Whistle Blowing

Whistleblower Rights in the Workplace

Posted in Whistle Blowing,Wrongful Termination on June 20, 2016

Female blowing a whistleAre there laws to protect you from being fired when you report wrongdoing by your employer? A question many corporate whistleblowers ask themselves. A whistleblower is an employee who learns a boss, co-worker or company has broken the law and reports their misdeeds to an outside party. Your honesty and courage are protected by state and federal laws. Therefore, do not fear the consequences of your actions. State and federal laws will keep your misbehaving employer from retaliating against you. There are statutes to protect you from being fired or wrongfully terminated by your employer. First, you are protected by the False Claims Act. This law gives you the right and freedom to report any fraudulent activities without fear of retaliation. This law deals mainly with the federal government and federal contractors. Many cities and states have their own version of the False Claims Act.

The New York City False Claims Act protects all city employees including those working for elected officials, such as the City Council, Borough Presidents, and the New York City Comptroller. Their jobs will not be in jeopardy for reporting misconduct, criminal behavior, corruption, mismanagement of funds, conflicts of interests and abuse of power. Whistleblowers can bring suit in the name of the City of New York when someone tries to defraud the city or state of taxpayer money.

According to the New York City Law Department website, “On May 19, 2005, Mayor Bloomberg signed into law the New York City False Claims Act (Local Law 53 of 2005), which authorizes citizens to bring lawsuits to recover treble damages for fraudulent claims submitted to the City. An important new tool with which the City can fight fraud perpetrated against it, the statute creates a way for people to help the City recover money lost through fraud, and is patterned after the federal “Qui Tam” statute. As an incentive to bring suits, this new law allows successful citizen plaintiffs, under certain circumstances, to keep as much as 30% of funds they help recover.”

There is a national law that protects whistleblowers working in a publicly traded company called the Sarbanes-Oxley (SOX) Act of 2002. SOX was created to curb widespread fraud that many large corporations were practicing during that time. Companies covered by SOX are corporations that are registered under the Securities Exchange Act and required to file reports with the Security Exchange Commission. Contractors and agents of these companies are covered by the law. You can file a claim under this law against an employer who violates it. A wrongful termination attorney can assist you in filing your claim. SOX provides comprehensive protections for all corporate whistleblowers. It contains civil and criminal provisions. The law prohibits employment discrimination for workers employed by publicly traded companies and protects whistleblowers from any retaliation by their employers. Retaliation action by an employer may include:

  • A demotion in your employment
  • Not providing overtime pay or promotions
  • Threats of firing or actually firing a person
  • A decrease in work hours or schedule
  • A reduction in wages
  • Withholding benefits from an employee
  • Mistreatment involving harassment or intimidation tactics

If your employer (or former employer) has wrongfully terminated you for whistleblowing or violated your employment rights, you may be entitled to compensation. Please contact the Law Offices of Joseph & Norinsberg.  Their lawyers will provide an honest assessment of the strengths and weaknesses of your case. If your case merits going to court, the attorneys at the Law Offices of Joseph & Norinsberg will work diligently to help you find the justice you deserve. Contact the Law Offices of Joseph & Norinsberg at (212) JUSTICE or at info@employeejustice.com for a free initial consultation.

New York City’s Qui Tam Laws

Posted in Whistle Blowing on November 10, 2015

United-States-Capital-6396873You are at work and you experience some form of employment discrimination or come across information that your employer has illegally been defrauding the government. What do you do? Many people like to believe that they will stand up for what is right and seek the relevant help that is needed to right whatever wrong has occurred. However, once people start factoring in their financial needs and family obligations, standing up for what is right may not seem plausible. Under New York’s state laws and certain federal laws, you are protected. In these cases it is beyond beneficial to seek legal advice, and here at The Law Offices of Joseph & Norinsberg we are here to help.

What are Qui Tam Laws?

Qui Tam lawsuits are civil lawsuits that private citizens, also known as relators, bring under the False Claims Act that reward the private citizen/relator for knowledge of past or present fraud committed against the federal government. If the relator’s qui tam case recovers funds for the government, so will the relator. The person bringing the claim on behalf of the government does not have to be personally harmed by the defendant’s conduct, the person must simply have knowledge of the fraud that is not known to the public. According to New York State’s False Claims Act, the law allows the state and any local government to bring a civil action to recover three times its financial losses from fraud. However under New York State’s False Claim Act, a defendant may be ordered to pay up to three times both the actual harm to the state and consequential damages, as well as a fine for violating the state’s False Claims Act up to $12,000.00.

How Does This Pertain to Employment Laws?

New York State has labor laws that provide protection for relators throughout numerous industries if they report fraudulent behavior to the government. These industries include healthcare, government, construction, roads and bridges, prisons, housing, and environmental services. However, under the Federal False Claims Act there are other ways to defraud the government that an employer may use such as:

  • Improper Medicare or Medicaid billing
  • Overcharging for goods or services provided under governmental contracts
  • Selling government equipment that has been used but branded as “new”
  • Selling the government defective or dangerous products
  • Requesting payment for goods and services that were not provided.

For these reasons, an employer with knowledge of the fraud may bring an action on the government’s behalf and is protected by New York’s labor laws, which discourages retaliation against the employee. If an employee who has become a relator is involved in the fraudulent behavior of their company, his or her reward can be reduced or entirely eliminated.

Need Legal Advice?

If you or a loved one has come across information that your employer has defrauded the government in some way it is important to seek legal advice. Though it may be difficult to stand up against an employer, here at The Law Offices of Joseph & Norinsberg believe that you do not have to stand alone. Contact our office today at info@employeejustice.com or (212)-JUSTICE so that we can help you seek the best possible outcomes for your case. We are here to help!

Retaliation and Protection for Reports of Discrimination

Posted in Whistle Blowing on September 22, 2015

human rights law bookAs discussed in earlier Joseph & Norinsberg, New York Employment law blogs, employees in New York gain protection from unlawful employment practices from both New York’s Human Right’s Law and Title VII under federal law. For the most part, in interpreting the New York Human Rights Law (NYHRL), courts follow the lead of federal courts interpreting Title VII. In other words, if a claim is viable under one of the laws, it is viable under the other.

One of the protections provided under both laws is from discharge or discrimination for opposing practices forbidden under NYHRL or Title VII or filing a complaint for such practices. Opposing practices and filing complaints can come in many forms. For example, filing an internal company complaint regarding unlawful practices or filing a lawsuit arising out of such practices would both be protected. The unlawful practices covered are those that NYHRL and Title VII prohibit, namely, discrimination and harassment of employees based on race, color, religion, sex, or national origin.

As set out in the case of Schiano v. Quality Payroll Sys., 445 F.3d 597, 608 (2d Cir. N.Y. 2006), to succeed on a retaliation claim, an employee must establish the following:

  • Protected activity
  • Employer awareness of the activity
  • Adverse employment action
  • The adverse employment action was caused by the protected activity

Typically, it is clear whether the activity was protected (if it involves reporting discrimination or harassment, it is). Employer awareness is often clear as well, particularly where reports are written, which prohibits the employer from denying knowledge. The third and fourth elements are often the most disputed.

What constitutes an “adverse employment action” is hotly debated and court cases sometimes appear inconsistent. However, there are some general principles and the concept is applied a little more liberally in retaliation cases (compared to discrimination cases). For retaliation purposes, Reddy v. Salvation Army, 591 F. Supp. 2d 406, 424 (S.D.N.Y. 2008), set forth the definition of an adverse employment action is one that “one which might dissuade a reasonable employee from making or supporting a charge of discrimination.” As a practical matter, this almost always means termination or a decrease in pay or title. Courts have expressly held that criticism alone is not enough.

As to the fourth element, an employer will often argue, “Yes, I fired the employee, but because they weren’t performing, not because of their report.” An employee can rebut this often false statement, in a variety of ways including evidence of an employer’s prior comments indicating the adverse action was because of the report or more inferentially by presenting proof of employee’s consistent strong performance (e.g. employee evaluations and testimony of others in the office).

While Title VII and NYHRL are important sources of protections against retaliation, there are other federal and state laws that protect employees against retaliation for reporting unlawful activity under different circumstances. If you believe your employer has taken adverse actions against you because you did the right thing and reported unlawful activity, whether that activity was directed at you or someone else, contact the employee advocates at today at Joseph & Norinsberg today at (212) JUSTICE or e-mail us at info@employeejustice.com and let us take over the fight for you.

The Psychology of Whistleblowing

Posted in Whistle Blowing on June 16, 2015

WhistleblowerForty-five percent of employees have witnessed wrongdoing on behalf of their employer, but only 64% of those that have reported it.  This is not a small number, but not nearly as high as one might imagine given that (as discussed in earlier blogs) there are numerous legal protections for whistleblowers, and in many cases, even financial incentives in favor of whistleblowing.

Yet, whistleblowing can be divisive.  Some whistleblowers are hailed as heroes, while others are criticized as whiny or undermining, particularly by the organization or entity engaging in the illegal conduct.  At least one study has demonstrated that those who blow the whistle tend to value fairness very highly, above even loyalty.  Others who have studied the issue have described whistleblowers as “shocked” and unable to “live with themselves anymore without doing something.”

Though, sometimes couched as disloyal, studies tend to indicate the contrary, that while they may value fairness above loyalty, most employee whistleblowers are loyal.  Most try internal reporting to company management before reporting outside of the organization.  And the reason they blow?  Most whistleblowers are motivated by the desire to solve the underlying issue and not for financial gain.

And whistleblowers are right. The problems Whistleblowers report are important.  Examples of the significant and positive impact Whistleblowers have on society include: Whistleblowers help the government, and in turn, taxpayers recoup thousands to millions of dollars when they report false claims made to the government;  Whistleblowers save the lives of workers when they report OSHA violations;  Whistleblowers who report the approval of medical drugs and devices that should not have been approved, raise awareness of dangerous products and save lives;  Whistleblowers that reveal improper and illegal trading activity, help prevent individuals and families from losing their hard earned savings; and  Whistleblowers protect patients from physicians that provide substandard care.

New York and federal laws recognize the important and often underappreciated role that whistleblowers play in protecting safety and welfare.  In exchange, state and federal laws provide protections for whistleblowers.  There are different laws and they all vary slightly in what they protect and how they protect it.  Generally, the laws protect whistleblowing on activities that are either illegal, unethical, dangerous, or all three.

When such reporting occurs, employers are generally prohibited from retaliating against the whistleblower.  Retaliation is typically deemed to have occurred when an adverse employment action is taken against the Whistleblower because of their reporting.  Adverse employment actions can come in many forms, some obvious, others more discrete.  For example, a demotion motivated by the whistleblowing but under the guise of other reasons would be considered an adverse action, as would the more obvious firing of an individual while expressly stating their job loss was because of their whistleblowing.

Though Whistleblower retaliation is prohibited, that does not mean it will not occur.  When it does, the onus is on the employee retaliated against to step up and take legal action to vindicate their rights.  The experienced employment law attorneys at Joseph & Norinsberg can guide the way and help make the process easier and more transparent for you.  Contact us at (212) JUSTICE or info@employeejustice.com to talk about your workplace concerns.

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