Whistleblower and Retaliation Claims


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CLE Presentation: Narcisa Symank and Jennifer Arendes, Litigation Partner at Armstrong Teasdale

A poorly performing employee realizes he’s going to be fired so he attempts to become a whistleblower by complaining that his boss or co-workers have been violating laws while carrying out company business. Learn how to protect yourself in an increasingly uncertain legal environment.

The choice of a lawyer is an important decision and should not be based solely on this presentation. All rights are reserved and content may not be reproduced, disseminated or transferred, in any form or by means, except with the prior written consent of Armstrong Teasdale.

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Whistleblower and Retaliation Claims

  1. 1. © 2013 Armstrong Teasdale LLP
  2. 2. Retaliation and Whistleblower Claims Presented by: Narcisa Symank Jennifer Arendes© 2013 Armstrong Teasdale LLP
  3. 3. Claims on the Rise OSHA: 19% increase in whistleblower claims between 2008 and 2011 EEOC:© 2013 Armstrong Teasdale LLP
  4. 4. High Cost  Median jury awards for retaliation: highest of all employment claims -- $225,000 •  Median settlements for retaliation:  • tied with discrimination claims as highest employment settlements  Recent example of high award: • $413,000.00 (plus attorneys’ fees) award in Marez v. Saint-Gobain Containers, et al. (No. 11-2354, 8th Cir. 2012)© 2013 Armstrong Teasdale LLP
  5. 5. Government IncentivesGovernment incentives to employees for reporting potentialwrongdoing:© 2013 Armstrong Teasdale LLP
  6. 6. What is a Retaliation Claim?  Protected Activity  Materially Adverse Employment Action  A Causal Relationship© 2013 Armstrong Teasdale LLP
  7. 7. What is Protected Activity?  Not all workplace complaints are protected activity  To constitute protected activity, an employee’s complaint must be protected by the U.S. Constitution, federal or state statute or state common law© 2013 Armstrong Teasdale LLP
  8. 8. Protected Activity – cont’d.  The “basics:” • Complaint of discrimination or harassment • Request for an accommodation • Request for leave under the FMLA© 2013 Armstrong Teasdale LLP
  9. 9. Protected Activity – cont’d.  FLSA • Complaint of misclassification of employees as exempt from overtime • Complaint of misclassification of employees as independent contractors • Complaint of failure to pay wages including overtime© 2013 Armstrong Teasdale LLP
  10. 10. Protected Activity – cont’d.  OSHA • Exercise of any right afforded by OSHA : − Complaining to the union, OSHA, or any government agency about workplace safety or health hazards − Participating in OSHA inspection conferences, hearings, or other OSHA related activities© 2013 Armstrong Teasdale LLP
  11. 11. Protected Activity – cont’d.  The Sarbanes-Oxley Act • Complaints of violations of the federal mail, wire, bank, or securities fraud statutes • Complaints of any violations of any rule or regulation of the SEC • Complaints of violations of any other provision of federal law relating to fraud against shareholders© 2013 Armstrong Teasdale LLP
  12. 12. Protected Activity – cont’d.  The NLRA • Forming or attempting to form a union • Refraining from activity on behalf of a union • Attending meetings to discuss joining a union • Wearing union buttons, T-shirts, stickers, hats or other items on the job • Signing a petition for improved wages, hours, or conditions • Asking other employees to support the union, to sign union cards or petitions, or to file grievances© 2013 Armstrong Teasdale LLP
  13. 13. Protected Activity – cont’d.  The Consumer Product Safety Improvement Act • Reporting alleged violations of any law or regulation within the jurisdiction of the Consumer Product Safety Commission • Refusing to perform assigned tasks that the employee reasonably believes would violate CPSC requirements© 2013 Armstrong Teasdale LLP
  14. 14. Protected Activity – cont’d.  Reports of violations of environmental laws or regulations: • Clean Air Act • Safe Drinking Water Act • Federal Water Pollution Control Act • Toxic Substances Control Act • Solid Waste Disposal Act • Comprehensive Environmental Response, Compensation, and Liability Act© 2013 Armstrong Teasdale LLP
  15. 15. Protected Activity – cont’d.  Missouri Common Law: • An employee has a cause of action when he or she has been discharged for: − Refusing to perform an illegal act or an act contrary to a strong mandate of public policy − Reporting the employer or fellow employees to superiors or third parties for their violations of law or public policy − Acting in a manner public policy would encourage − Filing a claim for workers’ compensation© 2013 Armstrong Teasdale LLP
  16. 16. Whistleblower Claims Under Missouri Law© 2013 Armstrong Teasdale LLP
  17. 17. Elements of a Whistleblower Claim Under Missouri Law  To prevail on a claim of wrongful discharge for whistleblowing, an employee must establish that: • The employee reported a violation of law or well established public policy to a superior or to public authorities; • The employee was discharged or forced to resign; • The report was a “contributing factor” to the employer’s decision to discharge the employee; and • The employee sustained damages© 2013 Armstrong Teasdale LLP
  18. 18. Who Does the Employee Have to Blow the Whistle to?  Employee need not report the wrongdoing to the authorities or someone outside the company  But employee cannot report the violation to the person engaged in the wrongdoing  Drummond v. Land Learning Foundation, 358 S.W.3d 167 (Mo. App. 2011)© 2013 Armstrong Teasdale LLP
  19. 19. What Type of Misconduct must Employee Report?  Employee must show that he reported “serious misconduct” that constitutes a violation of law or well established public policy  The violation need not result in criminal sanctions, civil fines, injunctions or disciplinary action against a professional license  A whistleblower retaliation claim must be based on a specific constitutional provision, statute, regulation or rule promulgated by a governmental body© 2013 Armstrong Teasdale LLP
  20. 20. When Does the Report Constitute Protected “Whistleblowing”?  Margiotta v. Christian Hospital Northwest, 315 S.W.3d 342 (Mo. banc 2010)  Frevert v. Ford Motor Co., 614 F.3d 466 (8th Cir. 2010)  Richter v. Advance Auto Parts, Inc., 686 F.3d 847 (8th Cir. 2012)  Ascare v. Mastercard International Inc., 2012 WL 3548028 (E.D.Mo. Aug. 16, 2012)© 2013 Armstrong Teasdale LLP
  21. 21. Must Employee Demonstrate That Law or Public Policy Was Violated?  Bazzi v. Tyco Healthcare Group LP, 652 F.3d 943 (8th Cir. 2011) • Terminated employee provided no evidence that the employer failed to properly validate drug as required under the Food and Drug Act  Zasaretti-Becton v. The Habitat Co. of Missouri, 2012 WL 2396868 (E.D.Mo. June 25, 2012) • Terminated property manager’s personal belief that wrongdoing by supervisor violated HUD regulations regarding low income housing was not sufficient.  McNerney v. Lockheed Martin Operations Support, Inc., 2012 WL 2131826 (W.D.Mo. June 12, 2012) • Employee did not show objectively reasonable belief that employer’s billing policies constituted violation of law or well established public policy.© 2013 Armstrong Teasdale LLP
  22. 22. Causation Requirement  Employee need only show that the whistleblower conduct was a “contributing” factor in the employer’s decision to discharge him Fleshner v. Pepose Vision Institute, PC, 304 S.W.3d 81 (Mo. banc 2010) • Rejected “exclusive factor” test used in prior cases and workers’ compensation retaliation cases© 2013 Armstrong Teasdale LLP
  23. 23. Avoiding Whistleblower Retaliation Claims  Develop and publish policies which specifically prohibit retaliation for reporting violations of laws, regulations and company policies  Train managers, Human Resources and other employees  Promptly investigate claims and remind participants in investigations of anti-retaliation policy  Take prompt remedial action  Document as needed© 2013 Armstrong Teasdale LLP
  24. 24. Implement Understandable and Well Publicized Policies  Make it known that “reporting” is a good thing  Develop procedure for reporting violations of company policies, laws and regulations  Require reporting within 1-2 business days  Prohibit retaliation for reporting misconduct  Designate high-level person to oversee handling of such reports© 2013 Armstrong Teasdale LLP
  25. 25. Develop Effective Training/Communication Plan  Train managers and Human Resources professionals to recognize “protected activity”  Train employees and managers to promptly report wrongdoing to Legal/Human Resources/Compliance  Train managers how to respond/or not respond© 2013 Armstrong Teasdale LLP
  26. 26. Develop Procedures to Investigate/Respond to Complaints  Develop procedure to investigate complaints  Decide who will take charge of handling such reports  Establish guidelines for enforcement and corrective action  Reiterate anti-retaliation policy during investigation  Follow up with employee after the investigation  Document© 2013 Armstrong Teasdale LLP
  27. 27. Contact Information Narcisa Symank nsymank@armstrongteasdale.com 314.342.4176 Jennifer Arendes jarendes@armstrongteasdale.com 314.552.6607© 2013 Armstrong Teasdale LLP