Whistleblower Law

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The American Recovery and Reinvestment Act of 2009 gave protection to employees who blew the whistle on their companies bad behavior.

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  • The objectives for this presentation will include reviewing the Whistleblower Law, then discussing some actions and remedies, and finally concluding with best practices for your organization.
  • ‘Food for thought’ for you to consider moving forward. Will there be an increase in employees reporting misconduct because of the protection provided now…the potential for monetary damages for the whistleblower if retaliation is proven?That is all to be determined, as legislation is ever changing.
  • Whistleblower Law

    1. 1. Whistleblower ProvisionUnder the American Recovery and Reinvestment Act of 2009 “ARRA”
    2. 2. Whistleblower Objectives Review law Summarize actions and remedies Suggest best practicesWhistleblower © Gary Wheeler, The Virtual HR Director, LLC 2
    3. 3. ARRA 2009 Effective February 2009 Economic stimulus package intended to provide a “jump start” to the U.S. economy in wake of the economic downturn Worth about $787 billion Includes federal tax cuts, expansion of unemployment benefits, and other provisionsWhistleblower © Gary Wheeler, The Virtual HR Director, LLC 3
    4. 4. Whistleblower A whistleblower is a person who alleges concealed misconduct on the part of an organization or body of people, usually from within that same organizationWhistleblower © Gary Wheeler, The Virtual HR Director, LLC 4
    5. 5. Whistleblower Examples:  False Claims Act  Big Tobacco Scandal  EnronWhistleblower © Gary Wheeler, The Virtual HR Director, LLC 5
    6. 6. ARRA’s Whistleblower Provision Prohibits any non-federal employer receiving „covered funds‟ from firing, demoting, or otherwise discriminating against an employee in retaliation for disclosing information „Covered funds‟ are defined as any contract, grant, or other payment from the federal government or other funds appropriated or made available under ARRAWhistleblower © Gary Wheeler, The Virtual HR Director, LLC 6
    7. 7. Protected Disclosures Gross mismanagement of an agency contract or grant relating to covered funds; Gross waste of stimulus funds; Substantial and specific danger to public health or safety through use of stimulus funds; Abuse of authority in the implementation of stimulus funds; or Violation of a law, rule, or regulation governing a contract or grant, awarded or issued relating to the stimulus funds.Whistleblower © Gary Wheeler, The Virtual HR Director, LLC 7
    8. 8. Who is Covered?ARRA‟s protections extend to: Employees who report their suspicions to an official outside the organization And to those who report their suspicions internally to their employerWhistleblower © Gary Wheeler, The Virtual HR Director, LLC 8
    9. 9. Establishing Retaliation Employee Needs to demonstrate that the protected disclosure constituted a “contributing factor” in the reprisal against the employee Can show proof by circumstantial evidence including  information regarding the decision-maker‟s knowledge of the disclosure  timing of the reprisal relative to the disclosureWhistleblower © Gary Wheeler, The Virtual HR Director, LLC 9
    10. 10. Establishing Retaliation Employer To rebut the allegation of reprisal, employer must demonstrate with clear and convincing evidence that it would have taken the action constituting the alleged retaliation in the absence of the disclosureWhistleblower © Gary Wheeler, The Virtual HR Director, LLC 10
    11. 11. Actions and Remedies Whistleblowers may pursue a civil action in federal court, with a right to a jury trial Employee may recover uncapped compensatory damages, as well as costs, attorneys‟ fees, and expert witnesses‟ fees Claims may not be waived by agreement, policy, form, or as a condition of employment Claims are not subject to employment arbitration agreements (with the exception of collective bargaining agreements)Whistleblower © Gary Wheeler, The Virtual HR Director, LLC 11
    12. 12. Organizational Impact Increase in Whistleblower activity due to the following:  Expansive list of protected disclosures  Relatively light burden of proof on the whistleblower to establish retaliation  Potential for unlimited monetary damagesWhistleblower © Gary Wheeler, The Virtual HR Director, LLC 12
    13. 13. Best Practices Post notice of the rights and remedies relating to ARRA‟s whistleblower provision Review and update company‟s code of conduct Ensure a complaint procedure is in place Train managers and supervisors on handling complaints and emphasize no-retaliationWhistleblower © Gary Wheeler, The Virtual HR Director, LLC 13
    14. 14. Food for Thought Will there be an increase in whistleblowing? In turn, will there be an increase in employer retaliation; therefore, more lawsuits?Whistleblower © Gary Wheeler, The Virtual HR Director, LLC 14
    15. 15. Whistleblower Information For additional information go to: www.recovery.gov http://www.thevirtualhrdirector.com gary@thevirtualhrdirector.comWhistleblower © Gary Wheeler, The Virtual HR Director, LLC 15

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