no protection when they lose their security clearance, and employees of the NSA and CIA are excluded from the Whistleblower Protection Act (WPA).

Kohn’s article is a fitting tribute to the First Amendment on the fortieth anniversary of the day the New York Times began publishing the Pentagon Papers.