Category Archives: Whistleblower

Ten years after the financial crisis, whistleblowers can only do so much

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Former Treasury Secretary Hank Paulson with former President George W. Bush. Paulson’s former firm, Goldman Sachs, was among many Wall Street firms that benefited from federal bailouts 10 years ago.

This week marks the 10th Annivesary of the start of the financial crisis of 2008. I originally wrote the post below about DRT v. Somers in March but decided not to publish it for some reason. Over the lunch hour I read this piece from Wall Street pundit/apologist Aaron Ross Sorkin that made a bunch of lame excuses about how our politcal leaders handled the afternmath of the financial crisis. After reading that article I thought it would be a good idea to dust off my DRT v. Somers post. 

The United States Supreme Court just made it harder for employees to pursue retaliation cases against financial institutions when they are fired for reporting fraud.

In a unanimous opinion in Digital Realty Trust v. Somers authored by Justice Ruth Bader Ginsberg, the United States Supreme Court agreed with the 5th Circuit Court of Appeals that language within the Dodd-Frank Act that defined a whistleblower as someone who provided information to the Securities and Exchange Commission (SEC) excluded employees who merely reported concerns about fraud internally.

The reason this decision is disturbing is that two other circuit courts and the Securities and Exchange Commission interpreted Dodd-Frank to extend whistleblower protections to those covered under the whistleblower provisions of Sarbanes-Oxley “Sarbox”, Sarbox allows employees to bring whistleblower complaints if they are terminated in retaliation for internal complaints. In the Somers case, a federal trial judge and the 9th Circuit Court of Appeals both agreed that Somers could bring a Dodd-Frank case for being fired for making an internal complaint. 

While Sarbox and Dodd-Frank cases tend to overlap there are some key differences that are relevant to an employee bringing a retaliation claim. A Sarbox complaint requires an employee file a claim with OSHA within 180 days of the retaliation. Dodd-Frank allows an employee to file directly in court within 6 years of the retaliation. While a Dodd-Frank claim in easier to bring than a Sarbox claim, Sarbox allows for emotional distress damages in addition to attorney fees, backpay and re-instatement, while Dodd-Frank allows for double back pay, attorney fee, re-instatement but no general damages. While retaliation cases might be less valuable under Dodd-Frank than they would be under Sarbox, the employee would still be able to make a claim even if they waited more than 180 days from the retaliation and even if they didn’t report to the SEC or file with OSHA.

The 9th Circuit pointed out the fact that Sarbox claims included emotional distress damages while Dodd-Frank claims do not as one reason why an internal whistleblower could still bring a Dodd-Frank claim. Justice Ginsberg ignored the availability of emotional distress damages in Sarbox. Ginsberg seemed to be arguing that Dodd-Frank cases were more valuable, so they should require reporting to the SEC rather than just internal reporting. The 9th Circuit was correct in rejecting that reasoning, but unfortunately their opinion is not the law.

The 9th Circuit pointed out that Sarbox and Dodd-Frank have similar origins and purposes. University of Nebraska Law School Dean and whistleblower law expert Richard Moberly wrote that Sarbox and Dodd-Frank both encourage reporting of financial fraud.  Logically it makes sense that the whistleblower provisions of Dodd-Frank would add to provisions already within Sarbox as the laws have the same general purpose.

But Sarbox and Dodd-Frank have some differences in how they discourage fraudulent behavior. Sarbox is meant to punish employers who retaliate against whistleblowers, while Dodd-Frank encourages employees to report misconduct directly to the government by allowing employees to share in fines against the company.  Justice Ginsberg keyed on the difference between enforcement schemes under Dodd-Frank and Sarbox to argue the laws were distinguishable enough that internal reporting didn’t qualify as whistleblowing under Dodd-Frank.

By its language Somers only applies to Dodd-Frank whistleblower cases. Somers doesn’t overturn or even question precedent from anti-discrimination law (Title VII) and wage hour law (the Fair Labor Standards Act) that have permissive definition of protected activity that cover internal and informal opposition to unlawful conduct. But in less defined areas of retaliation and whistleblower law the Somers decision would certainly be persuasive authority to management-side lawyers who wish to narrowly define protected activity to defeat retaliation claims.

The SEC argued to keep internal whistleblowers covered by Dodd-Frank because internal reporting can fix problems without government intervention and for less expense. Even management-side firm Vedder Price stated in their analysis of the Somers decision that the decision could raise compliance costs because the decision would encourage employees to report directly the SEC rather than internally. It’s ironic conservative Justices like John Roberts, Samuel Alito, Clarence Thomas and Neil Gorsuch approve of expanding government intervention into private firms when more cost-effective solutions are available. Cynically it would appear that the Somers decision is a gift to management side lawyers. Whistleblowers cases are easier to defend as a result of Somers, but Somers could mean more administrative charges which means more billable hours.

The Somers decision is even more galling considering the Senate, with the support of 17 of 49 members of the Democratic caucus, voted to water down reforms under Dodd-Frank.  One criticism of Sarbox was that it didn’t root out fraud because it merely punished employers for firing whistleblowers rather than encouraging early outside reporting. To some extent, financial whistleblower law assumes that problems with financial markets is a problem of bad people who break laws rather than bad laws.

The Enron scandal is one that is largely attributed to accounting fraud. That is what Sarbox was passed to remedy. But the role of over-the-counter derivatives, in other words unregulated bets, on electricity markets is an under-appreciated cause of Enron’s downfall. Enron was a proponent of the Commodity Futures Modernization Act of 2000 because the reform made betting on electricity markets easier .  Enron was the canary in the coal mine when it came to the dangers of free-for-all financial speculation. Sarbox was at best a half-measure in response to Enron. Whistleblower laws can’t be relied upon to maintain our confidence in financial markets when the most dangerous financial practices are perfectly legal. Republicans and pro-business Democrats seem to be ignoring this conclusion.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Dodd-Frank, retaliation, Sarbox, Whistleblower and tagged , , , .

Why Overturning DOMA Is a Win for Employee Rights

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Regardless of your opinion on the issue of gay rights, Wednesday’s U.S. Supreme Court decision overturning the Defense of Marriage Act is a win for workplace fairness.

The constitutional authorization for most federal fair-employment laws is based on the guarantees of equal protection of the law based on the Fifth and 14th Amendments to the U.S. Constitution and the right of Congress to regulate interstate commerce clause. In his opinion overturning DOMA, Justice Anthony Kennedy found that DOMA violated the Fifth and 14th Amendment rights of gays and lesbians. He reaffirmed the role of the Fifth and 14th Amendments in preventing discrimination.

Kennedy’s opinion is important because in last summer’s blockbuster Supreme Court decision upholding the Affordable Care Act, Chief Justice John Roberts undercut the interstate commerce clause as a justification for passing federal legislation. Conceivably, corporate opponents of workplace fairness laws could point to Roberts’ decision in the Affordable Care Act as a way to argue that federal workplace fairness laws are unconstitutional. However Wednesday’s decision in the DOMA case means that workplace fairness laws still have clear and strong constitutional support.

The DOMA decision is a bright spot in a Supreme Court session that has otherwise been pretty bleak for employees. My opinion is that as a result of recent Supreme Court decisions, more and more fair-employment cases will be brought in state court. The decision in DOMA is still relevant to state law discrimination and retaliation claims. Most states have equal protection clauses in their state constitutions. The reasoning supporting the DOMA decision supports state fair-employment statutes. I believe this is true even for fair employment claims based on retaliation. As Justice Ruth Bader Ginsberg pointed out in her dissent in Nassar, retaliation is a form of discrimination. In other words, if you have been fired in retaliation for filing a workers’ compensation claim, your constitutional rights have been violated. If the Supreme Court had decided DOMA differently, employees would have a weaker argument that a retaliatory discharge violated their equal protection rights.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Supreme Court, Unfair employment practices, Whistleblower, Workers' Compensation and tagged , , , , , .

Employee Rights Hurt by Supreme Court Decisions

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United_states_supreme_court_buildingEmployee rights in the workplace took a step backward with the Vance and Nassar decisions made by the U.S. Supreme Court. So what does this mean in concrete terms for employees?

Vance: The main takeaway from Vance is that employees must tell upper management and human resources about workplace harassment. This has been federal law in the Court of Appeals for the 1st Circuit (Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island) and the 8th Circuit (Nebraska, Iowa, North Dakota, South Dakota, Minnesota, Missouri and Arkansas). In order to sustain a workplace harassment claim under federal law, employees must now be able to show that management knew about harassment and that management failed to take effective action against the harassment.

Nassar: Nassar made it more difficult to prove retaliation under federal law. In the 5-4 majority decision written by Justice Samuel Alito, the court wrote that it was concerned about the increase in retaliation claims filed in the EEOC and the potential for “frivolous litigation.” The effect of this case is that even more retaliation cases will be decided by judges under summary judgment instead of being decided by juries.

However, just because it is harder to bring a discrimination or retaliation case under federal law doesn’t mean that an employee can’t bring a case under state law that could be more favorable to the employee. But employees pursuing wrongful termination cases in state court should be aware that state court judges oftentimes follow federal court judges in interpreting state fair-employment laws.  State court judges might find the Supreme Court’s concerns about “frivolous” retaliation suits to be well founded.

I think Justice Alito was off base in his concerns about “frivolous” retaliation where employees who are about to get fired file complaints in order to preserve their job or set themselves up for a wrongful termination lawsuit. Any competent employee-rights attorney knows that retaliation suits are difficult to win. I turn down about 9 out of 10 people who call my office who claim they were wrongfully terminated. Wrongful termination suits are costly and time consuming. I am not going to invest time and money in a suit where I will likely get dismissed and possibly face financial sanctions under court rules and also possibly be opened up to paying costs to the prevailing employer under federal fair-employment law. I am doubly suspicious of employees who are fired shortly after they file discrimination or other claims. Employers know that if they fire someone after filing some sort of complaint that it appears to look bad. But courts will uphold that reason if they had a legitimate reason to fire the employee. In other words, the employee who knows they are skating on thin ice and then files a complaint is going to lose a wrongful termination case. The decision in Nassar won’t stop disgruntled employees from filing claims with fair-employment agencies, it will just make it more difficult for employees with legitimate wrongful termination claims to obtain justice.

The United States Supreme Court’s  recent decision in Schindler Eleavator Corp. v. United States ex rel Kirk is a terrible decision for taxpayers and employees.

Supreme Court Justices 2011

Supreme Court Justices

A majority of Justices comprising Justices Samual Alito, Justice Anthony Kennedy, Chief Justice John Roberts, Justice Antonin Scalia and Justice Clarence Thomas ruled that employees could not solely rely on information obtained in Freedom of Information Act (FOIA) requests as a basis for whistleblower claims under the False Claims Act.

The whistleblower provision of the False Claims Act (FCA) allows private citizens with evidence of fraud against federal programs or contracts to sue on behalf of the government and collect a percentage of what the government recovers. Continue reading