Whistleblowers Need To Be Protected

If you are an employee in NYC I think you may have heard about a co-worker who sees another employee do something abusive, harassing, or wholly improper and the observer reports what happened, only to be discontinued or fired for making that report?

Whistleblowers need to have a say and be heard in the workplace.

Note: While I have posted the Outten and Golden LLP blog post below, I do not work for the lawfirm.

Betsy Combier
Editor, ADVOCATZ.com
Editor, ADVOCATZ blog
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, NYC Rubber Room Reporter
Editor, NYC Public Voice
Editor, National Public Voice
Editor, Inside 3020-a Teacher Trials

Congress Proposes Vital Protections for Whistleblowers as Workplaces Reopen

by Tammy Marzigliano and Brittany Arnold, Employment Law Blog of Outten and Golden, Apr 7, 2021 | Retaliation & Whistleblowing |

COVID-19 has devastated countless individuals and businesses, both economically and personally. Local, state, and federal agencies have hastily authorized economic relief programs to help ease the impact on families, communities, and the national economy. To address community needs, many agencies quickly distributed funds with minimal oversight.

Although this helped expedite relief payments, it also opened the door for improper distribution of these funds. To prevent fraud and misuse of federal benefits, members of Congress have introduced proposed legislation called the Coronavirus Oversight and Recovery Ethics (CORE) Act, which also includes critical whistleblower protection provisions.

Implementing Federal Oversight and Expanding Whistleblower Protection

Many small businesses need federal grants and loans to continue operations and reopen workplaces successfully. Some will use Coronavirus Aid, Relief, and Economic Security (CARES) Act programs, like the $500 billion corporate bailout fund and the Paycheck Protection Program. As the pandemic continues, Congress may pass additional legislation enabling other loan and grant programs to help avoid economic disaster for businesses and individuals.

To reduce profiteering and ensure that CARES Act benefits and other federal aid funds are fairly and lawfully distributed, the CORE Act proposes a multi-faceted approach, tackling potential fraud from many angles, that:

• Empowers and funds the Office of Government Ethics to take steps to reduce conflicts of interest in the selection or hiring of contractors or advisors and the distribution of relief grants and loans, including prohibiting receipt of bailout funds by companies closely connected to government officials.
• Protects Inspectors General from retaliation by requiring them to be removed only for cause, requiring Congress to be notified of their removal, and providing Inspector Generals a means to bring suit to challenge the firing.
• Strengthens the authority of the Congressional Oversight Commission by expanding their jurisdiction to all COVID-19 relief funding and providing them with subpoena authority, as well as the oversight entities and Executive Branch accountability requirements of the CARES Act, including requiring a weekly reporting of instances in which they were unreasonably denied information from the executive branch.
• Restricts lobbying and political spending by bailout recipient companies by requiring monthly reporting to prevent “quid pro quo” handouts.
• Improves transparency about the disbursal of bailout funding by requiring public reporting detailing the use of the funds, the recipients, employee compensation data – including bonuses, and whether the company has been charged with violations of federal law.
• Establishes strong whistleblower protections for government employees, government contractors, and private-sector workers who witness and report waste, fraud, or abuse or are victims of misconduct.
• Creates individual causes of action for individuals harmed by the prohibited misconduct, allowing private lawsuits, and establishes personal responsibility for senior executives for their corporate wrongdoing.

Fleshing Out Employee Whistleblower Protections

Several laws are already in effect to protect employees who blow the whistle on misuse or theft of federal funds during the coronavirus pandemic. The federal False Claims Act (FCA), for example, protects and even provides incentives for workers who report employers misusing, misappropriating, or improperly obtaining government funds. Properly making a claim under the FCA, however, can be complicated, and the law contains numerous restrictions and exclusions limiting who can file a suit.

The CORE Act would protect most workers who reasonably believe their employer is misusing economic aid related to COVID-19, allowing them to report alleged improprieties without fear of reprisal or retaliation. It would also protect workers from retaliation after reporting conduct they “reasonably believe[] would require the employee to violate th[e] Act . . . with respect to any Coronavirus pandemic-related program, project, or activity.” The proposed Act leaves it to the Secretary of Labor to establish the rules and procedures for administrative investigation and hearings, appeals, and relief, indicating that – as much as possible, it should mirror the Taxpayer First Act.  As more organizations apply for and receive these vital federal benefits and use them to reopen, returning workers will play a critical role in preventing employers’ unscrupulous behavior.

Employees who know of or suspect their employers of fraud or who have concerns about the safety of their workplace should consult an attorney immediately. Numerous state and federal statutes protect whistleblowers, but every situation is unique. An experienced attorney – like the lawyers in Outten & Golden’s Whistleblower-Retaliation Practice Group – can help you chart the best course of action for your situation.

Section 740 - Retaliatory personnel action by employers; prohibition

Whistleblower Claims on the Horizon Amid COVID-19 Pandemic

1. Proskauer Rose LLPSteven J. PearlmanApril 20, 2020

   The NLRB held that such a policy restricted the employee’s right to publicly complain about workplace issues of common concern to all employees, and therefore, the employee was “discharged for engaging in protected concerted union activity in violation of Section 8(a)(1) and 8(a)(3).”New York Whistleblower StatutesNew York has two whistleblower statutes—New York Labor Law § 740 and New York Labor Law § 741—that may be relevant to claims arising from COVID-19, but differ from one another in significant respects, as discussed below. As we have previously reported, the New York whistleblower statute, New York Labor Law § 740, protects employees from retaliation for reporting a violation of the law that “creates and presents a substantial and specific danger to the public health or safety.”

2. Can I be Fired for Refusing to Report to Work During the Coronavirus Pandemic?

   Sanford Heisler Kimpel LLPAndrew MelzerMarch 28, 2020

   For example, New York State law protects employees who “object to, or refuse to participate in any activity, policy, or practice” “that is in violation of law, rule, or regulation which violation creates and presents a substantial and specific danger to the public health or safety.” NY Labor Law § 740(2). This would seem to include refusals to violate official stay-at-home or social distancing orders.

3. Port Authority Not Subject to Worker-Friendly New Jersey Whistleblower Law, State Court Rules

   Jackson Lewis P.C.Richard CinoMarch 29, 2017

   Sullivan maintained he was pushed out because, in 2011, he reported to his superior, the Chief and Director of Public Safety, that he confronted an officer who had obtained photographed copies of an examination to become a sergeant in the Port Authority’s police department. In August 2012, Sullivan served a notice of claim on the Port Authority, alleging violations of the New York Whistleblower Law (NYWL), N.Y. Lab. Law § 740, and the New York Civil Service Law. N.Y. Civ. Serv. Law § 75(b). On May 15, 2013, he filed a complaint in the Superior Court of New Jersey, Hudson County, alleging retaliation and civil conspiracy in violation of CEPA, and sought reinstatement and damages.

4. Healthcare Litigation - February 2017

   Manatt, Phelps & Phillips, LLPBarry LandsbergFebruary 23, 2017

   Id., § 1-502, 1-505(5), (6). Other states with similar healthcare employee whistleblower statues that authorize money damages in actions brought by an employee physician against a hospital include (but are not necessarily limited to): Illinois (210 ILCS 86/35, 86/40); New York (N.Y. Labor Law §§ 740, 741); and Texas (Health & Safety Code § 161.134).

5. Health Update - February 2017

   Manatt, Phelps & Phillips, LLPKinda SerafiFebruary 22, 2017

   Id., § 1-502, 1-505(5), (6). Other states with similar healthcare employee whistleblower statues that authorize money damages in actions brought by an employee physician against a hospital include (but are not necessarily limited to): Illinois (210 ILCS 86/35, 86/40); New York (N.Y. Labor Law §§ 740, 741); and Texas (Health & Safety Code § 161.134).

6. Employees Need Not Identify Specific Law, Rule or Regulation Violation in Pleading Retaliation Claim Under New York’s Whistleblower Statute

   Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.David KatzMay 29, 2014

   Earlier this month, in Webb-Weber v. Community Action for Human Services, Inc., New York’s highest court overruled several appellate court cases in holding that an employee need not identify the specific law, rule or regulation allegedly violated by his or her employer in pleading a retaliation claim under New York’s whistleblower statute. Ms. Webb-Weber served as COO of Community Action, a not-for-profit organization providing social services to the mentally and physically disabled and subject to oversight by the State. Plaintiff filed suit against Community Action claiming that it terminated her in violation of New York Labor Law § 740, the “whistleblower statute,” for registering complaints with public agencies concerning certain policies and practices of Community Action. Specifically, according to her complaint, Ms. Webb-Weber alerted Community Action to issues she claimed endangered the welfare and safety of patients, including falsification of patient medication and treatment records, inadequate fire safety, mistreatment of residents and deficiencies in patient care and in the facility itself.

7. New York’s Court of Appeals Makes it Easier to Plead Whistleblower Law Claims

   Hodgson Russ LLPJoseph BrownMay 23, 2014

   The Court of Appeals’ decision in Webb-Weber v. Community Action for Human Services, Inc. likely means that more whistleblower claims will be able to survive the motion to dismiss stage and can proceed to the discovery stage, which can be expensive and time consuming. By way of background, New York Labor Law § 740, commonly referred to as the “whistleblower statute,” prohibits an employer from retaliating against an employee who “discloses or threatens to disclose to a supervisor or public body an activity, policy, or practice of the employer that is in violation of the law, rule or regulation” that either “creates and presents a substantial and specific danger to the public health or safety, or…constitutes health care fraud.” To prevail under this law — which applies to both private and public employers — a whistleblower must ultimately establish an act

Trending Now: Attempts To End Employment-at-Will

 

For many years there has been an effort to undo unionization and to give employers the right to fire employees whenever they want, for any reason.

Today, the trend is against this power imbalance between employer-employee, and give the workers powers of their own. 

We are all for this movement.

Betsy Combier
Editor, ADVOCATZ.com
Editor, ADVOCATZ blog
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, NYC Rubber Room Reporter
Editor, NYC Public Voice
Editor, National Public Voice
Editor, Inside 3020-a Teacher Trials

The Movement to End At-Will Employment
Is Getting Serious

Posted on April 8, 2021 by Jeff Schuhrke

On March 31, a group of worker centers, unions, community groups and policy organizations in Illinois officially formed a new coalition, Stable Jobs Now, that aims to dramatically shift the power balance between workers and bosses by eliminating ?“at-will” employment?—?the practice that allows employers to fire their employees on a whim.

In most of the rest of the world, workers are protected by the ?“just cause” principle, which says they can only be terminated for legitimate, documented reasons connected to poor job performance. But in the United States, the at-will doctrine allows bosses to arbitrarily fire employees for any reason or no reason whatsoever, with the burden of proving it was an unlawful dismissal placed on the worker. 

“It’s like we’re disposable to them,” said Estrella Hernandez, who was abruptly fired from her stitching job at a Chicago-area factory in December 2020. ?“I got to work one morning at 4am and the supervisor told me I couldn’t be there, that they had let me go the day before… I asked the reason and they said they didn’t have to tell me and told me to just go home.”

Hernandez believes she was fired as illegal retaliation for raising concerns about the inability to practice social distancing in her cramped work area, but she can’t prove it, especially since her employer never provided a reason for her dismissal. 

Predominantly Black and Latino workers in Chicago’s low-wage jobs routinely face illegal retaliation for reporting workplace injustices like unsafe conditions, wage theft, injuries, sexual harassment and discrimination. The at-will doctrine makes it practically impossible for employees to prove they were fired as retaliation for speaking up against illegal abuses.

A new study published by Raise the Floor Alliance, a group of Chicago worker centers, and the National Employment Law Project (NELP) found that 37percent of Illinois workers have been fired for an unfair reason and 42 percent have been terminated for no reason at all, with Black and Latino workers the most likely to be fired. A third of those who faced unfair discharge say it was over raising concerns about problems on the job.

“While conditions were bad for working people well before the pandemic, this past year has highlighted and exacerbated these conditions,” said Sophia Zaman, executive director of Raise the Floor Alliance.

The Stable Jobs Now coalition is pushing for passage of the Secure Jobs Act, a bill recently introduced in both chambers of the Illinois General Assembly. The legislation would make Illinois the second state to adopt a just cause system. Only Montana currently restricts at-will employment, a law dating back to 1987.

Among other measures, the Secure Jobs Act would lay out valid reasons for termination, grant workers a fair chance to improve their job performance before being fired, prohibit ?“constructive discharge” where employers pressure workers into resigning by creating a hostile work environment, outlaw ?“Do Not Hire” lists (a practice prevalent in the temp industry), and allow workers to accrue severance pay that employers would have to disburse upon termination. The law would be enforced by the Illinois Department of Employment Security, but would also permit fired workers to sue their employers under a private right of action.

“At-will employment has been a longstanding problem in the state and at-will termination has long endangered the stability of our communities,” said State Rep. Carol Ammons, the Secure Jobs Act’s chief sponsor in the Illinois House of Representatives. Ammons previously spearheaded a successful legislative effort to enshrine more rights for temp workers in Illinois. 

The new campaign in Illinois is part of a budding national movement to end the at-will employment system. In the past two years, Philadelphia and New York City have both enacted just cause bills covering parking lot attendants and fast-food workers, respectively. 

“This cries out for a signature federal bill, however long it takes to pass,” said Shaun Richman, an In These Times contributor and advocate for a national just cause rule. ?“In the absence of that, you’ve got these sort of rebel cities and blue states that are introducing their own bills as signal efforts.”

“This movement is still at an early stage, perhaps where the Fight for $15 or the paid sick days movements were a decade ago, which is why the work being done here in Illinois is so important and exciting,” explained NELP senior researcher and policy analyst Irene Tung.

Proposals to enact just cause laws are widely popular, with a recent pollfinding that 67 percent of likely voters support the idea.

“At-will isn’t a law anyone voted for, it was just made up by judges in the 19thcentury,” Richman said. ?“Let’s actually have a vote on this. Let’s put this to the people.”

Traditionally, U.S. employers only have to follow just cause rules in workplaces governed by union contracts, but only 11 percent of the national workforce is currently unionized. Several unions have joined the Stable Jobs Now coalition, including the Chicago Teachers Union, SEIU Healthcare, SEIU Local 73, Amalgamated Transit Union Local 308, Cook County College Teachers Union, and the United Electrical, Radio, and Machine Workers of America.

Coalition organizers say they are also in communication with the Illinois AFL-CIO. The state labor federation supported a similar wrongful discharge bill in 2017, but so far has not endorsed the Secure Jobs Act and did not respond to In These Times’ requests for comment. 

“The American labor movement has this weird, total exception to the rule that we base this right in collective bargaining,” Richman said. ?“It’s time to get over that. This really should just be a law. It sucks up so much time in collective bargaining. Also, workers know they will be fired for organizing a union. Let’s make it a law that you can’t be fired unless it’s for a good reason, and then we’ll get more unions.”

Importantly, the Secure Jobs Act includes a provision that would restrict bosses from using data gathered through electronic monitoring to make decisions around discipline or dismissal, instead limiting such decisions only to human-based information. The new study by NELP and Raise the Floor Alliance found that 52 percent of Illinois workers are observed, recorded, or tracked at work through various forms of surveillance technology.

Delivery driver Jesus Ruelas told In These Times that he was fired by Amazon last year partly because he had a low score on Mentor, an app he said the company uses to monitor ?“how fast we’re driving, if we’re reversing, how fast we’re turning, how hard we’re braking, and whether we’re putting a seatbelt on.”

Amazon drivers nationwide complain that Mentor often provides glitchy, inaccurate, or misleading data that doesn’t take real-world conditions into account?—?leading to unfair discipline and discharge. 

“The app just records what you do, it’s not advanced enough to know if you’re doing it for a reason. If you brake on a slick road, it records that as a negative thing,” Ruelas said. ?“Amazon will let you go for anything they can think of.”

The proposed legislation is certain to face opposition from employer groups, but since 2019, the Illinois General Assembly has managed to pass a host of progressive reforms, including a $15-an-hour minimum wage, legalization of recreational marijuana and abolition of cash bail.

“At its core, this is a racial justice and economic justice issue that can no longer be ignored,” said State Sen. Celina Villanueva, the bill’s chief sponsor in the Illinois Senate. ?“We have to catch up with the rest of the world and end this perverse and broken system that seeks to subjugate workers.” 

This blog originally appeared at In These Times on April 6, 2021. Reprinted with permission.

About the Author: Jeff Schuhrke has been a Working In These Times contributor since 2013. He has a Ph.D. in History from the University of Illinois at Chicago and a Master’s in Labor Studies from UMass Amherst.