New Whistleblower Protections Under Taxpayer First Act
|
09/09/2019
|
By: Morgan Hammes
|
On
July
1,
President
Trump
signed
the
Taxpayer
First
Act,
giving
new
protections
to
IRS
whistleblowers.
Before
this
act,
the
IRS
could
only
protect
whistleblowers
by
concealing
their
identity.
Even
without
protections
against
retaliation,
the
Whistleblower
Office
of
the
IRS
has
still
been
able
to
collect
over
$5
billion
in
unpaid
taxes
under
the
program.
This
may
have
something
to
do
with
the
requirement
that
the
IRS
award
the
whistleblower
a
percentage
of
the
unpaid
taxes
collected
by
the
IRS.
For
2018,
the
Whistleblower
Office
reported
that
it
paid
217
awards
to
whistleblowers,
totaling
more
than
$300
million.
The
IRS
pushed
for
additional
protections
for
employers
in
an
effort
to
incentivize
more
employees
to
come
forward.
The
Act
creates
a
private
right
of
action
for
whistleblowers
to
sue
their
employers
for
retaliation.
Employers
can
no
longer
discharge,
demote,
suspend,
threaten,
harass,
or
in
any
other
manner
discriminate
against
an
employee
for
assisting
the
IRS
without
risk
of
liability.
Not
only
does
the
private
right
of
action
apply
to
the
employer,
but
it
applies
to
individuals
as
well,
such
as
officers,
employees,
contractors,
subcontractors,
or
agents
of
the
company.
Employees
are
free
to
report
a
company,
provide
information,
or
assist
a
government
agency
in
an
investigation
for
tax
underpayments
and
tax
fraud.
The
employee
is
also
protected
from
retaliation
for
reporting
anything
else
the
employee
reasonably
believes
is
a
violation
of
the
IRS
tax
laws.
Remedies
for
violations
include:
reinstatement;
200
percent
of
back
pay
and
all
lost
benefits;
Continue Reading...
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|
OSHA Adds Easy to Access Online Complaint Form
|
12/10/2013
|
By: Donald Berner
|
OSHA is
responsible
for
administering
whistleblower
complaints
for
a
variety
of
statutes.
Click
here
for
the
full
listing.
In
an
attempt
to
make
complaint
filing
easier,
OSHA
has
established
an
online
complaint
form.
Click
here
for
the
complaint
page.
Only
time
will
tell
whether
this
easy
access
will
lead
to
an
increase
in
complaints.
|
|
Take Time To Make Good Decisions
|
01/31/2012
|
By: Boyd Byers
|
People
are
five
times
more
likely
to
do
the
right
thing
when
given
time
to
think
it
over
than
they
are
when
they
have
to
make
an
instant
decision.
The
research
behind
this statistic, conducted
by a
professor
at the
Kellogg
School
of
Management
at
Northwestern
University,
is
described
in an
article
in
the February/March
issue
of
the
Academy
of
Management Journal.
The
study
concludes
that
organizations should "consciously
design
moral
decision-making
processes,
integrating
them
into
training
and
enforcing
them
institutionally
via
policies,
rewards,
and
sanctions.
Policies
mandating
a
'cooling-off
period'
or
multiple
levels
of
approval
for
consequential
decisions,
for
example,
might
provide
institutional
analogs
for
contemplation,
and
ethics
hotlines
might
act
as
institutional
conversations.
Opportunities
for
instituting
and
improving
these
kinds
of
procedures
abound."
In
short,
think
before
you
leap.
So
what
does
this
have
to
do
with employment
law?
The
obvious
application
is
retaliation.
After
staying
steady
for
nearly
a
decade,
the
number
of
retaliation
claims filed
with
the
EEOC
has
shot
up
every
year
since 2007.
What
happened
in
2007? The
U.S.
Supreme Court
decided Burlington
Northern v.
White.
In
that
case
the
Court
expanded
the
scope of
actionable
retaliation claims
to
include
actions viewed
by
a
reasonable
person
in
the
employee's
position
as
materially
adverse, even
if they
did
not
result
in
an
ultimate
employment
action
like
discharge
or
demotion.
The
steady
rise
in
the
number
of
retaliation
claims
filed
with
the
EEOC is
depicted
on
the
chart
below:
Now
back
to
the
Northwestern
study.
When
an
employee
makes
a
bogus accusation
of
discrimination
or
asserts
workplace
rights
in
an
opportunistic
way,
the
supervisor's
immediate
instinct
may
be
Continue Reading...
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|
Confucius Says: He Who Retaliates Digs His Own Grave
|
07/22/2011
|
By: Boyd Byers
|
The
thirst
for
revenge
is
among
the
strongest
of
human
emotions.
In
fact,
the innate
human desire
to
“get
even”
has
driven
much
of
the
history
of
the
world.
But
acting
on
feelings
of
revenge
can
have
dire
consequences,
not
only
in
the
world
at
large,
but
particularly
in
the
world
of
employment
law.
Most
employment-protection
laws
contain
anti-retaliation
provisions.
And
courts
are
broadly
interpreting
and
applying
these
provisions.
The
U.S.
Supreme
Court
has
recognized
and
expanded
the
right
to
bring
retaliation
claims
in
a
series
of
cases
over
the
past
several
years.
In
January,
the
Court
ruled
that
Title
VII’s
anti-retaliation
provision
covered
an
employee
who
was
fired
shortly
after
his
fiancée,
who
worked
for
the
same
company,
filed
a
sex
discrimination
claim.
( Supreme
Court
Finds
in
Favor
of
Fired
Fiance 01/25/2011)
In
March,
the
Court
held
that
the
FLSA’s
anti-retaliation
provision,
which
uses
the
phrase
“filed
any
complaint,”
applies
to
an
employee’s
oral
complaints.
These
cases
follow
prior
decisions
in
the
last five
years
in
which
the
Court
ruled
that:
·
Title
VII’s
anti-retaliation
clause,
which
refers
to
“opposition,”
does
not
require
active
opposition,
but
encompasses
involuntary
participation,
such
as
making
statements
during
an
employer’s
internal
investigation;
·
Employees
can
bring
retaliation
claims
under
the
ADEA;
·
Employees
can
bring
retaliation
claims
under
Section
1981
of
Chapter
42
of
the
Continue Reading...
|
|
Eggstra Pay: An Animated Video Short
|
6/21/2011
|
By: Donald Berner
|
At
the
Foulston
Siefkin
LLP employment
law
seminar
Vaughn
Burkholder,
Tara
Eberline
and
Teresa
Shulda
discussed
some
common
scenarios
that human
resources managers
may
be
confronted
with
from
time
to
time.
In
response
to
numerous
requests
to
see
the
videos
again,
we
bring
you
a
hopping-mad Easter Bunny
as
he
deals
with
a
payroll-related
concern.
Will
the
complaining
bunny
get
the
carrot
or
the
stick?
Click
here
to
look
in
on
the
conversation.
|
|
Robert's Termination: An Animated Video Short
|
05/31/2011
|
By: Donald Berner
|
At
the
Foulston
Siefkin
LLP
employment
law
seminar
Vaughn
Burkholder,
Tara
Eberline
and
Teresa
Shulda
discussed
some
common
scenarios
that
a
Human
Resrouce
Director
may
be
confronted
with
from
time
to
time.
We
have
had
a
number
of
requests
to
see
the cartoon
videos
used
to
facilitate
the
discussion.
In
this
installment, Frank
Manager
meets
with
Human
Resources
to
discuss
the
potential
termination
of
Robert.
Click
here
to
look
in
on
our
patient
HR
Director
as
the
discussion
unfolds.
|
|
Employee In Hog Heaven Over Kansas Supreme Court Ruling
|
05/20/2011
|
By: Boyd Byers
|
Today
the
Kansas
Supreme
Court
expanded
the
recognized exceptions
to
employment
at
will
by
ruling
that
a
claim
for
retaliatory
discharge
exists
when
an
employee
is
fired
for
filing
a
wage
claim
under
the
Kansas
Wage
Payment
Act
(KWPA). The
employee,
who
worked
for
a
pig-farming
company
in
Long
Island,
Kansas,
alleged
he
was fired
for trying
to
bring
home
more
bacon
by
filing a
complaint
with
the
Kansas
Department
of
Labor
(KDOL)
claiming
the
company
was
not
paying
him
as
required
by
the
KWPA. The company
said
the
allegation
was
hogwash
and
asked
the
court
to dismiss
the
case.
The
district
court
agreed
with
the
company
and
hamstrung the
employee's
lawsuit,
ruling
that even
assuming
he was
fired
because
he
filed
a
KWPA
wage
claim,
this
was
not
a
recognized exception
to
the
employment-at-will
rule.
The
employee,
perhaps
feeling
he
had
been
casting
pearls
before
swine
in
the
district
court, appealed.
The Kansas
Supreme
Court explained
that
Kansas
courts
permit
the
common-law
tort
of
retaliatory
discharge
as
a
limited
exception
to
the
at-will
employment
doctrine
when
it
is
necessary
to
protect
a
strongly
held
state
public
policy
from
being
undermined.
The
Kansas
Supreme
Court
has
previously
endorsed
public
policy
exceptions
in
four
circumstances:
(1)
exercising
rights
under
the
Kansas
Workers’
Compensation
Act;
(2)
filing
a
claim
under
the
Federal
Employers
Liability
Act;
(3)
whistleblowing
(good-faith
reporting
of
an
employer’s
or
coworker’s
violation
of
the
law
pertaining
to
public
health,
safety,
or
welfare);
and
(4)
exercising
a
public
employee's
First
Amendment
right
to
free
speech
on
an
issue
of
public
concern.
The
Court
reasoned
that the
KWPA—which
Continue Reading...
|
|
So You've Been Sued -- Now What?
|
05/12/2011
|
By: Donald Berner
|
Earlier
this
week
at
the
Foulston
Siefkin
LLP employment
law
seminar,
David
Rogers
and
Teresa
Shulda
provided
employers
with
an
overview
of
the
entire
litigation
process
from
demand
letter
through
the
administrative
process
and
into
a
jury
trial.
The
presentation
highlighted
how
HR professionals
are typically involved
at
each
stage
of
the
process.
The
session
concluded
with
a
discussion
of
a
scenario
demonstrating
some
pitfalls
for
HR.
Some
lessons
learned
include:
- The
things
HR professionals
do
and
say
early
on
in
a
case
can
make
a
huge
difference
in
the
outcome;
- Following
the
company's
policies
is
key
to
defending
an
employment-related
claim;
- Taining
HR and
Management
on
the
company's
policies
is
critical;
- Employers
need
to
develop
a
document
preservation
process
("litigation
hold")
and
implement
the
process
when
a
claim
is
made;
and
- Be
cautious
when
responding
to
EEOC
or
state
agency
inquiries--providing inconsistent
or
invalid
reasons
for
an
employment
decision
can
make
it
next
to
impossible
to
get
the
case
dismissed
without
a
trial.
|
|
Social Media and the National Labor Relations Act
|
2/08/11
|
By: Donald Berner
|
The
National
Labor
Relations
Act
(NLRA) is
the
federal
law
most
employers
relate
to
unionization
or
to
union-represented
employees.
On
occasion,
the
NLRA and
its
application
bleed
over
into
workplaces
without
union
representation
present.
For
example,
an
employer
policy
prohibiting
employees
from
discussing
pay
rates
violates
the
NLRA
regardless
of
whether
employees
in
the
workplace
are
union-represented.
In
a
recent
skirmish,
the
National
Labor
Relations
Board
(NLRB),
the
government
agency
responsible
for
enforcing
the
NLRA,
issued
a
complaint
against
an
employer
following
the
termination
of
an
employee
for
violation
of
an
internet/social
media
policy. The
employee
had
made
complaints
about
her
supervisor
and
responded
to
co-worker
questions/comments
on
Facebook.
The
NLRB's complaint was
set
for
hearing
before
an
administrative
law
judge,
but
yesterday the
NLRB and
employer
reached
a
settlement.
This
settlement
leaves
unanswered
the
question
of
how
the
NLRA
will
be
interpreted
and
enforced
in
the
future.
The
NLRB's
filing
of
the
complaint
clearly
signals
a
move
by
the
federal
government
to
extend
protections
to
employees
who
complain
via
Facebook
(or
other
social
media
outlets)
about
workplace
issues
and
concerns.
Employers
should
be
mindful
of
this
development
and
stay
tuned
for
further
action
on
the
part
of
the
NLRB
with
respect
to
employee
discipline
for
these
types
of
violations.
For
more
information
click
here
to
read
the
NLRB press
release.
|
|
Supreme Court Finds in Favor of Fired Fiancee
|
01/25/2011
|
By: Boyd Byers
|
Yesterday
the
U.S.
Supreme
Court
ruled
that
a
male
employee,
who
alleges
he
was
fired
because
his
fiancee
filed
a
sex
discrimination
claim
against
the
company
that
employed
them
both,
may
pursue
a
retaliation
claim
under
Title
VII
of
the
Civil
Rights
Act
of
1964. The
Court,
applying
the standard
it
established
in
the
2006
case Burlington
Northern
v.
White, said
there
is
no
dispute
that
an
employee
considering
filing
a
discrimination
charge
might
well
be
dissuaded
if
she
knew
her
employer
would
react
by
firing
her
fiancee. (In
Burlington,
the
Court
ruled
that
Title
VII
retaliation
is
not
limited
to
actions
that
affect
the
terms
and
conditions
of
employment,
but
also
covers any
actions
that
"well
might
have
dissuaded
a
reasonable
worker
from
making
or
supporting
a
charge
of
discrimination.")
So
the
female
employee
who
filed
the
original
sex
bias
claim
would
have
an
action
for
retaliation. The
more
difficult
question,
according
to
the
Court,
was
whether
the
male
employee
is
a
“person
aggrieved”
within
the
meaning
of
Title
VII
and
thus
entitled
to
sue.
The
man,
Eric
Thompson,
alleged
that
his
employer,
North
American
Stainless,
fired
him
three
weeks
after
it
received
notice
that
Miriam
Regalado,
his
fiancee
(now
his
wife),
filed
a
sex
discrimination
claim
against
the
company. Both
the
district
court
and
appeals
court
ruled
against
Thompson,
reasoning
that
while
Regalado
could
state
a
retaliation
claim
based
on
Thompson’s
firing,
Thompson
himself
could
not
make
a
claim
under
Title
VII
because
he
had
not
engaged
in
protected
activity.
The
Supreme
Court
Continue Reading...
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Editors
Don Berner, the Labor Law, OSHA, & Immigration Law Guy
Boyd Byers, the General Employment Law Guy
Jason Lacey, the Employee Benefits Guy
Additional Sources

|