More Than A Thousand Whistleblower Cases Dumped, According to PEER

This press release from PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY (PEER) adds to the discussion we've been posting about freedom of speech in the workplace, including blowing the whistle. This was not written by The Ryan Law Firm, but supplied by PEER.

For Immediate Release: February 23, 2005

Contact: Chas Offutt (202) 265-7337

MORE THAN A THOUSAND WHISTLEBLOWER CASES DUMPED — Special Counsel Dismisses Hundreds of Disclosures and Complaints in Past Year

Washington, DC — The U.S. Special Counsel has dismissed more than 1,000 whistleblower cases in the past year, according to a letter from the Bush-appointed Special Counsel released today by Public Employees for Environmental Responsibility (PEER). The Special Counsel appears to have taken action in very few, if any, of these cases and has yet to represent a single whistleblower in an employment case.

In a letter dated February 14, 2005 and addressed to U.S. Representative Henry Waxman (D-CA), Special Counsel Scott Bloch defends his stormy 13 months in office by pointing to a sharp drop in backlogged whistleblower cases.

“Everyone agrees that backlogs and delays are bad but they are not as bad as simply dumping the cases altogether,” stated PEER Executive Director Jeff Ruch, noting that this letter is the first account that Bloch has released of his tenure and that his office’s report for FY 2004, which ended in October, is overdue. “If the Office of Special Counsel under Scott Bloch is not helping whistleblowers then there is no reason for the office to continue to exist.”

According to the figures released by Bloch, in the past year the Office of Special Counsel—

Dismissed or otherwise disposed of 600 whistleblower disclosures where civil servants have reported waste, fraud, threats to public safety and violations of law. Bloch has yet to announce a single case where he has ordered an investigation into the employee’s charges. Bloch says that 100 disclosures are still pending; and

Made 470 claims of retaliation disappear. In not one of these cases did Bloch’s office affirmatively represent a whistleblower to obtain relief before the civil service court system, called the Merit Systems Protection Board. Bloch says that another 30 retaliation cases remain in the backlog.

In order to speed dismissals, Bloch instituted a rule forbidding his staff from contacting a whistleblower if their disclosure was deemed incomplete or ambiguous. Instead, OSC would simply dismiss the matter. As a result, hundreds of whistleblowers never had a chance to justify why their cases had merit.

“According to Scott Bloch there is no waste, fraud or abuse in the federal government that deserves investigation,” stated Ruch, noting that there may be even more dismissals than Bloch reported because the numbers cited above are limited to what was defined as a backlog and do not include new cases.
Rep. Waxman and Rep. Danny Davis (D-IL), the ranking minority party members of the House Government Reform Committee and its Civil Service Subcommittee, respectively, had originally written to ask for an investigation by the Government Accountability Office into Bloch’s forced removal of OSC staff, hiring of cronies and failure to answer Freedom of Information Act requests.

Whistleblower's Speech Protected: Worker Gets Job Back, Plus Lost Wages and Attorney Fees

While workers may not be free to blog to their hearts’ content (as discussed in our earlier blogs), they do have rights to question their employers’ accounting practices without losing their jobs.

Last week a judge for the Department of Labor ordered a Virginia bank to reinstate an employee who was fired for questioning its accounting practices. The judge also awarded the worker nearly $65,000 for lost wages and other damages, recognizing that he was a whistleblower under a fairly new federal law, the 2002 Sarbanes-Oxley Act. The worker was the first person to win whistleblower protection under this law last year, when the judge found that the company had wrongfully fired him.

To Be or Not to Be - Reinstated? The company argued that since there was "emnity and distrust" between the worker and the company, the judge should not give him his job back. The court said that distrust often arises as a result of litigation, and in the absence of special circumstances, the worker was entitled to have his job back, so he could be placed in the position he would have been in had the company not retaliated against him.

New Employee Displaced. Interestingly, the judge ordered his reinstatement even though it would displace a new employee who had filled his position. The court found that the new employee was not an innocent incumbent, since there had been nationwide attention given to this dispute.

Delay in Remedy. Due to legal maneuvering on the part of the company, it took more than a year for the worker to obtain this ruling reinstating him and for his lost wages. In addition to the lost wages and special damages awarded to the worker, the judge awarded nearly $110,000 in his attorneys fees, finding the amount of time the attorney spent was reasonable, particularly given the novel issues presented by the case. Welch v. Cardinal Bankshares, Inc., decided 2/15/05. You can read the decision at http://www.oalj.dol.gov.

Workers: if you are fired for blowing the whistle on accounting practices, find a good lawyer.

Employers: if your workers complain to you about accounting practices, you have a duty under this law to investigate and not to retaliate against the worker. If you do not already have policies in place with a clear reporting/complaint mechanism for your workers, along with an anti-retaliation provision, it’s time to have your policies and/or employee handbook updated to comply with the law.

Speech is Not Always Free - Can Cost a Job

As a follow up to our blog of yesterday, in which we touched on freedom of speech issues in the workplace, here's a case where the Court found that a government employee went too far (even on his off time) and could be terminated for "speech" that was not found to be constitutionally protected.

In City of San Diego v. Roe, No. 03-1669 (USSC 12/06/04) the U.S. Suprme Court found that the termination of a police officer, for selling videotapes of himself engaging in sexually explicit acts, does not violate his First and Fourteenth Amendment rights to freedom of speech: The Court stated:

“ … there is no difficulty in concluding that [the employee's] expression does not qualify as a matter of public concern under any view of the public concern test . . . The speech in question was detrimental to the mission and functions of the employer. There is no basis for finding that it was of concern to the community as the Court's cases have understood that term in the context of restrictions by governmental entities on the speech of their employees.”

Here's an example of the Court's finding that even though freedom of speech is protected, not all speech is protected, whether in the workplace or on the employee's own time.

You can read the whole case at:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=03-1669

Beware of the Blog: Tips for Workers and Employers

What is Blogging and What Does it Have to do with Employment Law?

Bloggers beware. Blogging could cost you your job. Employers beware. Firing a blogger could cost you a lawsuit.

Blogging has entered the world of employment law. Web logs, or blogs, have given individual workers a potential audience of millions. These on-line journals allow individuals to post their thoughts on the Internet and disseminate them instantaneously to almost anyone who cares to read. Workers can write about their bosses, post pictures of themselves or the workplace, and publish comments on the inner-workings of their employers.

Employers have taken notice. And some have taken action. In January, Google fired a new employee for blogging about his impressions of his first month on the job. Microsoft terminated a contractor for posting pictures of Apple computers arriving at the company’s corporate headquarters. And Delta Airlines fired a flight attendant for posting pictures of herself posing in her Delta uniform in ways the company considered inappropriate.

But is it legal for companies to fire employees for this? The short answer is “it depends.” At least three legal doctrines help to clarify: 1) at-will employment; 2) freedom of speech and other protections; and 3) the worker’s duty of loyalty.

At-Will Employment

Companies in “at-will” states generally have the right to terminate an employee for any reason or no reason, as long as it is not an illegal one. What does this mean? It means that companies need to make sure that they are not firing an employee for a reason that is protected under the law.

For example, in Colorado (and in 29 other states), the law protects employees for engaging in legal off-duty conduct. But this law - like almost every law on the books - has exceptions. If an employee engages in conduct that either creates a conflict of interest or the appearance of one, or relates to a bona fide occupational requirement, the company may be able to fire the worker.

Freedom of Speech and Other Protections

Many workers have the mistaken assumption they have a Constitutional right to “freedom of speech” at work. However, usually this Constitutional right only protects people from government restrictions on free speech. That means that for people who do not work for the government (or for a company that contracts with the government), “freedom of speech” usually will not protect them at work.

But other laws might. For example, in Colorado, in addition to the lawful off duty conduct statute, there is a state law that prohibits employers from firing people from voicing their political views. Another law protects employees from being fired for engaging in concerted activity to make their workplaces better, such as union activity.

Workers' Duty of Loyalty

While several laws might protect employee speech, workers also have a duty of loyalty to their employers. While this does not mean that they cannot ever express negative views of their work environments (clearly employees have a right to complain about discriminatory treatment under anti-discrimination laws), workers should be very careful about printing things about their employers that would be harmful.

For example, in one case in Denver, a Delta baggage handler wrote a letter to The Denver Post, criticizing Delta’s decision replace laid-off full-time employees with hourly contract workers. After the worker was fired, a lawsuit ensued. The federal court held that because employees owe their employers a duty of loyalty with regard to public communications, the firing was justified.

These cases all will vary depending on the facts of each case. An employee may have a right to complain to the newspaper or Internet readers about discrimination that violates the law, such as discrimination based on race, color, national origin, religion, sex, age, disability, and other protected categories, if there is a valid basis to do so. However, an employee may not post secret, confidential company information to a public source. There will be many scenarios ranging from conduct that is clearly protected (such as discrimination complaints under most circumstances) to the wrongful disclosure of confidential information. Each one should be considered separately and based on the facts of each case.

Tips for Workers

1) Check your employee handbook for policies regarding blogs, and if you have questions, ask HR or an employment attorney;

2) Before you publish anything publicly, have someone you trust review your work to make sure you are not just lashing out;

3) Never, ever publish something about your employer in the heat of anger;

4) If you plan to publish anything about your company, be sure you have a factual basis, evidence to support your statements, and be ready to lose your job.

5) If you have been terminated for blogging or publishing something against your employer, seek legal assistance, and don't forget that most legal claims have deadlines - if you fail to meet the deadline, you may not have any legal claim.

Tips for Companies

1) Check your employee handbook to see whether it has blog or Internet policies - if not, consider having an experienced attorney review and update your handbook;

2) Try not to fire an employee in the heat of anger;

3) Before making a termination or disciplinary decision, be sure you investigate properly and know whether any laws limit your rights to take disciplinary actions;

4) Answer your employees' questions about blogs, and try to maintain open communications with them about issues that concern them - lest they take it to the Internet!

Bloggers and companies should all beware of the power of the pen – or in this case – the Internet - and act wisely. Don't be afraid to contact legal counsel to help if you have questions. It's better to handle a problem when it is big enough to see but still small enough to solve.

Welcome to The Ryan Law Firm, LLC's Blog

We hope this will be a resource for you to keep up with the constant changes affecting workers and employers. We understand that it can be daunting to keep up with the changes while tending to your own job and business. We plan to give you tips you can implement to make your workplace a pleasant and healthy one, and to help you seek assistance when it isn't.

This blog is not intended to provide specific legal advice, nor does it create an attorney/client relationship. Kimberlie K. Ryan is the "blog master," and she can be contacted at The Ryan Law Firm, LLC, at kim@ryanfirm.com.

We hope this blog will be useful to you, and we welcome your feedback.

Regards,

The Ryan Law Firm, LLC
ryanlawfirm@comcast.net