Whistleblower policy is a government program that protects employees who report health, safety, environmental, or other violations committed by their employers.
Ross v. County of Riverside In a recent California case, Ross v. County of Riverside, plaintiff, a former deputy district attorney, sued his former County employer for violations of Labor Code section 1102.5 and the Fair Employment and Housing Act (“FEHA”), claiming whistleblower retaliation and disability discrimination. The trial court granted summary judgment in favor of the County, finding that plaintiff could not establish that he engaged in protected activity or that he had a disability recognized under FEHA. The Court of Appeal reversed and remanded. Reversal and Remand Plaintiff disclosed exculpatory evidence to his supervisors at the District Attorney’s Office. In spite of the evidence, the District Attorney’s Office pursued malicious prosecution, and retaliated against plaintiff for reporting the supervisors actions. The Court of Appeal for the Fourth District found that the disclosure of information by plaintiff to his supervisors was a protected activity. In addition, around the same time as the above mentioned incident, Plaintiff began exhibiting neurological symptoms due to a concussion syndrome that required him to undergo treatment and testing. After asking for a lighter caseload with “no stress or deadlines” as an accommodation, plaintiff’s supervisor declined his request. The County requested medical documentation that Plaintiff could not provide. The Court of Appeal held there were triable issues of material fact as to both Plaintiff’s claim that his disclosure was a protected activity under Labor Section 1102.5 and whether he had a disability under FEHA. The court thereby reversed the judgment, remanding the case for further proceedings.
What Incentives and Protections are Available to Whistleblowers Under Federal Law? If you have information about a federal crime or a company that has inappropriately taken advantage of a government contract or government benefit program (such as Medicare or Tricare), you may be entitled to protection as a whistleblower under federal law. While there are several laws that provide incentives and protections to whistleblowers, these protections are not absolute, and they do not apply to all types of legal violations. As a result, before blowing the whistle, it is important to speak with an attorney who is experienced in whistleblower litigation, and who can help you take the appropriate steps to receive protection under federal law. The following is a brief overview of some of the types of incentives and protections that are available under federal law: Protection of Anonymity Under the False Claims Act (which is one of several federal laws that provide whistleblower protections), all cases are kept *under seal* for 60 days. This is intended to help ensure that whistleblowers (also called *relators* in qui tam proceedings) are not too intimidated to report violations to the government. After 60 days, the government may choose to lift the seal on your case, or it may extend the period of anonymity until the conclusion of its investigation. Protection Against Retaliation Under the False Claims Act and other federal whistleblower laws, employees who file whistleblower claims are entitled to strong protections against retaliation. These protections not only prohibit your employer from firing you based on the fact that you reported its improper conduct, but also from demoting you, reducing your pay, assigning you to a less-desirable work environment, and taking any other form of adverse employment-related action. However, this does not mean that your employer is prohibited from terminating you for other reasons. If you lose your job for reasons unrelated to your whistleblower claim, then you are not a victim of retaliation. Compensation for Qui Tam Lawsuits without Government Intervention When a whistleblower files a qui tam lawsuit, the federal government has an obligation to investigate the whistleblower*s allegations. Based upon the outcome of its investigation, the government can either intervene in the case and pursue litigation against the alleged wrongdoer, or else allow the whistleblower to pursue a qui tam action independently. If the government declines to intervene in your case and you win a verdict at trial, you could be entitled to as much as 30 percent of the total recovery. Compensation for Qui Tam Lawsuits with Government Intervention If the government intervenes in your case, you are still entitled to compensation if your case is successful. Under the False Claims Act, relators can receive between 15 and 25 percent of the damages awarded to the government. Other whistleblower statutes provide for similar relator compensation. No-Cost Legal Representation Whistleblower attorneys typically represent their clients on a contingency-fee basis. This means that it costs you nothing out of pocket to engage experienced legal representation. If your case is unsuccessful, you will owe nothing. If you receive compensation from the government, your attorney will retain a portion of your award to cover his or her fees and expenses.
Does a SOX whistleblower need to prove that the employer's reason for the adverse action is untrue? No, under a recent holding of the Department of Labor's administrative review board a corporate whistle blower proceeding under the anti retaliation provision of the Sarbanes Oxley Act need only show that their protected conduct was a contributing factor in that adverse employment action. That's a relatively low burden. Did the protected activity have any influence whatsoever on that adverse employment action? Employee need not show that the employer's reason for the adverse action is untrue as long as the protected activity had any role in the adverse action. | Zuckerman Law | Experienced Whistleblower Advocates | Jason Zuckerman | https://www.zuckermanlaw.com/ | (202) 262-8959 | 1629 K St NW, Ste 300, Washington, DC 20006
Is knowledge of protected conduct and close temporal proximity sufficient to prove retaliation? Under some of the anti-retaliation laws, including the Whistle Blower Protection Act, a violation may be shown by proving one, that the individual who took the adverse personnel action knew that the employee blew the whistle and number two, the adverse action happened close enough in time after the employee engaged in protected conduct that a reasonable person may conclude that the protected activity was a contributing factor in that adverse personnel action. Zuckerman Law | Experienced Whistleblower Advocates | Jason Zuckerman | https://www.zuckermanlaw.com/ | (202) 262-8959 | 1629 K St NW, Ste 300, Washington, DC 20006
Do federal laws protect whistleblowers against retaliation? There are many laws that protect corporate whistleblowers against retaliation. There are many variations in these laws, but all of them usually have four elements. One, did the employee blow the whistle on an issue that is protected under the statute? For example, did the employee raise a concern about a violation of FCC rule? That would be protected under the Sarbanes-Oxley Act. Number two. Did the employer know about the employees protected activity or suspect that the employee blew the whistle? Number three. Was there some adverse employment action, some harmful action to the employee? Number four. Is there a link between the protected whistleblowing and that adverse employment action? Under these laws, corporate whistleblowers can get a wide variety of remedies. Those include loss pay, emotional distress damages, loss future earnings, and under some laws, a corporate whistleblower can recover punitive damages.
Does the Sarbanes-Oxley Act protect whistleblowing in the course of performing one's job duties? Yes. A corporate whistleblower is protected under the Sarbanes-Oxley Act when they blow the whistle in the course of performing their ordinary job responsibilities. In almost all of the Sarbanes-Oxley cases I handle, I often hear the employer argue, "Well, your client didn't blow the whistle. They just performed their ordinary job responsibility." I have been able to persuade many ALJs at the Department of Labor and some courts that there is no loophole in SOX for employees who blow the whistle as part of their ordinary job responsibilities. It's important to recall why we have the anti-retaliation provision of SOX. It was enacted in the wake of Enron, where individuals who performed work for Enron as auditors inside Enron or even at outside firms, people either were willing to look the other way, or, when they blew the whistle, there was an act of reprisal. The point of Sarbanes-Oxley is to ensure that auditors and accountants are able to blow the whistle without fear of reprisal.