employment law

Six Questions You Should Answer Before You Become a Whistleblower

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

Whistleblowers have helped expose some of the biggest corporate scandals of the 21st century, including Enron and the Bernie Madoff scandals. Whistleblowers usually expose themselves to a real personal risk by opposing wrongdoing. These risks often include getting fired from their job. If you are thinking about blowing the whistle on illegal conduct at work, here are six questions you should ask yourself:

1.         Are you really opposing unlawful or illegal activity? Lawyers who defend companies against whistleblower claims often may paint whistleblowing as mere disagreement about management style or philosophy. As a matter of law, a whistleblower also must have good faith or honest belief that they are opposing illegal conduct. If you are thinking about bringing a whistleblower complaint, it would be a good idea to do a little research. Whistleblowers.gov is a great resource for the various industries that are covered under the Occupational Safety and Health Administration whistleblower statutes. Most experienced employment attorneys are also willing to do some free consultation for prospective whistleblowers as to whether they are opposing illegal conduct.

2.         Does someone in upper management at your company know about your complaints? This can be intimidating, but in my experience, you will have a stronger case if you bring up your concerns to someone higher up in management than your direct supervisor or worksite manager. This puts the company on notice about the unlawful conduct, and it bolsters your credibility as someone who was concerned enough about the potentially illegal conduct that they reported it to someone within the company who could act on it. Likewise, if someone with authority at your company is on notice of the potentially illegal conduct and that person doesn’t take action, that can bolster your possible case. Sometimes firms will have an “ethics” hotline or will refer you to human resources. I don’t think it hurts to report through those channels, but I think you should also report the unlawful conduct to someone who has the actual authority to change the practice that you are challenging.

3.         Can you frame your complaint as a business problem and suggest solutions to the problem of unlawful conduct and be reasonable in how you report the misconduct? I cribbed this idea from a post from the excellent SkloverWorkingWisdom blog written by attorney Alan Sklover. All things being equal in an employment law case, the party who is most reasonable is going to win. This fact tends to disadvantage employees, because it’s hard to keep a level head when you are being mistreated or being asked to participate in unlawful conduct at work. But do your best to be level headed and objective when you bring up your complaints to management. Like the point in the last paragraph, if the employer ignores your practical solution to the potentially unlawful conduct, then you have bolstered your possible case.

4.         Will other employees will join you in your complaints? Whistleblowers tend to get tarred as tattletales. If co-workers are joining you in your complaints, the case becomes more credible. If you make a legitimate complaint as a group, you also gain protection of the National Labor Relations Act for engaging in protected concerted activity, as well as under any whistleblower law that you might be bringing a case under.

5.         How strongly can you support your claims? To win any whistleblower retaliation case, you must have evidence to prove your case. In most cases, this requires written evidence that often takes the form of emails that implicate possible wrongdoers. If a case gets into litigation, then in theory, such documents must be disclosed. That does not always happen in practice. Additionally, having documents will help a lawyer determine if you have a possible claim and how strong your possible claim could be.

Employees may have concerns about revealing confidential documents and/or be concerned that their employer may take legal action against them for revealing company information. Many whistleblower laws protect certain types of information from being deemed confidential. Employers are also somewhat reluctant to act against whistleblowers, because this can invite more retaliation litigation. But potential whistleblowers should be aware of possible legal liability for disclosing company information, so an employee should be very careful about how they choose to share company information. Attorney-client communications, even those communications involving prospective clients are confidential. By consulting with an attorney, a prospective whistleblower can get some guidance as to whether they are risking legal liability by disclosing information.

Evidence can also take the form of witness testimony, which is why it is helpful if you have a group of employees opposing potentially unlawful conduct.

6.         Are you willing to change jobs or relocate? Even if what you think is a valid whistleblower complaint is merely a dispute with a manager over something that it isn’t illegal, the fact for you is that if you are doing something or working in an environment that you don’t like, you are almost setting yourself up to fail. This is probably even more true if you have a valid whistleblower claim. Studies show that it is easier to find a job while you are still employed. Even with anti-discrimination laws, employers have broad discretion to fire employees under the “employment at-will” doctrine. The underappreciated flip side of employment at-will for employees is that they can quit without cause or notice. If you are in a dysfunctional or even hostile work environment, it’s smart to take advantage of the ability to quit freely if you have another job lined up.

Uncategorized

CSB Releases New Safety Video Detailing Investigation into 2013 Fatal Fire and Explosion at the Williams Olefins Plant in LA

Today’s post was shared by WC CompNewsNetwork and comes from www.workerscompensation.com

Washington, DC (WorkersCompensation.com) – The U.S. Chemical Safety Board (CSB) released a safety video of its investigation of the June 13, 2013 explosion and fire at the Williams Olefins Plant in Geismar, Louisiana, which killed two workers and injured an additional 167. The deadly explosion and fire occurred when a heat exchanger containing flammable liquid propane violently ruptured.

The CSB’s newly released 12-minute safety video entitled, “Blocked In,” includes a 3D animation of the explosion and fire as well as interviews with CSB investigator Lauren Grim and Chairperson Vanessa Allen Sutherland. The video is based on the CSB’s case study on the Williams incident and can be viewed on the CSB’s website and YouTube.

Chairperson Sutherland said, “Our investigation on the explosion at Williams describes an ineffective process safety management program at the plant at the time of the incident. We urge other companies to incorporate our recommendations at their facilities and to assess the state of their cultures to promote safety at all organizational levels to prevent a similar accident. ”

The CSB’s investigation found many process safety management program deficiencies at Williams, which set the stage for the incident. In particular, the CSB found that the heat exchanger that failed was completely isolated from its pressure relief valve.

In the video, Investigator Lauren Grim said, “When evaluating overpressure…

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Immigration

NPR: DACA Recipient Sues U.S. Government After He Is Detained By Immigration Authorities

“My hope is that ICE and federal government say the truth, which is that a mistake was made here,” – Mark Rosenbaum, attorney for Mr. Ramirez

A 23-year-old man who was detained by Immigration and Customs Enforcement Agents in Seattle on Feb. 10 says his constitutional rights have been violated, and he is suing the U.S. government for his release.

Daniel Ramirez Medina, who is currently being held by immigration authorities in Tacoma, Wash., is registered with the U.S. government under the Deferred Action for Childhood Arrivals, or DACA, program.

His appears to be the first arrest by ICE of a DACA recipient. 

According to court documents, Ramirez was born in Mexico and brought to the U.S. when he was about 7 years old.

In 2014, Ramirez was approved to stay in the U.S. under DACA. He paid a fee to register with the government, underwent an extensive background check and was granted a work permit.

On May 5, 2016, his DACA status was renewed a second time. The renewal stated, “Unless terminated, this decision to defer removal action will remain in effect for 2 years from the date of this notice.”

Ramirez’s lawsuit against the Department of Homeland Security, of which ICE is a part, was filed on Monday. The complaint alleges Ramirez was asleep at his father’s home in Seattle when agents arrived with an arrest warrant for the father.

From the complaint:

“Following his arrest, Mr. Ramirez’s father granted the ICE officers permission to enter his home so that he could inform his two sons about his arrest. When the ICE agents entered the home, they asked Mr. Ramirez, ‘Are you legally here?’ Mr. Ramirez replied, ‘Yes, I have a work permit.’ On the recommendation of his brother (a DACA recipient who was also then present), Mr. Ramirez declined to answer additional questions at that time.” …

“The ICE agents then took Mr. Ramirez to a processing center in Seattle, Washington. When he again informed them about his work permit, one of the ICE agents stated: ‘It doesn’t matter, because you weren’t born in this country.’ At this point, the ICE agents had Mr. Ramirez’s wallet, which contained his work permit, which clearly identified him as a DACA recipient with a ‘C-33’ code, which reflects a work authorization issued pursuant to DACA. Despite this fact, Mr. Ramirez was questioned further, fingerprinted, booked, and taken to a detention center in Tacoma, Washington.”

 

Hanford

DOE Declines to Exercise Option to Extend Contract with Penser North America

Penser North America has held the contract to manage workers’ compensation claims on behalf of the Department of Energy for workers injured or disabled while working at the Hanford Nuclear Reservation. Penser’s current contract is set to expire in September.  Penser has indicated their plan to respond when DOE issues a request for proposals later this year with the hope to continue to provide services to DOE in this capacity.

KING5 thoroughly investigated the handling of workers’ compensation claims by Penser in their series “Sick and Forgotten at Hanford.” KING5 reported finding mishandling of workers’ compensation claims, using “unfair tactics to get claims denied.”  Listen to the KING5 podcast here. KING5 reported on the DOE’s rejection of the option to extend Penser’s contract – read the full article for more details.

 

Photo credit: KING5.com

injury, truckers, Trucking, workplace safety

Truck Parking: A Forgotten Piece of Infrastructure

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

While bridge collapses make for dramatic footage and almost everybody encounters the more mundane danger of potholes, truck parking is not an infrastructure issue that most people think about, but it is a very important issue for over-the-road truckers.

Lack of truck parking is a safety issue for many reasons. Lack of parking for truckers makes it harder for them to find a place to sleep, which leads to more accidents. Additionally, drivers are forced to park in unsafe locations, like the shoulders of roads, which can lead to even more safety hazards.

I travel quite often on I-80 (which generally follows The Oregon Trail) when I travel between Lincoln and central Nebraska to meet with and represent my clients in places like Grand Island, Hastings, Kearney, Lexington and North Platte. I like the fact that Nebraska has plenty of places to stop for personal comfort, check email or even take a quick nap. But even in a state like Nebraska, where hospitality to overland travelers is an integral part of our state’s history, I still see safety issues with truck parking. The parking lots in many trucks stops are very rough from the weight of the trucks. This can lead to slip and fall injuries. Stops need to be well-maintained so that they remain safe.

Unfortunately, many urban areas are less friendly toward truck parking, which forces rural areas to bear more of the burden of truck parking. President Donald Trump has announced a $1 trillion dollar infrastructure plan. Hopefully, sufficient and safe truck parking will be part of that infrastructure plan.

Age Discrimination, Workers' Compensation

Age Discrimination Claims in Workers’ Compensation Settlements?

Today’s post comes from guest author Anthony L. Lucas, from The Jernigan Law Firm.

When an employee settles a workers’ compensation claim, the employer often wants to terminate the employee and is cautious because of potential age discrimination. The Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621 et seq. (2015), prohibits companies with 20 or more employees from discriminating against a person (40 years of age or older) because of his or her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.

An individual who has been discriminated against because of his or her age may be entitled to back pay, reinstatement, hiring, promotion, front pay, liquidated damages, and court costs and attorney fees.

To avoid potential discrimination claims after a workers’ compensation settlement, the employer often seeks an ADEA waiver at the same time. For an ADEA waiver to be enforceable, it must:

  • Be in writing and understandable;

  • Specifically refer to ADEA rights or claims;

  • Not waive an individual’s future rights or claims;

  • Be in exchange for valuable consideration in addition to anything of value to which the individuals is already entitled;

  • Advise the individual to consult with an attorney before signing the waiver;

  • Provide the individual with a certain amount of time to consider the agreement:

    • 21 days for individual agreements

    • 45 days for group waiver agreements

    • A “reasonable” amount of time for settlements of ADEA claims

  • Provide a period of at least 7 days following the execution of the agreement, in which the agreement is not effective or enforceable, in which the individual may revoke the agreement.

Some termination agreements may not be enforceable, and the individual may have a valid claim to pursue under the ADEA.

Uncategorized

Creation of the North Carolina Workers’ Compensation Opioid Task Force

Today’s post was shared by WC CompNewsNetwork and comes from www.workerscompensation.com

Raleigh,NC(WorkersCompensation.com) – Chairman Charlton L. Allen of the North Carolina Industrial Commission is pleased to announce the creation of a Workers’ Compensation Opioid Task Force that will study and recommend solutions for the problems arising from the intersection of the opioid epidemic and related issues in workers’ compensation claims. “Opioid misuse and addiction are a major public health crisis in this state,” said Chairman Allen. “Many injured workers are prescribed opioid medications as part of treatment for their injuries, creating a nexus between the problems affecting the general population and the workers’ compensation system.”

In Session Law 2015-241, the General Assembly tasked the Industrial Commission with studying the potential implementation of a drug formulary in workers’ compensation claims filed by State employees. The Commission invested significant time and resources in the study and report, which was delivered to the General Assembly on April 1, 2016. The Commission’s report focused in part on the troubling issues of opioid misuse and addiction originating from or exacerbated by workplace injuries.

“It is the Commission’s responsibility to ensure that injured workers receive reasonable and necessary care for their injuries. As part of that responsibility, it is important for the Commission to understand how the opioid crisis interacts with workers’ compensation…

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Uncategorized

Puyallup, WA Construction Co. fined for Repeated Safety Violations

Roof Trusses

A Puyallup construction company faces a large fine for numerous repeated safety violations that exposed workers to potential falls and other hazards at a residential construction site in Olympia.

The Washington State Department of Labor & Industries (L&I) has cited J & I Construction for 13 violations, including several that are considered willful and repeat-serious. The findings include penalties totaling $203,420.

The three willful violations, each with a penalty of $42,000, were for not providing proper fall protection to three employees who were working on the top edge of a wall nearly 20 feet off the ground. The company has been cited two other times for the same issue.

J & I was also cited for three repeat-serious violations for not having a plan outlining the fall hazards on the specific job, exposing workers to unguarded wall openings that they could fall through, and for not ensuring that workers didn’t stand or step on the top of a self-supporting ladder. Each violation carries a penalty of $21,000.

“Seven construction workers fell to their deaths last year in our state,” said Anne Soiza, assistant director for L&I’s Division of Occupational Safety and Health. “Falls continue to be the leading cause of construction worker deaths and hospitalizations, and yet they are completely preventable by using proper fall protection and following safe work practices.”

The company was cited for two additional repeat-serious violations for not having railings on open-sided stairs to protect employees from falls ($5,600), and for not ensuring that employees wore hard hats where there was a danger of flying or falling objects ($4,200). They were also cited for a serious violation for not having safety springs on nail guns to protect against accidental discharges ($2,800).

The employer was cited for a third-time repeat-general violation with a $700 penalty for not conducting walk-around safety inspections, and a fourth-time repeat-general violation with a $1,120 penalty because no one onsite had a valid first-aid card. L&I also cited the company for two general violations that did not include monetary penalties. 

The inspection began in May when an L&I employee saw three workers exposed to fall hazards while installing trusses.

A serious violation exists in a workplace if there is a substantial probability that worker death or serious physical harm could result from a hazardous condition. A willful violation can be issued when L&I has evidence of plain indifference, a substitution of judgment or intentional disregard of a hazard or rule.

As a result of the willful and repeat-serious violations, J & I Construction is now considered a severe violator and will be subject to follow-up inspections to determine if the conditions still exist in the future.

The company has 15 business days to appeal the citation.

For a copy of the citation, contact DLI Public Affairs at 360-902-5413.

 

Photo credit: schani via Foter.com / CC BY-SA

Employment

Sea-Tac Airport Hiring 76 Screeners, Good Pay and Benefits

The Port of Seattle is recruiting and hiring 76 workers to screen Sea-Tac Airport employees who enter the secured areas of the airport. Plans are to launch this new screening procedure this spring. 

Those who are hired for these new positions will receive competitive benefits and an hourly pay rate of $20.37. There will be three full-time shifts available, and the positions will be overtime eligible and represented by International Longshore and Warehouse Union Local 9.

Requirements include a high school diploma or GED; one year of operations, security or customer service experience; and the ability to earn a certification within 60 days and pass background checks and drug testing. 

Employee security screening is becoming common at large U.S. airports as a way to enhance security efforts, mitigate risks and protect employees and travelers. 

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Courts, discrimination, employment law, government, Supreme Court, worker rights

Gorsuch, Chevron and Workplace Law

Judge Gorsuch

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

Employers and their attorneys are widely hailing President Trump’s nomination of 10th Circuit Court of Appeals Judge Neil Gorsuch to the U.S. Supreme Court. Part of the reason that management-side lawyers are praising Gorsuch is his position on Chevron deference. Gorsuch’s views on Chevron could affect how workplace laws are interpreted and how they apply to workers.

Chevron deference is a legal rule that a court will give the benefit of the doubt about the interpretation of the law to how the executive agency charged with enforcing that law understands the law. Gorsuch has criticized Chevron on separation of powers basis, stating that Chevron deference gives too much power to the executive branch at the expense of the legislative and judiciary branches. Recently, government agencies have been interpreting employment laws in a way that is more favorable toward employees. Recent rules issued by the Equal Employment Opportunity Commission regarding the Americans with Disabilities Act are a prime example.

Many workers who get hurt on the job are told that they must come back to work with no restrictions. Chevron deference could be a powerful legal tool for workers faced with such policies. The new EEOC regulations on the ADA outlaw 100-percent-healed policies or policies that require plaintiffs to return to work without restrictions. In the EEOC guidance on the issue, the EEOC cites Kaufman v. Peterson Health Care VII, LLC 769 F. 3d 958 (7th Cir. 2014) as an example of policies that they believe to be unlawful under ADAAA. This case represents a subtle but real shift from current 8th Circuit law as stated in Fjellestad v. Pizza Hut of America, 188 F. 3d 949, 951-952 (8th Cir. 1999) where the 8th Circuit joined other federal circuits that held that failure to engage in an interactive process in accommodating a disability was not per se discrimination, and that there was no duty to engage in the interactive process. The EEOC’s interpretations of the new regulations still require that a plaintiff be able to perform the essential functions of the job with or without reasonable accommodation.

But as indicated by Kaufman, courts may be less likely to dismiss cases before trial, or in legal terminology, to grant summary judgment, on the issue of whether a plaintiff could perform the essential functions of the job with or without accommodation if the defendant does not engage in an interactive process or summarily decides that an employee should not be allowed to return without restrictions.

The fact that there is a split between regional appellate courts, a so-called circuit split, over “100 percent healed” policies increases the chances that the U.S. Supreme Court will decide whether 100-percent-healed policies violate the ADA. Another issue where there is a circuit split that the U.S. Supreme Court will decide is the legality of mandatory arbitration clauses in employment agreements.

Many workers unwittingly give up their rights to have employment-law disputes heard in court when they agree to mandatory arbitration clauses as a term of employment. In D.R. Horton Inc., 357 N.L.B. No 184 (2012) the National Labor Relations Board ruled that mandatory arbitration clauses prohibited Fair Labor Standards Act collective action cases because they interfered with protected concerted activity under 29 U.S.C. §157 and 29 U.S.C. § 158. In Lewis v. Epic Systems, 823 F. 3d 1147, 1154 (7th Cir. 2016), the 7th Circuit struck down a mandatory arbitration clause partly based on giving Chevron deference to the NLRB’s decision in D.R. Horton. The 9th Circuit agreed with the 7th Circuit in Morris v. Ernst and Young, LLP, No 13-16599 (Aug. 22, 2016). Unfortunately for plaintiffs, the 8th Circuit disagreed with the D.R. Horton decision in Owen v. Bristol Care, 702 F. 3d 1050 (8th Cir. 2013).

If confirmed, Gorsuch would be unlikely to give much weight to the opinions of the EEOC or NLRB in interpreting employment laws. Chevron deference is an unpopular concept with pro-business conservatives. Recently, the GOP-controlled House of Representatives passed legislation that, if enacted, would abolish Chevron deference.

Conversely, Chevron deference is a popular concept with progressive employee and civil-rights advocates, as it allowed the Obama administration to expand employee protections in the face of a hostile Congress. But with the advent of the Trump administration and his immigration policies, progressives have a newfound appreciation for separation of powers.

Also, employee advocates probably will not like many of the new rules and regulations issued by Trump appointees such as Labor Secretary nominee Larry Puzder. A prospective abolition of Chevron could be helpful to challenging rules made by a Trump administration. An example from the last Republican administration is instructive. In 2007, the U.S. Supreme Court in Long Island Care at Home Ltd. v. Coke, 551 U.S. 158 (2007) gave Chevron deference to Bush administration rules to exclude home health aides from coverage under the FLSA. It was nine years later that the rule was overturned, giving Chevron deference to Obama administration rules regarding home health aides and the FLSA.

Published by Causey Wright