The Northern District of Illinois recently dismissed an Indiana-based employee’s claims for retaliatory discharge in violation of common law pursuant to Illinois public policy, focusing on the nature of the connection (or lack thereof) to Illinois and noting that the plaintiff possessed adequate statutory remedies under federal whistleblower laws.  O’Risky

DOLThe ARB recently concluded that a former program manager was entitled to recover more than $250,000 in back pay and benefits under Section 806 of SOX based on his discipline and constructive discharge.  The ARB clarified that a complainant may have engaged in protected activity by complaining of a failure to comply with state wage payment laws where his or her complaint in that regard is based on a reasonable belief that the employer is committing fraud by making a knowing misrepresentation or misstatement of material facts.  Dietz v. Cypress Semiconductor Corp., ARB No. 15-017, 3/30/16 (released 4/6/16).

ndilOn October 29, 2015, the Northern District of Illinois concluded that an employee who called police regarding suspected shoplifting—in violation of company policy—succeeded in proving a claim under the Illinois Whistleblower Act (IWA).  Coffey v. DSW Shoe Warehouse, Inc., No. 14-cv-4365.  The court granted the Plaintiff’s motion for summary judgment and denied the Defendant’s motion for summary judgment, rejecting the Defendant’s argument that the Act protects only employees who report their employer’s bad actions only—and not the actions of third-parties.

district of columbiaReversing a lower court decision, the D.C. Circuit recently concluded – for a second time – that certain internal audit documents are protected from disclosure by the attorney-client communication and work production privileges. On August 11, 2015, the D.C. Circuit issued a second writ of mandamus regarding the same group of documents, internal reports which the plaintiff/whistleblower sought in connection with his False Claims Act suit alleging kickbacks and overbilling related to Iraq War subcontracting. The appellate court reversed the district court’s order requiring KBR, Inc. to produce the documents, holding that permitting disclosure would “inject[] uncertainty into application of attorney-client privilege and work-product protection to internal investigations.”

oshaOn May 21, 2015, OSHA—which has responsibility for investigating and enforcement under 22 whistleblower retaliation statutes—released an updated edition of its Whistleblower Investigations Manual (the Manual), the first such update since September 2011.  The new edition provides additional guidance to investigators on a variety of issues, with the majority of changes related to potentially available damages and settlement agreements.

auto-assembly-lineUnder the “Motor Vehicle Safety Whistleblower Act” (the Bill), which the U.S. Senate approved on April 28, 2015, whistleblower protections and bounties would be available to individuals who report motor vehicle defects.  In particular, the Bill would allow employees and contractors of automakers, parts suppliers, and dealerships to receive a monetary award for providing new information to the federal government related to motor vehicle defects and other failures to comply with federal laws that could create a risk of death or serious injury. 

Washington_state_sealIn a jury verdict issued on March 26, 2015, a supervisor for the nation’s largest ferry system was awarded $1 million because the jury concluded that his employer demoted him as an act of retaliation in violation of the Washington State Employee Whistleblower Protection Act because he was believed—albeit inaccurately—to be a whistleblower.  Chaussee v. State of Washington, Wash. Super. Ct., No. 11-2-01884-6, 3/26/15. 

osha2On March 5, 2015, OSHA issued a long-awaited Final Rule regarding SOX whistleblower procedures and related matters. The new Final Rule will replace the Interim Final Rule enacted in 2011, after Dodd-Frank amended SOX. The Final Rule largely follows the Interim Final Rule, even though commenters expressed a range of serious concerns. One key revision that was implemented in the Final Rule based on response from commenters was a procedure requiring each party’s filings to be shared with the other party.

The U.S. District Court for the Northern District of Illinois recently granted a Rule 12(b)(6) motion to dismiss a SOX whistleblower retaliation claim, concluding that the plaintiff did not engage in protected activity.  Fuqua v. SVOX AG, No. 14-cv-216 (N.D. Ill. Aug. 1, 2014).  This is a useful decision for employers faced with SOX whistleblower claims alleging attenuated connections to fraud on shareholders.