Renewed Focus on Whistleblower Claims

Transcription

1 DoubleHeader Renewed Focus on Whistleblower Claims Presented by: Jim Levin, Corporate Partner, Winston & Strawn Dan Rubinstein, Litigation Partner, Winston & strawn Monique Ngo-Bonnici, Labor & Employment Partner, Winston & Strawn January 28, 2015

2 Presenters Jim Levin Partner Winston & Strawn Based in LA with 30 years of experience in mergers and acquisitions, securities offerings, and advising boards of directors on corporate governance matters. Dan Rubinstein Partner Winston & Strawn Based in Chicago with 20 years of trial experience successfully resolving sophisticated civil and criminal cases at trial. He regularly conducts highly sensitive internal investigations, including whistle blower complaints. Monique Ngo-Bonnici Partner Winston & Strawn Based in LA with 10 years of experience in employment matters, including whistleblower claims, claims for wrongful termination, employment discrimination, harassment, breach of contract claims, and wage and hour claims. 2

3 Renewed Focus on Whistleblower Claims Retaliation is fastest growing employment claim Retaliation claims surpassed discrimination claims filed with the EEOC in 2010 Retaliation claims filed with the EEOC increased 100% between 1992 and 2006 Often pled in addition to statutory claims, but a plaintiff can lose on a statutory claim and prevail on a retaliation claim New legislation and potential claims Standards may make dismissal and summary judgment less likely Believed to have more traction with juries Awards generally higher than EEO discrimination and state law claims Generally provide for make-whole remedies, punitive and liquidated damages, and attorneys fees Alternative claims/remedies available

4 Famous Whistleblowers Cynthia Cooper of WorldCom Coleen Rowley of the FBI Sherron Watkins of Enron Jeffrey Wigand of Brown & Williamson ( The Insider )

5 A Veritable "Alphabet Soup" of Claims Federal EEO laws (other than, potentially, 1981) AHER AEERA CAA CMVP CERCLA and other environmental statutes EPPA ERISA FCA FCRA FLSA FMLA FDIC FMHSA FRSA Jones Act LMRA and NLRA LHWCA MSAWPA NTSSA OSHA PSIA RSRA SOX civil and criminal STAA Wendell H. Ford WPA State wrongful discharge claims State whistleblower statutes And more to come...

6 Dodd-Frank Act Whistleblower Provisions Enacted July 21, 2010 Amends SOX to broaden scope of coverage Applies now to subsidiaries and other related entities Expands to nationally-recognized statistical rating organizations Exempts SOX whistleblower claims from mandatory arbitration Clarifies that SOX claims can be tried before a jury Bypasses administrative proceedings No preliminary administrative requirement May file with OSHA; or May file an initial complaint directly in federal district court

7 Dodd-Frank Act Whistleblower Provisions (Cont.) Internal complaints constitute protected activity, Kramer v. Trans-Lux Corp., 2012 WL (D. Conn. 2012) Whistleblowers not required to use internal whistleblower procedures Amends SOX statute of limitations to 180 days after date employee aware of violation Extends statute of limitations under new Whistleblower Program to six years after violation or three years after facts material to right of action are known or reasonably should have been known

8 Dodd-Frank Act Whistleblower Provisions: Increased Relief for Successful Claimants SEC Enforcement Actions: SEC required to pay percent of monetary sanctions in enforcements exceeding $1 million to a whistleblower who: Voluntarily provided original information, which Led to a successful enforcement of an action Whistleblowers (reporting internally or to the SEC) are protected from retaliation by providing them with a cause of action that provides relief in the form of reinstatement, double back-pay, and attorney fees

9 Patient Protection and Affordable Care Act: False Claim Act (Qui Tam) Amendments The False Claims Act ( FCA ) Includes provisions under which citizens can assist in the detection and enforcement of frauds against the government Authorizes private citizens to sue on behalf of the government ( qui tam ) when they detect a fraud that is not already the subject of a federal enforcement action PPACA greatly expands FCA coverage and liability for whistleblower suits under FCA Limits public disclosure bar to federal sources and news media Expands definition of original source by eliminating direct knowledge requirement

10 Patient Protection and Affordable Care Act 1558: FLSA Amendment Section 1558 Amends Fair Labor Standards Act Whistleblower Protection Prohibits retaliation against an employee who provides or is about to provide to an employer, the Federal Government, or a state Attorney General, information that the employee reasonably believes to be a violation of the PPACA (Title 1) Protects individuals who participate in investigations or object to or refuse to participate in any activity that the employee reasonably believes to be a violation of the PPACA Contributing Factor Burden of Proof Reasonable Belief Standard: No Actual Violation Necessary The complaint must be filed with OSHA within 180 days of the employee becoming aware of the retaliatory adverse action. Remedies include reinstatement, back pay with interest, special damages, attorney s fees, litigation costs, and expert witness fees

11 Whistleblower Protection Enhancement Act of 2012 Removes judicially created limitations on whistleblower protection under Whistleblower Protection Act (WPA) Expanded Protection for Disclosures of Government Wrongdoing Protects whistleblower even if not the first person to disclose misconduct Protects disclosures to coworkers or supervisors Clarifies that whistleblowers are protected for challenging the consequences of government policy decisions Protects disclosures made while carrying out job duties Suspends the Federal Circuit Court of Appeals sole jurisdiction on appellate review

12 Emerging Issues In Whistleblower Claims

13 Summary of Recent Developments Scope of coverage Definition of protected activity Objective v. subjective reasonableness Impact of scope of job duties Knowledge requirement Choice of forum federal/state agency v. federal or state court Interaction with state tort claims and federal and state anti-discrimination laws Preemption Exhaustion Collateral estoppel

14 Scope of Coverage Courts remain divided concerning the definition of the scope of the whistleblower statutes Does the employee have to complain about activities that fall within the explicit coverage of the statute? For instance, to assert a SOX or FCA whistleblower claim, does the employee have to complain about fraud as defined in the statute? In a Title VII retaliation claim, does the plaintiff have to complain about discriminatory conduct or harassment that satisfies the elements of McDonnell Douglas?

15 Recent Decisions Jordan v. Alternative Res. Corp., 458 F.3d 332 (4th Cir. 2006) Employee not protected because he complained about single racial slur of co-worker that was not actionable Platone v. FLYi, Inc., 548 F.3d 322 (4th Cir. 2008) To engage in protected whistleblowing under SOX, a whistleblower must provide information that definitively and specifically relates to a violation of one of the laws, rules, or regulations listed in SOX Sylvester v. Parexel Int l LLC, ARB No (May 25, 2011) Definitively and specifically standard has evolved into an inappropriate test and the focus should be on whether the employee reported conduct that he or she reasonably believes constituted a violation of federal law

16 Definition of Protected Activity Two general categories: Opposition prong Complaint must be made in good faith and have reasonable basis Participation prong Complaint protected regardless of whether it has reasonable basis

17 Opposition Prong Balancing test: Rights of employees to engage in oppositional conduct v. employer's right to control its workforce and maintain confidentiality Courts generally apply a two-pronged analysis: Did the complainant have an objective, good faith belief that a violation occurred? Would a reasonable person (based on the information known to the complainant at the time) have concluded in good faith that a violation occurred?

18 Participation Prong Protected activity of participation can include: Making a charge Testifying Assisting or participating in any manner in an investigation, proceeding or hearing Protection extends to an employee s own claims and those of others in the workplace. Protection from retaliation even when baseless charges are filed, so long as there was a reasonable belief of wrongdoing.

19 Reasonable Belief Standard Not protected if fabricated or false In determining whether reasonable, courts consider: What the employee knew The employee's knowledge, position and experience The efforts undertaken by the employee to investigate the concerns The specificity of the allegations Time period between the knowledge and the report Complaint may still be protected even though: Others in company already reported Violation public or the subject of federal investigation The alleged violation was corrected Generally not protected if complaint is based on a mere suspicion or opinion

20 Impact of the Complainant's Job Duties Courts and administrative agencies are divided over whether employee engages in protected whistleblowing when he is merely doing his job Frequently arises with in-house attorneys, auditors, compliance officers and investigators Factors considered: Scope of the employee s duties How and about what the employee complained Whether the employee identified a federal agency or whistleblower statute in connection with his complaint How the company responded/reacted to the complaint/conduct of the employee

21 Recent Decisions Compare Mason v. Merit Sys. Prot. Bd., 496 F. App x 75 (Fed. Cir. 2013) Disclosures to Federal Security Director of potentially fraudulent taxi fare and unapproved spending on government purchase card were within employee s normal job duties and were thus unprotected under WPA), with Whistleblower Protection Enhancement Act of 2012 (clarifying that disclosures made while carrying out job duties are protected under WPA) Garcetti v. Ceballos, 547 U.S. 410 (2006) Statements by public employees in the course of performing their job duties not constitutionally protected Sasse v. Dep t of Labor, 409 F.3d 773 (6 th Cir. 2005) Plaintiff could not maintain whistleblower claim under CAA, SWDA or CWA because he had a fiduciary duty to conduct the investigation

22 Recent Decisions Little v. Shell Exploration & Prod. Co., 690 F.3d 282 (5th Cir. 2012) Federal employees have standing to bring FCA qui tam suits even when they discover fraud in the course of official job duties, but disclosure was involuntary if they were employed specifically to disclose fraud Maturi v. McLaughlin Research Corp., 413 F.3d 166 (1 st Cir. 2005) Agreeing with a number of circuits in FCA suits that where an employee oversees government billings or payments as a part of his regular job responsibilities, he must make it clear that his actions go beyond his regular duties to establish that his employer was on notice that he was engaged in protected conduct

23 Knowledge Requirement Generally, courts look at what the employer knew at the time of the adverse employment action Key issue is who must know about the protected activity Any manager who imputes knowledge to the company? The decision-makers? Others involved in the decision-making process? Did the employer know based on the statements and conduct of the employee that that he was engaging in protected conduct, considering: The plaintiff s responsibilities within the company What the employee complained about or reported To whom he reported the information What the employee said (or threatened) that he was going to do

24 Responding to the Developments in the Law Develop and publicize a whistleblower policy as part of a comprehensive package of compliance, ethics and EEO policies that: Clearly defines what constitutes fraud, discrimination, harassment or other protected conduct Imposes an affirmative duty to report Provides for a hotline and other mechanisms for reporting Document for each complaint and communication: To whom complained Exact issues about which he complained Any threatened actions Actions taken by employer in response Restrict knowledge of supervisors and decision-makers, if possible Develop evidence relevant to the protected activity and notice issues in the investigation Also, for employees involved in uncovering and investigating wrongful conduct: Identify responsibilities in writing in job description Identify the lines of and mechanisms, including report and investigation forms, for job-related reporting and investigation of fraud or other wrongful conduct Only operate outside of those "routine" procedures and lines of reporting in situations where the employee clearly notifies supervisors or others that he is pursuing or may pursue a whistleblower claim

25 Investigating Whistleblower Claims

26 Assessing the Complaint Which whistleblower laws are implicated? Which entities or affiliates are covered by the complaint? How many employees are involved in the allegations? Why is the company conducting an investigation? Should inside or outside counsel handle the investigation? Is there potential criminal, civil or regulatory risk? Do the issues raised involve past or ongoing safety risk? Is the alleged conduct ongoing? If allegations are true, what is the potential financial impact? What are the positions and lines of reporting of the complainant and accused?

27 Implementing the Investigation Plan Contact the complainant Form the investigative team Engagement with outside counsel or investigators must be for rendering legal advice Become familiar with policy allegedly violated, as well as potential state and/or federal law which may implicate mandatory disclosure Identify, image, and analyze employee communications and relevant documents Identify potential employees to interview Key determination: Was there really a causal link between protected activity and adverse action?

28 Conducting Employee Interviews Arrange interview through HR personnel Meeting invite should confirm confidential nature of the request Create an interview outline (but be flexible during the interview) Typically, interview the subject of the investigation last First, give the employee Upjohn warnings Interview in a two-person team (notetaker) Consider whether in-house counsel should be present Prepare an interview memorandum

29 Maintaining the Privilege Investigative actions must be taken at direction of counsel Mark notes, communications, and work product as privileged Consider whether to create a written investigative report or report orally All reports are for the purpose of rendering legal advice. See, e.g. In re: General Motors LLC, Ignition Switch Litigation, 14 MD If uncover criminal conduct and refer to an investigative body, there is a risk of some waiver

30 Concluding the Investigation Must be reasonably exhaustive, but the investigation must come to an end If create a written report, consider the audience Assess any self-reporting obligation Determine any disciplinary recommendations Consider implementing remediation measures, such as training or guidance to relevant employee or companywide Inform complainant of outcome

31 Putting Theory Into Practice

32 Putting Theory Into Practice Well-liked senior accountant for a publicly traded company refuses to process expense reimbursements for a sales event held at a resort in Hawaii. The 5 day event included only a 1 hour business meeting. Expenses for the event amounted to over $100,000 and included bar tabs, luaus, hotel rooms, air fare, and golf. Senior accountant sends to CFO and expresses belief that costs needed to be charged as income to attending employees who brought spouses or guests and that any other treatment would result in tax fraud. Is he a whistleblower?

33 Putting Theory Into Practice (Cont.) Imagine the well-liked senior accountant did not send an to the CFO and instead reported the misconduct through the company hotline Should the company alert the employee that it has received the complaint and update the employee on the investigation? Should the investigation be memorialized in a written report?

34 Putting Theory Into Practice (Cont.) Assume that while company is investigating accountant s allegations, another accountant who works with senior accountant and has a reputation for being a chronic complainer, claims that he sexually harassed her. Should the company look into her allegations or will this be seen as retaliation against the senior accountant for complaining of the alleged tax fraud?

35 Putting Theory Into Practice (Cont.) The investigation reveals that senior accountant engaged in some inappropriate behavior with other women in his accounting department (not the one who complained) and CFO now wants to fire him. Should he be fired? What if the behavior with the other women was consensual?

36 Putting Theory Into Practice (Cont.) Imagine that at the same time as the sexual harassment investigation, senior accountant becomes more vocal about his complaints of accounting irregularities? Does that change your opinion as to whether the sexual harassment investigation should continue?

37 Putting Theory Into Practice (Cont.) Imagine that at the same time that senior accountant is becoming more vocal, the CFO is pushing harder for his termination and is complaining that he has become more disruptive, his work product is unreliable and he is violating the company s grooming standards? What do you do now?

38 Thank you. 38