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The 2008 Hawai'i
Employment Law Seminar
  PROTECTIONS FROM
   WHISTLEBLOWERS

The Olipares Verdict and Beyond

 Jeffrey S....
Olipares v. C&C of Honolulu

• Nancy Olipares: Executive Director of the
  Oahu Workforce Investment Board
• Accused the c...
Olipares v. C&C of Honolulu

• Olipares said she raised concerns
  about the city administration
  quot;improperly interfe...
Olipares v. C&C of Honolulu

• Department of Community Services had
  federal workforce development contracts
  for servic...
Olipares v. C&C of Honolulu
• quot;And the city, from that moment on, began to go
  after Nancy,quot; said David Simons, h...
Olipares v. C&C of Honolulu

• Ultimately, Olipares’ Contract as
  Executive Director of OWIB was not
  renewed.
• She cla...
Olipares v. C&C of Honolulu
The Jury awarded her:
 $3,000,000
Employee Sources of
         Protection
Tort Claims
Statutory Claims
• Specifically protecting whistleblowers
• Non-retali...
WHISTLEBLOWERS’
PROTECTION ACT (“WPA”)
      • Protects employees who
        report violations or
        suspected viola...
Elements of a WPA
         Reporting Claim
Employee must prove:
1. He or she reported or was about to report a
   violatio...
Elements of a WPA
       Reporting Claim
Employee must prove:
Elements of a WPA
       Reporting Claim
Employee must prove:
Elements of a WPA
     Participating Claim
Employee must prove:
Affirmative Defenses
    to WPA Claims:
    “Report was False”
Affirmative Defenses
    to WPA Claims:
 “it would have occurred anyway”
HOW RETLIATION
         LAWS WORK
Elements of a Retaliation claim:
• Employee must show:
  – He/she engaged in protected c...
Establishing the Causal
          Connection
Established through
• Direct Evidence
  – Express statement that the employee...
Establishing the Causal
         Connection
Implied Causation:
• Additional considerations
  – Inconsistencies between exp...
What is a Retaliatory Act?
• Adverse action for retaliation different
  from adverse action for discrimination
  – Burling...
Reasonable Employee
         Standard
The plaintiff must show that a
 reasonable employee would have
 found the challenged...
What Does
  Materially Adverse Mean?


The key question is whether the action
 would have dissuaded a reasonable
 worker f...
Burlington Northern and Santa Fe
       Railway Company v. White

Example of non-adverse action:
  – Supervisor’s refusal ...
TORT CLAIMS

At-will employment
• Relationship can be terminated at the will
  of either party for any reason or no reason...
TORT CLAIMS

However, the Hawaii Supreme Court has
 recognized a civil tort for termination of
 employment in violation of...
TORT CLAIMS
TORT CLAIMS
• The Hawaii Supreme Court later restricted
  Parnar claims to:
  – situations where a statutory remedy does n...
TIPS FOR EMPLOYERS
REVIEW POLICIES
  – Express and uniformly-applied discipline and
    discharge policies are a strong de...
TIPS FOR EMPLOYERS

DISTRIBUTE POLICIES


  – Give employees written copies of
    discipline and discharge policies


   ...
TIPS FOR EMPLOYERS
REVIEW POLICIES
• Company policy should expressly state that you
  comply with all applicable laws and ...
TIPS FOR EMPLOYERS
REVIEW POLICIES
  – Written procedures should explain how employees
    should file a complaint
     • ...
TIPS FOR EMPLOYERS

TRAIN SUPERVISORS
 AND EMPLOYEES
• Bolsters integrity of your
  compliance programs
• Educates employe...
TIPS FOR EMPLOYERS

TRAIN SUPERVISORS AND EMPLOYEES
• Supervisors and employees should be trained
  separately
   – Allows...
TIPS FOR EMPLOYERS
INVESTIGATE AND
  TAKE APPROPRIATE
  ACTION
• Take reports of suspected
  law violations seriously!
• I...
TIPS FOR EMPLOYERS
INVESTIGATE AND TAKE APPROPRIATE
  ACTION
Inform complainants that
•   The company is looking into thei...
TIPS FOR EMPLOYERS
THOROUGHLY DOCUMENT EMPLOYEE
 PERFORMANCE

• What happens when we get hit with
  a retaliation or whist...
TIPS FOR EMPLOYERS
Before taking any disciplinary action,
 answer the following questions:
1. What facts show the employee...
TIPS FOR EMPLOYERS
Before taking any disciplinary action,
 answer the following questions:


4. Will the employee admit th...
TIPS FOR EMPLOYERS
Before taking any disciplinary action,
 answer the following questions:


6. What adverse impact did th...
TIPS FOR EMPLOYERS
Before taking any disciplinary action,
 answer the following questions:
8. Are there any aggravating fa...
THANKS!
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Protection From Whistleblowers

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Transcript of "Protection From Whistleblowers"

  1. 1. The 2008 Hawai'i Employment Law Seminar PROTECTIONS FROM WHISTLEBLOWERS The Olipares Verdict and Beyond Jeffrey S. Harris, Esq. & Kalani A. Morse, Esq. August 7, 2008
  2. 2. Olipares v. C&C of Honolulu • Nancy Olipares: Executive Director of the Oahu Workforce Investment Board • Accused the city administration of wrongfully using federal money to pay for a trip to Washington, D.C. by Director of the City Department of Community Services, Michael Amii and City Councilman Gary Okino
  3. 3. Olipares v. C&C of Honolulu • Olipares said she raised concerns about the city administration quot;improperly interfering and trying to influence decisions“ of the OWIB. • She reminded the board that quot;federal law required it to maintain independence ... in order to perform its oversight functions.quot;
  4. 4. Olipares v. C&C of Honolulu • Department of Community Services had federal workforce development contracts for services like youth training programs and a one-stop job placement center. • Olipares put those contracts out for bid to comply with federal law requiring the OWIB to give private industry control over federal funds used for work-force development and training.
  5. 5. Olipares v. C&C of Honolulu • quot;And the city, from that moment on, began to go after Nancy,quot; said David Simons, her lawyer. • Director Amii began questioning her travel requests, sent her harassing e-mail for taking sick days, and revoked her authority to sign invoices. • Olipares and her staff frequently worked overtime because Amii refused to release money to hire more people.
  6. 6. Olipares v. C&C of Honolulu • Ultimately, Olipares’ Contract as Executive Director of OWIB was not renewed. • She claims that the City violated the state Whistleblower Protection Act. • She asked for back pay, lost benefits and other damages
  7. 7. Olipares v. C&C of Honolulu
  8. 8. The Jury awarded her: $3,000,000
  9. 9. Employee Sources of Protection Tort Claims Statutory Claims • Specifically protecting whistleblowers • Non-retaliation provisions in statutes aimed at preventing other kinds of employer conduct
  10. 10. WHISTLEBLOWERS’ PROTECTION ACT (“WPA”) • Protects employees who report violations or suspected violations of law by their employers – This includes reports to the employer, not just public bodies – Also protects those who participate in investigations of reported violations
  11. 11. Elements of a WPA Reporting Claim Employee must prove: 1. He or she reported or was about to report a violation of law or suspected violation of law 2. Suffered an adverse employment action 3. Causal connection between the adverse action and the whistle blowing Crosby v. State Dep’t of Budget and Finance (1994)
  12. 12. Elements of a WPA Reporting Claim Employee must prove:
  13. 13. Elements of a WPA Reporting Claim Employee must prove:
  14. 14. Elements of a WPA Participating Claim Employee must prove:
  15. 15. Affirmative Defenses to WPA Claims: “Report was False”
  16. 16. Affirmative Defenses to WPA Claims: “it would have occurred anyway”
  17. 17. HOW RETLIATION LAWS WORK Elements of a Retaliation claim: • Employee must show: – He/she engaged in protected conduct – He/she suffered an adverse employment action – A causal connection between protected conduct and adverse action
  18. 18. Establishing the Causal Connection Established through • Direct Evidence – Express statement that the employee is being fired for protected conduct (rare) • Implied Causation: – Decision-maker knew of protected activity – Temporal proximity between the report and the adverse action suggests a causal link
  19. 19. Establishing the Causal Connection Implied Causation: • Additional considerations – Inconsistencies between explanations given for the adverse action – Sharp contrast in treatment of employee before and after employer has notice of protected conduct
  20. 20. What is a Retaliatory Act? • Adverse action for retaliation different from adverse action for discrimination – Burlington No. and Santa Fe Ry. Co. v. White, 126 S. Ct. 2405, 2415 (2006) • Would it dissuade a reasonable employee from making or supporting a charge of discrimination? – Court held that retaliatory conduct need not be employment related
  21. 21. Reasonable Employee Standard The plaintiff must show that a reasonable employee would have found the challenged action materially adverse
  22. 22. What Does Materially Adverse Mean? The key question is whether the action would have dissuaded a reasonable worker from making or supporting a charge of discrimination.
  23. 23. Burlington Northern and Santa Fe Railway Company v. White Example of non-adverse action: – Supervisor’s refusal to invite an employee to lunch – Court called it “normally trivial, a non-actionable petty slight” Example of adverse action: – Exclusion of an employee from a weekly training lunch that contributes significantly to an employee’s professional advancement
  24. 24. TORT CLAIMS At-will employment • Relationship can be terminated at the will of either party for any reason or no reason at all • The Hawai’i Supreme Court has refused to imply a common law duty to terminate in good faith – Parnar v. Americana Hotels, Inc. (1982).
  25. 25. TORT CLAIMS However, the Hawaii Supreme Court has recognized a civil tort for termination of employment in violation of public policy. - Parnar claims
  26. 26. TORT CLAIMS
  27. 27. TORT CLAIMS • The Hawaii Supreme Court later restricted Parnar claims to: – situations where a statutory remedy does not exist for the alleged public policy violation • See, Ross v. Stouffer Hotel Co. (1994).
  28. 28. TIPS FOR EMPLOYERS REVIEW POLICIES – Express and uniformly-applied discipline and discharge policies are a strong defense to retaliation claims
  29. 29. TIPS FOR EMPLOYERS DISTRIBUTE POLICIES – Give employees written copies of discipline and discharge policies • Improved Employee Comfort Levels • Full understanding of company’s requirements and expectations • Awareness of specific systems for addressing their concerns • Get signed acknowledgements
  30. 30. TIPS FOR EMPLOYERS REVIEW POLICIES • Company policy should expressly state that you comply with all applicable laws and regulations • Complaint procedure should require employees to direct concerns about suspected violations to management
  31. 31. TIPS FOR EMPLOYERS REVIEW POLICIES – Written procedures should explain how employees should file a complaint • Policy should state that employees will not suffer retaliation for making a complaint – Provide employees with multiple avenues for making a complaint. • Anonymous hotlines • Supervisors • Upper management access in the case of supervisor retaliation
  32. 32. TIPS FOR EMPLOYERS TRAIN SUPERVISORS AND EMPLOYEES • Bolsters integrity of your compliance programs • Educates employees • Helps prevent inadvertent violations
  33. 33. TIPS FOR EMPLOYERS TRAIN SUPERVISORS AND EMPLOYEES • Supervisors and employees should be trained separately – Allows employees may ask questions comfortably. • Preserved training records – syllabus, sign-up sheets, and handouts – Valuable evidence for future litigation
  34. 34. TIPS FOR EMPLOYERS INVESTIGATE AND TAKE APPROPRIATE ACTION • Take reports of suspected law violations seriously! • Investigate promptly! • Take employee concerns seriously – Less likely to report concerns to outside agencies or file a lawsuit
  35. 35. TIPS FOR EMPLOYERS INVESTIGATE AND TAKE APPROPRIATE ACTION Inform complainants that • The company is looking into their concerns • Confidentiality cannot be guaranteed – Try to keep complaint as confidential as possible anyway • Remind Complainants that the company prohibits retaliation – any acts perceived as retaliatory should be reported immediately
  36. 36. TIPS FOR EMPLOYERS THOROUGHLY DOCUMENT EMPLOYEE PERFORMANCE • What happens when we get hit with a retaliation or whistleblower claim? – Strengthen your defensive position beforehand – Consistently documenting performance problems
  37. 37. TIPS FOR EMPLOYERS Before taking any disciplinary action, answer the following questions: 1. What facts show the employee engaged in misconduct or unacceptable performance? 2. Do the employees excuses, justifications or alibis have any merit? 3. Are there credible witnesses to facts that the employee disputes?
  38. 38. TIPS FOR EMPLOYERS Before taking any disciplinary action, answer the following questions: 4. Will the employee admit that the misconduct or unacceptable performance justifies some sort of adverse action? 5. What rules or job functions are involved?
  39. 39. TIPS FOR EMPLOYERS Before taking any disciplinary action, answer the following questions: 6. What adverse impact did the employees misconduct or unacceptable performance have? 7. Are there any factors that might mitigate the severity of punishment (e.g. good record, long service).
  40. 40. TIPS FOR EMPLOYERS Before taking any disciplinary action, answer the following questions: 8. Are there any aggravating factors (e.g. failure to accept responsibility or show remorse, obviously dishonest responses, prior disciplinary record)? 9. Have any similarly situated employees been treated differently? 10. Have those implicated by the whistleblowing influenced the decision maker?
  41. 41. THANKS!
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