Posts Tagged ‘whistleblower’
Under Florida law, the general rule is that an employee who quits their job is not entitled to receive unemployment benefits. However, there is an exception to this general rule where the employee left with good cause attributable to the employer.
Dennis Martinez was a full time car salesman for Ford Midway Mall. Martinez was originally hired on a commission basis, but some time into his employment, his position was changed to where he received a draw against his commissions. When business declined and he was earning no commissions, based upon the employer draw, he would owe the employer money each week. As of the date of his resignation, Martinez owed over $2,000 to his employer due to these draws. Martinez expressed his dissatisfaction with this arrangement to his employer and resigned.
The unemployment referee determined that Martinez voluntarily quit without good cause of the employer. He further decided that because Martinez agreed originally to this draw policy, that he could not contest it a year later.
The Third District Court of Appeal reversed the determination of unemployment. The Court held that the unemployment laws “provides that an individual is not disqualified for unemployment benefits where the individual has “voluntarily left work with good cause attributable” to the employer. § 443.101(1)(a), Fla. Stat. (2009). “Good cause” includes cause attributable to the employer, which “as contemplated by the unemployment compensation law, describes that which would drive an average, able-bodied worker to quit his or her job.”
The Court held that the auto dealer was in violation of the Fair Labor Standards Act (“FLSA”) and the Florida Minimum Wage Act because Martinez was not getting paid the minimum hourly wage for the hours he was working for his employer. The Court held that the draw agreement used by the employer was in violation of the FLSA and Florida Minimum Wage Act. Moreover, the Court held that merely allowing them to pay under the draw policy, for a period of time did not result in a waiver of his legal rights under the FLSA.
The Court held that due to the employer’s violations of the FLSA and Florida Minimum Wage Act, Martinez had left his employment due to good cause attributable to the employer. The Court reversed the decision of unemployment and awarded Martinez his benefits.
The Opinion of the Third District Court of Appeal is here.
For those of you who have been following my blog, you are all aware of some of the types of whistleblower actions that I have blogged about. Not only do many states have their own whistleblower laws, but many federal statutes also have whistleblowing provisions such as with OSHA and the various health care statutes. I have also blogged about qui tam actions where you whistleblow upon an employer when it is ripping off the federal government or state government.
It is important to whistleblow. I have represented employees who reported redating meats at a grocery store meat department and were fired in response. I have represented employees who reported filling premium brand liquor bottles with call brand liquors. I even represented mortgage brokers who complained about shoddy underwriting practices at a major lender before the financial mortgage collapse (he was fired for his complaints). All of these types of actions are either a danger to the public or at a minimum a fraud upon the public and should not be tolerated. And remember, if you do complain about the illegal actions of your employer it is illegal for them to retaliate against you or fire you for your actions.
In fact, had employees whistleblowed about BP and the Deepwater Horizon, maybe this country would not be suffering from this environmental disaster. Currently, several whistleblowers have come forward on other matters of interest related to BP (including another Gulf well) and have said they have suffered retaliation for doing so. Related to Deepwater Horizon: “The rig survivors … said it was always understood that you could get fired if you raised safety concerns that might delay drilling. Some co-workers had been fired for speaking out, they said.”
In his testimony before Congress last week, Tony Hayward said that why no one spoke up would be the important question to be answered by BP’s ongoing investigations. Congressman Henry Waxman in the hearing said operating in deep water is like operating in space. The very nature of oil rig deepwater drilling — and space travel — with their inherent risks, make it imperative that action be taken to ensure that in future, safety indeed comes first. Congressman Waxman was analogizing the BP incident to the Challenger space shuttle explosion.
So if you have concerns about illegal activities engaged in by your employer, speak with an employment law attorney to consider your next course of action.
SAN FRANCISCO — Swiss pharmaceutical company Novartis AG is paying $72.5 million to settle a whistleblower lawsuit accusing it of improperly billing government programs for unapproved uses of a cystic fibrosis drug.
The U.S. Attorney’s Office announced the settlement Tuesday and unsealed the lawsuit filed by former employees Robert Lalley, Courtney Davis and William Manos in 2006.
The lawsuit alleged that biotechnology company Chiron Corp., which Switzerland-based Novartis acquired in 2006, billed for unapproved uses of its drug TOBI between 2001 and 2006.
The federal government will receive $35.68 million. Ten states — California, Illinois, Florida, Texas, Georgia, Tennessee, Virginia, Massachusetts, Michigan and New York — will split $29 million.
The three whistleblowers and their lawyers will divide $7.8 million.
This is a quote from a press release from the Associated Press the other day. You will frequently see these types of press releases these days in the newspaper. Typically the relief obtained by the Federal government and whistleblowers was through a qui tam action under the Federal False Claims Act.
The False Claims Act is 31 U.S.C. Sections 3729 through 3733. Qui tam, under the False Claims Act, allows persons and entities with evidence of fraud against federal programs or contracts to sue the wrongdoer on behalf of the United States Government. In Qui tam actions, the government has the right to intervene and join the action. If the government declines, the private plaintiff may proceed on his or her own. Some states have passed similar laws concerning fraud in state government contracts.
For instance, where employees are aware of medicare fraud conducted in doctors offices, this may be the subject of this type of case. Where, pharmaceutical companies market drugs for the wrong type of ailments and the federal government gets billed for it, this may be the subject of this type of action. Where, an employee is aware of tax fraud by the employer, this may also be the subject of this type of case.
So what types of claims would be included in this type of case?
- Knowingly presenting (or causing to be presented) to the federal government a false or fraudulent claim for payment
- Knowingly using (or causing to be used) a false record or statement to get a claim paid by the federal government
- Conspiring with others to get a false or fraudulent claim paid by the federal government
- Knowingly using (or causing to be used) a false record or statement to conceal, avoid, or decrease an obligation to pay money or transmit property to the federal government.
So who can bring this type of suit? Any persons or entities with evidence of fraud against federal programs or contracts may file a Qui tam lawsuit. If the government or a private party has already filed a False Claims Act lawsuit based on the same evidence as you, you cannot bring a lawsuit.
If you are successful with your claim, violators of the False Claims Act are liable for three times the dollar amount that the government is defrauded and civil penalties of $5,000 to $10,000 for each false claim.
And if the claim is successful, the payoff to the employee can be substantial. A qui tam plaintiff can receive between 15 and 30 percent of the total recovery from the defendant, whether through a favorable judgment or settlement. However, to be eligible to recover money under the Act, you must file a qui tam lawsuit. Merely informing the government about the violation is not enough. You only receive an award if, and after, the government recovers money from the defendant as a result of your suit.
In addition, you can’t be retaliated against for bringing complaints against your employer under the Federal False Claims Act. Any employee who is discharged, demoted, harassed, or otherwise discriminated against because of lawful acts by the employee in furtherance of an action under the Act is entitled to all relief necessary to make the employee whole. Such relief may include reinstatement, back pay and damages.
If you believe you may have a qui tam case against your employer, make sure to consult with an employment law attorney familiar with these types of claims. The law has many complicated provisions that you will need guidance on.
You may recall my recent posting on whistleblower protections provided to employees under both state and Federal Laws. Well, the the recent Federal health care legislation provides new whistleblower protections to employees under the recently enacted Patient Protection and Affordable Care Act (“PPACA”).
Congress included whistleblower and retaliation protections in the recently-enacted Patient Protection and Affordable Care Act (“PPACA”), the comprehensive health care legislation signed by President Obama in March 2010. The whistleblower provisions encourage employees to report fraud or waste under the statute.
The PPACA clearly showed an intent by Congress to extend whistleblower protection to those who report abuses or fraudulent conduct in the delivery of health care through the use of public monies.
Any employee who believes that he or she has been discharged or discriminated against in violation of law is entitled to seek relief using the same procedures provided in 15 U.S.C. §2087(b), which contains the extensive whistleblower protections contained in the Consumer Product Safety Improvement Act of 2008. These procedures include filing a complaint concerning discrimination or retaliation with the Department of Labor, going through an administrative process to determine whether the employee’s conduct protected by Section 18C was “a contributing factor in the unfavorable personnel action” alleged by the employee, and providing for the filing of a civil action in federal court after exhaustion of the administrative process.
Interestingly, however, Section 1558 explicitly limits application of Section 18C only to violations of Title I of the PPACA. Title I covers the statute’s core provisions for medical care in conventional settings, such as the provision of health care services at hospitals, clinics and physician offices; hence, employees who report fraud, waste or violations in those settings fall under the protections afforded by Section 1558.
Finally, Section 1313 of the PPACA makes any “[p]ayments made by, through or in connection with an Exchange” subject to the False Claims Act, 31 U.S.C. 3729, et seq., if the payments involve any Federal funds. The False Claims Act prohibits the “knowing” presentation of a false or fraudulent claim for approval or payment; hence, any “knowing” presentation of a bill or invoice for health care services through an Exchange set up under the PPACA that contains overcharges is subject to a civil penalty. The penalties include a fine of up to $10,000, a civil penalty of between 3 to 6 times the amount of the overcharge, and repayment of the cost to the Federal government of bringing the civil action to prove the violation. Note that Section 1313 contains the threat of a civil penalty up to 6 times the amount of damages sustained by the Federal government as a result of a violation, which is twice as high as the maximum available under the False Claims Act. Coupled with the whistleblower provisions contained in Medicare and Medicaid statutes, any payment for health care services that involves Federal funds could be expected to be subject to the protection of a whistleblower provision.
Since these statutory provisions and processes are complicated, if you work in a healthcare setting and believe you have been retaliated against or terminated based upon complaints of illegalities in your medical office, you probably want to consult with a skilled employment lawyer to evaluate your next course of action.
A federal jury in Hartford, Connecticut, recently awarded $1.37 million in damages to a former Pfizer scientist who alleged that she was fired for raising safety concerns. This just shows the types of awards that are being given to employee whistleblowers who blow the whistle on violations of laws by their employer and have their job terminated in response.
Under Florida law, and in most states there exists a whistleblower law. For instance in Florida it is illegal to retaliate or terminate an employee for complaining about the employer’s violations of a law, rule, or regulation of state or Federal law. So if you complain about a violation of law, it is not only illegal for your employer to fire you, but they also can’t retaliate against you by reducing your hours, salary, working conditions, etc. For instance, my law firm has in the past represented an employee of Publix who complained about its failure to follow safety precautions in its meat department, an employee of Suntrust Mortgage who complained about illegalities in origination of mortgages, and employees of doctors offices who have submitted false medicare claims.
In addition to the whistleblower laws available under state laws, many Federal laws provide remedies to an employee for whistleblowing. For instance, if you complain to OSHA (The Occupational Health and Safety Administration) about safety issues, that statue has its own protections for whistleblowers. Also there are protections under the Federal Sarbanes Oxley statute as well as many other statutes such as major federal environmental laws (Clean Air, Toxic Substances, Clean Water, Atomic Energy, Solid Waste, Safe Drinking Water, and Superfund) each have special provisions protecting corporate whistleblowers. There are also protections under the Federal False Claims Act which relates to issues such as false or fraudulent claims being submitted to Medicare.
So the bottom line is if you think that you have blown the whistle on your employer and have been terminated or retaliated against you should speak with legal counsel about the issues.