Tag Archives: retaliation

Who do rules about texting and driving really protect?

Posted on February 17, 2020 by Jon Rehm

OSHA came out with guidelines about mobile device use while driving by employees. So why do I have mixed feelings something that most people would think is a good idea?

I believe texting and emailing while driving is a terrible idea and a clear safety hazard. But, management and insurers can use rules about mobile device use while driving to deny workers’ compensation claims.

Management and insurers can use rules about mobile device use while driving to deny workers’ compensation claims. They can argue either that mobile device use by an employee by driving is a deviation from employment duties. That may be difficult to argue if a travelling employee was using a mobile device while driving for work purposes.

In the alternative the employer may affirmatively allege that mobile device used was a safety violation that would disqualify them from receiving workers’ compensation. This is a difficult burden for an employer to meet. OSHA suggests that employers set up a “disciplinary action system” for workers who violated driving safety rules. Having written rules against a practice can make it easier for an employer to defeat a workers’ compensation claim by arguing an employee was willfully negligent.

Generally, workers compensation laws are favorable to workers who are injured while travelling, this known as the travelling employee doctrine or presumption. But in fairness to the insurance industry, this legal doctrine developed before the use of mobile phones.

In fairness to OSHA, their guidance on mobile phone usage was also meant to protect workers from being forced to use mobile devices while driving. Those who work and live in relatively remote areas know the term “windshield time” to describe long car trips. There is intense pressure to use that time productively. There is a strong temptation to text or email while driving even though you know the hazards.

The guidelines may give employees some protections against retaliation if the refuse to text or email while driving. But anti-retaliation laws are only as good as the court cases that interpret them and some courts have recently began to curtail protections afforded by those laws.

I speak from first-hand experience. I do a lot of long-distance driving for work. If areas like rural Nebraska were better served by air, rail and bus service, I wouldn’t need to drive so much. The same goes for many workers in states like Nebraska. But thanks to transportation deregulation those of us who travel to and within rural areas are stuck in our cars during business hours.

Texting and driving creates risks for other motorists in addition to the drivers who text and drive. But the law already punishes drivers who cause accidents through use of their mobile devices. Drivers who text and drive can be punished criminally and be held accountable in civil cases. Accountability for employers who create dangerous working conditions is mostly limited to state workers’ compensation laws.

I believe the risk of distracted driving is apparent to any adult. Why does OSHA need to issue guidance? I suspect it has something to do with my point about employers using rules against cellphone usage while driving to deny workers’ compensation claims.

But while OSHA is issuing guidelines about the obvious risk of texting and driving, the United States Department of Agriculture is overlooking the obvious risk of overuse injuries to packinghouse workers. The USDA in the Trump and Obama administrations have allowed meat processors to speed up lines to the detriment of workers. I hope if there is a new presidential administration next year, that administration will use its rule-making power to make workplaces safer and not give employers ways to dodge their responsibilities under state workers’ compensation laws.

Neb. Ct of Appeals tightens notice requirements in workers’ compensation cases

Posted on January 13, 2020 by Jon Rehm

The Nebraska Court of Appeals held that waiting 38 days to report a work injury was enough delay in reporting to dismiss a workers’ compensation claim. Though what constitutes timely notice is a case by case determination, the Bauer v. Genesis Health Care case is troubling for workers for many reasons.

Fear of retaliation not an excuse for not reporting injury – In the Bauer case the employee was worried about his job security and testified this one reason he delayed reporting his work injury. The suspicions about termination weren’t unfounded as the employee as put on leave 10 days after his injury. The Nebraska Court of Appeals disregarded this argument and found the plaintiff would have still been able to report his injury.
Change in personal plans can trigger duty to report work injury – The law requires that an employee report an injury as soon as practicable. “As soon as practicable” can vary by the circumstances. The key fact is that the employee knows something could be wrong because of a work injury. In this case the fact the employee cancelled a personal trip a week after the work injury was one fact that persuaded the court the that plaintiff did not report his injury as soon as practicable.
Stricter reporting standards for medical personnel – The court thought it was relevant that the injured worker was a physical therapy assistant was relevant to their conclusion that the employee did not report their injury as soon as practicable. Their theory was that professional knowledge should have lead him to conclude he needed treatment and that the injury should be reported. I wouldn’t be surprised to see insurers and their attorneys try to broaden this argument to all types of medical personnel.
Change in work duties can trigger duty to report – The Bauer case was unusual in that since he was a manager he could place himself on light duty without asking permission. Usually asking for light duty would be enough notice for an employee to meet the notice requirement. But since Bauer didn’t ask, he didn’t put his employer on notice about his injury. Employees who work with co-workers to change job duties to accommodate a work injury may be vulnerable to having their workers’ compensation cases dismissed for lack of notice, if they don’t report a work injury to a supervisor soon after their duties change.

Other takeaways from Bauer

Referral to specialist probably triggers a duty to report — Bauer cited to Williamson v. Werner, where the court held that an employee should have reported their injury to their employer after they reported it to their doctor. That didn’t happen in Bauer as the employee denied he was hurt at work at his first two medical visits. The court thought it was relevant that at the first visit after the work injury that he was referred for an MRI and to a specialist, yet did not report his injury to his employer.
Appearances matter – Bauer had some other bad facts working against him: 1) He didn’t report his work injury until after he had been placed on leave and 2) He twice denied that he was hurt at work to providers. The court stated an employee who provides proper notice of an injury is one that is acting in good faith or honestly. Changes in stories about how an accident happened or irregularities in reporting don’t create an impression of good faith even if they can be explained. But if fear of termination is the explanation of why an employee doesn’t report a work injury, the Bauer decision indicates Nebraska courts won’t consider that factor.
How the fear of retaliation harms workers’ compensation and retaliation claims – The Bauer case represents a common situation where an employee doesn’t turn in a work injury over fear of retaliation. Workers’ compensation retaliation is unlawful, but it is difficult for an injured worker to claim retaliation if they don’t report their work injury. So fear of retaliation can undermine both a workers’ compensation claim and a retaliation claim.

Guest Post:It’s time to overcome the negative stigma of workers’ compensation

Posted on May 20, 2019 by Rehm, Bennett & Moore, P.C., L.L.O.

This is a guest post from our colleague Mack Babcock from Denver. We like the post because it directly the addresses the issue of the stigma of workers’ compensation. We have addressed that stigma indirectly in two recent posts (here and here), but we haven’t addressed the issue directly.

Both workers’ compensation claimants and attorneys know what a complicated, stressful mess a workers’ compensation claim can be

In the event of a workplace accident, workers’ compensation is intended to cover an injured worker’s medical expenses, lost wages, and any permanent disability. Even when filing a workers’ compensation claim is well within an injured party’s rights, they often face a difficulty they might not have expected: stigma.

A 2014 survey by Summit Pharmacy, Inc . found that more than a third (37%) of Americans believe individuals who claim workers’ compensation are using it as an excuse to get out of work.

Clearly, there’s a lot of misinformation and misunderstanding out there about what workers’ compensation is and when it applies. Even though workers’ compensation is a type of insurance — no different than car insurance or medical insurance — some people regard it as a welfare program for those who don’t want to work.

Stress and anxiety are already common among those injured at work, and the last thing they need is to worry more about how others might perceive them. It’s important for both employers and employees to understand that the primary goal of the workers’ compensation system is to provide basic protection to the injured worker, allowing them to recover faster and become a productive member of society once again.

In most cases, denying a claim simply shifts the burden of recovery to the injured worker, and prolongs the amount of time it takes for that person to return to the workplace.

Employers

Some employers dislike the workers’ compensation insurance requirement for various reasons, including financial complaints. They may feel they will be asked to pay for injuries that aren’t serious, injuries caused outside of work or by a pre-existing condition, or injuries that are the result of the carelessness of the individual seeking benefits. In reality, cases of people “gaming” the system are rare — despite the pervasive negative stigma that this is the norm.

In addition, workers often fear reprisal from their employer for filing a workers’ compensation claim. What they don’t realize is that most states have enacted varying degrees of protection for workers to prevent them from being fired for filing a claim.

Take Colorado, for instance.

If you’ve been injured on the job in an “at will” employment state like Colorado, it’s technically legal for an employer to fire you during the process of a workers’ compensation claim. However, employers are NOT legally able to fire employees out of retaliation because of the claim. They must present valid reasons for the termination. (Editors’ Note: This is true in Nebraska was as well)

Co-Workers

Another source of the negative stigma surrounding workers’ compensation is co-workers.

Other employees, perhaps influenced by their supervisor’s attitude, may feel jealous of an injured co-worker who is receiving pay and benefits without having to come to work. They may feel as though the injured worker is getting away with something. Why should they work hard for their paycheck while the so-called injured person stays home and gets paid for doing nothing?

Other co-workers may even feel resentful, believing the injured person could work at a lesser pace or easier job rather than take advantage of a program for which others must pay.

Unfortunately, many injured workers are reluctant to file for workers’ compensation benefits because they feel embarrassed and ashamed. They wonder what their co-workers might think.

Self-Criticism

Lastly, not only can the criticism of employers and co-workers make a claimant hesitate to file for workers’ compensation, but the injured person may have to overcome their own sense of pride. It’s important to understand that workers’ compensation isn’t charity or welfare, but a legitimate insurance program that’s meant to be used if needed.

If you don’t feel bad about using your auto insurance to pay for vehicle repairs after a crash or medical insurance to help pay for an annual physical, then you shouldn’t feel bad about utilizing workers’ compensation insurance.

It’s okay to ask for help when you need it.

Don’t Be Afraid to Consult a Workers’ Compensation Attorney

We think it’s past time people overcome the stigma associated with workers’ compensation.

If you or a loved one have been injured at work, you should know there’s nothing wrong or shameful about filing for workers’ compensation benefits. There’s nothing to be embarrassed about. Plenty of people with long and successful careers file workers’ compensation claims. Workers’ compensation is an important tool for injured individuals seeking recovery and who want to become a productive member of society again as soon as possible.

While we can’t change the minds of 1 in 3 Americans, we do understand what you’re going through and we can help you navigate the process swiftly and easily. Don’t let the false stigma and stereotype of workers’ compensation deter you from pursuing the benefits you rightfully deserve.

Take the first step today by contacting an experienced workers’ compensation attorney to talk about your case.

Mold on the job: not just workers’ compensation

Posted on January 17, 2019 by Jon Rehm

Mold doesn’t have to be this obvious to be harmful in the workplace.

Teaching is not thought of as a hazardous job, but 120 teachers in Stamford, Connecticut have filed workers compensation claims due to mold exposure that effects half of the buildings in their district.

Mold is a relatively common hazard for white collar employees. When mold infests a building, it is common to have many employees affected. Mold is sometimes visible other times it can be hidden in insulation. Mold exposure is typically thought of leading to hayfever like allergic symptoms, but it can also lead to symptoms like chronic fatigue, irritable bowel syndrome and weight gain. About 25 percent of people are especially sensitive to mold and that sensitivity can be tested for by doctors.

In Nebraska, an employee just needs to show that an occupational factor or factors were a contributing factor to the injury. An employee exposed to mold in Nebraska should be able to collect workers’ compensation benefits for mold exposure even if they had pre-existing allergies or mold sensitivity. But other states have more stringent causation standards, so it could be harder to receive workers’ compensation benefits for mold exposure in those states.

The mass mold exposure by teachers in Stamford, Connecticut raises many interesting legal issues outside of workers’ compensation.

Challenges of collective action in the workplace

The first issue is the question of collective action when 120 employees are injured by a common hazard. The teachers are fortunate to be represented by a union. A union can be helpful in accommodating work injuries and helping employees gather information that can prove their workers compensation case. In a case of mold exposure, it is important to gather information about mold levels so doctors have sufficient foundation to relate symptoms to mold exposure. A union is helpful in getting such information.

But public sector unions are under attack by recent and upcoming Supreme Court litigation. The National Labor Relations Act (NLRA) gives nonunion employees some right to act in a group or collective manner about the terms and conditions of their employment. But that right may have been limited by the Epic case decided by the Supreme Court at the end of the 2018 case.

Fortunately claiming workers compensation is a protected activity in most states. That means employees facing a common cause of injury would be protected from retaliation for pursuing workers compensation claims. Some states, like Nebraska, also have whistleblower statutes that would protect employees from reporting hazardous work conditions.

In cases where many people have suffered a common harm, they can file a collective or class action case. I don’t know if Connecticut allows for such claims in workers compensation. But a collective or class case in workers’ compensation could be a simpler and less epxenseive to handle workers’ compensation cases involving mass mold exposure.

Third party claims

Collective or class litigation is generally allowed in cases of mass negligence. Fault usually doesn’t matter in workers compensation, but if a third party is at fault for a work injury the employee (and in Nebraska the employer as well) can sue that third party. A third-party case usually gives an employer some right of subrogation that allows them to be repaid some of what they paid the employee in workers’ compensation benefits.

In a case of mass mold exposure employees and employers could be looking to sue a landlord or builder for negligent construction or maintenance. But if s third party didn’t cause the injury, employees are stuck with defined workers compensation benefits and employers have no hope of being repaid for workers compensation benefits they paid to employees.

The downside to s third party claim is that they usually require more expense to prove negligence. In my experience handling individual mold exposure workers compensation cases, the value of the claims usually would not justify the expense of third-party litigation. But if enough employees are joined in a case, it would make sense economically to pursue a negligence case.

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

Posted on September 13, 2018 by Jon Rehm

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 5^th 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 9^th 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 9^th 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 9^th Circuit was correct in rejecting that reasoning, but unfortunately their opinion is not the law.

The 9^th 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.

Three ways to make sense of Masterpiece Cakeshop

Posted on June 14, 2018 by Jon Rehm

The Supreme Court’s decision in Masterpiece Cakeshop was not as harmful to LGBT rights or civil rights laws in general as feared. In fact, Masterpiece was cited by the Arizona Court of Appeals in upholding a Phoenix municipal ordinance prohibiting LGBT discrimination in public accommodation.

But court watchers were left scratching their collective heads by the mixed signals sent by the court. Given a week to digest the decision and read over the commentary, I think Masterpiece is understandable in the broader context of other decisions made by the Roberts court. I think three trends explain Masterpiece: 1) The Court’s favor of protected status over protected activity) 2 skepticism of the “administrative state” and 3) the use of federal supremacy by the court to rein in progressive-leaning states and cities.

Protected Status > Protected Activity

Sexual orientation and gender identity are considered a type of protected class. Sometimes theses these statuses are protected expressly, like they are in state and municipal laws, or they are covered by sex as held by many federal courts. Civil rights laws protect everyone based on various protected statuses such as race, nationality, religion, sex, disability and age. Everybody is covered by multiple protected classes. Protected class discrimination is fairly non-controversial because most people agree that someone should not be discriminated against based on immutable traits like race or sex. Sexual orientation and gender identity are just additional protected classes that would apply some people.

This isn’t to say that LGBT rights are universally accepted. The fact there are so many litigated cases, like Masterpiece, based on direct evidence of discrimination should be proof of that statement. But even in conservative-leaning states like Nebraska, business interests have pushed to expand anti-discrimination laws to LGBT individuals in an effort to have cities and states be seen as “open for business”. That’s part of the reason that Omaha, like Phoenix, has a municipal ordinance prohibit discrimination based on sexual orientation and gender identity. The Materpiece decision could be very persusasive to a Nebraska court hearing a challenge to Omaha’s laws prohibting discrimination agains the LGBT community.

Business looks less favorably upon protected activities than protected statuses. These are activities that individuals cannot be sanctioned for or retaliated against for engaging. From a business point of view the most problematic problematic activity is engaging in unionization or striking. Striking has re-emerged as a popular tactic for workers in the wake of teachers strikes and a possible strike by UPS drivers. The Supreme Court generally takes a business-friendly view on protected activity. In Epic, the court took a narrow view of what constituted protected concerted activity under the National Labor Relations Act. Earlier this term, in Somers v. DRT, the court narrowed the definition of a whistleblower under Dodd-Frank. The split between how the court treats protected activities and protected statuses became apparent to me in 2013 when the court decided the landmark LGBT civil rights case Windsor in the same term they decided Nassar which raised the burden of proof for employees in Title VII retaliation cases. The same split between protected activity and protected activity is apparent in 2018 with Epic and Somers contrasted with Masterpiece.

Dislike of the Administrative State

The reason why Jack Phillips “won” Masterpiece was because of negative comments about religion made by a lone commissioner on the Colorado Commission on Human Rights. Phillips was being civilly charged by state administrative agency. The Roberts court, Justices Gorsuch, Thomas and Alito in particular, are skeptical of the role of administrative agencies on separation of powers grounds. That skepticism was evidenced by Justice Gorsuch’s comments about the National Labor Relations Board in Epic. ThIS terrm the court also heard what could be a close case about whether the Securities and Exchange Commission can use Administrative Law Judges to punish misconduct in the securities industry that could have broad — if not disruptive — implcations. If nothing else, Masterpiece is a bench slap to an administrative agency.

I also believe that Masterpiece could have a chilling effect on state and local human rights commissions. I have served on the Lincoln Commission on Human Rights since 2014. Even before Masterpiece was decided, commissioners were given a memo describing the concerns expressed by Justice Kennedy in oral arguments in Masterpiece about the comments made by the Colorado Civil Rights Commissioner. Civil rights commissioners often engage in spirted discussions about what constitutes unlawful discrimination in a particular case. It would be unfortunate if Masterpiece lead commissioners to self-censor over fears that those comments could be used by the parties they believe could be engaged in unlawful discrimination.

Federal supremacy over states and cities

Jack Phillips succeeded in making a first amendment argument that the Colorado Commission on Civil Rights violated his freedom of religion by making impermissible comments about his religion. Phillips resorted to federal law to strike down a decision made by the state agency of a progressive-leaning state. Much of the arbitration case law that supported the Epic decision was based on the Federal supremacy of the Federal Arbitration Act over state laws that prohibited arbitration. Many of these state laws were passed by “blue” states such as California. By overruling a decision made by the Colorado Commssion on Civil Rights, the Roberts court was able to assert some measure of federal supremacy over a progressive-leaning state.

Reversing OSHA Rules Will Undercut Workplace Safety

Posted on April 17, 2017 by Jon Rehm

President Trump recently signed a Congressional resolution revoking an Obama administration OSHA rule that required employers to retain records of work injuries for five and that prohibited retaliation against workers for reporting injuries. The revoked OSHA rule would have also limited drug testing of employees who reported injuries.

Debbie Berkowitz of the National Employment Law Project and a former OSHA official criticized the action because limiting the amount of time an employer must retain records about injuries because it doesn’t provide enough information to identify recurring safety issues.

At least in Nebraska, employers are required to file First Reports of Injury with the Nebraska Workers Compensation Court. The information contained in those reports serves a similar function to OSHA logs and would allow workers, unions, attorneys and or regulators to identify recurring safety problems. Those reports are also public records. I recently testified against an insurance industry supported bill in the Nebraska legislature that would have made those reports confidential records.

The recently revoked OSHA rule also would have prohibited retaliation against employees who report OSHA violations. Nebraska already has anti-retaliation laws that protect employees who claim workers’ compensation benefits that would cover many cases where an employer would have to record an injury for OSHA. My opinion is that the OSHA General Duty clause which states that employers have a duty to provide a workplace free of recognizable hazards provides additional anti-retaliation protections to Nebraska employees through our state whistleblower statute. But the revocation of the OSHA anti-retaliation rule may weaken those protections.

The OSHA record keeping/anti-retaliation rule was revoked through the Congressional Review Act. You can read more about that law works here. Congress and President Trump have also revoked an executive order that would have prevented employers who violated fair employment laws from obtaining federal contracts. You can read more about that rule here.

Six Questions You Should Answer Before You Become a Whistleblower

Posted on February 13, 2017 by Jon Rehm

Whistleblowers have helped expose some of the biggest corporate scandals of the 21^st century, including Enron and the Bernie Madoff scandals. Whistleblowers usually expose themselves to a real personal risk by opposing wrongdoing. These risks often include getting fired from their job. If you are thinking about blowing the whistle on illegal conduct at work, here are six questions you should ask yourself:

1. Are you really opposing unlawful or illegal activity? Lawyers who defend companies against whistleblower claims often may paint whistleblowing as mere disagreement about management style or philosophy. As a matter of law, a whistleblower also must have good faith or honest belief that they are opposing illegal conduct. If you are thinking about bringing a whistleblower complaint, it would be a good idea to do a little research. Whistleblowers.gov is a great resource for the various industries that are covered under the Occupational Safety and Health Administration whistleblower statutes. Most experienced employment attorneys are also willing to do some free consultation for prospective whistleblowers as to whether they are opposing illegal conduct.

2. Does someone in upper management at your company know about your complaints? This can be intimidating, but in my experience, you will have a stronger case if you bring up your concerns to someone higher up in management than your direct supervisor or worksite manager. This puts the company on notice about the unlawful conduct, and it bolsters your credibility as someone who was concerned enough about the potentially illegal conduct that they reported it to someone within the company who could act on it. Likewise, if someone with authority at your company is on notice of the potentially illegal conduct and that person doesn’t take action, that can bolster your possible case. Sometimes firms will have an “ethics” hotline or will refer you to human resources. I don’t think it hurts to report through those channels, but I think you should also report the unlawful conduct to someone who has the actual authority to change the practice that you are challenging.

3. Can you frame your complaint as a business problem and suggest solutions to the problem of unlawful conduct and be reasonable in how you report the misconduct? I cribbed this idea from a post from the excellent SkloverWorkingWisdom blog written by attorney Alan Sklover. All things being equal in an employment law case, the party who is most reasonable is going to win. This fact tends to disadvantage employees, because it’s hard to keep a level head when you are being mistreated or being asked to participate in unlawful conduct at work. But do your best to be level headed and objective when you bring up your complaints to management. Like the point in the last paragraph, if the employer ignores your practical solution to the potentially unlawful conduct, then you have bolstered your possible case.

4. Will other employees will join you in your complaints? Whistleblowers tend to get tarred as tattletales. If co-workers are joining you in your complaints, the case becomes more credible. If you make a legitimate complaint as a group, you also gain protection of the National Labor Relations Act for engaging in protected concerted activity, as well as under any whistleblower law that you might be bringing a case under.

5. How strongly can you support your claims? To win any whistleblower retaliation case, you must have evidence to prove your case. In most cases, this requires written evidence that often takes the form of emails that implicate possible wrongdoers. If a case gets into litigation, then in theory, such documents must be disclosed. That does not always happen in practice. Additionally, having documents will help a lawyer determine if you have a possible claim and how strong your possible claim could be.

Employees may have concerns about revealing confidential documents and/or be concerned that their employer may take legal action against them for revealing company information. Many whistleblower laws protect certain types of information from being deemed confidential. Employers are also somewhat reluctant to act against whistleblowers, because this can invite more retaliation litigation. But potential whistleblowers should be aware of possible legal liability for disclosing company information, so an employee should be very careful about how they choose to share company information. Attorney-client communications, even those communications involving prospective clients are confidential. By consulting with an attorney, a prospective whistleblower can get some guidance as to whether they are risking legal liability by disclosing information.

Evidence can also take the form of witness testimony, which is why it is helpful if you have a group of employees opposing potentially unlawful conduct.

6. Are you willing to change jobs or relocate? Even if what you think is a valid whistleblower complaint is merely a dispute with a manager over something that it isn’t illegal, the fact for you is that if you are doing something or working in an environment that you don’t like, you are almost setting yourself up to fail. This is probably even more true if you have a valid whistleblower claim. Studies show that it is easier to find a job while you are still employed. Even with anti-discrimination laws, employers have broad discretion to fire employees under the “employment at-will” doctrine. The underappreciated flip side of employment at-will for employees is that they can quit without cause or notice. If you are in a dysfunctional or even hostile work environment, it’s smart to take advantage of the ability to quit freely if you have another job lined up.

Workers' Compensation Watch

Published by Rehm, Bennett, Moore & Rehm

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Tag Archives: retaliation

Who do rules about texting and driving really protect?

Neb. Ct of Appeals tightens notice requirements in workers’ compensation cases

Guest Post:It’s time to overcome the negative stigma of workers’ compensation

Mold on the job: not just workers’ compensation

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

Three ways to make sense of Masterpiece Cakeshop

Reversing OSHA Rules Will Undercut Workplace Safety

Six Questions You Should Answer Before You Become a Whistleblower

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