Employers who believe they have been subjected to frivolous whistleblower suits are starting to say “enough is enough,” and searching for ways to vindicate their rights and send a strong message. This case is illustrative and caught our eye. Kentucky employer Armstrong Coal (the Company) recently filed suit in Kentucky state court against former employee Reuben Shemwell, a miner, alleging that he abused the legal process by filing an unmeritorious whistleblower claim. Armstrong Coal Co., Inc. v. Reuben Shemwell, No. 12 Cl 397 (Muhlenberg County Circuit Court, Kentucky).

More specifically, Shemwell filed a whistleblower complaint under Section 105(c) of the federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2) (2006) (MSHA), alleging he was discharged for voicing concerns about safety conditions. He asserted that the Company’s proffered reason for discharging him – namely, excessive cell phone use – was pretextual. Reinstatement initially was ordered, although the Mine Safety and Health Administration (Administration) apparently dropped Shemwell’s claim thereafter. The Company then filed suit against Shemwell in Kentucky state court, alleging his claim was frivolous. In the complaint, the Company pointed to the multiple warnings Shemwell received for excessive cell phone use on the job and also noted that the Administration chose not to pursue his claim. As noted in a recent article in the Huffington Post, the Administration, in turn, filed a complaint against the Company alleging that Armstrong’s filing of the lawsuit against Shemwell was “an attempt to discourage miners from filing discrimination complaints.”

Given the surge of whistleblower claims under countless laws, and rising concerns that many whistleblower claims are opportunistic and/or vexatious, it is not particularly surprising to see employers are looking for ways to send the message that “enough is enough.” Indeed, a meritless whistleblower suit could significantly harm a company’s reputation, and cause it to needlessly incur substantial fees that it can’t recover even if it prevails in the litigation. A ruling in the Company’s favor could send a strong message to individuals who abuse whistleblower laws. On the other hand, a ruling in favor of the Administration’s claim against the Company could certainly cause employers to rethink the strategy of pursuing abuse of process-type claims.

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Photo of Steven J. Pearlman Steven J. Pearlman

Steven J. Pearlman is a partner in the Labor & Employment Law Department, where he is Head of the Restrictive Covenants, Trade Secrets & Unfair Competition Group and Co-Head of the Whistleblowing & Retaliation Group.

Employment, Restrictive Covenant & Trade Secret, and Whistleblower

Steven J. Pearlman is a partner in the Labor & Employment Law Department, where he is Head of the Restrictive Covenants, Trade Secrets & Unfair Competition Group and Co-Head of the Whistleblowing & Retaliation Group.

Employment, Restrictive Covenant & Trade Secret, and Whistleblower Practice. Steven’s national practice focuses on defending companies in federal and state courts and in arbitration fora against the full spectrum of employment-related claims, including claims of executives; restrictive covenant violations; employee raiding; theft of trade secrets; whistleblower retaliation under the Sarbanes-Oxley Act, the Dodd-Frank Act and similar state laws; and wage-and-hour violations, including class, collective and PAGA actions.

Steven has successfully handled trials in multiple jurisdictions; prevailed in seeking and defending against applications for temporary restraining orders and preliminary injunctions; defended one of the largest Illinois-only class actions in the history of the federal courts in Illinois (over 90k putative class members); and prevailed following his oral arguments before federal and state appellate courts. He brings his litigation experience (beginning in 1998) to bear in counseling clients to minimize risk and avoid or prepare for success in litigation.

Investigations. Reporting to boards of directors, their audit committees, CEOs and in-house counsel, Steven conducts sensitive investigations and has the unusual experience of testifying in federal court in connection with investigations. His investigations have involved complaints of sexual harassment involving C-suite officers; systemic violations of employment laws and company policies; and fraud, compliance failures and unethical conduct.

Thought Leadership and Accolades. Steven was named Lawyer of the Year for Chicago Labor & Employment Litigation in the 2023 edition of The Best Lawyers in America. He is a Fellow of the College of Labor and Employment Lawyers. Chambers has reported:

  • Steven is “one of the best in the country and has a lot of experience”;
  • Steven is as an “outstanding lawyer” who is “very sharp and very responsive,” a “strong advocate,” and an “expert in his field”;
  • He is thoughtful, attentive and demonstrates an acute understanding of matters top of mind for business-minded general counsel; and
  • “He is someone who can navigate the twists and turns of litigation without difficulty.”

Steven was 1 of 12 individuals selected by Compliance Week as a “Top Mind.” Earlier in his career, he was 1 of 5 U.S. lawyers selected by Law360 as a ”Rising Star Under 40” in the area of employment law and 1 of “40 Illinois Attorneys Under Forty to Watch” selected by Law Bulletin Publishing Company. Steven is a U.S. Library of Congress Burton Award Winner for “Distinguished Legal Writing.”

Steven was appointed to Law360’s Employment Editorial Advisory Board and selected as a Contributor to Forbes.com. He has appeared on Bloomberg News (television and radio) and Yahoo! Finance, and is often quoted in leading publications such as The Wall Street Journal. The U.S. Chamber of Commerce has engaged Steven to serve as lead counsel on amicus briefs to the U.S. Supreme Court and federal circuit courts of appeal.

In 2024, Steven received the Excellence in Pro Bono Service Award from the United States District Court for the Northern District of Illinois and the Chicago Chapter of the Federal Bar Association.

Photo of Rachel Fischer Rachel Fischer

Rachel S. Fischer is a senior counsel in the Labor & Employment Law Department.

Rachel represents employers in all types of employment-related disputes, including defending clients against claims of discrimination, harassment, retaliation, wrongful discharge, whistleblowing, breach of contract, and in wage and hour…

Rachel S. Fischer is a senior counsel in the Labor & Employment Law Department.

Rachel represents employers in all types of employment-related disputes, including defending clients against claims of discrimination, harassment, retaliation, wrongful discharge, whistleblowing, breach of contract, and in wage and hour matters. She represents employers in federal and state courts, arbitration tribunals, and before administrative agencies, and has litigated both single plaintiff and class action lawsuits. As an experienced trial lawyer, Rachel has successfully litigated numerous cases from complaint through jury verdict or arbitral award.

Rachel represents employers across a wide variety of industries, including banking and finance, law firms, media and entertainment, sports, and higher education.

Rachel also counsels clients on a broad range of employment law matters, including investigations, employee terminations and discipline, and employment policies and procedures.