On March 13, 2013, the New York City Council overrode Mayor Bloomberg’s veto of a new Local Law that amends the New York City Human Rights Law (“NYCHRL”) to prohibit discrimination against job applicants based on their unemployment status. The new Local Law provides expansive whistleblower/retaliation protections to employees and is set to take effect on June 11, 2013.
OSHA Issues Stiff Penalties To Railroad Company In FRSA Whistleblower Matters
OSHA recently announced that it ordered Norfolk Southern Railway (Company) to pay three former workers a combined $1,121,099 for violating the whistleblower provisions of the Federal Railroad Safety Act (FRSA), which protects employees who report violations of any federal law, rule or regulation relating to railroad safety or security.
Ninth Circuit Affirms Dismissal Of SOX Whistleblower Claim On Causation Grounds
In a brief but notable decision, the Ninth Circuit affirmed summary judgment in an employer’s favor on causation grounds in a SOX whistleblower retaliation case. Kim v. The Boeing Co., 487 Fed. Appx. 356 (9th Cir. 2012).
Employers Taking Stand Against Allegedly Frivolous Whistleblower Claims
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).
2012 EEOC Year in Review – Retaliation Charges Continue to Rise
According to a recently released report, the EEOC received more retaliation charges in 2012 than in any prior year. And, in 2012, it received more retaliation charges than in any other individual category.
The number of retaliation charges lodged with the EEOC has grown dramatically in the last 15 years. In 1997, 18,198 retaliation claims were received by the EEOC, making up 22.6% of all complaints. In the last five years, the number of retaliation charges received by the EEOC has increased by 10,000.
District Court Requires SOX Plaintiff To Assert Shareholder Fraud, Consistent with Statute’s Purpose
The U.S. District Court for the District of North Carolina recently dismissed a plaintiff’s Sarbanes-Oxley whistleblower complaint on the ground that the plaintiff had not alleged shareholder fraud. Gauthier v. Shaw Group, Inc., No. 12-cv-00274, 2012 WL 6043012 (W.D.N.C. Dec. 4, 2012). This decision is significant because it followed the Fourth Circuit’s seminal decision in Livingston v. Wyeth, Inc., 520 F.3d 344 (4th Cir. 2008), notwithstanding the contrary Obama administration Administrative Review Board (ARB) decisions in Brown v. Lockheed Martin Corp., ARB Case No. 10-050 (Feb. 28, 2011) and Sylvester v. Parexel Int’l LLC, ARB Case No. 07-123 (May 25, 2011). It is also an important decision because its interpretation of the statute is one that is consistent with the overall purpose of Sarbanes-Oxley, i.e., the protection of the investing public.
What’s A Protected “Complaint” Under The FLSA’s Anti-Retaliation Provision?
On December 26, 2012, the Eleventh Circuit issued a ruling that strengthens defenses to “protected activity” in FLSA retaliation actions. Miller v. Roche Surety & Casualty Co., Inc., No. 12-cv-10259 (11th Cir. Dec. 26, 2012) (unpublished). In particular, this decision shields employers in situations where employees make vague, unclear and/or ambiguous statements that they later attempt to characterize as protected activity in litigation.
Secretary of Labor Announces Appointees to Whistleblower Protection Advisory Committee
On December 13, 2012, Secretary of Labor Hilda L. Solis announced the inaugural appointees of the Whistleblower Protection Advisory Committee (WPAC). WPAC was established to “advise, consult with, and make recommendations to the Secretary of Labor and the Assistant Secretary of Labor for Occupational Safety and Health (OSHA) on ways to improve the fairness, efficiency, effectiveness, and transparency of OSHA’s administration of whistleblower protections.” The WPAC is comprised of 12 voting members: 3 members represent the public; 4 members represent management; 4 members represent labor; and 1 member represents OSHA State Plans. There are also 3 non-voting members of WPAC representing federal agencies. The newly announced members are:
Key Indicia Of Retaliation In FLSA Action
The U.S. Court of Appeals for the Seventh Circuit recently denied an employer’s motion for summary judgment in a closely watched FLSA retaliation case based on circumstantial evidence of a causal nexus between protected activity and an adverse employment action. Kasten v. Saint-Gobain Performance Plastics Corp., No. 12-cv-1671, 2012 U.S. App. LEXIS 24624 (7th Cir. Nov. 30, 2012). The court focused closely on: (i) suspicious timing; (ii) allegedly “ambiguous” statements and behavior; and (iii) purported evidence of pretextual reasons for the adverse employment action. Though this case arises in the FLSA context, it sheds light on the approach the Seventh Circuit other courts can be expected to take in a variety of employment retaliation cases.
SEC Whistleblower Chief: Companies and Their Lawyers Should Not Impede Whistleblowing
In a recent interview with The American Lawyer, Sean McKessey, Chief of the SEC’s Office of the Whistleblower since February 2011, cautioned employers about dissuading potential whistleblowers from complaining to the SEC. Mr. McKessey made his remarks in the wake of the SEC’s recent Annual Report on the Dodd-Frank Whistleblower Program, which revealed that the SEC has received 3,001 tips during its 2012 fiscal year (the first year of this program), and it paid out its first award to a whistleblower in 2012. We described the key portions of the SEC’s Annual Report in our previous post, available here.