Whistleblowing & Compliance Law Blog : Whistleblowing Defense Lawyer & Attorney : Epstein Becker & Green Law Firm : Employment Retaliation, Compliance Counsel

By Allen B. Roberts, Douglas Weiner

While most attention in the legislative and political process leading to enactment of the Patient Protection and Affordable Care Act (“PPACA”) focused on the significant impact on the delivery of health care, employers need to be aware, also, of amendments to the Fair Labor Standards Act ("FLSA"). The FLSA amendments impose certain employer responsibilities in providing health care benefits, confer whistleblower protections and authorize the U.S. Department of Labor ("DOL") to undertake increased enforcement related to health care.

While other features of the FLSA amendments are addressed in our client alert, "Health Care Reform Legislation Amends the Fair Labor Standards Act to Give the U.S. Department of Labor Increased Enforcement Authority over Health Care," here is a summary of whistleblower protections:

By: Allen B. Roberts, Victoria M. Sloan

Employers who thought they were free of exposure if no complaint was filed within the statute of limitations applicable in Sarbanes-Oxley ("SOX") and other whistleblower claims administered by the Secretary of Labor need to recalibrate their risk based on a recent decision allowing equitable estoppel.

In Hyman v. KD Resources, an employee missed the 90-day SOX statute of limitations by filing his complaint 160 days after he was discharged. Two newly appointed members of the Administrative Review Board (“ARB”) allowed the complaint to survive and remanded it to the Administrative Law Judge who had dismissed it as untimely.

By Stuart M. Gerson

Suits in the name of the United States under the Federal False Claims Act (“FCA”) brought by private individuals known as qui tam relators are among the most common forms of whistleblower actions in the federal system. The Supreme Court rendered its much-anticipated decision in Graham County Soil and Water Conservation District, et al. v. United States ex rel. Wilson (pdf), imposing a significant limitation on the ability of these relators to satisfy an important jurisdictional bar.

The FCA authorizes both the Attorney General and private qui tam relators to bring actions against persons who make or facilitate fraudulent claims for payment from the United States. However, in the absence of the government, a relator will be barred from proceeding on his own if the action is based upon the public disclosure of allegations or transactions in, inter alia, "a congressional, administrative, or Government Accounting Office ("GAO") report, hearing, audit, or investigation." 31 U. S. C. §3730(e)(4)(A). The Graham County case involved federal contracts and funding for the repair of flood damage. The relator, Wilson, a local government employee, alerted both federal and county and state officials to irregularities in performance. Both the county and the state issued reports making findings about these potential irregularities and Wilson thereupon filed a qui tam action against the county conservation districts administering the contracts. The District Court dismissed for lack of jurisdiction because it held that the allegations publicly disclosed in the county and state reports constituted "administrative" reports under the FCA's public disclosure bar. The Fourth Circuit reversed, holding that only federal administrative reports may trigger the public disclosure bar.

This blog is dedicated to the many facets of whistleblowing and the tensions and contradictions that inhere in defining compliance objectives and the permissible means by which they will be attained and preserved. At its core, whistleblowing should be about corporate compliance and the common institutional and individual purpose of assuring that internal and external standards of conduct are respected. Reality may draw a another picture, perceived differently from the perspective of the individual and the institution – and by public opinion, media comment, markets, administrative, regulatory, enforcement or legislative bodies or by courts and juries.

Is the whistleblower a selfless altruist properly advancing compliance objectives or an individual bent on undeserved personal advantage by way of protection or windfall gain?

With this blog, we launch a dialogue, intending that it serve as a prism allowing light to be appreciated for its clarity and nuances, refraction and reflections. We will endeavor to protect against its becoming distorted, blinding or scorching.

Our lead posting draws initial baselines, more for placement of pieces that can be moved, enlarged, contracted and replaced than to prescribe or confine. We expect exploration to commence from there, perhaps with a deliberate return home from time to time for comfort and refreshment.

We look forward to the opportunity of sharing observations and experiences as we look at the emerging principles of whistleblowing and anticipate its changing contours.

For a review of recent developments in whistleblowing law, see Allen B. Roberts, Continuing Prominence Seen for Whistleblowers, as appeared in The New York Law Journal.