Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘Workplace Fairness’

Sarbanes Oxley Whistleblower Protection Law at 15 Years: Know Your Rights

Thursday, August 3rd, 2017

In the wake of Enron and other corporate scandals that wiped out retirement savings and left millions unemployed, Congress enacted the Sarbanes-Oxley Act (SOX), which contains a robust whistleblower protection provision.  The whistleblower provision is intended to combat a “corporate code of silence,” which “discourage[d] employees from reporting fraudulent behavior not only to the proper authorities, such as the Federal Bureau of Investigation and the SEC, but even internally.”  Congress sought to empower whistleblowers to serve as an effective early warning system and help prevent corporate scandals.

Congressional hearings about the Enron scandal probed why such a massive fraud was not detected earlier.  The testimony and documents revealed that when employees of Enron and its accounting firm, Arthur Andersen, attempted to report corporate misconduct, they faced retaliation, including discharge.  And essentially no legal protection existed for whistleblowers, such as Sherron Watkins, who tried to stop the fraud.

Fifteen years after Congress enacted SOX, internal whistleblowers remain the best source of fraud detection.  But corporate whistleblowers continue to suffer retaliation, and, therefore, widespread fear of retaliation persists.  A survey performed by the Ethics Resource Center found that nearly half of employees observe misconduct each year, and one in five employees who reports misconduct perceives retaliation for doing so.

SOX provides robust protection to corporate whistleblowers, and indeed some SOX whistleblowers have achieved substantial recoveries.  Earlier this year, a former in-house counsel at a biotechnology company recovered $11 million in a SOX whistleblower retaliation case alleging that the company fired him for disclosing violations of the Foreign Corrupt Practices Act.

On the fifteenth anniversary of SOX, whistleblower law firm Zuckerman Law released a free guide to the SOX whistleblower protection law: “Sarbanes-Oxley Whistleblower Protection: Robust Protection for Corporate Whistleblowers.”  The guide summarizes SOX whistleblower protections and offers concrete tips for corporate whistleblowers based on lessons learned during years of litigating SOX whistleblower cases.  Workplace Fairness also has a summary of corporate whistleblowers available here.

The goal of the guide is to arm corporate whistleblowers with the knowledge to effectively combat whistleblower retaliation, avoid the pitfalls that can weaken a SOX whistleblower case, and formulate an effective strategy to obtain the maximum recovery.  In particular, the guide addresses key issues for corporate whistleblowers to consider when they experience retaliation due to their protected whistleblowing:

  • What disclosures are protected under SOX?
  • What types of retaliation are prohibited under SOX?
  • Can a whistleblower sue an individual under SOX?
  • Is a whistleblower’s motive for engaging in protected activity relevant in a whistleblower-protection case?
  • Does SOX prohibit employers from “outing” confidential whistleblowers?
  • What is a whistleblower’s burden to prove retaliation under SOX?
  • What damages can a whistleblower recover under SOX?

Lead author Zuckerman commented, “Whistleblowers put a lot on the line when they expose wrongdoing, and they deserve an effective remedy to combat retaliation.  Hopefully this guide will help whistleblowers do the right thing and keep their jobs.  And for whistleblower that have suffered retaliation, the guide can help them explore options to hold their employers accountable.”

About the Author: Jason Zuckerman, Principal of Zuckerman Law, litigates whistleblower retaliation, qui tam, wrongful discharge, discrimination, non-compete, and other employment-related claims. He is rated 10 out of 10 by Avvo, was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” in 2007 and 2009 and selected by his peers to be included in The Best Lawyers in America® and in SuperLawyers.

Workplace Fairness Says Goodbye to Former Board Member Penny Nathan Kahan

Thursday, February 9th, 2017

Workplace Fairness was very saddened to learn of the passing of former board member and early supporter Penny Nathan Kahan on February 1, 2017, after a long and hard-fought battle with ovarian cancer.  (Penny Kahan Obituary)  Penny’s legacy will be honored at a Celebration of Life on Sunday, Feb. 19, 2017, at 2:00 PM, at the Chicago Jewish Funerals – Skokie Chapel, 8851 Skokie Boulevard, Skokie, IL 60077.

Penny founded the law firm of Penny Nathan Kahan and Associates in 1983. Her career as an attorney was focused on helping people who suffered from workplace unfairness and discrimination. She participated in a variety of professional organizations, including serving as a founding board member of the National Employment Lawyers Association and its Illinois affiliate, NELA-Illinois. In 2000 she was elected a Fellow of the College of Labor and Employment Law and a fellow of the American Bar Foundation in 2002.

As part of her devotion to the legal profession and to the cause of workers rights, Penny served on the board of Workplace Fairness when it was known as the National Employee Rights Institute (NERI). She additionally served on the Advisory Board for a long-time project of Workplace Fairness, the Employee Rights and Employment Policy Journal, co-published by IIT Chicago-Kent College of Law.

Workplace Fairness was co-founded by Wayne Outten and Paul Tobias in 1994. For several years following its founding, the organization was entirely volunteer-run and depended on the work and support of advocates like Penny. In a fateful board meeting in Chicago in 2001, as part of an effort to increase the profile and impact of the organization after hiring its first staff, it was Penny who suggested that the organization change its name to Workplace Fairness – the name by which it has been known ever since.

Workplace Fairness Co-Founder and Board President says of Penny, “Penny was a wonderful and warm person who will be missed by all who knew her.” Professor Douglas Scherer, long-time WF board member who served with Penny on the NERI board, adds, “Penny was a very gracious and talented woman [who] played a very important role in the establishment and development of NERI, which was renamed to Workplace Fairness.”

We acknowledge and honor Penny’s pivotal role in the development of our organization, as over 4 million workers every year now rely on the organization named Workplace Fairness to reflect our mission of providing the comprehensive and reliable employee rights content available on the Internet. We are proud that her legacy lives on through the name she selected for our organization and the millions of workers that under that name we have assisted in enforcing their rights and in finding attorneys like Penny and her professional colleagues to provide representation. We will miss Penny’s warm smile and passionate, thoughtful advocacy, and share our condolences with her family, friends and professional colleagues who will miss her dearly.

Why Picket Lines Matter

Monday, January 7th, 2013

Photo courtesy of Caitlin Vega.   I spent so much time on picket lines as a kid that when I thought my dad’s rules were too strict, I would run to build a sign on a stick and try to talk the neighbor kids into marching around the house with me. I learned early on the power of a picket to protest unfair treatment.

That right is more important today than ever. As our economy has shifted toward a more contingent workforce, companies are increasingly hiring workers as part-time or temporary, or labeling them as independent contractors. This leaves workers more vulnerable to abuse while also shielding companies from accountability. When warehouse workers unpacking Walmart goods in a Walmart-owned warehouse were cheated out of their wages, the retail giant responded that those workers were hired through a temporary agency and are not the company’s responsibility.

These kinds of working conditions make it all the more important that workers be able to share their stories with the public. Consumers have the right to know about the kinds of labor practices they are supporting when they shop at a particular store. In this economy, where workers have so little bargaining power, the ability to picket an employer to expose unfair conditions is more important than ever.

That’s what makes the recent California Supreme Court decision in Ralphs Grocery Co. v. UFCW Local 8 so important. The court upheld two provisions of California law that protect the right of workers to picket. The Moscone Act protects peaceful picketing and communicating about the facts of a labor dispute on “any public street or any place where any person or persons may lawfully be.” Labor Code Section 1138.1 restricts injunctive relief to stop picketing unless a company can show substantial and irreparable injury, the commission of unlawful acts and several other factors. Ralphs sought to invalidate those state statutes, which would have silenced California workers from such peaceful protest.

In upholding California law, the court maintained a critical protection for working people. What is at stake here is far more than where in a shopping center picketers are allowed to stand. The picket line was—and still is—an essential tool in building the American middle class. Workers standing together, making their case in the court of public opinion, helped bring about the eight-hour day, the weekend, prevailing wage, anti-discrimination laws and so many other protections. It also helped working people win wages and benefits that allowed them to buy homes, send their children to college and give back to their community through taxes, service and time.

In essence, the picket sign has enabled generations of working people to achieve the American Dream. Given the economy we face today, it’s time for the next generation to start making signs and marching to demand those same opportunities.

Why Picket Lines Matter,” by Caitlin Vega, originally appeared on the California Labor Federation’s blog Labor’s Edge. You can also view it on AFL-CIO NOW, posted on January 7, 2013.

Federal Minimum Wage Increase

Friday, July 24th, 2009

Effective July 24th, 2009 the Federal Minimum Wage will increase from its current level of $6.55 (previously $5.85) to $7.25 an hour, according to the United States Department of Labor. This amounts to an increase of 10.7%. These wage floor increases were mandated by a bill passed by Congress in 2007, when the minimum was $5.15 an hour, where it had been for many years prior. With few exceptions, almost all employers are required, under the Fair Labor StandardsAct (FLSA), to pay at least the federal minimum wage to their hourly non-exempt employees for all hours they work.

Accordingly, advocates for low-wage workers believe that a higher minimum wage is a step in the right direction, even though for many people it’s barely enough to survive on. With this new increase to $7.25 an hour, a full-time worker still only earns $15,080 a year. At the nationwide work-week average of 33 hours, the worker would earn only $12,441. The United States government sets the poverty level at $10,830 for one person or $22,050 for a family of four in 48 states and D.C. A worker who is above this low poverty level would not be eligible for certain welfare-related assistance. Thereby, the new federal minimum wage will just barely put many Americans above the poverty level, exempting them from certain assistance, yet barely allowing them to live comfortably.

While the federal minimum wage applies to all states, (click here for more information on each state’s minimum wage laws), individual states have the right to pass a higher minimum wage than the federal level. Some states will not be affected by the increase in minimum wage as they already have a minimum wage above $7.25. The impact will most be felt in 30 states (see below) where the minimum wages are lower than this rate, and many of them plan to match the federal minimum once it increases. Seven states already have laws mandating $7.25 minimum pay, while 14 states and the District of Columbia exceed the new minimum. Employers are required to pay whichever is the highest, federal or state.

Employers in the following 30 states will generally see the minimum wage they are required to pay increase to $7.25 per hour on July 24, 2009:

  • Alabama
  • Alaska
  • Arkansas
  • Delaware
  • Florida
  • Georgia
  • Idaho
  • Indiana
  • Kansas
  • Louisiana
  • Maryland
  • Minnesota
  • Mississippi
  • Missouri
  • Montana
  • Nebraska
  • New Jersey
  • New York
  • North Carolina
  • North Dakota
  • Oklahoma
  • Pennsylvania
  • South Carolina
  • South Dakota
  • Tennessee
  • Texas
  • Utah
  • Virginia
  • Wisconsin (state law is not tied to federal law, so employers covered by state, but not federal law, will not be required to pay federal minimum wage.)
  • Wyoming (state law is not tied to federal law, so employers covered by state, but not federal law, will not be required to pay federal minimum wage.)

In the District of Columbia, the minimum wage is automatically $1.00 per hour higher than the federal rate if that amount is greater than $7.00. Therefore, the minimum wage in the district will increase to $8.25 per hour beginning July 24, 2009.

In Nevada, the state minimum wage rate varies for employers, depending on whether the employer offers its employees health benefits, and is indexed to inflation. The increase in the federal rate on July 24th will require Nevada employers that provide health insurance to pay their employees $7.25 per hour. Employers that do not offer qualified health insurance must pay their employees $7.55 per hour.

This year’s increase in the federal minimum wage will generally have no effect on employers in the following 19 states because they currently have minimum wages at or above $7.25 per hour:

  • Arizona (the state minimum wage is $7.25 and is indexed to inflation)
  • California (the state minimum wage is $8.00)
  • Colorado (the minimum wage is $7.28 and is indexed to inflation)
  • Connecticut (the state minimum wage is $8.00 ($8.25 on 1/1/10))
  • Hawaii (the state minimum wage is $7.25)
  • Illinois (the state minimum wage is $8.00 ($8.25 effective 7/1/10))
  • Iowa (the state minimum wag is $7.25)
  • Kentucky (the state minimum wage increased to $7.25 on July 1)
  • Maine (the state minimum wage is $7.25 ($7.50 on 10/1/09))
  • Massachusetts (the state minimum wage is $8.00)
  • Michigan (the state minimum wage is $7.40)
  • New Hampshire (the state minimum wage is $7.25)
  • New Mexico (the state minimum wage is $7.50)
  • Ohio (the state minimum wage is $7.30 and is indexed to inflation)
  • Oregon (the state minimum wage is $8.40 and is indexed to inflation)
  • Rhode Island (the state minimum wage is $7.40)
  • Vermont (the state minimum wage is $8.06 and is indexed to inflation)
  • Washington (the state minimum wage is $8.55 and is indexed to inflation)
  • West Virginia (the state minimum wage is $7.25)

*For more information on the minimum wage laws, click here.

**For a consolidated table of state minimum wage updates effective July 1st, 2009, click here.

Hannah Goitein: Hannah Goitein is currently a law student at the George Washington University School of Law and a legal intern for Workplace Fairness. Prior to law school, Hannah graduated magna cum laude from the Isenberg School of Management at the University of Massachusetts Amherst. Hannah previously worked for AT&T as a manager and as a manager for a restaurant before that. Through her management experience coupled with her legal and business education, Hannah became committed to helping Workplace Fairness address workers right issues and continues to be actively involved in improving the workplace. Hannah lives in Washington, DC.

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