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© 2013 Armstrong Teasdale LLP
Retaliation and
           Whistleblower Claims
           Presented by:
           Narcisa Symank
           Jennifer Arendes




© 2013 Armstrong Teasdale LLP
Claims on the Rise
 OSHA:
 19% increase in whistleblower claims between 2008 and 2011

 EEOC:




© 2013 Armstrong Teasdale LLP
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)


© 2013 Armstrong Teasdale LLP
Government Incentives
Government incentives to employees for reporting potential
wrongdoing:




© 2013 Armstrong Teasdale LLP
What is a Retaliation Claim?

  Protected Activity
  Materially Adverse Employment Action
  A Causal Relationship




© 2013 Armstrong Teasdale LLP
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




© 2013 Armstrong Teasdale LLP
Protected Activity – cont’d.

  The “basics:”
         • Complaint of discrimination or harassment
         • Request for an accommodation
         • Request for leave under the FMLA




© 2013 Armstrong Teasdale LLP
Protected Activity – cont’d.

  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




© 2013 Armstrong Teasdale LLP
Protected Activity – cont’d.

  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




© 2013 Armstrong Teasdale LLP
Protected Activity – cont’d.

  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




© 2013 Armstrong Teasdale LLP
Protected Activity – cont’d.

  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



© 2013 Armstrong Teasdale LLP
Protected Activity – cont’d.

  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




© 2013 Armstrong Teasdale LLP
Protected Activity – cont’d.

  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




© 2013 Armstrong Teasdale LLP
Protected Activity – cont’d.

  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




© 2013 Armstrong Teasdale LLP
Whistleblower Claims
                             Under Missouri Law




© 2013 Armstrong Teasdale LLP
Elements of a Whistleblower Claim 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




© 2013 Armstrong Teasdale LLP
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)




© 2013 Armstrong Teasdale LLP
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




© 2013 Armstrong Teasdale LLP
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)




© 2013 Armstrong Teasdale LLP
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.

© 2013 Armstrong Teasdale LLP
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




© 2013 Armstrong Teasdale LLP
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




© 2013 Armstrong Teasdale LLP
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




© 2013 Armstrong Teasdale LLP
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




© 2013 Armstrong Teasdale LLP
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




© 2013 Armstrong Teasdale LLP
Contact Information
 Narcisa Symank
 nsymank@armstrongteasdale.com
 314.342.4176

 Jennifer Arendes
 jarendes@armstrongteasdale.com
 314.552.6607




© 2013 Armstrong Teasdale LLP

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Whistleblower and Retaliation Claims

  • 1. © 2013 Armstrong Teasdale LLP
  • 2. Retaliation and Whistleblower Claims Presented by: Narcisa Symank Jennifer Arendes © 2013 Armstrong Teasdale LLP
  • 3. Claims on the Rise OSHA: 19% increase in whistleblower claims between 2008 and 2011 EEOC: © 2013 Armstrong Teasdale LLP
  • 4. 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) © 2013 Armstrong Teasdale LLP
  • 5. Government Incentives Government incentives to employees for reporting potential wrongdoing: © 2013 Armstrong Teasdale LLP
  • 6. What is a Retaliation Claim?  Protected Activity  Materially Adverse Employment Action  A Causal Relationship © 2013 Armstrong Teasdale LLP
  • 7. 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 © 2013 Armstrong Teasdale LLP
  • 8. Protected Activity – cont’d.  The “basics:” • Complaint of discrimination or harassment • Request for an accommodation • Request for leave under the FMLA © 2013 Armstrong Teasdale LLP
  • 9. Protected Activity – cont’d.  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 © 2013 Armstrong Teasdale LLP
  • 10. Protected Activity – cont’d.  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 © 2013 Armstrong Teasdale LLP
  • 11. Protected Activity – cont’d.  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 © 2013 Armstrong Teasdale LLP
  • 12. Protected Activity – cont’d.  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 © 2013 Armstrong Teasdale LLP
  • 13. Protected Activity – cont’d.  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 © 2013 Armstrong Teasdale LLP
  • 14. Protected Activity – cont’d.  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 © 2013 Armstrong Teasdale LLP
  • 15. Protected Activity – cont’d.  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 © 2013 Armstrong Teasdale LLP
  • 16. Whistleblower Claims Under Missouri Law © 2013 Armstrong Teasdale LLP
  • 17. Elements of a Whistleblower Claim 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 © 2013 Armstrong Teasdale LLP
  • 18. 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) © 2013 Armstrong Teasdale LLP
  • 19. 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 © 2013 Armstrong Teasdale LLP
  • 20. 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) © 2013 Armstrong Teasdale LLP
  • 21. 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. © 2013 Armstrong Teasdale LLP
  • 22. 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 © 2013 Armstrong Teasdale LLP
  • 23. 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 © 2013 Armstrong Teasdale LLP
  • 24. 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 © 2013 Armstrong Teasdale LLP
  • 25. 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 © 2013 Armstrong Teasdale LLP
  • 26. 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 © 2013 Armstrong Teasdale LLP
  • 27. Contact Information Narcisa Symank nsymank@armstrongteasdale.com 314.342.4176 Jennifer Arendes jarendes@armstrongteasdale.com 314.552.6607 © 2013 Armstrong Teasdale LLP