When you become our client, you can relax. We stand ready to use our extensive legal knowledge, our broad experience, our commitment to protect your rights, and to vigorously pursue justice on your behalf. R. Scott Oswald, Principal Adam Augustine Carter, Principal Nicholas Woodfield, Principal Jason Zuckerman, Principal Dave Scher, Principal David H. Martin, Of Counsel Subhashini Bollini, Associate Tom Harrington, Associate Cynthia Smith, Associate Michael Vogelsang, Associate Kellee Kruse, Associate
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Call The Employment Law Group law firm, in Washington, DC, if you have been a victim of workplace discrimination or harassment, or have experienced other violations of your civil rights. Our seasoned trial attorneys have earned an enviable record of favorable settlements and verdicts on behalf of our clients. We take great pride in our reputation as aggressive litigators and persuasive negotiators. Toll Free: 888-603-0983 Phone: 202-331-3911 Fax: 202-261-2835
Tuesday, September 28, 2010
Saturday, September 25, 2010
The Employemnt Law Group H1N1 Virus (Swine Flu) and the Family Medical Leave Act
H1N1 Virus (Swine Flu) and the Family Medical Leave Act
The H1N1 virus, perhaps better known as the Swine Flu, has been rapidly spreading throughout the world and has received a tremendous amount of media coverage. Some of the more severe symptoms are fever, body aches, vomiting, and diarrhea. Like the regular flu, the severity of symptoms varies by individual. For most, the sickness is mild and passes in a few days. However, for some individuals, the symptoms can last much longer, be more severe, and even fatal.
Individuals forced to miss work due to this virus, either because they caught it or a family member caught it, should be aware that the protections of the Family Medical Leave Act (FMLA) may apply. The FMLA permits an employee to take unpaid leave without risk of being fired or discriminated against because they request or take family medical leave.
Employees Covered Under the FMLA
Employees are eligible to take FMLA leave if the employee:
1. Worked for the employer for at least 12 months;
2. Worked for the employer for at least 1,250 hours during the previous 12 month period before the leave; and
3. Works at a location with at least 50 employees who are employed by the employer within 75 miles of that location.
For an eligible employee to qualify for unpaid leave, the illness must be classified as a “serious health condition.” There are several factors that can be used to determine if the illness is sufficient to trigger FMLA protections, but generally you must be incapacitated for three or more full, consecutive days and be seen by a health care professional two or more times for the illness. For most people, the flu will not qualify for FMLA coverage. However, courts have held that if severe enough, FMLA protections apply to the flu. See e.g., Miller v. AT & T Corp., 250 F.3d 820 (4th Cir. 2001).
http://www.the-employment-lawgroup.com
http://www.employmentlawgroup.com
The H1N1 virus, perhaps better known as the Swine Flu, has been rapidly spreading throughout the world and has received a tremendous amount of media coverage. Some of the more severe symptoms are fever, body aches, vomiting, and diarrhea. Like the regular flu, the severity of symptoms varies by individual. For most, the sickness is mild and passes in a few days. However, for some individuals, the symptoms can last much longer, be more severe, and even fatal.
Individuals forced to miss work due to this virus, either because they caught it or a family member caught it, should be aware that the protections of the Family Medical Leave Act (FMLA) may apply. The FMLA permits an employee to take unpaid leave without risk of being fired or discriminated against because they request or take family medical leave.
Employees Covered Under the FMLA
Employees are eligible to take FMLA leave if the employee:
1. Worked for the employer for at least 12 months;
2. Worked for the employer for at least 1,250 hours during the previous 12 month period before the leave; and
3. Works at a location with at least 50 employees who are employed by the employer within 75 miles of that location.
For an eligible employee to qualify for unpaid leave, the illness must be classified as a “serious health condition.” There are several factors that can be used to determine if the illness is sufficient to trigger FMLA protections, but generally you must be incapacitated for three or more full, consecutive days and be seen by a health care professional two or more times for the illness. For most people, the flu will not qualify for FMLA coverage. However, courts have held that if severe enough, FMLA protections apply to the flu. See e.g., Miller v. AT & T Corp., 250 F.3d 820 (4th Cir. 2001).
http://www.the-employment-lawgroup.com
http://www.employmentlawgroup.com
Thursday, September 23, 2010
The Employment Law Group® law firm Proven Leaders in Employment Law
Getting fired, being refused a promotion you worked hard to deserve, not getting paid for regular time or overtime hours you have worked, being denied a benefit claim by your employer, being retaliated against for whistleblowing or being subject to harassment or discrimination in the workplace can be a violation of state and federal employment laws. State and federal law extends many rights, privileges, and protections to employers, but never at the expense of employees who may suffer illegal abuses or injustices in the name of profits.
The Employment Law Group® law firm is one of the Washington, DC, area’s premier employment law firms. The firm’s attorneys have a collective 70 plus years of experience. We represent people in the Washington, DC, metropolitan area, northern Virginia, and Maryland who have legal claims against employers who disregard federal and state wage and employment laws, and we represent people from all over the United States and around the world in EEOC, Sarbanes-Oxley and other whistleblower protection cases against the federal government and publicly held U.S. corporations.
http://www.the-employment-lawgroup.com
http://www.employmentlawgroup.com
The Employment Law Group® law firm is one of the Washington, DC, area’s premier employment law firms. The firm’s attorneys have a collective 70 plus years of experience. We represent people in the Washington, DC, metropolitan area, northern Virginia, and Maryland who have legal claims against employers who disregard federal and state wage and employment laws, and we represent people from all over the United States and around the world in EEOC, Sarbanes-Oxley and other whistleblower protection cases against the federal government and publicly held U.S. corporations.
http://www.the-employment-lawgroup.com
http://www.employmentlawgroup.com
Wednesday, September 22, 2010
The Employment Law Group DC Whistleblower Protection Act
DC Whistleblower Protection Act
--------------------------------------------------------------------------------
The attorneys at The Employment Law Group® law firm have substantial experience litigating high-profile retaliation claims under the D.C. Whistleblower Protection Act (WPA). In 2009, The Employment Law Group® secured a jury verdict of over $282,000 on behalf of a former program director who blew the whistle on fraud in a federally-funded education program. This is one of the largest awards under the D.C. WPA.
What laws protect Whistleblowers employed by D.C. Government Agencies or Contractors?
The D.C. Whistleblower Protection Act (WPA) forbids a supervisor from retaliating or threatening to retaliate against an employee of the D.C. government or an employee of a D.C. government contractor because of the employee's protected disclosure or refusal to comply with an illegal order. Employees who suffer retaliation because of their protected disclosures or refusal to obey illegal orders may bring a cause of action in the D.C. Superior Court within one year of the prohibited personnel action.
What activities are protected?
For employees in the public sector, "protected disclosure" means any disclosure of information not specifically prohibited by statute, by any employee to a supervisor or a public body that the employee reasonably believes evidences:
1. Gross mismanagement;
2. Gross misuse or waste of public resources or funds;
3. Abuse of authority in connection with the administration of a public program or the execution of a public contract;
4. A violation of any federal, state, or local law, rule, or regulation;
5. A violation of any significant contractual terms between the District government and a District government contractor; or
6. A substantial and specific danger to the public health, safety, or protection of the environment.
What must a plaintiff prove to prevail?
To prevail in a WPA case, an employee must establish by a preponderance of the evidence that his refusal to comply with an illegal order or his protected disclosure was a contributing factor to an employing agency's decision to take a prohibited personnel action.
What is the employer's burden of proof?
If a plaintiff successfully proves by a preponderance of the evidence that his protected activity was a contributing factor in the employer's decision to take prohibited personnel action, the employing agency must prove by clear and convincing evidence that it would have taken the personnel action if the employee had not engaged in protected conduct.
What can a prevailing plaintiff recover?
The WPA authorizes injunctive relief, reinstatement, restoration of lost benefits, back pay for lost wages, compensatory damages, and litigation costs including attorney's fees, to a prevailing employee.
What are the District Employee's rights under the WPA?
District employees have the right to:
1. Freely express opinions on public issues;
2. Communicate with members of D.C. Council;
3. Assemble in public places to discuss matters of personal and public interest;
4. Humane, dignified, and reasonable conditions of employment; and
5. Individual privacy.
What are the responsibilities of District Employees, Supervisors, and Agencies under the WPA?
Supervisors and employees are obligated to disclose illegal activity as soon as they become aware of such activity. If a supervisor fails to disclose such activity, the supervisor will be subject to disciplinary action. Additionally, if a supervisor retaliates against an employee because an employee engaged in protected conduct, the agency must take disciplinary action against the supervisor.
http://www.the-employment-lawgroup.com
http://www.employmentlawgroup.com
--------------------------------------------------------------------------------
The attorneys at The Employment Law Group® law firm have substantial experience litigating high-profile retaliation claims under the D.C. Whistleblower Protection Act (WPA). In 2009, The Employment Law Group® secured a jury verdict of over $282,000 on behalf of a former program director who blew the whistle on fraud in a federally-funded education program. This is one of the largest awards under the D.C. WPA.
What laws protect Whistleblowers employed by D.C. Government Agencies or Contractors?
The D.C. Whistleblower Protection Act (WPA) forbids a supervisor from retaliating or threatening to retaliate against an employee of the D.C. government or an employee of a D.C. government contractor because of the employee's protected disclosure or refusal to comply with an illegal order. Employees who suffer retaliation because of their protected disclosures or refusal to obey illegal orders may bring a cause of action in the D.C. Superior Court within one year of the prohibited personnel action.
What activities are protected?
For employees in the public sector, "protected disclosure" means any disclosure of information not specifically prohibited by statute, by any employee to a supervisor or a public body that the employee reasonably believes evidences:
1. Gross mismanagement;
2. Gross misuse or waste of public resources or funds;
3. Abuse of authority in connection with the administration of a public program or the execution of a public contract;
4. A violation of any federal, state, or local law, rule, or regulation;
5. A violation of any significant contractual terms between the District government and a District government contractor; or
6. A substantial and specific danger to the public health, safety, or protection of the environment.
What must a plaintiff prove to prevail?
To prevail in a WPA case, an employee must establish by a preponderance of the evidence that his refusal to comply with an illegal order or his protected disclosure was a contributing factor to an employing agency's decision to take a prohibited personnel action.
What is the employer's burden of proof?
If a plaintiff successfully proves by a preponderance of the evidence that his protected activity was a contributing factor in the employer's decision to take prohibited personnel action, the employing agency must prove by clear and convincing evidence that it would have taken the personnel action if the employee had not engaged in protected conduct.
What can a prevailing plaintiff recover?
The WPA authorizes injunctive relief, reinstatement, restoration of lost benefits, back pay for lost wages, compensatory damages, and litigation costs including attorney's fees, to a prevailing employee.
What are the District Employee's rights under the WPA?
District employees have the right to:
1. Freely express opinions on public issues;
2. Communicate with members of D.C. Council;
3. Assemble in public places to discuss matters of personal and public interest;
4. Humane, dignified, and reasonable conditions of employment; and
5. Individual privacy.
What are the responsibilities of District Employees, Supervisors, and Agencies under the WPA?
Supervisors and employees are obligated to disclose illegal activity as soon as they become aware of such activity. If a supervisor fails to disclose such activity, the supervisor will be subject to disciplinary action. Additionally, if a supervisor retaliates against an employee because an employee engaged in protected conduct, the agency must take disciplinary action against the supervisor.
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http://www.employmentlawgroup.com
Monday, September 20, 2010
The Employment Law Group Tax Fraud Whistleblower Protection
Tax Fraud Whistleblower Protection
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The attorneys at The Employment Law Group® law firm have experience representing whistleblowers in disclosing federal tax fraud or underpayments.
IRS Whistleblower Reward Program
Under the IRS Whistleblower Reward Program, an individual who exposes tax fraud can receive an award ranging from 15% to 30% of the proceeds recovered by the IRS. To qualify for an award, the tax, penalties, interest, additions to tax, and additional amounts in dispute must exceed $2,000,000 and, if the allegedly noncompliant person is an individual, the individual’s gross income must exceed $200,000.
After the IRS completes an investigation, the Whistleblower Office will issue a final determination regarding the whistleblower’s award amount. If the whistleblower feels that the award does not adequately reflect his or her whistleblower contributions, the whistleblower may appeal the IRS’s decision to the Tax Court within 30 days.
What protection is available for the Tax Fraud Whistleblower?
The IRS will maintain the confidentiality of the whistleblower’s identity throughout the initial investigation process. If however, the whistleblower’s testimony is needed in a judicial proceeding to further the IRS’ investigation, the whistleblower’s identity may be revealed.
What types of Activities are Considered Tax Fraud?
Examples of tax fraud or evasion include:
1. Deliberately underreporting or omitting income;
2. Claiming false deductions;
3. Hiding or transferring assets or income;
4. Overstating the amount of deductions;
5. Making false entries in records;
6. Failing to report income earned in a stock exchange;
7. Maintaining two sets of books;
8. Misusing trusts; and
9. Abusing charitable deductions.
Timeframe for Filing an IRS Whistleblower Disclosure
The statute of limitations for making a disclosure under the IRS Whistleblower Reward Program is three years from the time the tax return was filed, but if the disclosure concerns an omission in excess of 25% of the gross income stated in a tax return filed with the IRS, the statute of limitations extends to six years. The statute of limitations does not apply where a false or fraudulent tax return was filed with the intent to commit tax evasion.
Duration of IRS Investigations
IRS investigations can take years to complete but a detailed disclosure can shorten the process. Payment of awards will not be made until there is a final determination of the tax liability that is owed to the IRS and the owed funds are collected by the IRS.
What Types of Disclosures Will Result in a Whistleblower Reward?
A disclosure is more likely to result in an award if it includes documentation of fraudulent transactions, a solid paper trail, and detailed evidence demonstrating tax fraud. Disclosures that are speculative or lack concrete evidence of tax underpayment may not result in a whistleblower award. Where two whistleblowers disclose the same fraud, the whistleblower who made the original disclosures will receive the award.
http://www.the-employment-lawgroup.com
http://www.employmentlawgroup.com
--------------------------------------------------------------------------------
The attorneys at The Employment Law Group® law firm have experience representing whistleblowers in disclosing federal tax fraud or underpayments.
IRS Whistleblower Reward Program
Under the IRS Whistleblower Reward Program, an individual who exposes tax fraud can receive an award ranging from 15% to 30% of the proceeds recovered by the IRS. To qualify for an award, the tax, penalties, interest, additions to tax, and additional amounts in dispute must exceed $2,000,000 and, if the allegedly noncompliant person is an individual, the individual’s gross income must exceed $200,000.
After the IRS completes an investigation, the Whistleblower Office will issue a final determination regarding the whistleblower’s award amount. If the whistleblower feels that the award does not adequately reflect his or her whistleblower contributions, the whistleblower may appeal the IRS’s decision to the Tax Court within 30 days.
What protection is available for the Tax Fraud Whistleblower?
The IRS will maintain the confidentiality of the whistleblower’s identity throughout the initial investigation process. If however, the whistleblower’s testimony is needed in a judicial proceeding to further the IRS’ investigation, the whistleblower’s identity may be revealed.
What types of Activities are Considered Tax Fraud?
Examples of tax fraud or evasion include:
1. Deliberately underreporting or omitting income;
2. Claiming false deductions;
3. Hiding or transferring assets or income;
4. Overstating the amount of deductions;
5. Making false entries in records;
6. Failing to report income earned in a stock exchange;
7. Maintaining two sets of books;
8. Misusing trusts; and
9. Abusing charitable deductions.
Timeframe for Filing an IRS Whistleblower Disclosure
The statute of limitations for making a disclosure under the IRS Whistleblower Reward Program is three years from the time the tax return was filed, but if the disclosure concerns an omission in excess of 25% of the gross income stated in a tax return filed with the IRS, the statute of limitations extends to six years. The statute of limitations does not apply where a false or fraudulent tax return was filed with the intent to commit tax evasion.
Duration of IRS Investigations
IRS investigations can take years to complete but a detailed disclosure can shorten the process. Payment of awards will not be made until there is a final determination of the tax liability that is owed to the IRS and the owed funds are collected by the IRS.
What Types of Disclosures Will Result in a Whistleblower Reward?
A disclosure is more likely to result in an award if it includes documentation of fraudulent transactions, a solid paper trail, and detailed evidence demonstrating tax fraud. Disclosures that are speculative or lack concrete evidence of tax underpayment may not result in a whistleblower award. Where two whistleblowers disclose the same fraud, the whistleblower who made the original disclosures will receive the award.
http://www.the-employment-lawgroup.com
http://www.employmentlawgroup.com
Saturday, September 18, 2010
The Employment Law Group Feedbacks
"The Employment Law Group
has performed with urgent professionalism. Their research
and preparation was extremely thorough, and all my
questions were answered
within 24 hours."
"I have used The Employment
Law Group twice and have
always been amazed with the degree to which The Employment Law Group mastered minute details."
"The Employment Law Group provides professionalism, empathy, and results."
"The attorneys at
The Employment Law Group
are warm and generous people
who will go to great lengths
to help."
"I have never regretted my decision to rely on The Employment Law Group to represent me in what was one of the most important events in my lifetime."
"There will always be many thanks from my family to The Employment Law Group for years to come."
"The Employment Law Group represented my interests professionally and competently."
"The Employment Law Group was able to achieve my desired results in a timely and proficient manner."
http://www.the-employment-lawgroup.com
http://www.employmentlawgroup.com
has performed with urgent professionalism. Their research
and preparation was extremely thorough, and all my
questions were answered
within 24 hours."
"I have used The Employment
Law Group twice and have
always been amazed with the degree to which The Employment Law Group mastered minute details."
"The Employment Law Group provides professionalism, empathy, and results."
"The attorneys at
The Employment Law Group
are warm and generous people
who will go to great lengths
to help."
"I have never regretted my decision to rely on The Employment Law Group to represent me in what was one of the most important events in my lifetime."
"There will always be many thanks from my family to The Employment Law Group for years to come."
"The Employment Law Group represented my interests professionally and competently."
"The Employment Law Group was able to achieve my desired results in a timely and proficient manner."
http://www.the-employment-lawgroup.com
http://www.employmentlawgroup.com
Thursday, September 16, 2010
The Employment Law Group USERRA / Veterans Representation
The Employment Law Group USERRA / Veterans Representation
The attorneys at The Employment Law Group® law firm have significant experience representing service members. Uniformed Services Employment and Reemployment Rights Act The Uniformed Services Employment and Reemployment Rights Act (“USERRA”) is a federal law that provides reemployment rights to returning veterans and other members of uniformed services. Under USERRA, an individual who leaves his or her civilian job for military service is entitled to return to the job with accrued seniority if he or she satisfies the eligibility requirements set forth under USERRA.
http://www.employmentlawgroup.com
http://www.the-employment-lawgroup.com
The attorneys at The Employment Law Group® law firm have significant experience representing service members. Uniformed Services Employment and Reemployment Rights Act The Uniformed Services Employment and Reemployment Rights Act (“USERRA”) is a federal law that provides reemployment rights to returning veterans and other members of uniformed services. Under USERRA, an individual who leaves his or her civilian job for military service is entitled to return to the job with accrued seniority if he or she satisfies the eligibility requirements set forth under USERRA.
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Sunday, September 12, 2010
The Employment Law Group Immigration and Nationality Representation
Immigration and Nationality Representation
The Employment Law Group® law firm is a full service immigration and nationality law firm. It is our goal to provide our clients with the best possible legal services in solving their immigration challenges. Our attorneys represent foreign nationals before the Department of Homeland Security nationwide, before the Department of State in 21 countries, and in the United States federal courts.
http://www.the-employment-lawgroup.com
The Employment Law Group® law firm is a full service immigration and nationality law firm. It is our goal to provide our clients with the best possible legal services in solving their immigration challenges. Our attorneys represent foreign nationals before the Department of Homeland Security nationwide, before the Department of State in 21 countries, and in the United States federal courts.
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Thursday, September 9, 2010
The Employment Law Group About The Firm
The Employment Law Group® law firm, serves people in Washington, D.C., Virginia and Maryland who have been victims of discrimination, harassment, or other violations of their civil rights. Our seasoned trial attorneys have earned a highly desirable record of favorable settlements and verdicts on behalf of our clients.
http://www.the-employment-lawgroup.com
http://www.the-employment-lawgroup.com
Thursday, September 2, 2010
OSHA Publishes Interim Final Rules For Filing Whistleblower Complaints
OSHA Publishes Interim Final Rules For Filing Whistleblower Complaints
OSHA announced its new interim final rules for filing whistleblower complaints and invited the public to submit comments. In a news release, OSHA stated:
“When workers believe their employers are violating certain laws or government regulations, they have the right to file a complaint and should not fear retaliation. Silenced workers are not safe workers,” said Assistant Secretary of Labor for OSHA David Michaels. “Changes in the whistleblower provisions make good on the promise to stand by those workers who have the courage to come forward when they believe their employer is violating the law and cutting corners on a variety of safety, health and security concerns in the affected industries.”
The regulations, which cover workers filing complaints in the railroad, public transit, commercial motor carrier, and consumer product industries, also create greater consistency among various OSHA complaint procedures. The interim final rules establish procedures and time frames for handling complaints under the whistleblower sections of the Implementing Recommendations of the 9/11 Commission Act of 2007 and the Consumer Product Safety Improvement Act of 2008.
For more information about the firm’s Whistleblower Law Practice, click here.
http://employmentlawgroupblog.com/
http://www.the-employment-lawgroup.com
OSHA announced its new interim final rules for filing whistleblower complaints and invited the public to submit comments. In a news release, OSHA stated:
“When workers believe their employers are violating certain laws or government regulations, they have the right to file a complaint and should not fear retaliation. Silenced workers are not safe workers,” said Assistant Secretary of Labor for OSHA David Michaels. “Changes in the whistleblower provisions make good on the promise to stand by those workers who have the courage to come forward when they believe their employer is violating the law and cutting corners on a variety of safety, health and security concerns in the affected industries.”
The regulations, which cover workers filing complaints in the railroad, public transit, commercial motor carrier, and consumer product industries, also create greater consistency among various OSHA complaint procedures. The interim final rules establish procedures and time frames for handling complaints under the whistleblower sections of the Implementing Recommendations of the 9/11 Commission Act of 2007 and the Consumer Product Safety Improvement Act of 2008.
For more information about the firm’s Whistleblower Law Practice, click here.
http://employmentlawgroupblog.com/
http://www.the-employment-lawgroup.com
Wednesday, September 1, 2010
Virginia Judge Voids Non-compete, Enforces Non-solicitation Provision in Employment Agreement
Virginia Judge Voids Non-compete, Enforces Non-solicitation Provision in Employment Agreement
Settling the dispute between IT professionals and their former employer in Daston Corp. v. MiCore Solutions, Inc., Fairfax Circuit Judge Michael F. Devine held a non-compete provision in an employment agreement void while also holding the agreement’s non-solicitation provision enforceable. The judge found the non-compete too broad, because it prohibits the IT professionals from providing their cloud computing services to anyone in the United States for one year following termination. However, the judge found the non-solict to be no broader than necessary for protecting the employer’s “legitimate business interest,” because it merely limited the solicitation of the employer’s prior and current clients for two years.
For information about The Employment Law Group® law firm and Non-Compete Litigation, click here.
http://www.the-employment-lawgroup.com
http://www.employmentlawgroup.com
Settling the dispute between IT professionals and their former employer in Daston Corp. v. MiCore Solutions, Inc., Fairfax Circuit Judge Michael F. Devine held a non-compete provision in an employment agreement void while also holding the agreement’s non-solicitation provision enforceable. The judge found the non-compete too broad, because it prohibits the IT professionals from providing their cloud computing services to anyone in the United States for one year following termination. However, the judge found the non-solict to be no broader than necessary for protecting the employer’s “legitimate business interest,” because it merely limited the solicitation of the employer’s prior and current clients for two years.
For information about The Employment Law Group® law firm and Non-Compete Litigation, click here.
http://www.the-employment-lawgroup.com
http://www.employmentlawgroup.com
Tuesday, August 31, 2010
Judge Rules D.C. Whistleblower Protection Act Amendment Retroactive
Judge Rules D.C. Whistleblower Protection Act Amendment Retroactive
According to the Government Accountability Project’s blog, D.C. Superior Court Judge Leonard Braman held that a recent amendment to the D.C. Whistleblower Protection Act (WPA) exempting whistleblowers from the requirement of notifying the District of a claim within six months of the adverse employment action should apply retroactively. Therefore, the notice requirement in D.C. Code §12-309 will not bar relief in pending D.C. WPA claims.
For information on The Employment Law Group® law firm’s Whistleblower Practice, click here.
According to the Government Accountability Project’s blog, D.C. Superior Court Judge Leonard Braman held that a recent amendment to the D.C. Whistleblower Protection Act (WPA) exempting whistleblowers from the requirement of notifying the District of a claim within six months of the adverse employment action should apply retroactively. Therefore, the notice requirement in D.C. Code §12-309 will not bar relief in pending D.C. WPA claims.
For information on The Employment Law Group® law firm’s Whistleblower Practice, click here.
Monday, August 30, 2010
The lawyers of The Employment Law Group® have many decades of experience
The lawyers of The Employment Law Group® have many decades of experience representing people who have been wronged by current or potential employers.
● Were you were terminated without adequate cause?
● Do you believe that you failed to earn a job or promotion based on age, sex, religious, or racial discrimination?
● Do you want legal representation as you negotiate an employment contract or Federal background checks?
● Have you witnessed illegal or dangerous activity at work that you feel duty-bound to expose?
If you answered yes to any of the questions above, your next step is to talk to a lawyer. Employment law is a complicated area of legal practice, and our attorneys have built reputations as some of the most able specialists in the area.
The Employment Law Group®'s (TELG) offices are located in Washington DC, and we regularly represent clients in the DC Metropolitan area, Northern Virginia, and Maryland.
While many large Washington DC law firms have an "employment law group", TELG focuses completely on the rights of employees.
Government organizations and large corporations have teams of lawyers on staff to protect themselves.
Whether you hire The Employment Law Group®, or another reputable employment firm, you should have an attorney representing your rights as soon you feel that there may be a problem.
More information can be found online at http://www.the-employment-lawgroup.com
● Were you were terminated without adequate cause?
● Do you believe that you failed to earn a job or promotion based on age, sex, religious, or racial discrimination?
● Do you want legal representation as you negotiate an employment contract or Federal background checks?
● Have you witnessed illegal or dangerous activity at work that you feel duty-bound to expose?
If you answered yes to any of the questions above, your next step is to talk to a lawyer. Employment law is a complicated area of legal practice, and our attorneys have built reputations as some of the most able specialists in the area.
The Employment Law Group®'s (TELG) offices are located in Washington DC, and we regularly represent clients in the DC Metropolitan area, Northern Virginia, and Maryland.
While many large Washington DC law firms have an "employment law group", TELG focuses completely on the rights of employees.
Government organizations and large corporations have teams of lawyers on staff to protect themselves.
Whether you hire The Employment Law Group®, or another reputable employment firm, you should have an attorney representing your rights as soon you feel that there may be a problem.
More information can be found online at http://www.the-employment-lawgroup.com
Saturday, August 28, 2010
The employment Law Work TELG Amendment Retroactive
Amendment Retroactive
According to the Government Accountability Project’s blog, D.C. Superior Court Judge Leonard Braman held that a recent amendment to the D.C. Whistleblower Protection Act (WPA) exempting whistleblowers from the requirement of notifying the District of a claim within six months of the adverse employment action should apply retroactively. Therefore, the notice requirement in D.C. Code §12-309 will not bar relief in pending D.C. WPA claims.
For information on The Employment Law Group® law firm’s Whistleblower Practice, click here.
http://www.Employmentlawgroup.net
According to the Government Accountability Project’s blog, D.C. Superior Court Judge Leonard Braman held that a recent amendment to the D.C. Whistleblower Protection Act (WPA) exempting whistleblowers from the requirement of notifying the District of a claim within six months of the adverse employment action should apply retroactively. Therefore, the notice requirement in D.C. Code §12-309 will not bar relief in pending D.C. WPA claims.
For information on The Employment Law Group® law firm’s Whistleblower Practice, click here.
http://www.Employmentlawgroup.net
Thursday, August 26, 2010
The Employment Law Group law firm Join our team
The Employment Law Group law firm is a boutique employment law firm, representing public- and private-sector executives and employees in multiple practice areas including under the Whistleblower Protection Act, Title VII of the Civil Rights Act of 1964, the Fair Labor Standards Act, the Sarbanes-Oxley Act, the Uniformed Services Employment and Reemployment Rights Act, the False Claims Act, the Age Discrimination in Employment Act, Family and Medical Leave Act, and the Americans with Disabilities Act.
We strive to create an enriching and rewarding work environment where our employees can learn, develop and hone litigation and trial capabilities. The Employment Law Group® law firm thrives on collaboration, creating a work environment where ideas are encouraged and respected.
The Employment Law Group® law firm’s Legal Assistants are all evening division law students who supplement and amplify their legal education with practical, hands-on experience in the legal arena. Our Legal Assistants are able to observe the practice of law, and they begin learning how to litigate and try cases in state and federal court. Under the supervision of our attorneys, legal assistants provide support through every stage of litigation. They are given many responsibilities including researching complex legal issues, assisting on preliminary drafts of pleadings and motions, and assisting with witness preparation. Legal Assistants learn how to interact with clients and are often given the opportunity to attend hearings and trials with The Employment Law Group® law firm’s attorneys.
The Employment Law Group® law firm recruits talented professionals to join us as litigation legal assistants. This position involves extensive research, writing, client contact, and case management. Ideal candidates are hard-working, detail-oriented, and organized with excellent legal writing skills. If you are interested in joining The Employment Law Group® law firm, please click the "Apply Now" link below.
Apply Now
When applying, please submit the following documents:
Cover Letter
Resume
Unofficial Transcript
Recent Writing Sample
http://www.Employmentlawgroup.net
We strive to create an enriching and rewarding work environment where our employees can learn, develop and hone litigation and trial capabilities. The Employment Law Group® law firm thrives on collaboration, creating a work environment where ideas are encouraged and respected.
The Employment Law Group® law firm’s Legal Assistants are all evening division law students who supplement and amplify their legal education with practical, hands-on experience in the legal arena. Our Legal Assistants are able to observe the practice of law, and they begin learning how to litigate and try cases in state and federal court. Under the supervision of our attorneys, legal assistants provide support through every stage of litigation. They are given many responsibilities including researching complex legal issues, assisting on preliminary drafts of pleadings and motions, and assisting with witness preparation. Legal Assistants learn how to interact with clients and are often given the opportunity to attend hearings and trials with The Employment Law Group® law firm’s attorneys.
The Employment Law Group® law firm recruits talented professionals to join us as litigation legal assistants. This position involves extensive research, writing, client contact, and case management. Ideal candidates are hard-working, detail-oriented, and organized with excellent legal writing skills. If you are interested in joining The Employment Law Group® law firm, please click the "Apply Now" link below.
Apply Now
When applying, please submit the following documents:
Cover Letter
Resume
Unofficial Transcript
Recent Writing Sample
http://www.Employmentlawgroup.net
Wednesday, August 25, 2010
The Employment Law Group Big Reward Potential Likely to Lure More Whistleblowers to the SEC
According to Time, the new SEC whistleblower reward program established by the Dodd-Frank Act will likely lead to a substantial increase in the reporting of fraud and other wrongdoing by public companies to the SEC. Under the previous SEC reward program, the SEC granted rewards between 0% and 10% to whistleblowers at the SEC’s discretion. Under the Dodd-Frank Act, the SEC is now required to grant a reward between 10% and 30% to each whistleblower providing original information leading to a sanction that exceeds $1 million.
For information about The Employment Law Group® law firm’s SEC Whistleblower Practice, click here.
For information about The Employment Law Group® law firm’s SEC Whistleblower Practice, click here.
Tuesday, August 24, 2010
The Employment Law Group Disability Discrimination
The attorneys at The Employment Law Group® law firm have experience representing employees who have been discriminated against because of their disabilities.
The Americans with Disabilities Act (ADA) prohibits employers, employment agencies and labor unions from discriminating against an employee because of the employee's disability.
Under the ADA, an employee is disabled if the employee has or is perceived to have a physical or mental impairment that substantially limits one or more major life activities, such as walking, hearing, sitting, standing, and breathing. In addition, the ADA protects employees who are "regarded as" disabled. The ADA protects "qualified individuals," i.e., employees who can perform the essential functions of a job with or without reasonable accommodations. Reasonable accommodations may include:
Making existing facilities used by employees readily accessible to and usable by individuals with disabilities;
Restructuring jobs;
Modifying work schedules;
Adjusting or modifying equipment, examinations or training material; or
Providing qualified readers or interpreters.
The ADA requires an employer to make such reasonable accommodations for disabled employees unless doing so would impose an undue hardship.
Disability Discrimination claims under the ADA Amendments Act of 2008
The ADA Amendments Act of 2008 ("ADAAA") which goes into effect on January 1, 2009, strengthens the ADA by eliminating loopholes created by various court decisions and broadens the scope of protection. In particular, the ADAAA amends the ADA as follows:
Expands the phrase "major life activity" to include major bodily functions such as functions of the nervous, urinary and circulatory systems;
Clarifies that an employee asserting that she was discriminated against because she was "regarded as" disabled need only prove that she was discriminated against because of an actual or perceived impairment;
Removes the effects of mitigating measures in determining whether an individual has a disability; and
Clarifies that an impairment that is episodic or in remission is an ADA disability if it limits a major life activity when the impairment is active.
What can a prevailing employee recover?
A prevailing employee can recover back pay, compensatory damages, and attorney fees. In addition, punitive damages are available if an employee demonstrates that his employer engaged in a discriminatory practice with malice or reckless indifference to the employee's federally protected rights.
Http://www.employmentlawgroup.net
The Americans with Disabilities Act (ADA) prohibits employers, employment agencies and labor unions from discriminating against an employee because of the employee's disability.
Under the ADA, an employee is disabled if the employee has or is perceived to have a physical or mental impairment that substantially limits one or more major life activities, such as walking, hearing, sitting, standing, and breathing. In addition, the ADA protects employees who are "regarded as" disabled. The ADA protects "qualified individuals," i.e., employees who can perform the essential functions of a job with or without reasonable accommodations. Reasonable accommodations may include:
Making existing facilities used by employees readily accessible to and usable by individuals with disabilities;
Restructuring jobs;
Modifying work schedules;
Adjusting or modifying equipment, examinations or training material; or
Providing qualified readers or interpreters.
The ADA requires an employer to make such reasonable accommodations for disabled employees unless doing so would impose an undue hardship.
Disability Discrimination claims under the ADA Amendments Act of 2008
The ADA Amendments Act of 2008 ("ADAAA") which goes into effect on January 1, 2009, strengthens the ADA by eliminating loopholes created by various court decisions and broadens the scope of protection. In particular, the ADAAA amends the ADA as follows:
Expands the phrase "major life activity" to include major bodily functions such as functions of the nervous, urinary and circulatory systems;
Clarifies that an employee asserting that she was discriminated against because she was "regarded as" disabled need only prove that she was discriminated against because of an actual or perceived impairment;
Removes the effects of mitigating measures in determining whether an individual has a disability; and
Clarifies that an impairment that is episodic or in remission is an ADA disability if it limits a major life activity when the impairment is active.
What can a prevailing employee recover?
A prevailing employee can recover back pay, compensatory damages, and attorney fees. In addition, punitive damages are available if an employee demonstrates that his employer engaged in a discriminatory practice with malice or reckless indifference to the employee's federally protected rights.
Http://www.employmentlawgroup.net
Monday, August 23, 2010
The Employment Law Group Whistleblower Retaliation Protection for Congressional Staff Languishes in Senate Committee
According to an article in Politico, the Congressional Whistleblower Protection Act introduced by Senators Chuck Grassley (R-Iowa) and Claire McCaskill (D-Missouri) has yet to be reported to the full Senate and continues to languish in the Committee on Homeland Security and Government Affairs. Similar to the Whistleblower Protection Act which protects most federal employees who blow the whistle on illegal activity from retaliation, the Congressional Whistleblower Protection Act would extend the same retaliation protection to congressional staff who report illegal activity occurring within Congress.
For more information about the firm’s Whistleblower Law Practice, click here.
http://wwww.employmentlawgroup.net
For more information about the firm’s Whistleblower Law Practice, click here.
http://wwww.employmentlawgroup.net
Wednesday, August 18, 2010
The Employment Law Group TELG Dodd-Frank Whistleblower Provisions Are Expected to Generate Increase in Whistleblower Litigation
Dodd-Frank Whistleblower Provisions Are Expected to Generate Increase in Whistleblower Litigation
According to an article in The Washington Post, the whistleblower provisions of the Dodd-Frank Act (DFA), which provide a substantial incentive to report financial fraud, are expected to generate a substantial increase in whistleblower litigation. The DFA requires the SEC and Commodity Futures Trading Commission (CFTC) to provide a financial reward to whistleblowers who provide original information leading to monetary sanctions that in excess of $1 million. The law also prohibits employers from retaliating against whistleblowers.
For information about The Employment Law Group® law firm’s SEC Whistleblower Practice and Derivatives Whistleblower Practice, click here.
http://www.employmentlawgroup.net
According to an article in The Washington Post, the whistleblower provisions of the Dodd-Frank Act (DFA), which provide a substantial incentive to report financial fraud, are expected to generate a substantial increase in whistleblower litigation. The DFA requires the SEC and Commodity Futures Trading Commission (CFTC) to provide a financial reward to whistleblowers who provide original information leading to monetary sanctions that in excess of $1 million. The law also prohibits employers from retaliating against whistleblowers.
For information about The Employment Law Group® law firm’s SEC Whistleblower Practice and Derivatives Whistleblower Practice, click here.
http://www.employmentlawgroup.net
Tuesday, August 17, 2010
The Employment Law Group® Files Amicus Brief Arguing that Section 929A of the Dodd-Frank Act Applies to Pending Sarbanes-Oxley Whistleblower Cases
The Employment Law Group® Files Amicus Brief Arguing that Section 929A of the Dodd-Frank Act Applies to Pending Sarbanes-Oxley Whistleblower Cases
August 16th, 2010 · No Comments
On August 13, 2010, The Employment Law Group® filed an amicus curiae brief in Johnson v. Siemens Building Technologies, Inc., on behalf of the Government Accountability Project, National Employment Lawyers Association, and National Whistleblowers Center arguing that Section 929A of the Dodd-Frank Act clarifies and confirms existing law on the scope of coverage under SOX, and therefore should be applied to pending cases. A copy of the brief is available here. To learn more about the whistleblower provisions of the Dodd-Frank Act, click here.
The attorneys at The Employment Law Group® law firm have substantial experience representing whistleblowers under the Sarbanes-Oxley Act and other whistleblower statutes. For more about firm’s Sarbanes-Oxley Whistleblower Practice, click here.
http://www.employmentlawgroup.net
August 16th, 2010 · No Comments
On August 13, 2010, The Employment Law Group® filed an amicus curiae brief in Johnson v. Siemens Building Technologies, Inc., on behalf of the Government Accountability Project, National Employment Lawyers Association, and National Whistleblowers Center arguing that Section 929A of the Dodd-Frank Act clarifies and confirms existing law on the scope of coverage under SOX, and therefore should be applied to pending cases. A copy of the brief is available here. To learn more about the whistleblower provisions of the Dodd-Frank Act, click here.
The attorneys at The Employment Law Group® law firm have substantial experience representing whistleblowers under the Sarbanes-Oxley Act and other whistleblower statutes. For more about firm’s Sarbanes-Oxley Whistleblower Practice, click here.
http://www.employmentlawgroup.net
Monday, August 16, 2010
The Employment Law Group Practice Areas TELG
practice areas
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The Employment Law Group® law firm is a powerful partner protecting the legal rights of employees who have been misused by their employer. We stand ready to use our extensive legal knowledge, our broad experience, and our absolute commitment to justice to protect your rights and vigorously pursue justice on your behalf.
Contact us at The Employment Law Group® law firm, and tell us about your case. We will answer all inquiries within forty-eight hours, or call us at 202-331-3911 or 888-603-0983.
Age Discrimination
Airline Whistleblower
Commercial Motor Carrier Whistleblower
Commodity Futures, Options, and Derivatives Whistleblower
Computer Fraud and Abuse Act
CPSC Whistleblower Protection
DC Whistleblower
Disability Discrimination
Discrimination Law
Employment Contract Disputes
Employment Law & Counseling
Environmental Whistleblower
Executive Compensation
False Claims Act
Family and Medical Leave Litigation (FMLA)
Federal Employee Representation
Financial Services Whistleblower Protection
FMLA & Swine Flu (H1N1)
Immigration and Nationality Representation
Jury Service
LGBT Discrimination
Non Compete Litigation
Non Payment of Wages
Nuclear Whistleblower
Partnership Breakups
Public Transportation Whistleblower
Qui Tam Protection
Railroad Whistleblower
Sarbanes-Oxley Whistleblower
SEC Whistleblower
Security Clearance Representation
Sexual Harassment / Gender Discrimination
Stimulus Whistleblower
Tax Fraud Whistleblower Protection
USERRA / Veterans
Whistleblower Retaliation
Wrongful Discharge
http://www.employmentlawgroup.net
--------------------------------------------------------------------------------
The Employment Law Group® law firm is a powerful partner protecting the legal rights of employees who have been misused by their employer. We stand ready to use our extensive legal knowledge, our broad experience, and our absolute commitment to justice to protect your rights and vigorously pursue justice on your behalf.
Contact us at The Employment Law Group® law firm, and tell us about your case. We will answer all inquiries within forty-eight hours, or call us at 202-331-3911 or 888-603-0983.
Age Discrimination
Airline Whistleblower
Commercial Motor Carrier Whistleblower
Commodity Futures, Options, and Derivatives Whistleblower
Computer Fraud and Abuse Act
CPSC Whistleblower Protection
DC Whistleblower
Disability Discrimination
Discrimination Law
Employment Contract Disputes
Employment Law & Counseling
Environmental Whistleblower
Executive Compensation
False Claims Act
Family and Medical Leave Litigation (FMLA)
Federal Employee Representation
Financial Services Whistleblower Protection
FMLA & Swine Flu (H1N1)
Immigration and Nationality Representation
Jury Service
LGBT Discrimination
Non Compete Litigation
Non Payment of Wages
Nuclear Whistleblower
Partnership Breakups
Public Transportation Whistleblower
Qui Tam Protection
Railroad Whistleblower
Sarbanes-Oxley Whistleblower
SEC Whistleblower
Security Clearance Representation
Sexual Harassment / Gender Discrimination
Stimulus Whistleblower
Tax Fraud Whistleblower Protection
USERRA / Veterans
Whistleblower Retaliation
Wrongful Discharge
http://www.employmentlawgroup.net
Sunday, August 15, 2010
The Employment Law Group TELG Employment Law Group
The employment law group® law firm
Proven Leaders in Employment Law
Getting fired, being refused a promotion you worked hard to deserve, not getting paid for regular time or overtime hours you have worked, being denied a benefit claim by your employer, being retaliated against for whistleblowing or being subject to harassment or discrimination in the workplace can be a violation of state and federal employment laws. State and federal law extends many rights, privileges, and protections to employers, but never at the expense of employees who may suffer illegal abuses or injustices in the name of profits.
http://www.employmentlawgroup.net
Proven Leaders in Employment Law
Getting fired, being refused a promotion you worked hard to deserve, not getting paid for regular time or overtime hours you have worked, being denied a benefit claim by your employer, being retaliated against for whistleblowing or being subject to harassment or discrimination in the workplace can be a violation of state and federal employment laws. State and federal law extends many rights, privileges, and protections to employers, but never at the expense of employees who may suffer illegal abuses or injustices in the name of profits.
http://www.employmentlawgroup.net
Friday, August 13, 2010
The Employment Law Group Mission Statement
Founded in 1997, The Employment Law Group® law firm is a litigation boutique concentrating on the representation of employees, whistleblowers, and immigrants. We champion the rights of those who suffer discrimination, injustice, inequality, and retaliation in the workplace. With offices conveniently located on Farragut Square in our Nation's Capital, we have built a national practice on core principles of excellence, ethics, and the use of leading-edge technologies. As advocates for employment fairness, we strive to be model employers and employees ourselves. In our work as lawyers and legal professionals, we are zealous advocates for our clients - we are your workplace champions.
http://www.employmentlawgroup.net
http://www.employmentlawgroup.net
Thursday, August 12, 2010
The Employment Law Group Employment Law Counseling
Employment Law & Counseling
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Has your employer retaliated against you for disclosing illegal practices?
Have you been sexually harassed at your workplace?
Has your employer discriminated against you?
Have you been punished or fired for something that was not your fault?
Have you been offered an inadequate severance package, vis-à-vis your value?
Are you negotiating an employment contract and needing some expert advice?
Are you an executive in the process of negotiating a compensation package?
Do you feel your employer has failed to treat you fairly on these issues?
Affirmative action
Corporate whistleblower act
Employee benefits
Wrongful discharge
Employment contracts
Americans With Disabilities Act (ADA)
Family Medical Leave Act (FMLA)
USERRA Rights
Worker Adjustment and Retraining Notification (WARN)
Federal Employer's Liability Act (FELA)
Occupational Safety and Health Administration (OSHA)
Executive compensation
Negotiated severances
Golden parachutes
Employment law covers a complex network of laws that controls how employers must treat employees, former employees, and applicants for employment.
We represent clients who face civil rights violations in the workplace, including sexual harassment and discrimination based on race, nationality, religion, disability, gender, or other factors. We assist our clients in receiving compensation for their illegal mistreatment, including monetary awards and remedies such as ridding the workplace of the environment that allowed the illegal treatment to occur and restoring the client to the job position he or she earned. The Employment Law Group® law firm will be a powerful partner to protect your legal rights!
Federal Employment Issues
We represent employees in a variety of claims against government employers, including unlawful racial, gender, age, or disability discrimination, affirmative action, sexual harassment, employee benefits, whistleblower litigation, wrongful discharge, employment contracts, the Family Medical Leave Act, the Worker Adjustment and Retraining Notification Act, the Federal Employer's Liability Act, the Occupational Safety and Health Act, and special laws governing federal employment. Because of our broad rage of experience interpreting and construing federal employment statutes and case law, we are also able to provide employers with sound advice regarding compliance with applicable statutes and regulations.
Contact us at The Employment Law Group® law firm, and tell us about your case. We will answer all inquiries within forty-eight hours, or call us at 202-331-3911 or 888-603-0983.
http://www.employmentlawgroup.net
--------------------------------------------------------------------------------
Has your employer retaliated against you for disclosing illegal practices?
Have you been sexually harassed at your workplace?
Has your employer discriminated against you?
Have you been punished or fired for something that was not your fault?
Have you been offered an inadequate severance package, vis-à-vis your value?
Are you negotiating an employment contract and needing some expert advice?
Are you an executive in the process of negotiating a compensation package?
Do you feel your employer has failed to treat you fairly on these issues?
Affirmative action
Corporate whistleblower act
Employee benefits
Wrongful discharge
Employment contracts
Americans With Disabilities Act (ADA)
Family Medical Leave Act (FMLA)
USERRA Rights
Worker Adjustment and Retraining Notification (WARN)
Federal Employer's Liability Act (FELA)
Occupational Safety and Health Administration (OSHA)
Executive compensation
Negotiated severances
Golden parachutes
Employment law covers a complex network of laws that controls how employers must treat employees, former employees, and applicants for employment.
We represent clients who face civil rights violations in the workplace, including sexual harassment and discrimination based on race, nationality, religion, disability, gender, or other factors. We assist our clients in receiving compensation for their illegal mistreatment, including monetary awards and remedies such as ridding the workplace of the environment that allowed the illegal treatment to occur and restoring the client to the job position he or she earned. The Employment Law Group® law firm will be a powerful partner to protect your legal rights!
Federal Employment Issues
We represent employees in a variety of claims against government employers, including unlawful racial, gender, age, or disability discrimination, affirmative action, sexual harassment, employee benefits, whistleblower litigation, wrongful discharge, employment contracts, the Family Medical Leave Act, the Worker Adjustment and Retraining Notification Act, the Federal Employer's Liability Act, the Occupational Safety and Health Act, and special laws governing federal employment. Because of our broad rage of experience interpreting and construing federal employment statutes and case law, we are also able to provide employers with sound advice regarding compliance with applicable statutes and regulations.
Contact us at The Employment Law Group® law firm, and tell us about your case. We will answer all inquiries within forty-eight hours, or call us at 202-331-3911 or 888-603-0983.
http://www.employmentlawgroup.net
Wednesday, August 11, 2010
The Employment Law Group EMPLOYEE CONTRACT DISPUTE
Court of Appeals Finds Mandatory Arbitration Agreement as a Condition of Employment Unenforceable
In Shaffer v. ACS Gov’t Servc., Inc., Richard Shaffer filed suit against his employer, ACS Government Services, Inc. (“ACS”), alleging violations of the Jury System Improvement Act. ACS moved to compel arbitration, claiming that Mr. Shaffer’s continued employment constituted acceptance of its mandatory Arbitration Policy. The US District Court for the District of Maryland denied ACS’ motion to compel arbitration, concluding that continued employment does not, by itself, constitute consideration for an arbitration agreement.
Mr. Shaffer was represented by the attorneys of The Employment Law Group® law firm.
http://www.employmentlawgroup.net
In Shaffer v. ACS Gov’t Servc., Inc., Richard Shaffer filed suit against his employer, ACS Government Services, Inc. (“ACS”), alleging violations of the Jury System Improvement Act. ACS moved to compel arbitration, claiming that Mr. Shaffer’s continued employment constituted acceptance of its mandatory Arbitration Policy. The US District Court for the District of Maryland denied ACS’ motion to compel arbitration, concluding that continued employment does not, by itself, constitute consideration for an arbitration agreement.
Mr. Shaffer was represented by the attorneys of The Employment Law Group® law firm.
http://www.employmentlawgroup.net
Tuesday, August 10, 2010
The Employment Law Group Practice Areas
The Employment Law Group® law firm is a powerful partner protecting the legal rights of employees who have been misused by their employer. We stand ready to use our extensive legal knowledge, our broad experience, and our absolute commitment to justice to protect your rights and vigorously pursue justice on your behalf.
Contact us at The Employment Law Group® law firm, and tell us about your case. We will answer all inquiries within forty-eight hours, or call us at 202-331-3911 or 888-603-0983.
Age Discrimination
Airline Whistleblower
Commercial Motor Carrier Whistleblower
Commodity Futures, Options, and Derivatives Whistleblower
Computer Fraud and Abuse Act
CPSC Whistleblower Protection
DC Whistleblower
Disability Discrimination
Discrimination Law
Employment Contract Disputes
Employment Law & Counseling
Environmental Whistleblower
Executive Compensation
False Claims Act
Family and Medical Leave Litigation (FMLA)
Federal Employee Representation
Financial Services Whistleblower Protection
FMLA & Swine Flu (H1N1)
Immigration and Nationality Representation
Jury Service
LGBT Discrimination
Non Compete Litigation
Non Payment of Wages
Nuclear Whistleblower
Partnership Breakups
Public Transportation Whistleblower
Qui Tam Protection
Railroad Whistleblower
Sarbanes-Oxley Whistleblower
SEC Whistleblower
Security Clearance Representation
Sexual Harassment / Gender Discrimination
Stimulus Whistleblower
Tax Fraud Whistleblower Protection
USERRA / Veterans
Whistleblower Retaliation
Wrongful Discharge
http://www.employmentlawgroup.net
Contact us at The Employment Law Group® law firm, and tell us about your case. We will answer all inquiries within forty-eight hours, or call us at 202-331-3911 or 888-603-0983.
Age Discrimination
Airline Whistleblower
Commercial Motor Carrier Whistleblower
Commodity Futures, Options, and Derivatives Whistleblower
Computer Fraud and Abuse Act
CPSC Whistleblower Protection
DC Whistleblower
Disability Discrimination
Discrimination Law
Employment Contract Disputes
Employment Law & Counseling
Environmental Whistleblower
Executive Compensation
False Claims Act
Family and Medical Leave Litigation (FMLA)
Federal Employee Representation
Financial Services Whistleblower Protection
FMLA & Swine Flu (H1N1)
Immigration and Nationality Representation
Jury Service
LGBT Discrimination
Non Compete Litigation
Non Payment of Wages
Nuclear Whistleblower
Partnership Breakups
Public Transportation Whistleblower
Qui Tam Protection
Railroad Whistleblower
Sarbanes-Oxley Whistleblower
SEC Whistleblower
Security Clearance Representation
Sexual Harassment / Gender Discrimination
Stimulus Whistleblower
Tax Fraud Whistleblower Protection
USERRA / Veterans
Whistleblower Retaliation
Wrongful Discharge
http://www.employmentlawgroup.net
Friday, August 6, 2010
The Employment Law Group Blogs
The Employment Law Group Blogs http://www.employmentlawgroup.net/CM/Custom/TOCBlogs.asp
Thursday, August 5, 2010
Employment Law Group Federal Employee Representation
Federal Employee Representation
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The attorneys at The Employment Law Group® law firm have experience representing federal employees in whistleblower retaliation cases.
What law protects Federal Employee Whistleblowers?
The Whistleblower Protection Act (WPA) prohibits federal agencies from taking adverse personnel actions against federal employees who engage in whistleblowing activities. Under the WPA, employees who believe they have been subjected to reprisal because of their protected disclosures may: (1) state a claim with the Office of Special Counsel (OSC), or (2) pursue an individual right of action before the Merit Systems Protection Board (MSPB); (3) appeal to the MSPB regarding an agency's adverse action against the employee; or (4) initiate a grievance proceeding pursuant to negotiated grievance procedures.
If a federal employee chooses to make a claim for whistleblower retaliation with the OSC, the OSC is obligated to investigate the allegations and make a decision within 240 days of receipt of a complaint as to whether there are reasonable grounds to believe that a prohibited personnel practice took place. If the OSC renders an unfavorable decision, an employee can still seek relief by submitting his whistleblower reprisal case to the MSPB 60 days after the OSC closes their investigation or 120 days after filing a complaint with the OSC.
What activities are protected?
An employee participates in protected activity by disclosing information that evidences: fraud; gross mismanagement; gross waste of funds; an abuse of authority; a violation of a law, rule or regulation conducted by the government; or a substantial and specific danger to public health or safety. Specific examples include:
Cooperating with or disclosing information to an Inspector General or Special Counsel;
Refusing to obey an order that would violate law;
Testifying or lawfully assisting others exercise an appeal, complaint or grievance right; and
Exercising any appeal, complaint, or grievance right granted by any law, rule or regulation.
To be protected under the WPA, an employee must meet a reasonable belief standard. Recently, The Employment Law Group® law firm obtained a landmark decision on the meaning of reasonable belief in Drake v. Agency for International Development, where the Federal Circuit held that a whistleblower does not need to prove that he disclosed an actual violation of the law, but instead that he had a reasonable belief that there was a violation of a law, rule or regulation.
What must a plaintiff prove to prevail?
Under the WPA, an employee must show by a preponderance of the evidence that:
(1) the employee made a protected whistleblowing disclosure; and
(2) a protected disclosure was a contributing factor in the agency's personnel action.
If an employee meets this burden, the agency must establish by clear and convincing evidence that it would have taken the same personnel actions in the absence of the disclosures.
What retaliatory acts are prohibited under the WPA?
The WPA prohibits any action taken by an employer that has a negative or adverse impact on an employee's terms, conditions, or privileges of employment. This includes blacklisting, demotion, denial of benefits, denial of overtime or promotion, failure to hire or to promote, termination, intimidation, and reduction in pay.
What can a prevailing plaintiff recover?
Under the WPA, a prevailing employee will be made whole, i.e., will be returned to the same position he or she would have been absent the retaliation. In particular, the WPA authorizes reinstatement, back pay for lost wages, compensatory damages, and litigation costs, including reasonable attorney fees.
http://www.employmentlawgroup.net
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The attorneys at The Employment Law Group® law firm have experience representing federal employees in whistleblower retaliation cases.
What law protects Federal Employee Whistleblowers?
The Whistleblower Protection Act (WPA) prohibits federal agencies from taking adverse personnel actions against federal employees who engage in whistleblowing activities. Under the WPA, employees who believe they have been subjected to reprisal because of their protected disclosures may: (1) state a claim with the Office of Special Counsel (OSC), or (2) pursue an individual right of action before the Merit Systems Protection Board (MSPB); (3) appeal to the MSPB regarding an agency's adverse action against the employee; or (4) initiate a grievance proceeding pursuant to negotiated grievance procedures.
If a federal employee chooses to make a claim for whistleblower retaliation with the OSC, the OSC is obligated to investigate the allegations and make a decision within 240 days of receipt of a complaint as to whether there are reasonable grounds to believe that a prohibited personnel practice took place. If the OSC renders an unfavorable decision, an employee can still seek relief by submitting his whistleblower reprisal case to the MSPB 60 days after the OSC closes their investigation or 120 days after filing a complaint with the OSC.
What activities are protected?
An employee participates in protected activity by disclosing information that evidences: fraud; gross mismanagement; gross waste of funds; an abuse of authority; a violation of a law, rule or regulation conducted by the government; or a substantial and specific danger to public health or safety. Specific examples include:
Cooperating with or disclosing information to an Inspector General or Special Counsel;
Refusing to obey an order that would violate law;
Testifying or lawfully assisting others exercise an appeal, complaint or grievance right; and
Exercising any appeal, complaint, or grievance right granted by any law, rule or regulation.
To be protected under the WPA, an employee must meet a reasonable belief standard. Recently, The Employment Law Group® law firm obtained a landmark decision on the meaning of reasonable belief in Drake v. Agency for International Development, where the Federal Circuit held that a whistleblower does not need to prove that he disclosed an actual violation of the law, but instead that he had a reasonable belief that there was a violation of a law, rule or regulation.
What must a plaintiff prove to prevail?
Under the WPA, an employee must show by a preponderance of the evidence that:
(1) the employee made a protected whistleblowing disclosure; and
(2) a protected disclosure was a contributing factor in the agency's personnel action.
If an employee meets this burden, the agency must establish by clear and convincing evidence that it would have taken the same personnel actions in the absence of the disclosures.
What retaliatory acts are prohibited under the WPA?
The WPA prohibits any action taken by an employer that has a negative or adverse impact on an employee's terms, conditions, or privileges of employment. This includes blacklisting, demotion, denial of benefits, denial of overtime or promotion, failure to hire or to promote, termination, intimidation, and reduction in pay.
What can a prevailing plaintiff recover?
Under the WPA, a prevailing employee will be made whole, i.e., will be returned to the same position he or she would have been absent the retaliation. In particular, the WPA authorizes reinstatement, back pay for lost wages, compensatory damages, and litigation costs, including reasonable attorney fees.
http://www.employmentlawgroup.net
Wednesday, August 4, 2010
The Employment Law Group® Speaks on Whistleblower Provisions in the Dodd-Frank Act at ALI-ABA Fall 2010 Seminar
The Employment Law Group® Speaks on Whistleblower Provisions in the Dodd-Frank Act at ALI-ABA Fall 2010 Seminar
On September 21, 2010, Jason Zuckerman, a Principal at The Employment Law Group® law firm will speak at the ALI-ABA Fall 2010 seminar on the whistleblower provisions of the recently enacted Dodd-Frank Wall Street Reform and Consumer Protection Act, which we blogged about here. Zuckerman will discuss Sections 1057, 922 and 748 of the Dodd-Frank Act. Section 1057 prohibits employers from terminating or discriminating against employees in the financial services industry who report fraud or other illegal activity. Section 922 authorizes the Securities and Exchange Commission (SEC) to reward whistleblowers who report fraud committed by a publicly-traded company 10% to 30% of the amount recovered by the SEC. Similarly, Section 748 authorizes the Commodity Futures Trading Commission (CFTC) to reward whistleblowers who report fraud 10% to 30% of the amount recovered. Both Sections 748 and 922 also prohibit employers from retaliating against employees who report fraud to the government.
http://www.employmentlawgroup.net
http://www.employmentlawgroup.net
On September 21, 2010, Jason Zuckerman, a Principal at The Employment Law Group® law firm will speak at the ALI-ABA Fall 2010 seminar on the whistleblower provisions of the recently enacted Dodd-Frank Wall Street Reform and Consumer Protection Act, which we blogged about here. Zuckerman will discuss Sections 1057, 922 and 748 of the Dodd-Frank Act. Section 1057 prohibits employers from terminating or discriminating against employees in the financial services industry who report fraud or other illegal activity. Section 922 authorizes the Securities and Exchange Commission (SEC) to reward whistleblowers who report fraud committed by a publicly-traded company 10% to 30% of the amount recovered by the SEC. Similarly, Section 748 authorizes the Commodity Futures Trading Commission (CFTC) to reward whistleblowers who report fraud 10% to 30% of the amount recovered. Both Sections 748 and 922 also prohibit employers from retaliating against employees who report fraud to the government.
http://www.employmentlawgroup.net
http://www.employmentlawgroup.net
Tuesday, August 3, 2010
The employment Law Group Whistleblower Protections Under Healthcare Bill
Whistleblower Protections Under Healthcare Bill
By R. Scott Oswald and Jason Zuckerman
Law360, New York (April 08, 2010) -- To further the goal of rooting out fraud, waste and abuse in health care, The Patient Protection and Affordable Care Act of 2009[1] ("Act") that President Barack Obama signed into law on March 23, 2010, includes several whistleblower provisions, including a new private right of action for retaliation (Section 1558), reporting requirements designed to prevent abuse of patients in elder care facilities (Section 6703(b)(3)), mandatory implementation of a complaint resolution process for residents and persons acting on behalf of residents at skilled nursing facilities (Section 6105), and a new definition of an "original source" under the False Claims Act that is favorable to qui tam relators (Section 10104(j)(2)).
Prohibition Against Whistleblower Retaliation (Section 1558)[2]
Section 1558 prohibits retaliation against an employee who provides or is about to provide to an employer, the Federal Government, or a state Attorney General, information that the employee reasonably believes to be a violation of Title I of the Act.
This provision also protects individuals who participate in investigations or object to or refuse to participate in any activity that the employee reasonably believes to be a violation of Title I.
Title I covers a broad range of topics and therefore the scope of protected conduct will be broad, including disclosures related to the denial of coverage based upon a preexisting condition, disclosures concerning discrimination based upon an individual’s receipt of health insurance subsidies, or disclosures about the failure of an insurer to rebate portions of excess premiums.
Section 1558 incorporates the procedures, burden-shifting framework, remedies and statute of limitations set forth in the whistleblower protection provision of the Consumer Product Safety Improvement Act of 2008, 15 U.S.C. 2087(b), including the following:
Broad Scope of Prohibited Retaliation
An employer is prohibited from discharging or "in any manner discriminate[ing] against any employee with respect to his or her compensation, terms, conditions, or other privileges of employment."[3] The U.S. Department of Labor’s Administrative Review Board (ARB) applies the Burlington Northern[4] standard to analogous whistleblower protection statutes,[5] and therefore Section 1558 will prohibit not only tangible adverse actions, but also any action that may dissuade a reasonable employee from engaging in further protected activity.
Prohibited acts of retaliation will likely include termination, suspension, demotion, reduction in pay, demotion, failure to promote, failure to hire, diminution in job duties and blacklisting.
Employee-Favorable Causation Standard and Burden-Shifting Framework
A complainant can prevail merely by showing by a preponderance of the evidence that her protected activity was a contributing factor in the unfavorable action.[6] A contributing factor is any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision.[7]
Once a complainant meets her burden by a preponderance of the evidence, the employer can avoid liability only if it proves by clear and convincing evidence that it would have taken the same action in the absence of the employee’s protected conduct.[8] Clear and convincing evidence is "[e]vidence indicating that the thing to be proved is highly probable or reasonably certain."[9]
A Reasonable but Mistaken Belief is Protected
A Section 1558 complainant need not demonstrate that she disclosed an actual violation of Title I. Instead, Section 1558 employs a "reasonable belief" standard that the DOL and federal courts have construed as protecting a reasonable but mistaken belief that an employer may have violated a particular law.[10]
The reasonable belief standard consists of both a subjective and objective component, and objective reasonableness "is evaluated based on the knowledge available to a reasonable person in the same factual circumstances with the same training and experience as the aggrieved employee."[11]
Administrative Exhaustion Requirement
The complaint must be filed with the Occupational Safety and Health Administration within 180 days of the employee becoming aware of the retaliatory adverse action. OSHA will investigate the claim and can order preliminary relief, including reinstatement.
Either party can appeal OSHA’s determination by requesting a de novo hearing before a DOL ALJ, but objecting to an order of preliminary relief will not stay the order of reinstatement. Discovery before an ALJ typically proceeds at a faster pace than discovery in state or federal court, and the hearings are less formal than federal court trials.
For example, ALJs are not required to apply the Federal Rules of Evidence. Either party can appeal an ALJ’s decision to the ARB and can appeal an ARB decision to the circuit court of appeals in which the adverse action took place.
Option to Remove Claim to Federal Court and Right to a Jury Trial
If the Secretary of Labor fails to issue a final decision within 210 days of the filing of a complaint, or within 90 days after receiving a written determination from OSHA, the complainant can remove her claim to federal court for de novo review and either party may request a trial by jury.[12]
Remedies
Remedies include reinstatement, back pay with interest, "special damages," attorney’s fees, litigation costs, and expert witness fees.[13] Where reinstatement is unavailable or impractical, front pay may be awarded. "Special damages" has been construed under similar whistleblower protection statutes to include damages for pain, suffering, mental anguish and career damage.[14] A complainant may also be entitled to damages for loss to their reputation as part of the "make whole" remedy provided by the statute.[15]
Mandatory Arbitration Agreements Inapplicable
Section 1558 claims are exempted from mandatory arbitration: "The rights and remedies in this section may not be waived by any agreement, policy, form or condition of employment."[16] Broadened Definition of the Original Source Exception to the False Claims Act’s Public Disclosure Bar (Section 10104(j)(2)) Section 10104(j)(2) amends the False Claims Act (FCA) by broadening the original source exception to the public disclosure bar.
Effective March 23, 2010, an "original source" is an "individual who either (1) prior to a public disclosure ... has voluntarily disclosed to the Government the information on which allegations or transactions in a claim are based, or (2) who has knowledge that is independent of and materially adds to the publicly disclosed allegations or transactions, and who has voluntarily provided the information to the Government before filing an action under this section."
Significantly, the public disclosure bar is no longer jurisdictional in that the Government can pursue an FCA action where the relator does not qualify as an original source.[17]
Until recently, it was unsettled whether the public disclosure bar contained in 31 U.S.C. § 3730(e)(4)(A) applies to disclosures at all levels of government or only to disclosures in federal hearings or in which the Government is a party.[18]
Just last week, the Supreme Court held in Graham County Soil & Water Conservation Dist. v. U.S. ex rel. Wilson,[19] that a relator could not maintain her qui tam action where the suit was based in part on information contained in county and state administrative reports.
While not retroactive, the amended definition of an "original source" ensures that the court’s expansive construction of the public disclosure bar does not impact future qui tam actions.
The basic purpose of the public disclosure bar, i.e., preventing parasitic qui tam actions based on public disclosures, is not altered, but it will be easier to meet the original source exception to the public disclosure bar.
Combined with recent amendments to the FCA in the Fraud Enforcement and Recovery Act of 2009, signed into law on May 20, 2009, and increased resources for the U.S. Department of Justice to prosecute health care fraud, the qui tam provision of the FCA will continue to be a potent tool to combat contractor fraud.
Indeed, according to Taxpayers Against Fraud, 80 percent of the FCA cases that are now pursued by the U.S. Department of Justice are initiated by whistleblowers and since 1986, FCA judgments and settlements against fraud feasors have totaled over $20 billion.[20]
Reporting Requirements for Employees of Federally Funded Long-Term Care Facilities (Section 6703(b)(3))
The Elder Justice Act of 2009[21] requires long-term care facilities that receive more than $10,000 in federal funding in the preceding year to notify all officers, employees, managers and contractors that they are required by law to report any reasonable suspicion of a crime committed "against any individual who is a resident of, or is receiving care from the facility" to the Secretary of the U.S. Department of Health and Human Services and one or more local law enforcement agency.
If the events that raise suspicion result in serious bodily injury, the suspected crime must be reported immediately and not more than "2 hours after forming the suspicion." All other suspected crimes must be reported within 24 hours.
Failure to report a suspected crime can expose an employee, manager, or contractor to civil fines of up to $300,000. In addition, the Elder Justice Act prohibits retaliation against an employee "because of lawful acts done by the employee."
Prohibited retaliation includes filing a complaint or report against an individual with a state professional disciplinary agency. Facilities violating the anti-retaliation provision may be subject to a fine of up to $200,000 and exclusion from federal programs for a period up to two years.
Mandatory Complaint Resolution Process for Skilled Nursing Facilities (Section 6105)
Effective March 23, 2011, Section 6105 requires states to make available federally prescribed standardized complaint forms for residents and persons acting on the behalf of residents of skilled nursing facilities.
In addition, states must establish a complaint resolution process to track and investigate complaints at skilled nursing facilities and to ensure that complainants are not subjected to retaliation.
________
[1] Patient Protection and Affordable Care Act of 2009, Pub. L. No. 111-148, 124 Stat. 119 (2010).
[2] Patient Protection and Affordable Care Act § 1558 (to be codified in a newly created subsection of the Fair Labor Standards Act).
[3] Id. § 1558
[4] Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).
[5] Melton v. Yellow Transp. Inc., ARB No. 06-052, ALJ No.
2005-STA-02 (ARB Sept. 30, 2008).
[6] 15 U.S.C. §§ 2087(b)(2)(B)(i)-(iii).
[7] Klopfenstein v. PPC Flow Technologies Holdings Inc., ARB No. 04-149 at 18, ALJ No. 2004-SOX-11 (ARB May 31, 2006).
[8] 15 U.S.C. § 2087(b)(2)(B)(iv)
[9] Peck v. Safe Air Int’l Inc., ARB No. 02-028 at 9, ALJ No. 2001-AIR-3
(ARB Jan. 30, 2004).
[10] See Van Asdale v. Int’l Game Tech., 577 F.3d 989, 1001 (9th Cir.
2009) ("to encourage disclosure, Congress chose statutory language which ensures that an employee’s reasonable but mistaken belief that an employer engaged in conduct that constitutes a violation of one of the six enumerated categories is protected."); Allen v. Admin. Review Bd., 514 F. 3d 468, 477 (5th Cir. 2008) (applying "reasonable belief" standard in a Sarbanes-Oxley whistleblower retaliation action); Kalkunte v. DVI Fin. Svcs., Inc., ARB Nos. 05-139 & 05-140, 2004-SOX-056 (ARB Feb. 27, 2009) (clarifying that a reasonable but mistaken belief is protected under SOX).
[11] Allen, 514 F.3d at 477.
[12] 15 U.S.C. § 2087(b)(4).
[13] Id.
[14] Kalkunte, ARB Nos. 05-139 & 05-140 at 15 (Sarbanes-Oxley case in which complainant obtained emotional distress damages); Hannah v. WCI Communities, 348 F. Supp. 2d 1332, 1334 (S.D. Fla. 2004) ("a successful Sarbanes-Oxley Act plaintiff cannot be made whole without being compensated for damages for reputational injury that diminished plaintiff's future earning capacity").
[15] Hannah, 348 F. Supp. 2d at 1334.
[16] Patient Protection and Affordable Care Act § 1558.
[17] Patient Protection and Affordable Care Act § 10104(j)(2).
[18] 31 U.S.C. § 3730(e)(4)(A) deprived any federal court of jurisdiction to hear a qui tam action based on information publicly disclosed "in a criminal, civil, or administrative hearing, in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation ..." Circuits were split as to whether this applied only to federal proceedings or at the state and local level as well. Compare U.S. ex rel. Dunleavy v. County of Del., 123 F.3d 734 (3d Cir. 1997) (county reports did not violate the public disclosure bar.) and U.S. ex rel. Bly-Magee v. Premo, 470 F.3d 914 (9th Cir. 2006) (public disclosure bar precluded FCA claim based upon information contained in a state report).
[19] Graham County Soil & Water Conservation Dist. v. U.S. ex rel. Wilson, __ S. Ct. __, 2010 WL 1189557 (Mar. 30, 2010)
[20] See Taxpayers Against Fraud website, www.taf.org.
[21] The Elder Justice Act is subtitle H of the Patient Protection and Affordable Care Act of 2009.
http://www.employmentlawgroup.net
By R. Scott Oswald and Jason Zuckerman
Law360, New York (April 08, 2010) -- To further the goal of rooting out fraud, waste and abuse in health care, The Patient Protection and Affordable Care Act of 2009[1] ("Act") that President Barack Obama signed into law on March 23, 2010, includes several whistleblower provisions, including a new private right of action for retaliation (Section 1558), reporting requirements designed to prevent abuse of patients in elder care facilities (Section 6703(b)(3)), mandatory implementation of a complaint resolution process for residents and persons acting on behalf of residents at skilled nursing facilities (Section 6105), and a new definition of an "original source" under the False Claims Act that is favorable to qui tam relators (Section 10104(j)(2)).
Prohibition Against Whistleblower Retaliation (Section 1558)[2]
Section 1558 prohibits retaliation against an employee who provides or is about to provide to an employer, the Federal Government, or a state Attorney General, information that the employee reasonably believes to be a violation of Title I of the Act.
This provision also protects individuals who participate in investigations or object to or refuse to participate in any activity that the employee reasonably believes to be a violation of Title I.
Title I covers a broad range of topics and therefore the scope of protected conduct will be broad, including disclosures related to the denial of coverage based upon a preexisting condition, disclosures concerning discrimination based upon an individual’s receipt of health insurance subsidies, or disclosures about the failure of an insurer to rebate portions of excess premiums.
Section 1558 incorporates the procedures, burden-shifting framework, remedies and statute of limitations set forth in the whistleblower protection provision of the Consumer Product Safety Improvement Act of 2008, 15 U.S.C. 2087(b), including the following:
Broad Scope of Prohibited Retaliation
An employer is prohibited from discharging or "in any manner discriminate[ing] against any employee with respect to his or her compensation, terms, conditions, or other privileges of employment."[3] The U.S. Department of Labor’s Administrative Review Board (ARB) applies the Burlington Northern[4] standard to analogous whistleblower protection statutes,[5] and therefore Section 1558 will prohibit not only tangible adverse actions, but also any action that may dissuade a reasonable employee from engaging in further protected activity.
Prohibited acts of retaliation will likely include termination, suspension, demotion, reduction in pay, demotion, failure to promote, failure to hire, diminution in job duties and blacklisting.
Employee-Favorable Causation Standard and Burden-Shifting Framework
A complainant can prevail merely by showing by a preponderance of the evidence that her protected activity was a contributing factor in the unfavorable action.[6] A contributing factor is any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision.[7]
Once a complainant meets her burden by a preponderance of the evidence, the employer can avoid liability only if it proves by clear and convincing evidence that it would have taken the same action in the absence of the employee’s protected conduct.[8] Clear and convincing evidence is "[e]vidence indicating that the thing to be proved is highly probable or reasonably certain."[9]
A Reasonable but Mistaken Belief is Protected
A Section 1558 complainant need not demonstrate that she disclosed an actual violation of Title I. Instead, Section 1558 employs a "reasonable belief" standard that the DOL and federal courts have construed as protecting a reasonable but mistaken belief that an employer may have violated a particular law.[10]
The reasonable belief standard consists of both a subjective and objective component, and objective reasonableness "is evaluated based on the knowledge available to a reasonable person in the same factual circumstances with the same training and experience as the aggrieved employee."[11]
Administrative Exhaustion Requirement
The complaint must be filed with the Occupational Safety and Health Administration within 180 days of the employee becoming aware of the retaliatory adverse action. OSHA will investigate the claim and can order preliminary relief, including reinstatement.
Either party can appeal OSHA’s determination by requesting a de novo hearing before a DOL ALJ, but objecting to an order of preliminary relief will not stay the order of reinstatement. Discovery before an ALJ typically proceeds at a faster pace than discovery in state or federal court, and the hearings are less formal than federal court trials.
For example, ALJs are not required to apply the Federal Rules of Evidence. Either party can appeal an ALJ’s decision to the ARB and can appeal an ARB decision to the circuit court of appeals in which the adverse action took place.
Option to Remove Claim to Federal Court and Right to a Jury Trial
If the Secretary of Labor fails to issue a final decision within 210 days of the filing of a complaint, or within 90 days after receiving a written determination from OSHA, the complainant can remove her claim to federal court for de novo review and either party may request a trial by jury.[12]
Remedies
Remedies include reinstatement, back pay with interest, "special damages," attorney’s fees, litigation costs, and expert witness fees.[13] Where reinstatement is unavailable or impractical, front pay may be awarded. "Special damages" has been construed under similar whistleblower protection statutes to include damages for pain, suffering, mental anguish and career damage.[14] A complainant may also be entitled to damages for loss to their reputation as part of the "make whole" remedy provided by the statute.[15]
Mandatory Arbitration Agreements Inapplicable
Section 1558 claims are exempted from mandatory arbitration: "The rights and remedies in this section may not be waived by any agreement, policy, form or condition of employment."[16] Broadened Definition of the Original Source Exception to the False Claims Act’s Public Disclosure Bar (Section 10104(j)(2)) Section 10104(j)(2) amends the False Claims Act (FCA) by broadening the original source exception to the public disclosure bar.
Effective March 23, 2010, an "original source" is an "individual who either (1) prior to a public disclosure ... has voluntarily disclosed to the Government the information on which allegations or transactions in a claim are based, or (2) who has knowledge that is independent of and materially adds to the publicly disclosed allegations or transactions, and who has voluntarily provided the information to the Government before filing an action under this section."
Significantly, the public disclosure bar is no longer jurisdictional in that the Government can pursue an FCA action where the relator does not qualify as an original source.[17]
Until recently, it was unsettled whether the public disclosure bar contained in 31 U.S.C. § 3730(e)(4)(A) applies to disclosures at all levels of government or only to disclosures in federal hearings or in which the Government is a party.[18]
Just last week, the Supreme Court held in Graham County Soil & Water Conservation Dist. v. U.S. ex rel. Wilson,[19] that a relator could not maintain her qui tam action where the suit was based in part on information contained in county and state administrative reports.
While not retroactive, the amended definition of an "original source" ensures that the court’s expansive construction of the public disclosure bar does not impact future qui tam actions.
The basic purpose of the public disclosure bar, i.e., preventing parasitic qui tam actions based on public disclosures, is not altered, but it will be easier to meet the original source exception to the public disclosure bar.
Combined with recent amendments to the FCA in the Fraud Enforcement and Recovery Act of 2009, signed into law on May 20, 2009, and increased resources for the U.S. Department of Justice to prosecute health care fraud, the qui tam provision of the FCA will continue to be a potent tool to combat contractor fraud.
Indeed, according to Taxpayers Against Fraud, 80 percent of the FCA cases that are now pursued by the U.S. Department of Justice are initiated by whistleblowers and since 1986, FCA judgments and settlements against fraud feasors have totaled over $20 billion.[20]
Reporting Requirements for Employees of Federally Funded Long-Term Care Facilities (Section 6703(b)(3))
The Elder Justice Act of 2009[21] requires long-term care facilities that receive more than $10,000 in federal funding in the preceding year to notify all officers, employees, managers and contractors that they are required by law to report any reasonable suspicion of a crime committed "against any individual who is a resident of, or is receiving care from the facility" to the Secretary of the U.S. Department of Health and Human Services and one or more local law enforcement agency.
If the events that raise suspicion result in serious bodily injury, the suspected crime must be reported immediately and not more than "2 hours after forming the suspicion." All other suspected crimes must be reported within 24 hours.
Failure to report a suspected crime can expose an employee, manager, or contractor to civil fines of up to $300,000. In addition, the Elder Justice Act prohibits retaliation against an employee "because of lawful acts done by the employee."
Prohibited retaliation includes filing a complaint or report against an individual with a state professional disciplinary agency. Facilities violating the anti-retaliation provision may be subject to a fine of up to $200,000 and exclusion from federal programs for a period up to two years.
Mandatory Complaint Resolution Process for Skilled Nursing Facilities (Section 6105)
Effective March 23, 2011, Section 6105 requires states to make available federally prescribed standardized complaint forms for residents and persons acting on the behalf of residents of skilled nursing facilities.
In addition, states must establish a complaint resolution process to track and investigate complaints at skilled nursing facilities and to ensure that complainants are not subjected to retaliation.
________
[1] Patient Protection and Affordable Care Act of 2009, Pub. L. No. 111-148, 124 Stat. 119 (2010).
[2] Patient Protection and Affordable Care Act § 1558 (to be codified in a newly created subsection of the Fair Labor Standards Act).
[3] Id. § 1558
[4] Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).
[5] Melton v. Yellow Transp. Inc., ARB No. 06-052, ALJ No.
2005-STA-02 (ARB Sept. 30, 2008).
[6] 15 U.S.C. §§ 2087(b)(2)(B)(i)-(iii).
[7] Klopfenstein v. PPC Flow Technologies Holdings Inc., ARB No. 04-149 at 18, ALJ No. 2004-SOX-11 (ARB May 31, 2006).
[8] 15 U.S.C. § 2087(b)(2)(B)(iv)
[9] Peck v. Safe Air Int’l Inc., ARB No. 02-028 at 9, ALJ No. 2001-AIR-3
(ARB Jan. 30, 2004).
[10] See Van Asdale v. Int’l Game Tech., 577 F.3d 989, 1001 (9th Cir.
2009) ("to encourage disclosure, Congress chose statutory language which ensures that an employee’s reasonable but mistaken belief that an employer engaged in conduct that constitutes a violation of one of the six enumerated categories is protected."); Allen v. Admin. Review Bd., 514 F. 3d 468, 477 (5th Cir. 2008) (applying "reasonable belief" standard in a Sarbanes-Oxley whistleblower retaliation action); Kalkunte v. DVI Fin. Svcs., Inc., ARB Nos. 05-139 & 05-140, 2004-SOX-056 (ARB Feb. 27, 2009) (clarifying that a reasonable but mistaken belief is protected under SOX).
[11] Allen, 514 F.3d at 477.
[12] 15 U.S.C. § 2087(b)(4).
[13] Id.
[14] Kalkunte, ARB Nos. 05-139 & 05-140 at 15 (Sarbanes-Oxley case in which complainant obtained emotional distress damages); Hannah v. WCI Communities, 348 F. Supp. 2d 1332, 1334 (S.D. Fla. 2004) ("a successful Sarbanes-Oxley Act plaintiff cannot be made whole without being compensated for damages for reputational injury that diminished plaintiff's future earning capacity").
[15] Hannah, 348 F. Supp. 2d at 1334.
[16] Patient Protection and Affordable Care Act § 1558.
[17] Patient Protection and Affordable Care Act § 10104(j)(2).
[18] 31 U.S.C. § 3730(e)(4)(A) deprived any federal court of jurisdiction to hear a qui tam action based on information publicly disclosed "in a criminal, civil, or administrative hearing, in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation ..." Circuits were split as to whether this applied only to federal proceedings or at the state and local level as well. Compare U.S. ex rel. Dunleavy v. County of Del., 123 F.3d 734 (3d Cir. 1997) (county reports did not violate the public disclosure bar.) and U.S. ex rel. Bly-Magee v. Premo, 470 F.3d 914 (9th Cir. 2006) (public disclosure bar precluded FCA claim based upon information contained in a state report).
[19] Graham County Soil & Water Conservation Dist. v. U.S. ex rel. Wilson, __ S. Ct. __, 2010 WL 1189557 (Mar. 30, 2010)
[20] See Taxpayers Against Fraud website, www.taf.org.
[21] The Elder Justice Act is subtitle H of the Patient Protection and Affordable Care Act of 2009.
http://www.employmentlawgroup.net
Monday, August 2, 2010
The Employment Law Group Whistleblower Provisions Of The Dodd-Frank Act
Whistleblower Provisions Of The Dodd-Frank Act
By R. Scott Oswald and Jason Zuckerman
Law360, New York (July 20, 2010) -- Recognizing that robust whistleblower protection is critical to preventing another financial crisis, Congress included in the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) numerous provisions designed to encourage whistleblowing and to provide robust protection from retaliation.
These provisions create monetary awards for whistleblowers who provide original information to the U.S. Securities and Exchange Commission or Commodity Futures Trading Commission, strengthen the whistleblower protection provisions of the Sarbanes-Oxley Act and the False Claims Act, and create additional whistleblower retaliation causes of action.
Reward for Whistleblowing to the SEC and Prohibition Against Retaliation (Section 922)
Under Section 922, the SEC will be required to pay a reward to individuals who provide original information to the SEC resulting in monetary sanctions exceeding $1 million in civil or criminal proceedings. The purpose of this reward program is to “motivate those with inside knowledge to come forward and assist the Government to identify and prosecute persons who have violated securities laws and recover money for victims of financial fraud.”
According to Senate Report 111-176, whistleblower tips identified 54.1 percent of uncovered fraud schemes in public companies, while external auditors, including the SEC, detected only 4.1 percent of uncovered fraud schemes. The award will range from 10 to 30 percent of the amount recouped and the amount of the award shall be at the discretion of the SEC. Penalties, disgorgement and interest paid count toward the $1 million threshold. Factors to be considered in determining the amount of the reward include the significance of the information provided by the whistleblower, the degree of assistance provided by the whistleblower, the programmatic interest of the SEC in deterring violations of the securities laws by making awards to whistleblowers, and other factors that the SEC may establish by rule or regulation.
If the amount awarded is less than 10 percent or more than 30 percent of the amount recouped, a whistleblower may appeal the SEC’s determination by filing an appeal in the appropriate federal court of appeals within 30 days of the determination. To qualify for a whistleblower reward, Section 922 requires that the individual provide “original information,” which means information that “(A) is derived from the independent knowledge or analysis of a whistleblower; (B) is not known to the Commission from any other source, unless the whistleblower is the original source of the information; and (C) is not exclusively derived from an allegation made in a judicial or administrative hearing, in a governmental report, hearing, audit, or investigation, or from the news media, unless the whistleblower is a source of the information.”
In contrast to the qui tam provisions of the FCA, Section 922 does not provide a private right of action to whistleblowers to prosecute securities fraud or other violations of SEC rules. Section 922 prohibits the SEC from providing an award to a whistleblower who is convicted of a criminal violation related to the judicial or administrative action for which the whistleblower provided information; who gains the information by auditing
financial statements as required under the securities laws; who fails to submit information to the SEC as required by an SEC rule; or who is an employee of the U.S. Department of Justice or an appropriate regulatory agency, a self-regulatory organization, the Public Company Accounting Oversight Board, or a law enforcement organization.
Section 922 also creates a new private right of action for employees who have suffered retaliation “because of any lawful act done by the whistleblower — ‘(i) in providing information to the Commission in accordance with [the whistleblower reward subsection]; (ii) in initiating, testifying in, or assisting in any investigation or judicial or administrative action of the Commission based upon or related to such information; or (iii) in making disclosures that are required or protected under the Sarbanes-Oxley Act,’” the Securities Exchange Act of 1934, and “‘any other law, rule, or regulation subject to the jurisdiction of the [SEC].’”
The action may be brought directly in federal court and remedies include reinstatement, double back pay with interest, as well as litigation costs, expert witness fees, and reasonable attorney’s fees. A Section 922 retaliation action can be brought six years after the date on which the retaliation occurred or three years after the date on which the facts material to the right of action are known or reasonably should have been known by the employee. In contrast to the anti-retaliation provision of SOX, a Section 922 plaintiff need not exhaust administrative remedies before bringing a Section 922 retaliation action in federal court.
Reward for Whistleblowing to the Commodity Futures Trading Commission and Protection Against Retaliation (Section 748)
Section 748 amends the Commodity Exchange Act to create a whistleblower incentive program and whistleblower protection provision that are substantially similar to the SEC reward program and anti-retaliation provision contained in section 922.
Under section 748, the amount of a reward is determined by the CFTC and unlike section 922, a whistleblower may appeal any determination regarding an award, not just rewards outside of the 10 to 30 percent range. Protected conduct under Section 748 includes providing information to the CFTC in accordance with the whistleblower incentive provision and “assisting in any investigation or judicial or administrative action of the [CFTC] based upon or related to such information.”
New Whistleblower Protection for Financial Services Employees (Section 1057)
Section 1057 creates a robust private right of action for employees in the financial services industry who suffer retaliation for disclosing information about fraudulent or unlawful conduct related to the offering or provision of a consumer financial product or service.
The scope of coverage is quite broad in that Section 1057 applies to organizations that extend credit or service or broker loans; provide real estate settlement services or perform property appraisals; provide financial advisory services to consumers relating to proprietary financial products, including credit counseling; or collect, analyze, maintain, or provide consumer report information or other account information in connection with any decision regarding the offering or provision of a consumer financial product or service.
Section 1057 prohibits retaliation against an employee who has engaged in any of the following protected acts:
- Provided, caused to be provided, or is about to provide or cause to be provided, to an employer, the newly created Bureau of Consumer Financial Protection (Bureau), or any other government authority or law enforcement agency, information that the employee reasonably believes relates to any violation of any provision of Title X of the Dodd-Frank Act, which establishes new consumer financial protections, or any rule, order, standard or prohibition prescribed or enforced by the Bureau;
- Testified or will testify in a proceeding resulting from the administration or enforcement of any provision of Title X;
- Filed, instituted, or caused to be filed or instituted any proceeding under any federal consumer financial law; or
- Objected to, or refused to participate in any activity, practice, or assigned task that the employee reasonably believes to be a violation of any law, rule, standard, or prohibition subject to the jurisdiction of, or enforceable, by the Bureau.
Remedies include reinstatement, backpay, compensatory damages, and attorney’s fees and litigation costs, including expert witness fees. Where reinstatement is unavailable or impractical, front pay may be awarded.
Section 1057 employs a burden-shifting framework that is favorable to employees. A complainant can prevail merely by showing by a preponderance of the evidence that her protected activity was a contributing factor in the unfavorable action. A contributing factor is any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision.
Once a complainant meets her burden by a preponderance of the evidence, the employer can avoid liability only if it proves by clear and convincing evidence that it would have taken the same action in the absence of the employee’s protected conduct.
The procedures governing section 1057 claims are identical to those governing retaliation claims brought under the Consumer Product Safety Improvement Act of 2008, 15 U.S.C. § 2087. The statute of limitations is 180 days and the claim must be filed initially with the Occupational Safety and Health Administration, which will investigate the complaint and can order preliminary reinstatement.
Once OSHA issues its findings, either party can request a hearing before a U.S. Department of Labor administrative law judge. If the DOL has not issued a final order within 210 days of the filing of the complaint, the complainant has the option to remove the claim to federal court and either party can request a trial by jury. Section 1057 claims are exempt from predispute arbitration agreements.
Strengthening SOX’s Whistleblower Protection Provision (Sections 922 and 929A)
Sections 922 and 929A contain important amendments to Section 806 of SOX that broaden the scope of coverage, increase the statute of limitations, exempt SOX whistleblower claims from mandatory arbitration, and clarify that SOX claims can be tried before a jury.
Section 929A clarifies that the whistleblower protection provision of SOX applies to employees of subsidiaries of publicly traded companies “whose financial information is included in the consolidated financial statements of [a publicly] traded company.” This amendment eliminates a significant loophole that some courts have read into SOX that has substantially narrowed the scope of SOX coverage. Elevating form over substance, some judges have permitted publicly traded companies to avoid liability under SOX merely because the parent company that files reports with the SEC has few, if any, direct employees, and instead employs most of its workforce through non-publicly traded subsidiaries.
As Judge Levin pointed out in Morefield v. Exelon Servs. Inc., ALJ No. 2004-SOX-002 (ALJ Jan. 28, 2004), this loophole is contrary to the purpose of SOX in that “[a] publicly traded corporation is, for Sarbanes-Oxley purposes, the sum of its constituent units; and Congress insisted upon accuracy and integrity in financial reporting at all levels of the corporate structure, including the non-publicly traded subsidiaries ... [Congress] imposed reforms upon the publicly traded company, and through it, to its entire corporate organization.” Eliminating this loophole will remove a popular defense that has enabled employers to delay litigating SOX claims on the merits.
Section 922(b) further expands SOX coverage to employees of nationally recognized statistical ratings organizations (NRSROs). Covered organizations include Moody’s Investors Service Inc., A.M. Best Company Inc., and Standard & Poor’s Ratings Service.
According to Sen. Benjamin Cardin, D-Md., a co-sponsor of an amendment expanding SOX coverage, “NRSROs played a large role — by overestimating the safety of residential mortgage-backed securities and collateralized debt obligations — in creating the housing bubble and making it bigger. Then by marking tardy but massive simultaneous downgrades of these securities, they contributed to the collapse of the subprime secondary market and the ‘fire sale’ of assets, exacerbating the financial crisis.”
In a May 7, 2010 press release, Sen. Cardin’s office noted that “91 percent of the AAA-rated securities backed by subprime mortgages issued in 2007 have been downgraded to junk status, along with 93 percent of those issued in 2006. Someone at these agencies had to be aware of the problems with these ratings early enough to have made a difference in the severity.” Section 922(c) doubles the statute of limitations for SOX whistleblower claims from 90 to 180 days and clarifies that the statute of limitations begins to toll when an employee becomes aware of a SOX violation, not the date on which the violation occurs. In addition, Section 922(c) clarifies that SOX whistleblowers can elect to try their claims before a jury.
While Congress intended for SOX whistleblowers to have the option to try their claims before a jury, some courts held that the relief provided in SOX is solely equitable in nature and therefore SOX plaintiffs do not have the right to a jury trial. Section 922(c) also declares void any “agreement, policy form, or condition of employment, including a predispute arbitration
agreement” which waives the rights and remedies afforded to SOX whistleblowers.
These significant changes to SOX will likely result in more SOX plaintiffs removing their claims from the Department of Labor Office of Administrative Law Judges to federal court, and a significant increase in compensatory damages.
Amendments to the Anti-Retaliation Provision of the False Claims Act (Section 1079B)
Section 1079B amends the anti-retaliation provision of the False Claims Act, 31 U.S.C. § 3730(h), by expanding the definition of protected conduct to include “lawful acts done by the employee, contractor, or agent or associated others in furtherance of an action under this section or other efforts to stop 1 or more violations of [the False Claims Act],” thereby protecting against associational discrimination and covering a broad range of activities that could further a potential qui tam action, such as investigating potential contractor fraud.
Section 1079B also clarifies that the statute of limitations for FCA retaliation actions is three years, which brings much-needed clarity in the wake of the Supreme Court’s decision in Graham County Soil & Water Conservation Dist. v. U.S. ex rel. Wilson, 545 U.S. 409 (2005) holding that the most closely analogous state statute of limitations applies to FCA retaliation claims.
Approximately one year ago, Congress strengthened the FCA’s anti-retaliation provision by providing for individual liability and broadening the scope of coverage to include contractors and agents. See Fraud Enforcement and Recovery Act of 2009 (FERA), Pub. L. No. 111-21, § 4(d), 123 Stat. 1617, 1624-625.
The FERA amendments to § 3730(h), combined with the Dodd-Frank Act amendments, substantially broaden the scope of covered employees and the scope of protected conduct. Employees who suffer retaliation for blowing the whistle on fraud related to economic stimulus funds, however, have a stronger cause of action under the Section 1553 of the American Recovery and Reinvestment Act of 2009.
Impact of Whistleblower Provisions in Dodd-Frank Act
The whistleblower provisions in the Dodd-Frank Act will likely have several significant effects on the financial services industry and on publicly traded companies.
First, the whistleblower reward provisions will increase disclosures to the SEC and CFTC, thereby strengthening the ability of regulators to uncover and prosecute fraudulent schemes. It remains to be seen, however, whether the culture at the SEC has changed such that the SEC will investigate whistleblower disclosures. The SEC’s repeated failure to act on detailed tips about
Bernard Madoff’s ponzi scheme is just one example of the consequences of the SEC’s failure to investigate whistleblower tips. Second, whistleblowers now have a broad range of options to pursue retaliation claims, and many of the loopholes that courts and administrative agencies carved into SOX’s anti-retaliation provisions have been eliminated, including loopholes that substantially narrowed the scope of covered employees.
Third, the option to try whistleblower retaliation claims before juries will likely increase damages awards. General antagonism about the role of financial services firms in precipitating the financial crisis might spur large jury verdicts.
Fourth, exempting whistleblower retaliation claims from predispute arbitration agreements will enable whistleblowers to obtain broader discovery and will increase public exposure of fraudulent schemes.
Fifth, the option to bring certain whistleblower retaliation claims directly in federal court and to try SOX claims before a jury will put pressure on DOL to promptly adjudicate SOX claims and to demonstrate that it will conduct effective investigations rather than rubber-stamping pretextual employer justifications for retaliatory adverse actions.
http://www.employmentlawgroup.net
By R. Scott Oswald and Jason Zuckerman
Law360, New York (July 20, 2010) -- Recognizing that robust whistleblower protection is critical to preventing another financial crisis, Congress included in the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) numerous provisions designed to encourage whistleblowing and to provide robust protection from retaliation.
These provisions create monetary awards for whistleblowers who provide original information to the U.S. Securities and Exchange Commission or Commodity Futures Trading Commission, strengthen the whistleblower protection provisions of the Sarbanes-Oxley Act and the False Claims Act, and create additional whistleblower retaliation causes of action.
Reward for Whistleblowing to the SEC and Prohibition Against Retaliation (Section 922)
Under Section 922, the SEC will be required to pay a reward to individuals who provide original information to the SEC resulting in monetary sanctions exceeding $1 million in civil or criminal proceedings. The purpose of this reward program is to “motivate those with inside knowledge to come forward and assist the Government to identify and prosecute persons who have violated securities laws and recover money for victims of financial fraud.”
According to Senate Report 111-176, whistleblower tips identified 54.1 percent of uncovered fraud schemes in public companies, while external auditors, including the SEC, detected only 4.1 percent of uncovered fraud schemes. The award will range from 10 to 30 percent of the amount recouped and the amount of the award shall be at the discretion of the SEC. Penalties, disgorgement and interest paid count toward the $1 million threshold. Factors to be considered in determining the amount of the reward include the significance of the information provided by the whistleblower, the degree of assistance provided by the whistleblower, the programmatic interest of the SEC in deterring violations of the securities laws by making awards to whistleblowers, and other factors that the SEC may establish by rule or regulation.
If the amount awarded is less than 10 percent or more than 30 percent of the amount recouped, a whistleblower may appeal the SEC’s determination by filing an appeal in the appropriate federal court of appeals within 30 days of the determination. To qualify for a whistleblower reward, Section 922 requires that the individual provide “original information,” which means information that “(A) is derived from the independent knowledge or analysis of a whistleblower; (B) is not known to the Commission from any other source, unless the whistleblower is the original source of the information; and (C) is not exclusively derived from an allegation made in a judicial or administrative hearing, in a governmental report, hearing, audit, or investigation, or from the news media, unless the whistleblower is a source of the information.”
In contrast to the qui tam provisions of the FCA, Section 922 does not provide a private right of action to whistleblowers to prosecute securities fraud or other violations of SEC rules. Section 922 prohibits the SEC from providing an award to a whistleblower who is convicted of a criminal violation related to the judicial or administrative action for which the whistleblower provided information; who gains the information by auditing
financial statements as required under the securities laws; who fails to submit information to the SEC as required by an SEC rule; or who is an employee of the U.S. Department of Justice or an appropriate regulatory agency, a self-regulatory organization, the Public Company Accounting Oversight Board, or a law enforcement organization.
Section 922 also creates a new private right of action for employees who have suffered retaliation “because of any lawful act done by the whistleblower — ‘(i) in providing information to the Commission in accordance with [the whistleblower reward subsection]; (ii) in initiating, testifying in, or assisting in any investigation or judicial or administrative action of the Commission based upon or related to such information; or (iii) in making disclosures that are required or protected under the Sarbanes-Oxley Act,’” the Securities Exchange Act of 1934, and “‘any other law, rule, or regulation subject to the jurisdiction of the [SEC].’”
The action may be brought directly in federal court and remedies include reinstatement, double back pay with interest, as well as litigation costs, expert witness fees, and reasonable attorney’s fees. A Section 922 retaliation action can be brought six years after the date on which the retaliation occurred or three years after the date on which the facts material to the right of action are known or reasonably should have been known by the employee. In contrast to the anti-retaliation provision of SOX, a Section 922 plaintiff need not exhaust administrative remedies before bringing a Section 922 retaliation action in federal court.
Reward for Whistleblowing to the Commodity Futures Trading Commission and Protection Against Retaliation (Section 748)
Section 748 amends the Commodity Exchange Act to create a whistleblower incentive program and whistleblower protection provision that are substantially similar to the SEC reward program and anti-retaliation provision contained in section 922.
Under section 748, the amount of a reward is determined by the CFTC and unlike section 922, a whistleblower may appeal any determination regarding an award, not just rewards outside of the 10 to 30 percent range. Protected conduct under Section 748 includes providing information to the CFTC in accordance with the whistleblower incentive provision and “assisting in any investigation or judicial or administrative action of the [CFTC] based upon or related to such information.”
New Whistleblower Protection for Financial Services Employees (Section 1057)
Section 1057 creates a robust private right of action for employees in the financial services industry who suffer retaliation for disclosing information about fraudulent or unlawful conduct related to the offering or provision of a consumer financial product or service.
The scope of coverage is quite broad in that Section 1057 applies to organizations that extend credit or service or broker loans; provide real estate settlement services or perform property appraisals; provide financial advisory services to consumers relating to proprietary financial products, including credit counseling; or collect, analyze, maintain, or provide consumer report information or other account information in connection with any decision regarding the offering or provision of a consumer financial product or service.
Section 1057 prohibits retaliation against an employee who has engaged in any of the following protected acts:
- Provided, caused to be provided, or is about to provide or cause to be provided, to an employer, the newly created Bureau of Consumer Financial Protection (Bureau), or any other government authority or law enforcement agency, information that the employee reasonably believes relates to any violation of any provision of Title X of the Dodd-Frank Act, which establishes new consumer financial protections, or any rule, order, standard or prohibition prescribed or enforced by the Bureau;
- Testified or will testify in a proceeding resulting from the administration or enforcement of any provision of Title X;
- Filed, instituted, or caused to be filed or instituted any proceeding under any federal consumer financial law; or
- Objected to, or refused to participate in any activity, practice, or assigned task that the employee reasonably believes to be a violation of any law, rule, standard, or prohibition subject to the jurisdiction of, or enforceable, by the Bureau.
Remedies include reinstatement, backpay, compensatory damages, and attorney’s fees and litigation costs, including expert witness fees. Where reinstatement is unavailable or impractical, front pay may be awarded.
Section 1057 employs a burden-shifting framework that is favorable to employees. A complainant can prevail merely by showing by a preponderance of the evidence that her protected activity was a contributing factor in the unfavorable action. A contributing factor is any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision.
Once a complainant meets her burden by a preponderance of the evidence, the employer can avoid liability only if it proves by clear and convincing evidence that it would have taken the same action in the absence of the employee’s protected conduct.
The procedures governing section 1057 claims are identical to those governing retaliation claims brought under the Consumer Product Safety Improvement Act of 2008, 15 U.S.C. § 2087. The statute of limitations is 180 days and the claim must be filed initially with the Occupational Safety and Health Administration, which will investigate the complaint and can order preliminary reinstatement.
Once OSHA issues its findings, either party can request a hearing before a U.S. Department of Labor administrative law judge. If the DOL has not issued a final order within 210 days of the filing of the complaint, the complainant has the option to remove the claim to federal court and either party can request a trial by jury. Section 1057 claims are exempt from predispute arbitration agreements.
Strengthening SOX’s Whistleblower Protection Provision (Sections 922 and 929A)
Sections 922 and 929A contain important amendments to Section 806 of SOX that broaden the scope of coverage, increase the statute of limitations, exempt SOX whistleblower claims from mandatory arbitration, and clarify that SOX claims can be tried before a jury.
Section 929A clarifies that the whistleblower protection provision of SOX applies to employees of subsidiaries of publicly traded companies “whose financial information is included in the consolidated financial statements of [a publicly] traded company.” This amendment eliminates a significant loophole that some courts have read into SOX that has substantially narrowed the scope of SOX coverage. Elevating form over substance, some judges have permitted publicly traded companies to avoid liability under SOX merely because the parent company that files reports with the SEC has few, if any, direct employees, and instead employs most of its workforce through non-publicly traded subsidiaries.
As Judge Levin pointed out in Morefield v. Exelon Servs. Inc., ALJ No. 2004-SOX-002 (ALJ Jan. 28, 2004), this loophole is contrary to the purpose of SOX in that “[a] publicly traded corporation is, for Sarbanes-Oxley purposes, the sum of its constituent units; and Congress insisted upon accuracy and integrity in financial reporting at all levels of the corporate structure, including the non-publicly traded subsidiaries ... [Congress] imposed reforms upon the publicly traded company, and through it, to its entire corporate organization.” Eliminating this loophole will remove a popular defense that has enabled employers to delay litigating SOX claims on the merits.
Section 922(b) further expands SOX coverage to employees of nationally recognized statistical ratings organizations (NRSROs). Covered organizations include Moody’s Investors Service Inc., A.M. Best Company Inc., and Standard & Poor’s Ratings Service.
According to Sen. Benjamin Cardin, D-Md., a co-sponsor of an amendment expanding SOX coverage, “NRSROs played a large role — by overestimating the safety of residential mortgage-backed securities and collateralized debt obligations — in creating the housing bubble and making it bigger. Then by marking tardy but massive simultaneous downgrades of these securities, they contributed to the collapse of the subprime secondary market and the ‘fire sale’ of assets, exacerbating the financial crisis.”
In a May 7, 2010 press release, Sen. Cardin’s office noted that “91 percent of the AAA-rated securities backed by subprime mortgages issued in 2007 have been downgraded to junk status, along with 93 percent of those issued in 2006. Someone at these agencies had to be aware of the problems with these ratings early enough to have made a difference in the severity.” Section 922(c) doubles the statute of limitations for SOX whistleblower claims from 90 to 180 days and clarifies that the statute of limitations begins to toll when an employee becomes aware of a SOX violation, not the date on which the violation occurs. In addition, Section 922(c) clarifies that SOX whistleblowers can elect to try their claims before a jury.
While Congress intended for SOX whistleblowers to have the option to try their claims before a jury, some courts held that the relief provided in SOX is solely equitable in nature and therefore SOX plaintiffs do not have the right to a jury trial. Section 922(c) also declares void any “agreement, policy form, or condition of employment, including a predispute arbitration
agreement” which waives the rights and remedies afforded to SOX whistleblowers.
These significant changes to SOX will likely result in more SOX plaintiffs removing their claims from the Department of Labor Office of Administrative Law Judges to federal court, and a significant increase in compensatory damages.
Amendments to the Anti-Retaliation Provision of the False Claims Act (Section 1079B)
Section 1079B amends the anti-retaliation provision of the False Claims Act, 31 U.S.C. § 3730(h), by expanding the definition of protected conduct to include “lawful acts done by the employee, contractor, or agent or associated others in furtherance of an action under this section or other efforts to stop 1 or more violations of [the False Claims Act],” thereby protecting against associational discrimination and covering a broad range of activities that could further a potential qui tam action, such as investigating potential contractor fraud.
Section 1079B also clarifies that the statute of limitations for FCA retaliation actions is three years, which brings much-needed clarity in the wake of the Supreme Court’s decision in Graham County Soil & Water Conservation Dist. v. U.S. ex rel. Wilson, 545 U.S. 409 (2005) holding that the most closely analogous state statute of limitations applies to FCA retaliation claims.
Approximately one year ago, Congress strengthened the FCA’s anti-retaliation provision by providing for individual liability and broadening the scope of coverage to include contractors and agents. See Fraud Enforcement and Recovery Act of 2009 (FERA), Pub. L. No. 111-21, § 4(d), 123 Stat. 1617, 1624-625.
The FERA amendments to § 3730(h), combined with the Dodd-Frank Act amendments, substantially broaden the scope of covered employees and the scope of protected conduct. Employees who suffer retaliation for blowing the whistle on fraud related to economic stimulus funds, however, have a stronger cause of action under the Section 1553 of the American Recovery and Reinvestment Act of 2009.
Impact of Whistleblower Provisions in Dodd-Frank Act
The whistleblower provisions in the Dodd-Frank Act will likely have several significant effects on the financial services industry and on publicly traded companies.
First, the whistleblower reward provisions will increase disclosures to the SEC and CFTC, thereby strengthening the ability of regulators to uncover and prosecute fraudulent schemes. It remains to be seen, however, whether the culture at the SEC has changed such that the SEC will investigate whistleblower disclosures. The SEC’s repeated failure to act on detailed tips about
Bernard Madoff’s ponzi scheme is just one example of the consequences of the SEC’s failure to investigate whistleblower tips. Second, whistleblowers now have a broad range of options to pursue retaliation claims, and many of the loopholes that courts and administrative agencies carved into SOX’s anti-retaliation provisions have been eliminated, including loopholes that substantially narrowed the scope of covered employees.
Third, the option to try whistleblower retaliation claims before juries will likely increase damages awards. General antagonism about the role of financial services firms in precipitating the financial crisis might spur large jury verdicts.
Fourth, exempting whistleblower retaliation claims from predispute arbitration agreements will enable whistleblowers to obtain broader discovery and will increase public exposure of fraudulent schemes.
Fifth, the option to bring certain whistleblower retaliation claims directly in federal court and to try SOX claims before a jury will put pressure on DOL to promptly adjudicate SOX claims and to demonstrate that it will conduct effective investigations rather than rubber-stamping pretextual employer justifications for retaliatory adverse actions.
http://www.employmentlawgroup.net
Saturday, July 31, 2010
Friday, July 30, 2010
Employment Law Group Mission Statement
Founded in 1997, The Employment Law Group® law firm is a litigation boutique concentrating on the representation of employees, whistleblowers, and immigrants. We champion the rights of those who suffer discrimination, injustice, inequality, and retaliation in the workplace. With offices conveniently located on Farragut Square in our Nation's Capital, we have built a national practice on core principles of excellence, ethics, and the use of leading-edge technologies. As advocates for employment fairness, we strive to be model employers and employees ourselves. In our work as lawyers and legal professionals, we are zealous advocates for our clients - we are your workplace champions.
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Thursday, July 29, 2010
Wednesday, July 28, 2010
The Employment Law Group Attorneys
When you become our client, you can relax. We stand ready to use our extensive legal knowledge, our broad experience, our commitment to protect your rights, and to vigorously pursue justice on your behalf.
R. Scott Oswald, Principal
Adam Augustine Carter, Principal
Nicholas Woodfield, Principal
Jason Zuckerman, Principal
Dave Scher, Principal
David H. Martin, Of Counsel
Subhashini Bollini, Associate
Tom Harrington, Associate
Cynthia Smith, Associate
Michael Vogelsang, Associate
Kellee Kruse, Associate
http://www.employmentlawgroup.net
R. Scott Oswald, Principal
Adam Augustine Carter, Principal
Nicholas Woodfield, Principal
Jason Zuckerman, Principal
Dave Scher, Principal
David H. Martin, Of Counsel
Subhashini Bollini, Associate
Tom Harrington, Associate
Cynthia Smith, Associate
Michael Vogelsang, Associate
Kellee Kruse, Associate
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Tuesday, July 27, 2010
Employment Law Group Washington Lawyers
"The Employment Law Group
has performed with urgent professionalism. Their research
and preparation was extremely thorough, and all my
questions were answered
within 24 hours."
"I have used The Employment
Law Group twice and have
always been amazed with the degree to which The Employment Law Group mastered minute details."
"The Employment Law Group provides professionalism, empathy, and results."
"The attorneys at
The Employment Law Group
are warm and generous people
who will go to great lengths
to help."
"I have never regretted my decision to rely on The Employment Law Group to represent me in what was one of the most important events in my lifetime."
"There will always be many thanks from my family to The Employment Law Group for years to come."
"The Employment Law Group represented my interests professionally and competently."
"The Employment Law Group was able to achieve my desired results in a timely and proficient manner."
http://www.employmentlawgroup.net
has performed with urgent professionalism. Their research
and preparation was extremely thorough, and all my
questions were answered
within 24 hours."
"I have used The Employment
Law Group twice and have
always been amazed with the degree to which The Employment Law Group mastered minute details."
"The Employment Law Group provides professionalism, empathy, and results."
"The attorneys at
The Employment Law Group
are warm and generous people
who will go to great lengths
to help."
"I have never regretted my decision to rely on The Employment Law Group to represent me in what was one of the most important events in my lifetime."
"There will always be many thanks from my family to The Employment Law Group for years to come."
"The Employment Law Group represented my interests professionally and competently."
"The Employment Law Group was able to achieve my desired results in a timely and proficient manner."
http://www.employmentlawgroup.net
Monday, July 26, 2010
The Employment Law Group Federal Employee Representation
Federal Employee Representation
--------------------------------------------------------------------------------
The attorneys at The Employment Law Group® law firm have experience representing federal employees in whistleblower retaliation cases.
What law protects Federal Employee Whistleblowers?
The Whistleblower Protection Act (WPA) prohibits federal agencies from taking adverse personnel actions against federal employees who engage in whistleblowing activities. Under the WPA, employees who believe they have been subjected to reprisal because of their protected disclosures may: (1) state a claim with the Office of Special Counsel (OSC), or (2) pursue an individual right of action before the Merit Systems Protection Board (MSPB); (3) appeal to the MSPB regarding an agency's adverse action against the employee; or (4) initiate a grievance proceeding pursuant to negotiated grievance procedures.
If a federal employee chooses to make a claim for whistleblower retaliation with the OSC, the OSC is obligated to investigate the allegations and make a decision within 240 days of receipt of a complaint as to whether there are reasonable grounds to believe that a prohibited personnel practice took place. If the OSC renders an unfavorable decision, an employee can still seek relief by submitting his whistleblower reprisal case to the MSPB 60 days after the OSC closes their investigation or 120 days after filing a complaint with the OSC.
What activities are protected?
An employee participates in protected activity by disclosing information that evidences: fraud; gross mismanagement; gross waste of funds; an abuse of authority; a violation of a law, rule or regulation conducted by the government; or a substantial and specific danger to public health or safety. Specific examples include:
Cooperating with or disclosing information to an Inspector General or Special Counsel;
Refusing to obey an order that would violate law;
Testifying or lawfully assisting others exercise an appeal, complaint or grievance right; and
Exercising any appeal, complaint, or grievance right granted by any law, rule or regulation.
To be protected under the WPA, an employee must meet a reasonable belief standard. Recently, The Employment Law Group® law firm obtained a landmark decision on the meaning of reasonable belief in Drake v. Agency for International Development, where the Federal Circuit held that a whistleblower does not need to prove that he disclosed an actual violation of the law, but instead that he had a reasonable belief that there was a violation of a law, rule or regulation.
What must a plaintiff prove to prevail?
Under the WPA, an employee must show by a preponderance of the evidence that:
(1) the employee made a protected whistleblowing disclosure; and
(2) a protected disclosure was a contributing factor in the agency's personnel action.
If an employee meets this burden, the agency must establish by clear and convincing evidence that it would have taken the same personnel actions in the absence of the disclosures.
What retaliatory acts are prohibited under the WPA?
The WPA prohibits any action taken by an employer that has a negative or adverse impact on an employee's terms, conditions, or privileges of employment. This includes blacklisting, demotion, denial of benefits, denial of overtime or promotion, failure to hire or to promote, termination, intimidation, and reduction in pay.
What can a prevailing plaintiff recover?
Under the WPA, a prevailing employee will be made whole, i.e., will be returned to the same position he or she would have been absent the retaliation. In particular, the WPA authorizes reinstatement, back pay for lost wages, compensatory damages, and litigation costs, including reasonable attorney fees.
http://www.employmentlawgroup.net
--------------------------------------------------------------------------------
The attorneys at The Employment Law Group® law firm have experience representing federal employees in whistleblower retaliation cases.
What law protects Federal Employee Whistleblowers?
The Whistleblower Protection Act (WPA) prohibits federal agencies from taking adverse personnel actions against federal employees who engage in whistleblowing activities. Under the WPA, employees who believe they have been subjected to reprisal because of their protected disclosures may: (1) state a claim with the Office of Special Counsel (OSC), or (2) pursue an individual right of action before the Merit Systems Protection Board (MSPB); (3) appeal to the MSPB regarding an agency's adverse action against the employee; or (4) initiate a grievance proceeding pursuant to negotiated grievance procedures.
If a federal employee chooses to make a claim for whistleblower retaliation with the OSC, the OSC is obligated to investigate the allegations and make a decision within 240 days of receipt of a complaint as to whether there are reasonable grounds to believe that a prohibited personnel practice took place. If the OSC renders an unfavorable decision, an employee can still seek relief by submitting his whistleblower reprisal case to the MSPB 60 days after the OSC closes their investigation or 120 days after filing a complaint with the OSC.
What activities are protected?
An employee participates in protected activity by disclosing information that evidences: fraud; gross mismanagement; gross waste of funds; an abuse of authority; a violation of a law, rule or regulation conducted by the government; or a substantial and specific danger to public health or safety. Specific examples include:
Cooperating with or disclosing information to an Inspector General or Special Counsel;
Refusing to obey an order that would violate law;
Testifying or lawfully assisting others exercise an appeal, complaint or grievance right; and
Exercising any appeal, complaint, or grievance right granted by any law, rule or regulation.
To be protected under the WPA, an employee must meet a reasonable belief standard. Recently, The Employment Law Group® law firm obtained a landmark decision on the meaning of reasonable belief in Drake v. Agency for International Development, where the Federal Circuit held that a whistleblower does not need to prove that he disclosed an actual violation of the law, but instead that he had a reasonable belief that there was a violation of a law, rule or regulation.
What must a plaintiff prove to prevail?
Under the WPA, an employee must show by a preponderance of the evidence that:
(1) the employee made a protected whistleblowing disclosure; and
(2) a protected disclosure was a contributing factor in the agency's personnel action.
If an employee meets this burden, the agency must establish by clear and convincing evidence that it would have taken the same personnel actions in the absence of the disclosures.
What retaliatory acts are prohibited under the WPA?
The WPA prohibits any action taken by an employer that has a negative or adverse impact on an employee's terms, conditions, or privileges of employment. This includes blacklisting, demotion, denial of benefits, denial of overtime or promotion, failure to hire or to promote, termination, intimidation, and reduction in pay.
What can a prevailing plaintiff recover?
Under the WPA, a prevailing employee will be made whole, i.e., will be returned to the same position he or she would have been absent the retaliation. In particular, the WPA authorizes reinstatement, back pay for lost wages, compensatory damages, and litigation costs, including reasonable attorney fees.
http://www.employmentlawgroup.net
Saturday, July 24, 2010
Thursday, July 22, 2010
The Employment Law Group® law firm secures over $579,000
The Employment Law Group® law firm secures over $579,000 in FMLA Retaliation Claim
The Employment Law Group® law firm won a jury trial brought by a former pharmaceutical sales representative who was retaliated against for taking maternity leave protected by the Family and Medical Leave Act
http://www.employmentlawgroup.net
The Employment Law Group® law firm won a jury trial brought by a former pharmaceutical sales representative who was retaliated against for taking maternity leave protected by the Family and Medical Leave Act
http://www.employmentlawgroup.net
Wednesday, July 21, 2010
The Employment Law Group® Law Firm Secures $466,000 Plus Verdict in Equal Pay Act Case
On December 22, 2008, The Employment Law Group® law firm obtained a verdict of $466,816 for a former female director of the National Transportation Safety Board ("NTSB") who alleged that the NTSB discriminated against her by paying her less than similarly-situated male directors at the NTSB. In her complaint, the former director also alleged that the NTSB ignored her complaints when she questioned the pay differential. Finding that the former director established a violation of the Equal Pay Act and that the NTSB failed to prove that the wage disparity between the former female director and her male counterparts was not gender-based, the Court of Federal Claims awarded the former female director lost back pay, lost retirement benefits and attorneys' fees. The case name is Cooke v. United States.
Monday, July 19, 2010
Employment Law Group Federal Employee Representation
Federal Employee Representation
--------------------------------------------------------------------------------
The attorneys at The Employment Law Group® law firm have experience representing federal employees in whistleblower retaliation cases.
What law protects Federal Employee Whistleblowers?
The Whistleblower Protection Act (WPA) prohibits federal agencies from taking adverse personnel actions against federal employees who engage in whistleblowing activities. Under the WPA, employees who believe they have been subjected to reprisal because of their protected disclosures may: (1) state a claim with the Office of Special Counsel (OSC), or (2) pursue an individual right of action before the Merit Systems Protection Board (MSPB); (3) appeal to the MSPB regarding an agency's adverse action against the employee; or (4) initiate a grievance proceeding pursuant to negotiated grievance procedures.
If a federal employee chooses to make a claim for whistleblower retaliation with the OSC, the OSC is obligated to investigate the allegations and make a decision within 240 days of receipt of a complaint as to whether there are reasonable grounds to believe that a prohibited personnel practice took place. If the OSC renders an unfavorable decision, an employee can still seek relief by submitting his whistleblower reprisal case to the MSPB 60 days after the OSC closes their investigation or 120 days after filing a complaint with the OSC.
What activities are protected?
An employee participates in protected activity by disclosing information that evidences: fraud; gross mismanagement; gross waste of funds; an abuse of authority; a violation of a law, rule or regulation conducted by the government; or a substantial and specific danger to public health or safety. Specific examples include:
Cooperating with or disclosing information to an Inspector General or Special Counsel;
Refusing to obey an order that would violate law;
Testifying or lawfully assisting others exercise an appeal, complaint or grievance right; and
Exercising any appeal, complaint, or grievance right granted by any law, rule or regulation.
To be protected under the WPA, an employee must meet a reasonable belief standard. Recently, The Employment Law Group® law firm obtained a landmark decision on the meaning of reasonable belief in Drake v. Agency for International Development, where the Federal Circuit held that a whistleblower does not need to prove that he disclosed an actual violation of the law, but instead that he had a reasonable belief that there was a violation of a law, rule or regulation.
What must a plaintiff prove to prevail?
Under the WPA, an employee must show by a preponderance of the evidence that:
(1) the employee made a protected whistleblowing disclosure; and
(2) a protected disclosure was a contributing factor in the agency's personnel action.
If an employee meets this burden, the agency must establish by clear and convincing evidence that it would have taken the same personnel actions in the absence of the disclosures.
What retaliatory acts are prohibited under the WPA?
The WPA prohibits any action taken by an employer that has a negative or adverse impact on an employee's terms, conditions, or privileges of employment. This includes blacklisting, demotion, denial of benefits, denial of overtime or promotion, failure to hire or to promote, termination, intimidation, and reduction in pay.
What can a prevailing plaintiff recover?
Under the WPA, a prevailing employee will be made whole, i.e., will be returned to the same position he or she would have been absent the retaliation. In particular, the WPA authorizes reinstatement, back pay for lost wages, compensatory damages, and litigation costs, including reasonable attorney fees.
http://www.employmentlawgroup.net
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The attorneys at The Employment Law Group® law firm have experience representing federal employees in whistleblower retaliation cases.
What law protects Federal Employee Whistleblowers?
The Whistleblower Protection Act (WPA) prohibits federal agencies from taking adverse personnel actions against federal employees who engage in whistleblowing activities. Under the WPA, employees who believe they have been subjected to reprisal because of their protected disclosures may: (1) state a claim with the Office of Special Counsel (OSC), or (2) pursue an individual right of action before the Merit Systems Protection Board (MSPB); (3) appeal to the MSPB regarding an agency's adverse action against the employee; or (4) initiate a grievance proceeding pursuant to negotiated grievance procedures.
If a federal employee chooses to make a claim for whistleblower retaliation with the OSC, the OSC is obligated to investigate the allegations and make a decision within 240 days of receipt of a complaint as to whether there are reasonable grounds to believe that a prohibited personnel practice took place. If the OSC renders an unfavorable decision, an employee can still seek relief by submitting his whistleblower reprisal case to the MSPB 60 days after the OSC closes their investigation or 120 days after filing a complaint with the OSC.
What activities are protected?
An employee participates in protected activity by disclosing information that evidences: fraud; gross mismanagement; gross waste of funds; an abuse of authority; a violation of a law, rule or regulation conducted by the government; or a substantial and specific danger to public health or safety. Specific examples include:
Cooperating with or disclosing information to an Inspector General or Special Counsel;
Refusing to obey an order that would violate law;
Testifying or lawfully assisting others exercise an appeal, complaint or grievance right; and
Exercising any appeal, complaint, or grievance right granted by any law, rule or regulation.
To be protected under the WPA, an employee must meet a reasonable belief standard. Recently, The Employment Law Group® law firm obtained a landmark decision on the meaning of reasonable belief in Drake v. Agency for International Development, where the Federal Circuit held that a whistleblower does not need to prove that he disclosed an actual violation of the law, but instead that he had a reasonable belief that there was a violation of a law, rule or regulation.
What must a plaintiff prove to prevail?
Under the WPA, an employee must show by a preponderance of the evidence that:
(1) the employee made a protected whistleblowing disclosure; and
(2) a protected disclosure was a contributing factor in the agency's personnel action.
If an employee meets this burden, the agency must establish by clear and convincing evidence that it would have taken the same personnel actions in the absence of the disclosures.
What retaliatory acts are prohibited under the WPA?
The WPA prohibits any action taken by an employer that has a negative or adverse impact on an employee's terms, conditions, or privileges of employment. This includes blacklisting, demotion, denial of benefits, denial of overtime or promotion, failure to hire or to promote, termination, intimidation, and reduction in pay.
What can a prevailing plaintiff recover?
Under the WPA, a prevailing employee will be made whole, i.e., will be returned to the same position he or she would have been absent the retaliation. In particular, the WPA authorizes reinstatement, back pay for lost wages, compensatory damages, and litigation costs, including reasonable attorney fees.
http://www.employmentlawgroup.net
Sunday, July 18, 2010
The Employment Law Group® law firm litigating whistleblower retaliation
The attorneys at The Employment Law Group® law firm have substantial experience litigating whistleblower retaliation claims on behalf of employees, including in the following areas:
Airline Whistleblower Representation
Commercial Motor Carrier Whistleblower Representation
D.C. Whistleblower Representation
Economic Stimulus Whistleblower Protections
Environmental Whistleblower Representation
Federal Employee Whistleblower Representation
Nuclear Whistleblower Representation
Public Transportation Whistleblower Representation
Qui tam Whistleblower Representation
Railroad Whistleblower Representation
Sarbanes-Oxley Whistleblower Representation
Tax Whistleblower Representation
Wrongful Discharge Representation
http://www.employmentlawgroup.net
Airline Whistleblower Representation
Commercial Motor Carrier Whistleblower Representation
D.C. Whistleblower Representation
Economic Stimulus Whistleblower Protections
Environmental Whistleblower Representation
Federal Employee Whistleblower Representation
Nuclear Whistleblower Representation
Public Transportation Whistleblower Representation
Qui tam Whistleblower Representation
Railroad Whistleblower Representation
Sarbanes-Oxley Whistleblower Representation
Tax Whistleblower Representation
Wrongful Discharge Representation
http://www.employmentlawgroup.net
Saturday, July 17, 2010
The Employment Law Group Employment Law & Counseling
Has your employer retaliated against you for disclosing illegal practices?
Have you been sexually harassed at your workplace?
Has your employer discriminated against you?
Have you been punished or fired for something that was not your fault?
Have you been offered an inadequate severance package, vis-à-vis your value?
Are you negotiating an employment contract and needing some expert advice?
Are you an executive in the process of negotiating a compensation package?
Do you feel your employer has failed to treat you fairly on these issues?
Affirmative action
Corporate whistleblower act
Employee benefits
Wrongful discharge
Employment contracts
Americans With Disabilities Act (ADA)
Family Medical Leave Act (FMLA)
USERRA Rights
Worker Adjustment and Retraining Notification (WARN)
Federal Employer's Liability Act (FELA)
Occupational Safety and Health Administration (OSHA)
Executive compensation
Negotiated severances
Golden parachutes
Employment law covers a complex network of laws that controls how employers must treat employees, former employees, and applicants for employment.
We represent clients who face civil rights violations in the workplace, including sexual harassment and discrimination based on race, nationality, religion, disability, gender, or other factors. We assist our clients in receiving compensation for their illegal mistreatment, including monetary awards and remedies such as ridding the workplace of the environment that allowed the illegal treatment to occur and restoring the client to the job position he or she earned. The Employment Law Group® law firm will be a powerful partner to protect your legal rights!
Federal Employment Issues
We represent employees in a variety of claims against government employers, including unlawful racial, gender, age, or disability discrimination, affirmative action, sexual harassment, employee benefits, whistleblower litigation, wrongful discharge, employment contracts, the Family Medical Leave Act, the Worker Adjustment and Retraining Notification Act, the Federal Employer's Liability Act, the Occupational Safety and Health Act, and special laws governing federal employment. Because of our broad rage of experience interpreting and construing federal employment statutes and case law, we are also able to provide employers with sound advice regarding compliance with applicable statutes and regulations.
Contact us at The Employment Law Group® law firm, and tell us about your case. We will answer all inquiries within forty-eight hours, or call us at 202-331-3911 or 888-603-0983.
http://www.employmentlawgroup.net
Have you been sexually harassed at your workplace?
Has your employer discriminated against you?
Have you been punished or fired for something that was not your fault?
Have you been offered an inadequate severance package, vis-à-vis your value?
Are you negotiating an employment contract and needing some expert advice?
Are you an executive in the process of negotiating a compensation package?
Do you feel your employer has failed to treat you fairly on these issues?
Affirmative action
Corporate whistleblower act
Employee benefits
Wrongful discharge
Employment contracts
Americans With Disabilities Act (ADA)
Family Medical Leave Act (FMLA)
USERRA Rights
Worker Adjustment and Retraining Notification (WARN)
Federal Employer's Liability Act (FELA)
Occupational Safety and Health Administration (OSHA)
Executive compensation
Negotiated severances
Golden parachutes
Employment law covers a complex network of laws that controls how employers must treat employees, former employees, and applicants for employment.
We represent clients who face civil rights violations in the workplace, including sexual harassment and discrimination based on race, nationality, religion, disability, gender, or other factors. We assist our clients in receiving compensation for their illegal mistreatment, including monetary awards and remedies such as ridding the workplace of the environment that allowed the illegal treatment to occur and restoring the client to the job position he or she earned. The Employment Law Group® law firm will be a powerful partner to protect your legal rights!
Federal Employment Issues
We represent employees in a variety of claims against government employers, including unlawful racial, gender, age, or disability discrimination, affirmative action, sexual harassment, employee benefits, whistleblower litigation, wrongful discharge, employment contracts, the Family Medical Leave Act, the Worker Adjustment and Retraining Notification Act, the Federal Employer's Liability Act, the Occupational Safety and Health Act, and special laws governing federal employment. Because of our broad rage of experience interpreting and construing federal employment statutes and case law, we are also able to provide employers with sound advice regarding compliance with applicable statutes and regulations.
Contact us at The Employment Law Group® law firm, and tell us about your case. We will answer all inquiries within forty-eight hours, or call us at 202-331-3911 or 888-603-0983.
http://www.employmentlawgroup.net
Friday, July 16, 2010
Thursday, July 15, 2010
The Employment Law Group Non-Compete Litigation
The attorneys at The Employment Law Group® law firm have experience representing employees in litigation concerning non-compete agreements, also known as restrictive covenants.
When is a non-compete agreement unenforceable?
The enforceability and validity of a non-compete is usually controlled by state law. There are many bases upon which an employee can challenge the enforceability of a non-compete, including the following:
The restriction provided by the non-compete agreement is not necessary to protect the employer's business interest;
The restriction precludes the employee from earning a living;
The restriction violates public policy;
The temporal scope of the non-compete agreement is overly broad;
The geographic scope of the restriction is unreasonable;
The non-compete agreement is unclear or ambiguous; or
The employer terminated the employee for an unlawful reason.
Pace of Non-compete Litigation
Non-compete litigation often moves at a quick pace, and may require an immediate response to a motion for preliminary injunction or a motion for a temporary restraining order. Accordingly, it is critical to retain skilled counsel capable of promptly preparing an effective response.
http://www.employmentlawgroup.net
When is a non-compete agreement unenforceable?
The enforceability and validity of a non-compete is usually controlled by state law. There are many bases upon which an employee can challenge the enforceability of a non-compete, including the following:
The restriction provided by the non-compete agreement is not necessary to protect the employer's business interest;
The restriction precludes the employee from earning a living;
The restriction violates public policy;
The temporal scope of the non-compete agreement is overly broad;
The geographic scope of the restriction is unreasonable;
The non-compete agreement is unclear or ambiguous; or
The employer terminated the employee for an unlawful reason.
Pace of Non-compete Litigation
Non-compete litigation often moves at a quick pace, and may require an immediate response to a motion for preliminary injunction or a motion for a temporary restraining order. Accordingly, it is critical to retain skilled counsel capable of promptly preparing an effective response.
http://www.employmentlawgroup.net
Wednesday, July 14, 2010
Employment Law Group OUR TEAM: Professional Staff
The Employment Law Group® law firm recognizes that a law firm cannot function without a highly competent and knowledgeable staff. The following individuals are the people behind the scenes at The Employment Law Group® law firm who interact on a daily basis with the clients, provide support for the attorneys, and work to make certain that each and every client's case is handled like it is the only case in the firm:
Stephanie Johnson, Legal Assistant
Andrea Downing, Legal Assistant
Tadena Simpson, Legal Assistant
Janice Pardue, Legal Assistant
Andrew Schroeder, Legal Assistant
Tomi Ojo-Ade, Legal Assistant
Vijay Mani, Legal Assistant
Lourdes Maria Suazo, Immigration Assistant
Jeremy Schneider, Legal Assistant
Shane Larsen, Legal Assistant
David Fulleborn, Legal Assistant
Rebecca Borgese, Legal Assistant
Cynthia Hunt, Legal Assistant
Dallas Hammer, Legal Assistant
Richard Peterson, Legal Assistant
http://www.employmentlawgroup.net
Stephanie Johnson, Legal Assistant
Andrea Downing, Legal Assistant
Tadena Simpson, Legal Assistant
Janice Pardue, Legal Assistant
Andrew Schroeder, Legal Assistant
Tomi Ojo-Ade, Legal Assistant
Vijay Mani, Legal Assistant
Lourdes Maria Suazo, Immigration Assistant
Jeremy Schneider, Legal Assistant
Shane Larsen, Legal Assistant
David Fulleborn, Legal Assistant
Rebecca Borgese, Legal Assistant
Cynthia Hunt, Legal Assistant
Dallas Hammer, Legal Assistant
Richard Peterson, Legal Assistant
http://www.employmentlawgroup.net
Tuesday, July 13, 2010
The Employment Law Group Wrongful Discharge litigation
The attorneys at The Employment Law Group law firm have substantial experience representing employees that are wrongfully discharged by their employers.
Public Policy Exception to the Employment-At-Will Doctrine
Although an employee is generally considered to be employed "at will" and can be discharged by an employer for any reason or for no reason at all, most states have adopted public policy exceptions to protect employees who disclose criminal, illegal, unethical or unsafe practices. In addition, the public policy exception to the employment-at-will doctrine protects employees who refuse to engage in illegal conduct.
DC Wrongful Discharge Tort
In the District of Columbia, an employee may sue an employer for wrongful discharge if the employer terminates the employee for: (1) refusing to engage in illegal conduct, (2) exercising a statutory right, or (3) reporting an employer's or a co-worker's illegal conduct. Specific examples of public policy exceptions to the "at will" employment doctrine include:
Refusing to drive a truck without a required inspection sticker in violation of a D.C. statute;
Testifying before the D.C. City Council about patient safety issues;
Filing or threatening to file a complaint regarding an employer's violation of D.C.'s minimum wage statutes;
Threatening to inform the Food & Drug Administration about drugs being maintained at an unsafe temperature; and
Reporting a co-worker's health code violation.
An employee alleging wrongful discharge in violation of public policy must bring a claim within 3 years of the alleged wrongful termination. A prevailing employee may be awarded lost pay, and compensatory and punitive damages.
MD Wrongful Discharge Tort
In Maryland, an employee has a cause of action for wrongful discharge when the employee's termination contravenes a clear mandate of public policy. Maryland and federal legislative enactments, and administrative regulations can serve as a source of the public policy. A complaint alleging the tort of wrongful discharge must contain a substantial degree of particularity. Examples of conduct that is protected under Maryland's wrongful discharge tort include:
Filing a worker's compensation claim;
Refusing to violate a third person's right to privacy;
Filing assault and battery charges against a manager;
Taking time off to serve on a jury;
Insisting on an employer's compliance with the Food, Drug and Cosmetic Act; and
Reporting a co-worker's suspected criminal activities to law enforcement authorities.
An employee alleging wrongful discharge in violation of public policy must bring a claim within 3 years of the alleged wrongful termination. A prevailing employee may be awarded lost pay, and compensatory and punitive damages.
Virginia Wrongful Discharge Tort
Unlike Maryland and D.C.'s wrongful discharge tort, an employee asserting a claim for wrongful discharge under Virginia law must identify a Virginia state statute establishing a public policy that was violated by the employer in terminating the employee, which is generally limited to two categories of statutes: (1) statutes that explicitly express a public policy of the Commonwealth; and (2) statutes designed to protect personal property, personal rights, health, safety, or welfare. The employee must also show that she is a member of the class of persons that the statute is intended to benefit or protect.
Under Virginia law, an employee alleging wrongful discharge must make a claim within one year of the alleged wrongful termination. A prevailing employee may be awarded lost pay, and compensatory and punitive damages.
In 2007, The Employment Law Group® law firm established precedent under Virginia's wrongful discharge tort in McFarland v. Virginia Retirement Services of Chesterfield, LLC, where Judge Dohnal held that a nursing home's termination of an Activities Director and Office Manager for reporting health and safety violations can constitute a wrongful discharge.
If you have been wrongfully discharged by your employer, you can take legal action. Contact The Employment Law Group® law firm at 866-603-0983 or inquiry@employmentlawgroup.com to discuss your potential claim.
http://www.employmentlawgroup.net
Public Policy Exception to the Employment-At-Will Doctrine
Although an employee is generally considered to be employed "at will" and can be discharged by an employer for any reason or for no reason at all, most states have adopted public policy exceptions to protect employees who disclose criminal, illegal, unethical or unsafe practices. In addition, the public policy exception to the employment-at-will doctrine protects employees who refuse to engage in illegal conduct.
DC Wrongful Discharge Tort
In the District of Columbia, an employee may sue an employer for wrongful discharge if the employer terminates the employee for: (1) refusing to engage in illegal conduct, (2) exercising a statutory right, or (3) reporting an employer's or a co-worker's illegal conduct. Specific examples of public policy exceptions to the "at will" employment doctrine include:
Refusing to drive a truck without a required inspection sticker in violation of a D.C. statute;
Testifying before the D.C. City Council about patient safety issues;
Filing or threatening to file a complaint regarding an employer's violation of D.C.'s minimum wage statutes;
Threatening to inform the Food & Drug Administration about drugs being maintained at an unsafe temperature; and
Reporting a co-worker's health code violation.
An employee alleging wrongful discharge in violation of public policy must bring a claim within 3 years of the alleged wrongful termination. A prevailing employee may be awarded lost pay, and compensatory and punitive damages.
MD Wrongful Discharge Tort
In Maryland, an employee has a cause of action for wrongful discharge when the employee's termination contravenes a clear mandate of public policy. Maryland and federal legislative enactments, and administrative regulations can serve as a source of the public policy. A complaint alleging the tort of wrongful discharge must contain a substantial degree of particularity. Examples of conduct that is protected under Maryland's wrongful discharge tort include:
Filing a worker's compensation claim;
Refusing to violate a third person's right to privacy;
Filing assault and battery charges against a manager;
Taking time off to serve on a jury;
Insisting on an employer's compliance with the Food, Drug and Cosmetic Act; and
Reporting a co-worker's suspected criminal activities to law enforcement authorities.
An employee alleging wrongful discharge in violation of public policy must bring a claim within 3 years of the alleged wrongful termination. A prevailing employee may be awarded lost pay, and compensatory and punitive damages.
Virginia Wrongful Discharge Tort
Unlike Maryland and D.C.'s wrongful discharge tort, an employee asserting a claim for wrongful discharge under Virginia law must identify a Virginia state statute establishing a public policy that was violated by the employer in terminating the employee, which is generally limited to two categories of statutes: (1) statutes that explicitly express a public policy of the Commonwealth; and (2) statutes designed to protect personal property, personal rights, health, safety, or welfare. The employee must also show that she is a member of the class of persons that the statute is intended to benefit or protect.
Under Virginia law, an employee alleging wrongful discharge must make a claim within one year of the alleged wrongful termination. A prevailing employee may be awarded lost pay, and compensatory and punitive damages.
In 2007, The Employment Law Group® law firm established precedent under Virginia's wrongful discharge tort in McFarland v. Virginia Retirement Services of Chesterfield, LLC, where Judge Dohnal held that a nursing home's termination of an Activities Director and Office Manager for reporting health and safety violations can constitute a wrongful discharge.
If you have been wrongfully discharged by your employer, you can take legal action. Contact The Employment Law Group® law firm at 866-603-0983 or inquiry@employmentlawgroup.com to discuss your potential claim.
http://www.employmentlawgroup.net
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