July 18th, 2009 at 10:37am
Under Environmental Law
Those who report fraud, known in legal terms as “relators” and commonly as whistleblowers, have some of the most powerful and effective laws in the country on their side.
Whistleblowers may identify and report actual theft, false claims, over billing, up coding, unbundling, kickbacks, false certifications, violations of governmental regulations, destruction of company records, workplace violence, safety hazards or unsafe working conditions, environmental concerns, substance abuse, general conflicts of interest, release of proprietary information and other types of fraud or occupational concerns.
Some of the governmental agencies and laws that protect whistleblowers include:
* Americans with Disabilities Act (ADA)
* Civil Rights Act of 1866 (since amended numerous times)
* Federal Equal Employment Opportunity Commission (EEOC)
* Federal False Claims Act
* Occupational Safety and Health (OSH) Act of 1970
Under the OSH Act of 1970, employers may not discharge or in any manner discriminate against any employee because an employee has filed any complaint, or instituted or caused to be instituted, any proceeding under or related to this Act. Additionally, the employer may not terminate an employee who has testified, or is about to testify, in any such proceeding.
Under the Act, an employee who believes that a work hazard exists, whether or not they have filed a claim, has legal protection to refuse to work if all of the following apply:
* The employee faces death or serious injury and the hazard is so clear that a reasonable person would agree with the seriousness of the hazard.
* The situation is so urgent that there is not time to eliminate the hazard through regulatory channels.
* The employee has tried to get the employer to correct the dangerous condition and they have not complied.
OSHA also administers the whistle blowing provisions of thirteen other statutes, protecting employees who report violations of various trucking, airline, nuclear power, pipeline, environmental and securities laws.
The Federal False Claims Act provides the legal framework for claims alleging fraud against the federal government, and it does several important things for a whistleblower:
* Provides specific protection for the whistleblower from discharge, demotion, suspension, threats or other harassment or discrimination that the whistleblower may encounter due to lawful actions taken in the furtherance of a whistleblower claim, if the employee is still works for the employer.
* Provides for filing a whistleblower complaint under seal, which means that no one other than the government, not even the defendants alleged to have committed the fraud, can know of the complaint until after the government has investigated the claims.
* Allows the whistleblower to share in the government’s successful recovery, from 15% and up to 25% of the entire recovery, in some cases.
Eleven states and the District of Columbia also have their own false claims acts that closely resemble the Federal Act.
Whistleblower laws allow for the contingent fee representation of whistleblowers. The Federal False Claims Act also provides that a whistleblower’s attorney’s fees be paid by the entity that committed the fraud in the event of a government recovery. Therefore, there are no costs/fees/expenses to the employee if the case is successful.
Anyone who knows of fraud against the government can become a whistleblower. Typically, individuals who know about fraud are employees or former employees of the companies committing the fraud these individuals often have the best evidence to support their knowledge.
There can only be ONE whistleblower claim based on certain information. The first to file based on specific information about a particular fraud preempts other whistleblowers and their claims. In addition, an employee cannot bring a whistleblower complaint if information about the fraud becomes public before bringing a claim.
July 14th, 2009 at 02:55pm
Under Civil Rights Law
Those who report fraud, known in legal terms as “relators” and commonly as whistleblowers, have some of the most powerful and effective laws in the country on their side.
Whistleblowers may identify and report actual theft, false claims, over billing, up coding, unbundling, kickbacks, false certifications, violations of governmental regulations, destruction of company records, workplace violence, safety hazards or unsafe working conditions, environmental concerns, substance abuse, general conflicts of interest, release of proprietary information and other types of fraud or occupational concerns.
Whistleblowers are protected by agencies and laws from the government which include:
. Americans with Disabilities Act (ADA)
. Civil Rights Act of 1866 (since amended numerous times)
. Federal Equal Employment Opportunity Commission (EEOC)
. Federal False Claims Act
. Occupational Safety and Health (OSH) Act of 1970
Under the OSH Act of 1970, employers may not discharge or in any manner discriminate against any employee because an employee has filed any complaint, or instituted or caused to be instituted, any proceeding under or related to this Act.
Additionally, the employer may not terminate an employee who has testified, or is about to testify, in any such proceeding.
Under the Act, an employee who believes that a work hazard exists, whether or not they have filed a claim, has legal protection to refuse to work if all of the following apply:
. The employee faces death or serious injury and the hazard is so clear that a reasonable person would agree with the seriousness of the hazard.
. The situation is so urgent that there is not time to eliminate the hazard through regulatory channels.
. The employee has tried to get the employer to
correct the dangerous condition and they have not complied.
OSHA also administers the whistle blowing provisions of thirteen other statutes, protecting employees who report violations of various trucking, airline, nuclear power, pipeline, environmental and securities laws.
The Federal False Claims Act provides the legal framework for claims alleging fraud against the federal government, and it does several important things for a whistleblower:
. Provides specific protection for the whistleblower from discharge, demotion, suspension, threats or other harassment or discrimination that the whistleblower may encounter due to lawful actions taken in the furtherance of a whistleblower claim, if the employee is still works for the employer.
. Provides for filing a whistleblower complaint under seal, which means that no one other than the government, not even the defendants alleged to have committed the fraud, can know of the complaint until after the government has investigated the claims.
. Anywhere from 15 to 25 percent of the entire recovery can be made in some instances by the whistleblower.
Eleven states and the District of Columbia also have their own false claims acts that closely resemble the Federal Act.
Whistleblower laws allow for the contingent fee representation of whistleblowers. The Federal False Claims Act also provides that a whistleblower’s attorney’s fees be paid by the entity that committed the fraud in the event of a government recovery. If the case is succesful, then there are no expenses or monetary costs to the employee.
Anyone who knows of fraud against the government can become a whistleblower. Usually it is employees or ex-employees who report fraud of a corporation because they have the most knowledge of internal operations.
The law only protects one whistleblower-based claim. The first to file based on specific information about a particular fraud preempts other whistleblowers and their claims. In addition, an employee cannot bring a whistleblower complaint if information about the fraud becomes public before bringing a claim.
July 13th, 2009 at 03:01pm
Under Uncategorized
Small business owners are often unaware that the employment discrimination laws apply to them. Since such business owners usually do not have the luxury of having large human resource departments or in-house counsel such businesses are often caught in the dark about their obligations under these laws. Any employer that has 15 or more employees must comply with Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Americans with Disabilities Act (“ADA”). Employers with 20 or more employees must also comply with the provisions of the Age Discrimination in Employment Act (“ADEA”). What do these laws require? They require that you not discriminate against employees on the basis of the employee’s age, disability, sex, race, color, national origin or religion. In addition to these federal laws, there are also state laws that often apply to employers with very few employees. For example, in New York, the New York State Human Rights Law applies to employers with 4 or more employees and in Connecticut the state Fair Employment Practices Act applies to employers with 3 or more employees. Many times these state employment laws prohibit discrimination against people in protected classes in addition to those protected under federal law. So for instance, in New York, employers are prohibited under state law from discriminating against employees based on their race, color, creed, national origin, military status, sex, age, religion, marital status, alienage or citizenship status, sexual orientation, disability or genetic predisposition or carrier status. In Connecticut, the FEPA prohibits discrimination based upon race, color, religious creed, age, marital status, ancestry, national origin, sex, gender, sexual orientation, pregnancy, breast feeding, genetic information, present or past history of mental disability, mental retardation, learning disability or physical disability (including blindness). Moreover, both state and federal employment discrimination laws prohibit harassment as well as discrimination.
What does all this mean for you as a small or medium employer? You need to ensure that you and your managers are familiar with the employment discrimination laws. This means that all employment decisions from hiring to firing need to be made based on job-related factors having nothing to do with a person’s age, race, sex, pregnancy, sexual orientation, etc. It also means that your managers and employees need to be trained on the employment discrimination laws and preventing sexual and other forms of unlawful harassment. In fact, Connecticut requires employers with 50 or more employees to train all managers within six months of becoming a manager. The training must be legally compliant or it will not satisfy an employer’s obligations under the law. Small businesses should retain outside consultants to provide their Anti-Harassment Training to ensure that such training is properly taught. Our company, HR Learning Center LLC provides employment law, sexual and anit-harassment training and workplace violence prevention training to small and medium employers. Please visit our website at www.hrlearningcenter.com.
This document has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorney in connection with any specific questions or issues that may impose additional obligations on you and your company under any applicable local, state or federal laws.
Melissa Fleischer, Esq.
President
HR Learning Center LLC
Ms. Fleischer is the Founder and President of HR Learning Center LLC, a human resources consulting firm specializing in the area of employment law. HR Learning Center LLC provides training seminars and consulting on a wide range of workplace and human resource issues.
Ms. Fleischer is a management-side employment attorney with over twenty (20) years experience and is nationally recognized as an expert in her field. She has successfully represented numerous clients in employment discrimination litigation as well as providing preventive counseling and training on workplace issues. Ms. Fleischer is a frequent lecturer on a wide range of employment law topics including seminars and workshops on Anti-Harassment Training, FMLA/ADA Training and Workplace Violence Prevention Training. Ms. Fleischer is also a Chapter Editor for the new FMLA Treatise that has been recently published by BNA. She is also a member of the Society for Human Resource Management (SHRM) and adjunct faculty providing employment law training for the Professional Development Center of SUNY/Westchester Community College in Valhalla, New York.
Ms. Fleischer earned a juris doctor degree from the National Law Center at the George Washington University in 1983. She earned a bachelor of arts degree, cum laude, from New York University in 1980.
Ms. Fleischer was admitted to the Bar of the State of New York in 1984. She is also admitted to the Bar of the United States District Courts for the Southern and Eastern Districts of New York and the United States Supreme Court.