YOU CAN’T DO THAT TO ME! DEVELOPMENTS IN

WHISTLEBLOWER & ANTI-RETALIATION LAWS

MODERATOR: • Benton J. Mathis, Jr., Esq., Managing Partner, Freeman

Mathis & Gary LLP PANELISTS: • Brenda H. Feis, Esq., Partner, Stowell & Friedman, Ltd. • Jason A. Fogg, Esq., Vice President, Claims, Monitor

Liability Managers, LLC• Eric Ross, Claims Manager, Beazley Group • Joseph A. Starr, Esq., Partner, Starr, Butler, Alexopoulos &

Stoner, PLLC

Introductions

Agenda

• Trends in whistleblower claims• Scope of whistleblower protections, including

financial and healthcare protections• Claims that increase plaintiff's liability/damage

exposure or maximize punitive damages• Primary underwriting considerations and risk

management response

ARS Question – Is the FollowingUnlawful Retaliation?

A. Shunning a Co-worker

B. Less Favorable Office

C. Demotion

D. Unfavorable Review

E. Reduced Training Opportunity

F. "Cold Shoulder" From Management

G. Excluded from Meetings

H. Reassigned to Another Job

I. Verbal Abuse

J. Excluded from Decisions

Burlington Northern v. White (2006)

• After complaining about supervisor, plaintiff reassigned to less desirable job

• Co-workers felt “more senior man” should hold plaintiff’s former position

• HELD: Conduct that dissuades reasonable worker from making or supporting charge of discrimination

Excluded from decision and work activityGiven the cold shoulder

Verbally abused by managersAlmost lost job

Not given promotion or raiseVerbally abused by other co-workers

Relocated or reassignedOther forms of retaliation

DemotedPhysical harm to person or property

62%

60%

55%

48%

43%

42%

27%

20%

18%

4%

Source: 2009 National Business Ethics Survey report, Ethics Resource Center.

Types of Retaliation Experienced by Employees Who

Report Misconduct

What is “Materially Adverse” Conduct?

• D.C. Circuit – Employer’s false report contesting unemployment• Second Circuit – Reading newspaper article about discrimination

lawsuit in employee’s presence• Third Circuit – Threaten to make employee’s life “living nightmare”• Sixth Circuit – Performance evaluation diminishing employee’s

earning capacity • Ninth Circuit – Collectively, temporary removal from duties,

psychiatric evaluation, and IA investigation • Tenth Circuit – Threat to make public rumors about employee’s

sexual activities

Recent Supreme Court Cases

• Kasten v. Saint-Gobain Performance Plastics Corp (2011)– (employee’s oral complaints about FLSA violation protected activity)

• Thompson v. North American Stainless (2011)– Protection Extended To Affected Even If They Did Not Complain

• Crawford v. Metropolitan (2009)– Employee Answering Questions Can Be Protected Activity

• Gomez-Perez v. Potter (2008)– ADEA Has Implied Retaliation Prohibition

• CBOCS West, Inc. v. Humphries (2008)– Section 1981 Has Implied Retaliation Prohibition

Year Percent of EEOC charges1992 15.3%1995 19.5%1997 22.6%1999 25.4%2004 28.6%2006 29.8%2008 34.3%2009 36.0%2010 36.3%

Increase of Retaliation Claims

ARS QuestionHave you seen increase in

retaliation claims in past 3 years?

A. NoneB. 10% - 30%C. 30% - 50%D. 50% - 100%E. 100% - 200%F. 200% or greater

Recent Retaliation Jury Verdicts

• $4,000,000 (C.D. Cal.) (Nov. 2010): Police officer terminated in retaliation for whistle blowing

• $3,100,000 (W.D. Penn.) (Nov. 2009): Female employee terminated after complaining about gender discrimination

• $1,555,000 (M.D. Tenn.) (Jan. 2010): Plaintiff terminated after participating in sexual harassment investigation

• $1,100,000 (W.D. Wis.) (May 2011): College instructor's contract not renewed in retaliation for discrimination claims

• $1,026,386 (C.D. Il.) (Aug. 2010): Public library operations manager alleged Title VII retaliation

MeetEllyn

Video 1

Would You Award Following?A. NoneB. less than $20,000C. $20,000 – $40,000D. $40,000 – $75,000E. $75,000 – $100,000F. $100,000 - $150,000G. $150,000 - $250,000H. $250,000 - $500,000I. $500,000 - $750,000J. $750,000 - $1,000,000K. $1,000,000 or more

ARS – Question Testimony of First Plaintiff

Here’sAmy

Video 2

Would You Award following?A. NoneB. less than $20,000C. $20,000 – $40,000D. $40,000 – $75,000E. $75,000 – $100,000F. $100,000 - $150,000G. $150,000 - $250,000H. $250,000 - $500,000I. $500,000 - $750,000J. $750,000 - $1,000,000K. $1,000,000 or more

ARS Question –Testimony of Alternate Plaintiff

Say Hello toMarty

Video 3

Would You Award following?A. NoneB. less than $20,000C. $20,000 – $40,000D. $40,000 – $75,000E. $75,000 – $100,000F. $100,000 - $150,000G. $150,000 - $250,000H. $250,000 - $500,000I. $500,000 - $750,000J. $750,000 - $1,000,000K. $1,000,000 or more

ARS Question –Alleged Harasser Testimony

Last, but not least,Here’s

Bill

Video 4

Would You Award following?A. NoneB. less than $20,000C. $20,000 – $40,000D. $40,000 – $75,000E. $75,000 – $100,000F. $100,000 - $150,000G. $150,000 - $250,000H. $250,000 - $500,000I. $500,000 - $750,000J. $750,000 - $1,000,000K. $1,000,000 or more

ARS Question –Managing Partner’s Testimony

Act Primarily Impacts

DOD Reauthorization Defense Contractors

American Recovery and Reinvestment Recipient of Stimulus Funds

False Claims Act Federal Contractors

Sarbanes-Oxley Publicly Traded Corps.

Patient Protection and Affordable Care Health Care Industry

Dodd-Frank Publicly Traded Companies and Private Subsidiaries/Affiliates

New or Recently Modified Statutes

Act Primarily Impacts

Food Safety Modernization Food Industry

Aviation Investment Airline Industry

Energy Reorganization Nuclear Power Industry

Federal Rail Safety Rail Industry

National Transit System Mass Transit Industry

Consumer Product Safety Retail Industry

More Retaliation Statutes

Act Primarily ImpactsOccupational Safety and Health Act Workplace SafetySurface Transportation Assistance Act Independent Contractors in Trucking

Asbestos Hazard Emergency Response Act Public Schools

International Safe Container Act Shipping Industry

Clean Air Act EPA Regulated Industry

Safe Drinking Water Act EPA Regulated Industry

Wendell H. Ford Aviation Investment and Reform Act for the 21st Century

Air Carriers

Pipeline Safety Act Pipeline facilities

Even More Retaliation Statutes

The Future – New Retaliation Protections

• Dodd-Frank and New SEC Rules – Bounty “original information” to SEC– Jury trials/No arbitration– Six Year Statute of Limitations

• Sarbanes-Oxley after Dodd-Frank– Federal mail, wire, bank or securities fraud statutes– Any rule/Regulation of SEC– Now can file suit if no determination within 180 days– No arbitration

The Future – New Retaliation Protections

• Patient Protection and Affordability Care Act (PPACA)

– Primarily health care and insurance

– Covers discrimination in compensation, training, “privileges of employment”

Supervisor 46%Other responsible person 15%

Higher management 29%

Where Employees Report Misconduct

Someone outside the company 4%

Other 4%Hotline 3%

Supervisor 46%

Other responsible person 15%

Higher management 29%

Source: 2009 National Business Ethics Survey report, Ethics Resource Center.

Complaint Policy -Best Practices

• Cover Any Type of Unlawful Conduct

• Clear Reporting Option to Appropriate Official

• Avoid Inconsistencies With Other Overlapping Policies

• Widely Disseminate Policy

Questions&

Answers

• Brenda Feis

• Jason Fogg

• Eric Ross

• Joseph Starr

• Ben Mathis

Many thanks to …