Our Blog

Whistleblower Retaliation After Genberg v. Porter and Digital Realty v. Somers

Appellate Victory in Sarbanes-Oxley Act Whistleblower Case More Important Now, After SCOTUS Decision in Digital Realty

On February 21, 2018, the Supreme Court issued its opinion in Digital Realty Trust v. Somers, Case No. 16-1276, -- US – (2018), holding that in order to be protected from retaliation for internal reporting under the Dodd-Frank Act’s Section 21F as a “whistleblower,” which is defined in the statute, the individual must have first made a disclosure to the SEC under the Act’s bounty system. While the decision was not the death blow to Chevron deference that some expected, given Justice Gorsuch’s apparent hatred of the doctrine, it was a significant limitation on the protections for whistleblowers.

Continue reading
  237 Hits
237 Hits

EXECUTIVE AWARDED $1.26M FOR BREACH OF EMPLOYMENT CONTRACT

An El Paso County jury has awarded the former COO and President of a Colorado Springs based physical therapy training company $1.26 million, agreeing that the company had breached its employment contract with the executive and that the founder breached his promise to give one third of the company to the executive.

Continue reading
  115 Hits
115 Hits

Lawson v. FMR: Private Contractors of Public Companies Fall Within SOX Anti-Retaliation Provision

 

Continue reading
  775 Hits
775 Hits

Court Enforces Arbitration Agreement in Dodd-Frank Act Retaliation Case

The court in Wussow v. Bruker Corp., decided on June 28, 2017, ruled that whistleblower claims brought under the Dodd-Frank Act are subject to mandatory arbitration. 

Continue reading
  730 Hits
730 Hits

Free Webinar on July 28th to Celebrate Whistleblower Appreciation Day

Join whistleblower attorney Clayton Wire and the law firm Ogborn Mihm LLP on July 28th at 12:00 pm MST at ilovewhistleblowers.com for a free webinar: Whistleblower Protections & Incentives.

Continue reading
  805 Hits
805 Hits

Jury Awards Whistleblower Over $25 Million in Sarbanes-Oxley Retaliation Case

In April, a Los Angeles County jury awarded $22.4 million in punitive damages (that was later reduced to $2.27 million) along with $2.7 million in lost past and future wages to Steven Babyak in a whistleblower retaliation and wrongful termination case against Cardiovascular Systems, Inc (CSI). Babyak, a former sales manager for the company, argued that he was retaliated against, culminating in termination, after making complaints about a hostile work environment and violations of the Anti-Kickback Act and securities laws under the Sarbanes-Oxley Act. The

Continue reading
  2337 Hits
2337 Hits

SpaceX cleared in $6 Million Whistleblower Lawsuit for Wrongful Termination in Violation of Public Policy

On June 7, 2017, a jury decided in favor of Space Exploration Technologies Corp. after an 8 day trial to determine whether Jason Blasdell had been wrongfully terminated in violation of public policy. Blasdell claimed he was fired after raising concerns about SpaceX’s compliance with 18 U.S.C. Section 38, a federal statute prohibiting fraud against a customer involving aircraft or space vehicle parts. The former Avionics Test Technician working on the Falcon 9 rocket and Dragon spacecraft alleged that he had been wrongfully terminated after voicing concerns about the falsification of test results following safety testing and misrepresentations in connection with SpaceX’s multi-billion dollar contracts with customers including NASA. Specifically, Blasdell claimed that managers told him to sign off on parts quality regardless of whether he could verify their compliance with protocol. Blasdell claims he voiced his concerns to management, as far up as SpaceX President Gwen Shotwell and CEO Elon Musk. 

Continue reading
  776 Hits
776 Hits

Supreme Court to Determine Scope of Protected Activity Under Dodd-Frank Act

Attorney Clayton Wire has recently published a blog post on WhistleblowerBlawg.com regarding the Supreme Court’s grant of certiorari in Digital Realty v. Somers, to resolve a circuit split over whether a whistleblower must first report to the SEC before being entitled to protection under the Dodd-Frank Act’s anti-retaliation provision. Click here to read the full post. 

Continue reading
  609 Hits
609 Hits

Protections for Whistleblowers in Colorado

Generally, in Colorado, an employee who is hired for an indefinite amount of time is considered an at-will employee, meaning employment may be terminated by either the employee or the employer with no notice for any reason or no reason at all. However, Colorado has some protections against whistleblower retaliation for employees in both the public and private sectors.

Continue reading
  1333 Hits
1333 Hits

False Claims Act Whistleblowers Protected Even Without a Successful Qui Tam Lawsuit

The False Claims Act contains a newly broadened anti-retaliation provision that protects whistleblowers who take actions in furtherance of a Qui Tam action, or in an attempt to stop one or more violations of the False Claims Act. This essentially means that employees and others are protected when they collect information in preparation for a Qui Tam lawsuit as a relator, and when they internally blow-the-whistle on what they reasonably believe to be violations of the FCA. Importantly, courts have clarified that generally whistleblowers need not be correct in their reasonable belief, in order to be protected from retaliation.

Continue reading
  1765 Hits
1765 Hits

Bio-Rad Whistleblower Protected for “Reasonable” Incorrect Claim

After only three hours of deliberation, a federal jury in San Francisco determined that Bio- Rad, a life science company, retaliated against its former General Counsel, Sanford Wadler, for reporting violations of the Foreign Corrupt Practices Act (FCPA). Wadler alleged he was fired for reporting possible FCPA violations after he found documents showing Bio-Rad’s distribution of free products in China. Wadler was fired from the company in June 2013.

Continue reading
  812 Hits
812 Hits

Former Wells Fargo Employee Awarded $5.4 million in Whistleblower Retaliation Lawsuit

The Occupational Health and Safety Administration (OSHA) has ordered Wells Fargo to reinstate and compensate an unnamed, former bank manager who was retaliated against and terminated in 2010 after reporting suspected fraudulent behavior to his superiors as well as through a bank ethics hotline. The whistleblower reported separate incidents of suspected bank, mail, and wire fraud by bankers under his supervision in relation to Wells Fargo’s illegal sales practices going back as far as 2005. As many as 2 million checking and credit card accounts were opened under customers’ names without their permission, a violation for which Wells Fargo paid $185 million as a settlement in September 2016.

Continue reading
  1115 Hits
1115 Hits

Whistleblower Statutes Administered by OSHA

The Occupational Safety and Health Administration (OSHA) is responsible for investigating and making at least preliminary decisions on a number of whistleblower claims. Many whistleblower statutes have an administrative exhaustion requirement that forces whistleblowers to first file a complaint with OSHA, as a prerequisite to ever filing a lawsuit in federal court. Some whistleblower statutes also only permit a whistleblower to litigate his or her claims through the administrative process, without ever being able to bring a lawsuit in federal court. Consequently, it is imperative that whistleblowers who have suffered retaliation timely file their complaint with OSHA, since failure to file a complaint within the prescribed timelines will forfeit even a meritorious claim.

Continue reading
  819 Hits
819 Hits

Dodd-Frank Act Whistleblower Bounty and Retaliation Claim Basics

In 2010, Congress enacted the Wall Street Reform and Consumer Protection Act, otherwise known as the Dodd-Frank Act, in response to the banking and investment problems that led to the 2008 economic recession. The Dodd-Frank Act was an amendment of the Securities Exchange Act of 1934 and sought to more stringently regulate the U.S. financial industry, specifically large banks and insurance companies, to prevent failures that have major negative effects on the national and global economies.

Continue reading
  837 Hits
837 Hits

Sarbanes-Oxley Act Whistleblower Protection Basics

In an attempt to restore trust in financial markets following the collapse of Enron Corporation, Congress enacted the Sarbanes-Oxley Act in 2002. Often considered one of the most important whistleblower protection laws due to its diverse administrative, criminal and civil provisions, the Sarbanes-Oxley Act contains significant protections for whistleblowers to ensure that employees can safely disclose information which may harm investors, especially fraud. Modeled on whistleblower laws administered by the U.S. Department of Labor and the Whistleblower Protection Act, these protections are not limited to wrongfully discharged employees, but include additional requirements to create a more encompassing protection network and give more responsibility to corporations for managing complaints internally.

Continue reading
  1303 Hits
1303 Hits

Federal False Claims Act Basics

Enacted during the Civil War by President Abraham Lincoln and strengthened in 1986, 2009, and 2010, the Federal False Claims Act (FCA) bestows liability on anyone who makes, causes, or conspires to make a false or fraudulent claim to the United States government, including situations in which a person falsely certifies compliance with a condition of payment or recklessly ignores the falsity of claim. Fines under the FCA can range from $5000- $10,000 (adjusted for inflation) in addition to 3 times the amount of damages that the government sustains due to the false claim. The defendant will also be liable for any costs of litigation incurred to recover these damages. The general statute of limitations is 6 years from the date of violation.

Continue reading
  772 Hits
772 Hits

Victory by EEOC is Example of Increase in Pregnancy Discrimination

The EEOC recently announced that a federal judge awarded a default judgment of $148,000 against a Milwaukee based medical staffing firm, based upon allegations by the firm’s former bookkeeper that she was subjected to pregnancy discrimination.  The EEOC’s suit alleged that the owner of HCS Medical Staffing, Inc. discriminated against Roxy Leger when he made offensive comments about her pregnancy and fired her because she needed to take maternity leave following the birth of her child.  In entering the default judgment the federal judge stated that the “circumstances leading up to HCS’s discriminatory termination of Leger were inherently humiliating and caused Leger substantial emotional distress.  The circumstances surrounding Leger's notification of termination were equally degrading.”  According to the EEOC, the judge summarized the alleged pregnancy discrimination, and found that HCS’s owner referred to Leger’s pregnancy as a joke; insisted that maternity leave last no more than a couple of days; suggested that Leger’s pre-natal appointments were a ruse for additional time off or for money; and gave Leger an offensive graphic diagram of a machine which would allegedly allow Leger to return from her maternity leave sooner.  With no prior warning or discipline, HCS terminated Leger’s employment and stopped her health insurance coverage while she was still in the hospital recovering from a Caesarean section.  Leger learned of her termination days later by certified mail.The EEOC’s victory on behalf of Ms. Leger is an exciting resolution of a compelling case, but unfortunately Ms. Leger is not the only woman who has suffered harassment or discrimination as a result of being pregnant.  In this rough economic climate, an increasing number of women who are expecting are continuing to work through their pregnancy.  This presence of pregnant employees has brought to light many instances of harassing or discriminatory conduct by employers.  Generally, pregnancy discrimination violates Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, which precludes discrimination based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment.  Additionally, pregnancy caused impairments, such as gestational diabetes or preeclampsia, may be disabilities under the Americans with Disabilities Act (ADA), which requires an employer to provide reasonable accommodations such as leave or work modifications.  Moreover, under the Family and Medical Leave Act (FMLA), a new parent may be eligible for 12 weeks of leave to care for the new child.If you believe that your employer is harassing or discriminating against you because of your pregnancy, or the effects of your pregnancy, give Clayton Wire of Ogborn Mihm LLP a call to discuss your potential claims.
  2026 Hits
2026 Hits

New IRS Regulations Make Certain Damage Awards and settlements Non-Taxable

The IRS issued new regulations on January 23, 2012, regarding the taxation of damages for injuries or sickness that are received through settlement or judgment.  The new regulations, 77 Fed. Reg. 3106, maintain the previous rule that emotional distress damages received through settlement or judgment are taxable income.  However, if the emotional distress is attributable to a physical injury or physical sickness, then the damages may be non-taxable, and some medical expenses for emotional distress are also excluded.  Another change in the regulations strikes the old requirement that to be excluded the damages must be based on an action that sounds in tort.  Now, the regulations provide for much broader coverage of damages.  In an employment discrimination, harassment or retaliation context, this means that a plaintiff’s recovered damages, whether through settlement or judgment, may be non-taxable if those damages resulted from physical injury or physical sickness, or if they resulted from emotional distress that was caused by or exacerbated by physical injury or physical sickness.  While taxation issues may not be the first thing on an employee’s mind when they suffer workplace discrimination, workplace harassment, or retaliation for reporting wrongful activity, it is good to know that in some cases the damage settlement or judgment that results from these wrongful employment practices is non-taxable.  Employees who believe that they have been discriminated against, harassed, or retaliated against should contact Clayton Wire at Ogborn Mihm LLP immediately to discuss their potential claims.  Although we are not tax attorneys, we may be able to help wronged employees get to the point where they need to worry about tax matters.

  3686 Hits
3686 Hits

Whistleblower’s False Claims Act Lawsuit Results in $6.3 Million Settlement by Denver Health for Medicare and Medicaid Patient Misclassification

Documents from the recently unsealed case of U.S. ex rel Curren v. Denver Health Medical Center et al. reveal that Denver Health has agreed to a $6.3 million settlement with the federal government.  This settlement will resolve claims alleging that Denver Health inappropriately classified patients as receiving “inpatient” care in order to receive higher Medicare and Medicaid payments. Whistleblower Joanne Curren will receive $818,000 as a result of the federal government’s settlement with Denver Health.  Ms. Curren was an accountant who noticed the inappropriate classifications and payments and reported these issues internally to her superiors.  Rather than remedying the inappropriate classification and self-reporting the overpayments to the government, Denver Health terminated Ms. Curren.  Ms. Curren’s Complaint asserted False Claims Act (FCA) claims for fraudulent Medicare and Medicaid payments, as well as a claim under the FCA for retaliation.  The FCA allows individuals to act as “relators” in claims against corporations that defraud the government, and provides substantial monetary incentives in the form of a percentage of the settlement or judgment.  The FCA also provides protection for whistleblowers, such as Ms. Curren, who engage in activity in furtherance of a FCA claim, essentially barring an employer from retaliating against an employee for pursuing a FCA claim.  Individuals who know of a violation of the FCA or have been retaliated against for reporting their employer’s fraud, internally or externally, should contact the experienced employment law team at Ogborn Mihm LLP immediately to discuss their potential claims.

  1980 Hits
1980 Hits

Fired for Facebook Posts: Social Media Postings May Constitute Protected “Concerted Activity”

Under a series of recent decisions by the National Labor Relations Board (NLRB), employees who are retaliated against for posting comments on social media websites regarding work conditions may be protected by Sections 7 and 8 of the National Labor Relations Act.  Under these sections employees have the right to engage in concerted activity for the purpose of “mutual aid or protection,” regarding work conditions, and employers cannot retaliate against employees for exercising such rights.  This protection applies regardless of whether the employees are unionized or not.  In one particular case an employee called her boss a “scumbag” on her Facebook page after she had been reprimanded about a customer complaint, which drew various positive responses from her co-workers.  Such activity was found by the NLRB to be protected activity, as it concerned the conditions of the employee’s employment and was joined in by other employees.  The real issue with such postings is usually whether the posting is actually a comment regarding work conditions, or whether it strays into the unprotected area of “opprobrious” comments.  “Opprobrious” comments are often characterized as mere gripes and sudden outbursts against management.  However, regardless of the details, the NLRB’s recent decisions represent a shift in application of the decades old protections for concerted activity to a modern realm of organization and communication.  Facebook, Twitter, LinkedIn and other social media websites are the newest arenas for collective action of all sorts.  One need not look further than the recent Occupy movement and the revolutions across the Arab world for confirmation of this.  Thus it is not surprising that the NLRB would defend those that engage in protected activity in these arenas from illegal employment actions.  Individuals who have been terminated or otherwise retaliated against for work related postings on social media websites should contact Ogborn Mihm LLP to discuss their potential claims.

  2539 Hits
2539 Hits
  • Best Law Firms 2018
  • Primerus
  • Best Lawyers
  • AV
  • Abota
  • Super Lawers
  • Leaders Forum

Contact Us