Articles Posted in whistleblower

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Workplace discrimination is illegal in New York, and employees do not need to sit idly by if they witness New York employment discrimination. Indeed, the same laws that prohibit discrimination also prevent retaliatory actions taken against an employee who speaks up in the wake of discriminatory conduct.

While an employer cannot take an adverse employment action against an employee who has engaged in whistleblowing or other protected conduct, an employer is not prevented from firing an employee based on an independent reason. Of course, if there is both a potential permissible as well as an impermissible reason for an adverse employment action, it is up to the employee to establish that the employer’s proffered reason is pretextual.

A recent employment discrimination case in front of a federal court of appeals illustrates this concept.

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It can be incredibly difficult for an employee to make fraud allegations, or voice civil rights or safety concerns, about the company that pays him. Both state and federal legislators have long recognized this, as well as the fact that most of these situations would never come to light unless workers were assured they would be shielded from institutional backlash and retaliation. This is why we have whistleblower protection laws at both the state and federal level.

Still, employees must proceed with extreme caution because if their action does not meet the specific criteria of protected activity, they may find it difficult to remedy any adverse impact on their career. Consultation with an experienced whistleblower attorney in New York City will be key to determining whether assertions will be protected. Additionally, per both the state and federal False Claims Acts, the worker who blows the whistle on government fraud may be entitle to a significant portion of the recovery via a qui tam lawsuit.

What is classified as whistleblowing activity? There are 17 federal statutes that contain provisions for whistleblower protections, and protections are extended through the Occupational Safety and Health Administration (OSHA). These are: the Occupational Safety and Health Act, the Surface Transportation Assistance Act, the Asbestos Hazard Emergency Response Act, the International Safe Container Act, the Energy Reorganization Act, the Clean Air Act, the Safe Drinking Water Act, the AIR21 Act, the Sarbanes-Oxley Act, the Pipeline Safety Improvement Act, the Federal Rail Safety Act, the National Transit Systems Security Act and the Consumer Product Safety Improvement Act.
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Whistleblowing has a long tradition in America of outing the wrongs and public risks of corporate and government entities that would otherwise not be held accountable.For employees with access to that information, becoming a whistleblower is not a decision to be taken lightly. You do it because it’s the right thing. In qui tam cases, you may also be handsomely rewarded if it is later revealed that you saved the U.S. government a significant amount of money. Also, the Whistleblower Protection Enhancement Act, passed last year by Congress, allows for compensatory damages for those whistleblowers who win their cases following an administrative hearing.

Of course, government itself is not always open to having its flaws revealed. Whistleblowers everywhere suffered a serious setback with the issuance of an Obama administration memo, instructing both the Office of Personal Management and the director of national intelligence to set standards given federal agencies broad power to fire employees – without appeal – if they are deemed ineligible to hold “noncritical sensitive” jobs. Essentially, it provides a sweeping power to sidestep civil service laws, which lays the foundation for whistlblower rights.

The government brushes off criticism of the request, saying the standards will simply allow agencies to better know which jobs are going to qualify as “sensitive.” But the guidelines are extremely vague, and could potentially include jobs such as police, immigration officials and customs enforcement personnel.

If these proposed rules are finalized, they could be invoked to deny a broad number of employees the right to defend themselves in whistleblower cases when they are subject to retaliation – as they almost always are. Those workers would be denied the potential for compensatory damages because they would be conveniently denied an administrative hearing.

Take the case of a Marine Corps adviser who, upon returning to Iraq, publicly disclosed bureaucrats in the Pentagon blatantly ignored on-the-ground request for vehicles that were resistant to mines, when roadside bombs were posing a major threat to active duty soldiers.

The adviser was suspended, but later reinstated following an appeal through the Merit System Protections Board.

This is not an isolated situation. Just in the last 10 years, we have whistleblowers to thank for the exposure of the Bush administration’s efforts to censor climate change reports and the U.S. Food & Drug Administration’s shortcomings in halting the distribution of unsafe drugs to unsuspecting consumers.

Many whistleblowers face a harsh degree of retaliation.

One of those recently in D.C. won an important victory after a seven-year battle to regain his job as a former federal air marshal. This individual was fired after he was discovered to be the source of numerous stories revealing that the U.S. government planned to remove armed security from long-distance passenger flights as a cost reduction measure, despite all indications that Al Qaeda was intent on hijaking more planes in an effort to target both Europe and the U.S. He noted that the obvious dress code of air marshals tipped off terrorists as to their presence.

In response to the numerous media stories that followed, Congress walked back its previous efforts to cut back on commercial flight security. Additionally, air marshal dress code changed.

But the air marshal was still fired. Just this past month, the U.S. Court of Appeals in Washington, D.C. unanimously ruled that his disclosures were covered under the Whistleblower Protection Act. That meant he would receive new hearings to have his firing reconsidered.

A ruling against the air marshal, legal analysts believe, would have resulted in a dangerous precedent that could have prompted government authorities to enact sweeping secrecy regulations that would basically withhold the protections intended for whistleblowers.

In offering legal representation to whistleblowers, our attorneys are committed to defending not only your rights as an employee, but also as a brave citizen who is speaking to truth to power and standing up for what is right and just.
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