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New Whistleblower Protections Under Taxpayer First Act
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...
OSHA Adds Easy to Access Online Complaint Form
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
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...

Confucius Says: He Who Retaliates Digs His Own Grave
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
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
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
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?
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
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
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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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
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Boyd Byers, the General Employment Law Guy
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Jason Lacey, the Employee Benefits Guy
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