Image of False Claims Act Whistleblower Provision Protects Refusal to Violate False Claims Act

False Claims Act Whistleblower Provision Protects Refusal to Violate False Claims Act

Image of American Banker Quotes Whistleblower Attorney Jason Zuckerman About Wells Fargo Whistleblower Cases

American Banker Quotes Whistleblower Attorney Jason Zuckerman About Wells Fargo Whistleblower Cases

Image of Corporate Whistleblower Lawyer Quoted in National Law Journal Article About Wells Fargo SOX Whistleblower Cases

Corporate Whistleblower Lawyer Quoted in National Law Journal Article About Wells Fargo SOX Whistleblower Cases

Image of Corporate Counsel Article Highlights Increase in Whistleblower Claims

Corporate Counsel Article Highlights Increase in Whistleblower Claims

Image of Whistleblower Firm Publishes Practice Note About Federal Government Contractor Whistleblower Protection Law

Whistleblower Firm Publishes Practice Note About Federal Government Contractor Whistleblower Protection Law

Image of Is denial of a transfer away from a biased supervisor an adverse action?

Is denial of a transfer away from a biased supervisor an adverse action?

Image of Guide to SEC Whistleblower Rewards, SEC Whistleblower Program and Tips for SEC Whistleblowers

Guide to SEC Whistleblower Rewards and SEC Whistleblower Program

SEC-Whistleblower-Program-Tips-from-SEC-Whistleblower-Attorneys-to-Maximize-an-SEC-Whistleblower-Award

In the SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award, the whistleblower lawyers at Zuckerman Law share their experience gained from representing whistleblowers before the SEC and cover the following topics:

Overview of the SEC Whistleblower Program

  • What is the SEC Whistleblower Program?
  • Can I submit an anonymous tip to the SEC Whistleblower Office?
  • What employment protections are available for SEC whistleblowers?
  • What violations qualify for an SEC whistleblower award?
  • What are the largest SEC whistleblower awards?

Whistleblowers Eligible for an Award

  • Who is an eligible SEC whistleblower?
  • Can I submit a claim if I had involvement in the fraud or misconduct?
  • Can I submit a tip if I agreed to a confidentiality provision in an employment/severance agreement?
  • Can compliance personnel, auditors, officers or directors qualify for an SEC whistleblower award?

Reporting to the SEC and Maximizing Award Percentage

  • When is the best time to report the fraud or misconduct to the SEC?
  • Do I have to report the violation to my company before reporting the violation to the SEC?
  • Can I submit an SEC Whistleblower claim if the SEC already has an open investigation into the matter?
  • How do I submit a tip to the SEC?
  • What type of evidence should I provide to the SEC?
  • What factors does the SEC consider when determining the amount of the award?
  • Why should I choose the Zuckerman Law to represent me in my SEC whistleblower claim?

After Reporting to the SEC

  • What happens after I submit a tip to the SEC?
  • How long does it take to receive an SEC whistleblower award?

Eligibility for a SEC Whistleblower Award

Success of the SEC Whistleblower Program

See our column in Forbes: One Billion Reasons Why The SEC Whistleblower-Reward Program Is Effective.

The following FAQ about the SEC Whistleblower Program identifies the key facets of the program, including aspects of the program that have enabled it to be such a successful tool to fight fraud and protect investors.  For more information about the SEC Whistleblower Program, feel free to call Zuckerman Law at 202-262-8959 for a free, confidential consultation.

  1. What is the SEC Whistleblower Program?
  2. What violations qualify for an SEC whistleblower award?
  3. How can I submit a tip to the SEC?
  4. Why should I choose the Zuckerman Law to represent me in my SEC whistleblower claim?
  5. Can I submit an anonymous tip to the SEC Whistleblower Office?
  6. When is the best time to report the fraud or misconduct to the SEC?
  7. Can I submit an SEC Whistleblower claim if the SEC already has an open investigation into the matter?
  8. Who is an “eligible” SEC whistleblower?
  9. Can compliance personnel, auditors, officers or directors qualify for an SEC whistleblower award?
  10. What is “original information”?
  11. How might my information “lead to” a successful SEC enforcement action?
  12. Can I submit a claim if I had involvement in the fraud or misconduct?
  13. Do I have to report a securities law violations to my company before reporting the violation to the SEC?
  14. Can I submit a tip if I agreed to a confidentiality provision in an employment/severance agreement?
  15. What factors does the SEC consider when determining the amount of the award?
  16. What employment protections are available for SEC whistleblowers?
  17. What type of evidence should I provide to the SEC?
  18. What happens after I submit a tip to the SEC?
  19. How long does it take to receive an SEC whistleblower award?
  20. What are the largest SEC whistleblower awards?

SEC Whistleblower Attorneys

best sexual harassment attorneys Washington DC Maryland VirginiaThe whistleblower lawyers at leading whistleblower firm Zuckerman law represent whistleblowers nationwide and abroad in disclosing fraud and other violations to the SEC Whistleblower Program, the CFTC Whistleblower Reward Program, and the IRS Tax Fraud Whistleblower Program.  In addition, the firm has substantial experience litigating whistleblower protection and whistleblower retaliation claims, including Sarbanes-Oxley corporate whistleblower protection claims.  If you are seeking representation in an SEC whistleblower bounty case, click here, or call us at 202-262-8959 to schedule a free, confidential consultation.

SEC Whistleblower Bounties

 

 

 

What Does the ADA Prohibit?

Under the ADA, “[n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a).

Unlawful discrimination can include the failure to make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.

Which Employers Are Covered Under the ADA?

A “covered entity” under the ADA means “an employer, employment agency, labor organization, or joint labor-management committee.” 42 U.S.C. § 12111(2).  An “employer” is “a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. . . .” 42 U.S.C. § 12111(5)(A).

The ADA does not authorize claims against individuals, i.e., individual defendants do not qualify as covered “employers.”

What Must be Proven to Prevail in an ADA Disability Discrimination Case?

The plaintiff must demonstrate that (1) he is within the ADA’s protected class; (2) he was discharged; (3) at the time of his discharge, he was performing his job at a level that met his employer’s legitimate expectations; and (4) his discharge occurred under circumstances that raise a reasonable inference of unlawful discrimination. Rhoads v. Fed. Deposit Ins. Corp., 257 F.3d 373, 387 n. 11 (4th Cir. 2001).

What is a Failure to Accommodate Under the ADA?

To establish a prima facie case for failure to accommodate, an employee must show:

  1. he was an individual with a disability within the meaning of the ADA;
  2. the employer had notice of his disability;
  3. with reasonable accommodation, he could perform the essential functions of the position; and
  4. the employer refused to make such accommodations.

What is a Disability under the Americans with Disabilities Act?

Under the ADA, a disability is defined as: “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment (as described in paragraph (3)).”

Major life activities include:

  • caring for oneself,
  • performing manual tasks,
  • walking,
  • seeing,
  • hearing,
  • speaking,
  • breathing,
  • learning, and
  • working.

“Substantially limits” means “[s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.” 29 C.F.R. § 1630.2(j)(1)(ii) (2000).

 

 

Who is a Qualified Individual Under the ADA?

A “qualified individual” is defined as a person who, “with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”

What kind of reasonable accommodation must my employer make for my disability?

 

What is a bona fide occupational qualification (BFOQ) defense?

What discrimination laws apply if I work in Maryland?

What damages are available in an employment discrimination case?

What are emotional distress damages and how do I prove them?

Rehabilitation Act Disability Discrimination Law

The Rehabilitation Act provides that [n]o otherwise qualified individual with a disability in the United States. . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.”  This prohibition applies to federal contractors, grantees, and other entities receiving federal funds.  The Rehabilitation Act applies the liability standards of the ADA.

To establish a failure-to-accommodate claim, the plaintiff must show that

  1. she qualifies as an “individual with a disability”;
  2. the employer had notice of her disability;
  3. she could perform the essential functions of her job with a reasonable accommodation; and
  4. the employer refused to make any reasonable accommodation.

One the plaintiff establishes a prima facie case, the employer can avoid liability if it can show as a matter of law that the proposed accommodation “will cause ‘undue hardship in the particular circumstances.’ “ Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454, 464 (4th Cir.2012) (quoting U. S. Airways v. Barnett, 535 U.S. 391, 401–02 (2002)).  The employee “need only show that an ‘accommodation’ seems reasonable on its face,” and then the employer “must show special (typically case-specific) circumstances that demonstrate undue hardship.” Barnett, 535 U.S. at 401–02.

An employer may reasonably accommodate an employee without providing the exact accommodation that the employee requested. Rather, the employer may provide an alternative reasonable accommodation.  Nonetheless, “a reasonable accommodation should provide a meaningful equal employment opportunity. Meaningful equal employment opportunity means an opportunity to attain the same level of performance as is available to nondisabled employees having similar skills and abilities.” H.R.Rep. No. 101–485, pt. 2, at 66 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 349.

Disability Discrimination Lawyers Serving Maryland Virginia and Washington DC

best sexual harassment attorneys Washington DC Maryland VirginiaHiring a proven and effective advocate is critical to obtaining the maximum recovery in a sexual harassment case.  Eric Bachman, Chair of the Firm’s Discrimination Practice, has substantial experience litigating precedent-setting individual and class action discrimination cases.   His wins include a $100 million settlement in a disparate impact Title VII class action and a $16 million class action settlement against a major grocery chain.

Having served as Special Litigation Counsel in the Civil Rights Division of the Department of Justice and as lead or co-counsel in numerous jury trials, Bachman is trial-tested and ready to fight for you to obtain the relief that you deserve.

Bachman writes frequently on topics related to promotion discrimination, harassment, and other employment discrimination issues at the Glass Ceiling Discrimination Blog.

U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 firm in Litigation – Labor and Employment in the Washington DC metropolitan area.  Contact us today to find out how we can help you.  To schedule a preliminary consultation in Washington DC or Maryland, call us at (202) 769-1681.  To schedule a consultation in Virginia, call us at 571-288-1309. 

EEOC Disability Discrimination Resources

 

 

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What is Required to Prove a Violation of the Whistleblower Protection Act?

To prove whistleblower retaliation under the WPA, 5 U.S.C. 2302(b)(8), a whistleblower must establish the following by preponderant evidence:

  • A protected disclosure (aka the whistleblowing)
  • A personnel action is taken, threatened, or not taken after the protected disclosure;
  • The relevant officials knew of the protected disclosure; and
  • A causal connection (contributing factor) exists between the disclosure and the personnel action

If the whistleblower meets this test, then the burden shifts to the employer to prove by clear and convincing evidence—which is significantly more onerous than the preponderance standard—that it would have taken the same action against the employee even if they had never blown the whistle.

If you are seeking representation in a Whistleblower Protection Act case, call us at 202-262-8959.

What disclosures are protected under the Whistleblower Protection Act?

The WPA protects federal employees against retaliation for making any disclosure that the employee reasonably believes evidences:

  • a violation of any law, rule, or regulation;
  • gross mismanagement;
  • a gross waste of funds;
  • an abuse of authority;
  • a substantial and specific danger to public health or safety; or
  • censorship related to research, analysis, or technical information that cause, or will cause, one of the above harms

Passed in 2012, the WPEA clarifies that a disclosure is protected even if the disclosure:

  • is made to a person, including a supervisor, who participated in the wrongdoing disclosed;
  • revealed previously disclosed information;
  • is made by an employee who may have other motives for making the disclosure;
  • is made while the employee was off duty;
  • is about events that occurred a long time ago; or
  • is made during the employee’s normal course of duties, provided the employee can show that the personnel action was taken “in reprisal for” the disclosure.

What options are available to pursue a Whistleblower Protection Act Case?

An employee who believes a federal employer has unlawfully retaliated against him or her has several options:

  • The employee may file a complaint with the U.S. Office of Special Counsel (OSC). If OSC finds that the employee suffered retaliation, then it reports its findings to the MSPB and can petition the Board, on behalf of the employee, to correct the agency’s retaliatory action.
  • If OSC finds no wrongdoing or retaliation, then the employee may file an individual right of action (“IRA”) appeal before the MSPB within 60 days of OSC’s determination. The employee can appeal the Board’s decision to the relevant federal Court of Appeals.
  • The employee may appeal a retaliatory personnel action directly to the MSPB if the employee is eligible to do so and the retaliatory action is one of the personnel actions directly appealable to the MSPB.

It is important for employees to know that they may choose only one of the following options when they want to challenge an adverse action that:

  • An appeal to the MSPB under 5 U.S.C. § 7701;
  • A grievance filed under a collective bargaining agreement (for union employees); or
  • A complaint filed with OSC, which can be followed by an Individual Right of Action (IRA) to the MSPB

Whichever option is chosen first is deemed an “election of remedies,” which means that the other two options can no longer be used.

This election of remedies does not, however, affect the right to pursue an EEO complaint (an EEO and OSC complaint may be pursued at the same time).

What is the Office of Special Counsel?

The OSC is an independent, federal investigative and prosecutorial agency.  Its primary mission is to safeguard employee rights and hold government accountable, primarily by protecting employees from whistleblower retaliation

What is the Merit Systems Protection Board?

The MSPB is a quasi-judicial agency that adjudicates employee appeals and provides independent review and due process for employees and agencies.

What is an Individual Right of Action Appeal?

There are two ways in which an employee can bring an IRA appeal at the MSPB: 1) if OSC does not seek corrective action within 120 days of the filing of the complaint; or 2) if OSC closes its investigation of the complaint, the complainant has 65 days from the date of the written notice, or 60 days from the date of receipt of the notice, to file an IRA appeal.  5 U.S.C. § 1214(a)(3). The regulation incorporates the presumption of 5 C.F.R. § 1201.4(l) that a letter is received 5 days after mailing as applicable to the 60-day deadline for filing specified in the statute.

Prior to the enactment of the WPEA, the IRA appeal option was available only for  § 2302(b)(8) claims.  The WPEA expanded IRA appeals to cases brought under the following provisions of § 2302(b)(9):

  • 2302(b)(9)(A)(i) – exercising any appeal, complaint, or grievance right granted by any law, rule, or regulation with regard to remedying a violation of paragraph (8);
  • 2302(b)(9)(B) – testifying for or otherwise lawfully assisting any individual in the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation;
  • 2302(b)(9)(C) – cooperating with or disclosing information to the Inspector General of an agency, or the Special Counsel; and
  • 2302(b)(9)(D) – refusing to obey an order that would require the individual to violate a law.

The IRA appeal option is not available for claims brought under § 2302(b)(9)(A)(ii),  i.e., exercising any appeal, complaint, or grievance right granted by any law, rule, or regulation other than with regard to remedying a violation of paragraph (8).

In an IRA appeal, the Board may consider only the charges of whistleblowing that the appellant raised before OSC, i.e., the appellant must prove exhaustion of administrative remedies.  Therefore, if the complainant is subjected to additional retaliation after filing an initial complaint with OSC, it is critical to document efforts to supplement the initial complaint.

An AJ’s inquiry into exhaustion of administrative remedies is limited to identifying (1) the whistleblowing disclosures and (2) the personnel actions that the appellant raised before OSC.  The appellant must “give the [OSC] sufficient basis to pursue an investigation which might have led to corrective action.”  Ward v. Merit Sys. Prot. Bd., 981 F.2d 521, 526 (Fed. Cir. 1992) (citing Knollenberg v. Merit Sys. Prot. Bd., 953 F.2d 623, 626 (Fed. Cir. 1992)).

IRA appeals are reviewed de novo, i.e., the IRA appeal must be viewed independently from OSC’s decision to close the complaint.  Section 1221(f) of title 5, United States Code, expressly states: “[A] decision to terminate an investigation under subchapter II may not be considered in any action or other proceeding under this section.”  5 U.S.C. § 1221(f) (emphasis added).  Section 1214 contains a similar prohibition:

A determination by the Special Counsel under this paragraph shall not be cited or referred to in any proceeding under this paragraph or any other administrative or judicial proceeding for any purpose, without the consent of the person submitting the allegation of a prohibited personnel practice.

5 U.S.C. § 1214(a)(3) (emphasis added).  Under this statutory scheme, OSC’s internal decisions regarding an appellant’s complaint have no legal relevance to whether he or she may proceed with an IRA appeal.  Congress took pains to protect OSC’s internal deliberations regarding the disposition of a complaint from Board review “to ensure that a whistleblower is not ‘penalized’ or ‘prejudiced’ in any way by OSC’s decision not to pursue a case.”  Costin v. Dep’t of Health and Human Servs., 64 M.S.P.R. 517, 531 (1994).  The MSPB can only order an appellant to produce OSC’s determination letter if the AJ explains why the letter is necessary and provides the opportunity to consent.  See 5 U.S.C. § 1214(a)(2)(B); Bloom v. Dep’t of Army, 101 M.S.P.R. 79, 84 (2006).

What damages are available under the Whistleblower Protection Act?

A prevailing whistleblower can recover:

  • lost wages,
  • attorney’s fees,
  • equitable relief (for example, reinstatement, rescinding a suspension, or modifying a performance evaluation), and
  • uncapped compensatory damages (emotional-distress damages).

In addition, a whistleblower can recover fees, costs, or damages reasonably incurred due to a retaliatory investigation. Retaliatory investigations can take many forms, such as unwarranted referrals for criminal or civil investigations or extraordinary reviews of time and attendance records.

Does the Whistleblower Protection Act protect employees who exercise an appeal or grievance right?

Yes. Under 5 U.S.C. 2302(b)(9), agency officials may not take, fail to take, threaten to take a personnel action because an employee:

  • Filed a complaint, grievance, or appeal;
  • Testified or helped some else with one of these activities;
  • Cooperated with or disclosed information to OSC or an Inspector General; or
  • Refused to obey an order that would require the employee to violate a law

KEY TIP:  whistleblowers should generally follow the doctrine of “obey now, grieve later”—unless carrying out an order would violate a statute, place the employee in clear physical danger, or result in irreparable harm

  • After carrying out the order on an interim basis, the employee can then blow the whistle to agency officials, an OIG, OSC, the media, or Congress. Or the employee can address the concern through an agency grievance procedure.

To establish a prima facie case of retaliation for exercising whistleblowing, complaint, appeal, or grievance rights under Section 2302(b)(9), an employee must prove the following four elements by preponderant evidence:

  • the employee, or someone identified with the employee, engaged in a protected activity;
  • the agency took, failed to take, or threatened to take a personnel action;
  • the official responsible for the personnel action knew about the employee’s protected activity; and
  • A causal connection existed between the protected activity and the personnel action.

The WPEA split Section 2302(b)(9)(A) claims into two subcategories:

  • Section 2302(b)(9)(A)(i). This subsection involves the exercise of appeal, complaint, or grievance rights that deal with remedying a violation of Section 2302(b)(8).
  • Section 2302(b)(9)(A)(ii). This subsection involves the exercise of appeal, complaint, or grievance rights that do not deal with remedying a violation of Section 2302(b)(8).
  • The elements for proving these two subcategories are the same, but the standard for proving causation differs depending on the type of case. Appeal rights also differ between these subcategories.

Hiring Experienced Whistleblower Protection Act Lawyers

best sexual harassment attorneys Washington DC Maryland VirginiaZuckerman Law has represented whistleblowers before the Office of Special Counsel, Offices of Inspectors General, and Congressional oversight committees.  The firm is uniquely qualified to represent whistleblowers in the federal government because two of the firm’s attorneys served in senior roles at the U.S. Office of Special Counsel.

  • Eric Bachman served as Deputy Special Counsel, Litigation and Legal Affairs, OSC, where he spearheaded an initiative to combat whistleblower retaliation at the Department of Veterans Affairs.  During Bachman’s tenure at OSC, the number of favorable actions for whistleblowers increased by over 50% agency-wide.
  • Jason Zuckerman served as Senior Legal Advisor to the Special Counsel at OSC, where he worked on implementation of the Whistleblower Protection Enhancement Act and several high-profile investigations.

If you are seeking representation in a whistleblower protection case, click here, or call us at 202-262-8959 to schedule a free preliminary consultation.

How do I file a claim under the Whistleblower Protection Act?

What does the Whistleblower Protection Act Prohibit?

What remedies or damages are available under the Whistleblower Protection Act?