whistleblower and retaliation claims

© 2013 Armstrong Teasdale LLP

Retaliation and Whistleblower Claims Presented by: Narcisa Symank Jennifer Arendes



OSHA: 19% increase in whistleblower claims between 2008 and 2011 EEOC:

Claims on the Rise


High Cost

Median jury awards for retaliation:

• highest of all employment claims -- $225,000

Median settlements for retaliation:

• tied with discrimination claims as highest employment

settlements

Recent example of high award:

• $413,000.00 (plus attorneys’ fees) award in Marez v.

Saint-Gobain Containers, et al. (No. 11-2354, 8th Cir. 2012)


Government incentives to employees for reporting potential wrongdoing:

Government Incentives


What is a Retaliation Claim?

Protected Activity Materially Adverse Employment Action A Causal Relationship


What is Protected Activity?

Not all workplace complaints are protected activity To constitute protected activity, an employee’s complaint

must be protected by the U.S. Constitution, federal or state statute or state common law


Protected Activity – cont’d.

The “basics:” • Complaint of discrimination or harassment

• Request for an accommodation

• Request for leave under the FMLA



FLSA • Complaint of misclassification of employees as exempt from

overtime

• Complaint of misclassification of employees as independent contractors

• Complaint of failure to pay wages including overtime



OSHA • Exercise of any right afforded by OSHA :

− Complaining to the union, OSHA, or any government agency about workplace safety or health hazards

− Participating in OSHA inspection conferences, hearings, or other OSHA related activities



The Sarbanes-Oxley Act • Complaints of violations of the federal mail, wire, bank, or

securities fraud statutes

• Complaints of any violations of any rule or regulation of the SEC

• Complaints of violations of any other provision of federal law relating to fraud against shareholders



The NLRA • Forming or attempting to form a union

• Refraining from activity on behalf of a union

• Attending meetings to discuss joining a union

• Wearing union buttons, T-shirts, stickers, hats or other items on the job

• Signing a petition for improved wages, hours, or conditions

• Asking other employees to support the union, to sign union cards or petitions, or to file grievances



The Consumer Product Safety Improvement Act • Reporting alleged violations of any law or regulation within

the jurisdiction of the Consumer Product Safety Commission

• Refusing to perform assigned tasks that the employee reasonably believes would violate CPSC requirements



Reports of violations of environmental laws or regulations: • Clean Air Act

• Safe Drinking Water Act

• Federal Water Pollution Control Act

• Toxic Substances Control Act

• Solid Waste Disposal Act

• Comprehensive Environmental Response, Compensation, and Liability Act



Missouri Common Law: • An employee has a cause of action when he or she has been

discharged for: − Refusing to perform an illegal act or an act contrary to a

strong mandate of public policy

− Reporting the employer or fellow employees to superiors or third parties for their violations of law or public policy

− Acting in a manner public policy would encourage

− Filing a claim for workers’ compensation


Whistleblower Claims Under Missouri Law


To prevail on a claim of wrongful discharge for whistleblowing, an employee must establish that:

• The employee reported a violation of law or well established public policy to a superior or to public authorities;

• The employee was discharged or forced to resign;

• The report was a “contributing factor” to the employer’s decision to discharge the employee; and

• The employee sustained damages

Elements of a Whistleblower Claim Under Missouri Law


Who Does the Employee Have to Blow the Whistle to? Employee need not report the wrongdoing to the authorities

or someone outside the company But employee cannot report the violation to the person

engaged in the wrongdoing Drummond v. Land Learning Foundation,

358 S.W.3d 167 (Mo. App. 2011)


What Type of Misconduct must Employee Report?

Employee must show that he reported “serious misconduct” that constitutes a violation of law or well established public policy The violation need not result in criminal sanctions, civil fines,

injunctions or disciplinary action against a professional license A whistleblower retaliation claim must be based on a specific

constitutional provision, statute, regulation or rule promulgated by a governmental body


When Does the Report Constitute Protected “Whistleblowing”?

Margiotta v. Christian Hospital Northwest, 315 S.W.3d 342 (Mo. banc 2010) Frevert v. Ford Motor Co., 614 F.3d 466 (8th Cir. 2010) Richter v. Advance Auto Parts, Inc., 686 F.3d 847 (8th Cir.

2012) Ascare v. Mastercard International Inc., 2012 WL 3548028

(E.D.Mo. Aug. 16, 2012)


Must Employee Demonstrate That Law or Public Policy Was Violated?

Bazzi v. Tyco Healthcare Group LP, 652 F.3d 943 (8th Cir. 2011) • Terminated employee provided no evidence that the employer failed to

properly validate drug as required under the Food and Drug Act Zasaretti-Becton v. The Habitat Co. of Missouri, 2012 WL 2396868

(E.D.Mo. June 25, 2012) • Terminated property manager’s personal belief that wrongdoing by

supervisor violated HUD regulations regarding low income housing was not sufficient.

McNerney v. Lockheed Martin Operations Support, Inc., 2012 WL 2131826 (W.D.Mo. June 12, 2012)

• Employee did not show objectively reasonable belief that employer’s billing policies constituted violation of law or well established public policy.


Causation Requirement

Employee need only show that the whistleblower conduct was a “contributing” factor in the employer’s decision to discharge him

Fleshner v. Pepose Vision Institute, PC, 304 S.W.3d 81 (Mo. banc 2010)

• Rejected “exclusive factor” test used in prior cases and workers’ compensation retaliation cases


Avoiding Whistleblower Retaliation Claims

Develop and publish policies which specifically prohibit retaliation for reporting violations of laws, regulations and company policies Train managers, Human Resources and other employees Promptly investigate claims and remind participants in

investigations of anti-retaliation policy Take prompt remedial action Document as needed


Implement Understandable and Well Publicized Policies

Make it known that “reporting” is a good thing Develop procedure for reporting violations of company

policies, laws and regulations Require reporting within 1-2 business days Prohibit retaliation for reporting misconduct Designate high-level person to oversee handling of such

reports


Develop Effective Training/Communication Plan

Train managers and Human Resources professionals to recognize “protected activity” Train employees and managers to promptly report wrongdoing

to Legal/Human Resources/Compliance Train managers how to respond/or not respond


Develop Procedures to Investigate/Respond to Complaints

Develop procedure to investigate complaints Decide who will take charge of handling such reports Establish guidelines for enforcement and corrective action Reiterate anti-retaliation policy during investigation Follow up with employee after the investigation Document


Contact Information

Narcisa Symank [email protected]

314.342.4176

Jennifer Arendes [email protected]

314.552.6607

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