View
36
Download
0
Category
Tags:
Preview:
DESCRIPTION
You Can’t Do That to ME! Developments in Whistleblower & Anti-Retaliation Laws. Introductions. MODERATOR: Benton J. Mathis, Jr., Esq., Managing Partner, Freeman Mathis & Gary LLP PANELISTS: Brenda H. Feis, Esq., Partner, Stowell & Friedman, Ltd. - PowerPoint PPT Presentation
Citation preview
YOU CAN’T DO THAT TO ME! DEVELOPMENTS IN
WHISTLEBLOWER & ANTI-RETALIATION LAWS
MODERATOR: • Benton J. Mathis, Jr., Esq., Managing Partner, Freeman Mathis & Gary
LLP PANELISTS: • Brenda H. Feis, Esq., Partner, Stowell & Friedman, Ltd. • Jason A. Fogg, Esq., Vice President, Claims, Monitor Liability
Managers, LLC• Eric Ross, Claims Manager, Beazley Group • Joseph A. Starr, Esq., Partner, Starr, Butler, Alexopoulos & Stoner, PLLC
Introductions
Agenda
• Trends in whistleblower claims• Scope of whistleblower protections, including
financial and healthcare protections• Claims that increase plaintiff's liability/damage
exposure or maximize punitive damages• Primary underwriting considerations and risk
management response
ARS Question – Is the FollowingUnlawful Retaliation?
A. Shunning a Co-workerB. Less Favorable OfficeC. DemotionD. Unfavorable ReviewE. Reduced Training OpportunityF. "Cold Shoulder" From ManagementG. Excluded from MeetingsH. Reassigned to Another JobI. Verbal AbuseJ. Excluded from Decisions
Burlington Northern v. White (2006)
• After complaining about supervisor, plaintiff reassigned to less desirable job
• Co-workers felt “more senior man” should hold plaintiff’s former position
• HELD: Conduct that dissuades reasonable worker from making or supporting charge of discrimination
Excluded from decision and work activityGiven the cold shoulder
Verbally abused by managersAlmost lost job
Not given promotion or raiseVerbally abused by other co-workers
Relocated or reassignedOther forms of retaliation
DemotedPhysical harm to person or property
62%
60%
55%
48%
43%
42%
27%
20%
18%
4%
Source: 2009 National Business Ethics Survey report, Ethics Resource Center.
Types of Retaliation Experienced by Employees Who
Report Misconduct
What is “Materially Adverse” Conduct?
• D.C. Circuit – Employer’s false report contesting unemployment• Second Circuit – Reading newspaper article about discrimination
lawsuit in employee’s presence• Third Circuit – Threaten to make employee’s life “living
nightmare”• Sixth Circuit – Performance evaluation diminishing employee’s
earning capacity • Ninth Circuit – Collectively, temporary removal from duties,
psychiatric evaluation, and IA investigation • Tenth Circuit – Threat to make public rumors about employee’s
sexual activities
Recent Supreme Court Cases
• Kasten v. Saint-Gobain Performance Plastics Corp (2011)– (employee’s oral complaints about FLSA violation protected
activity)• Thompson v. North American Stainless (2011)– Protection Extended To Affected Even If They Did Not Complain
• Crawford v. Metropolitan (2009)– Employee Answering Questions Can Be Protected Activity
• Gomez-Perez v. Potter (2008)– ADEA Has Implied Retaliation Prohibition
• CBOCS West, Inc. v. Humphries (2008)– Section 1981 Has Implied Retaliation Prohibition
Year Percent of EEOC charges1992 15.3%1995 19.5%1997 22.6%1999 25.4%2004 28.6%2006 29.8%2008 34.3%2009 36.0%2010 36.3%
Increase of Retaliation Claims
ARS QuestionHave you seen increase in
retaliation claims in past 3 years?
A. NoneB. 10% - 30%C. 30% - 50%D. 50% - 100%E. 100% - 200%F. 200% or greater
Recent Retaliation Jury Verdicts
• $4,000,000 (C.D. Cal.) (Nov. 2010): Police officer terminated in retaliation for whistle blowing
• $3,100,000 (W.D. Penn.) (Nov. 2009): Female employee terminated after complaining about gender discrimination
• $1,555,000 (M.D. Tenn.) (Jan. 2010): Plaintiff terminated after participating in sexual harassment investigation
• $1,100,000 (W.D. Wis.) (May 2011): College instructor's contract not renewed in retaliation for discrimination claims
• $1,026,386 (C.D. Il.) (Aug. 2010): Public library operations manager alleged Title VII retaliation
MeetEllyn
Video 1
Would You Award Following?A. NoneB. less than $20,000C. $20,000 – $40,000D. $40,000 – $75,000E. $75,000 – $100,000F. $100,000 - $150,000G. $150,000 - $250,000H. $250,000 - $500,000I. $500,000 - $750,000J. $750,000 - $1,000,000K. $1,000,000 or more
ARS – Question Testimony of First Plaintiff
Here’sAmy
Video 2
Would You Award following?A. NoneB. less than $20,000C. $20,000 – $40,000D. $40,000 – $75,000E. $75,000 – $100,000F. $100,000 - $150,000G. $150,000 - $250,000H. $250,000 - $500,000I. $500,000 - $750,000J. $750,000 - $1,000,000K. $1,000,000 or more
ARS Question –Testimony of Alternate Plaintiff
Say Hello toMarty
Video 3
Would You Award following?A. NoneB. less than $20,000C. $20,000 – $40,000D. $40,000 – $75,000E. $75,000 – $100,000F. $100,000 - $150,000G. $150,000 - $250,000H. $250,000 - $500,000I. $500,000 - $750,000J. $750,000 - $1,000,000K. $1,000,000 or more
ARS Question –Alleged Harasser Testimony
Last, but not least,Here’s
Bill
Video 4
Would You Award following?A. NoneB. less than $20,000C. $20,000 – $40,000D. $40,000 – $75,000E. $75,000 – $100,000F. $100,000 - $150,000G. $150,000 - $250,000H. $250,000 - $500,000I. $500,000 - $750,000J. $750,000 - $1,000,000K. $1,000,000 or more
ARS Question –Managing Partner’s Testimony
Act Primarily Impacts
DOD Reauthorization Defense Contractors
American Recovery and Reinvestment Recipient of Stimulus Funds
False Claims Act Federal Contractors
Sarbanes-Oxley Publicly Traded Corps.
Patient Protection and Affordable Care Health Care Industry
Dodd-Frank Publicly Traded Companies and Private Subsidiaries/Affiliates
New or Recently Modified Statutes
Act Primarily Impacts
Food Safety Modernization Food Industry
Aviation Investment Airline Industry
Energy Reorganization Nuclear Power Industry
Federal Rail Safety Rail Industry
National Transit System Mass Transit Industry
Consumer Product Safety Retail Industry
More Retaliation Statutes
Act Primarily Impacts
Occupational Safety and Health Act Workplace Safety
Surface Transportation Assistance Act Independent Contractors in Trucking
Asbestos Hazard Emergency Response Act Public Schools
International Safe Container Act Shipping Industry
Clean Air Act EPA Regulated Industry
Safe Drinking Water Act EPA Regulated Industry
Wendell H. Ford Aviation Investment and Reform Act for the 21st Century
Air Carriers
Pipeline Safety Act Pipeline facilities
Even More Retaliation Statutes
The Future – New Retaliation Protections
• Dodd-Frank and New SEC Rules – Bounty “original information” to SEC– Jury trials/No arbitration– Six Year Statute of Limitations
• Sarbanes-Oxley after Dodd-Frank– Federal mail, wire, bank or securities fraud statutes– Any rule/Regulation of SEC– Now can file suit if no determination within 180 days– No arbitration
The Future – New Retaliation Protections
• Patient Protection and Affordability Care Act (PPACA)
– Primarily health care and insurance
– Covers discrimination in compensation, training, “privileges of employment”
Supervisor 46%Other responsible person 15%
Higher management 29%
Where Employees Report Misconduct
Someone outside the company 4%
Other 4%Hotline 3%
Supervisor 46%
Other responsible person 15%
Higher management 29%
Source: 2009 National Business Ethics Survey report, Ethics Resource Center.
Complaint Policy -Best Practices
• Cover Any Type of Unlawful Conduct
• Clear Reporting Option to Appropriate Official
• Avoid Inconsistencies With Other Overlapping Policies
• Widely Disseminate Policy
Questions&
Answers
• Brenda Feis
• Jason Fogg
• Eric Ross
• Joseph Starr
• Ben Mathis
Many thanks to …
Recommended