Shouldn’t We All Be Equally Protected?

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If Congress is supposed to make laws to protect people, and if all people are created equal, shouldn’t members of Congress and their employees abide by the same laws as others?  Shouldn’t Congressional employees be protected by Congressional legislation as well?  The logical answer to these questions would be “yes.”  However, in some cases, Congress has made laws for others to abide by, but has not applied the law to its own branch of government.

Strangely enough, while Congress passed laws to protect whistleblowers, it has not extended the same protections to its own employees.  Because legislative branch employees are not protected under the same laws, they may be less inclined to blow the whistle, for fear of losing their jobs or potential lawsuits.  Senator Chuck Grassley  (R-IA) (see previous article) is trying to change the status quo to allow Congressional employees to speak up without fear of being punished.  Last year, Sen. Grassley and Sen. Claire McCaskill (D-MO) introduced the Congressional Whistleblower Protection Act to amend the Congressional Accountability Act to allow legislative branch employees to enjoy the same whistleblower protections as executive branch employees and others.  Grassley justify his Act not only because it protects the whistleblowers, but also because it allows for a more transparent government that abides by the laws.  He stated that “‘Compliance isn’t just something to check off a list once, but it should be a daily effort to be sure the Senate is abiding by the law.’”  In order to ensure that the government does abide by the law, whistleblowers should be able to report on wrongful activities in Congress without the worry of losing their jobs or facing lawsuits.  According to Rep. Todd Platts (R-PA) “Being a whistleblower takes courage…Any federal employee, including those who work in the legislative branch, who sees wrongful and unethical conduct in the workplace, should be able to report such conduct without fear of losing their job.”

Legislative branch employees are able to voice concerns to the Ethics Committee in the House or Senate or the to Office of Compliance.  However, they are not protected if they blow the whistle.  Grassley’s Act would provide them with protection.  Act’s similar to Grassley’s have been offered in the previous 3 Congresses but have never come out of Committee.  Grassley’s Act is stuck in Committee now as well.  Despite the fact that the Office of Compliance has called for such protections to be extended to legislative branch employees for more than 10 years, no such Act has been passed.

Even though this seems like striking news, this is not a new issue.  You may be questioning why you have not heard of this issue before.  Part of the reason is that Congressional employees are not keen to blow the whistle when not protected by the law.  Additionally, they may be uncomfortable lobbying Congress for the law to be extended to them.  According to Danielle Brian, Executive Director of the Project on Government Oversight, this is due to loyalty.  People working for someone in Congress are loyal to the Congressperson they represent and therefore are less likely to blow the whistle on inappropriate activity.  So, despite the fact that the Act is being offered by Grassley, it is questionable as to which will trump: loyalty to the employer or the need to report wrongdoings.

If Grassley’s Act makes it out of Committee and was voted on and passed, would Congressional employees blow the whistle more often, or will loyalty still stand in the way?

NOTE: The Qui Tam Team has written a News Article about this issue.  See “Congressional Employees Do Not Receive Whistleblower Protections” at http://quitamteam.com/news/legal-news/678-congressional-employees-do-not-receive-whistleblower-protection

In related news see:
Blog: “Why It’s Worth It to Be a Whistleblower” at http://quitamteam.com/blog/worth-whistleblower/#comments
News: “Grassley Promoting ‘The Value of Whistleblowers’ by writing to Drug Companies at http://quitamteam.com/news/top-headlines/661-senator-grassely-promoting-the-value-of-whistleblowers-by-writing-to-drug-companies

Sources:
Lovely, Erika. “Congress delays on whistleblowers.” Politico. 17 August 2010. http://www.politico.com/news/stories/0810/41178.html.
“S. 474: Congressional Whistleblower Protection Act of 2009.” Govtrack.us. 111th Congress. http://www.govtrack.us/congress/bill.xpd?bill=s111-474.

This article is brought to you by the QTT, the epicenter for whistleblowers and people interested in the False Claims Act, Qui Tam Provisions, and Medicare and Medicaid fraud. To discuss a potential case, please call Eric Young at 1 (800) 590-4116.

Why It’s Worth It To Be a Whistleblower

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Many question the worth of being a whistleblower.  “Is it worth the time and effort?”  “Will I lose my job?”  “What good will it bring me?”  Overall, “is it worth it?” Being a whistleblower is a tedious process—cases can take years, to hire lawyers you need to have money, and many people seem to think that it may even make you lose your job.  Let’s go through each of these pieces to the whistleblowing process: time, money, and risk.

Whistleblowing is a time commitment.  It requires gathering first-hand specific information about fraudulent activity, working with lawyers, spending time in negotiations or court, etc.  Many qui tam cases take years to settle.

Whistleblowing also requires money as hiring lawyers is necessary.  However, the money used to pay lawyers may be reimbursed to you after winning a case.  In our recent article on quitamteam.com, “Jury: College & Faculty Member Committed Fraud,” the whistleblower in the case, Dr. Daniel Feldman, is likely to be reimbursed.  Dr. Feldman filed the case in 2003, and it has taken 7 years for the final ruling to be issued.  Dr. Feldman’s fees and costs to his lawyers cost several hundred thousand dollars, which may be reimbursed to him in full!

Many think whistleblowing is a risky business.  But, contrary to popular belief, the risks are not very high as whistleblowers are protected by law.  For instance, many people think that whistleblowing involves the risk of losing your job, but under the False Claims Act (FCA), the Occupational Safety and Health Act (OSH Act), and other laws that protect whistleblowers, whistleblowers cannot be fired for whistleblowing.  According to the Department of Labor website, “Whistleblowers may not be transferred, denied a raise, have their hours reduced, or be fired or punished in any other way because they have exercised any right afforded to them under one of the laws that protect whistleblowers.”  So while whistleblowing may seem risky, the law is on the whistleblower’s side to protect him/her from any punishment as a result of whistleblowing.

So whistleblowing takes time, can take money, but is not very risky.  But still “why do it?”  “Is it worth it?” “What good will it bring you?”  The reward of being a whistleblower is not only self-satisfaction, but a heavy pay-off if you win the case.  In order to receive a reward for being a whistleblower, the government must recover at least $1 million in the case. Whistleblowers receive a mandatory minimum of 10 percent, to a maximum of 30 percent of what is recovered.  Therefore, if whistleblowers are awarded in cases recovering $1 million or more, a whistleblower will make between $100,000 and $300,000 at least.  For larger cases, a whistleblower must still receive at least 10 percent of the claim, and can make more than $100,000 to $300,000.  In the HCA case in 2003, the numerous whistleblowers received $151,591,500.  The largest Healthcare fraud settlement in U.S. history, against Pfizer Inc., paid six whistleblowers more than $102 million.  So while whistleblowing may take time, it is worth it. Overall, you can be reimbursed for payments to attorneys, you will not incur much risk, and you will make at least $100,000 if your case wins.

Dr. Feldman sums up why it’s worth being a whistleblower.  He stated that, “being a whistleblower is not something you undertake without tremendous sacrifice,” because of the time and risk involved.  However, he agreed that “In the end, prevailing certainty feels great and worth the cost to do the right thing” (Source: Salmanson Goldshaw).

Sources:
Henning, Peter J. “Come Blow Your Horn for the S.E.C.” The New York Times DealBook Blog. 26 July 2010. http://dealbook.blogs.nytimes.com/2010/07/26/come-blow-your-horn-to-the-s-e-c/.
Montopoli, Brian. “Obama Signs Sweeping Financial Reform Into Law.” CBSNews. 21 July 2010. http://www.cbsnews.com/8301-503544_162-20011201-503544.html Salmanson Goldshaw, P.C. as per PR Newswire. PR Newswire. “Federal Jury Finds Cornell University’s Medical College Committed Fraud.” 29 July 2010. http://www.prnewswire.com/news-releases/federal-jury-finds-cornell-universitys-medical-college-committed-fraud-99538899.html.
Savage, David. “Financial reform law includes big cash incentives for whistle-blowers.” Los Angeles Times. 23 July 2010.http://www.latimes.com/business/la-fi-reform-whistleblower-20100723,0,6099636.story.
United States Department of Health & Human Services. News Release. “Justice Department Announces Largest Health Care Fraud Settlement in its History.” 2 September 2009. http://www.hhs.gov/news/press/2009pres/09/20090902a.html.
United States Department of Justice. “Largest Health Care Fraud Case In U.S. History Settled HCA Investigation News Record Total of $1.7 Billion.” 26 June 2003. http://www.justice.gov/opa/pr/2003/June/03_civ_386.htm.
United States Department of Labor. “Whistleblower Protections.” http://www.dol.gov/compliance/laws/comp-whistleblower.htm.

This article is brought to you by the QTT, the epicenter for whistleblowers and people interested in the False Claims Act, Qui Tam Provisions, and Medicare and Medicaid fraud. To discuss a potential case, please call Eric Young at 1 (800) 590-4116.

Whistleblower in a Coal Mine

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Remember the story of the miners who died in the West Virginia coal mine before the story was overshadowed by the latest fossil fuel debacle? Well, a whistleblower has filed a federal whistleblower complaint claiming that Massey fired him in retaliation for pointing out safety violations at mines in West Virginia–including the one in which an explosion occurred on April 5th,  killing 29 miners. The whistleblower, Ricky Lee Campbell, is a sort of coal-dusted Cassandra.

Campbell filed a complaint with the Labor Department alleging that he was fired for his role in the federal investigation as well as for safety complaints he made to mine management.  Federal administrative law Judge L. Zane Gill agreed with Campbell, stating that there was “substantial evidence to support a reasonable cause to believe” that Campbell’s complaints led to his firing.  The administrative law judge ordered Massey to temporarily reinstate Campbell, and the ball is now in the Labor Department’s court to file a complaint seeking permanent reinstatement.

The harsh world of mining seems to lend itself to a wide array of egregious violations. If you’re still fired up about mines, here’s a shameless plug for the film North Country, which is the semi-fictionalized story of a group of women who had the guts to stand up to a mining corporation and bring a sex discrimination lawsuit despite outrageous threats and harassment. The lawsuit at the center of the film is based on Jenson v. Eveleth Taconite Co. The case was filed in 1988 on behalf of Lois Jensen and other female workers at EVTAC mine in Eveleth, Minnesota. Jensen began working at the mine in 1975 and endured outrageous sexual harassment. She quit working at the mine in 1992, and was diagnosed with post-traumatic stress disorder shortly thereafter. It wasn’t until 1998, when another trial was set to begin following years of protracted litigation, that the company settled with 15 female plaintiffs for $3.5 million.

Both the Massey mine situation as well as the Eveleth sexual harassment suit illustrate that even in harsh, remote environments such as mines, concerned individuals can make a difference by letting their voices be heard. No matter how far underground you may be, there is always a path to the courtroom.

This article is brought to you by the QTT, the epicenter for whistleblowers and people interested in the False Claims Act, Qui Tam Provisions, and Medicare and Medicaid fraud. To discuss a potential case, please call Eric Young at 1 (800) 590-4116.

Pharma Whistleblowers Under Stress

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New findings from a New England Journal of Medicine (NEJM)  study entitled “Whistle-blowers’ experiences in fraud litigation against pharmaceutical companies” confirm what most whistleblowers already know: whistleblowers who report health care fraud experience substantial stress and receive little support. This appears to be in line with other recently released studies which confirm that, in the words of Rodney Dangerfield, the majority of whistleblowers “just don’t get no respect.”

The NEJM study examined the experiences of 42 pharmaceutical whistleblowers, and an interesting profile of the whistleblowers emerged.  All but six of the relators in the study did not specifically intend to use the qui tam mechanism when they decided to seek legal redress for the frauds they observed. Rather than being motivated by collecting a monetary reward, the main motivations of the whistleblowers were integrity, altruism  or public safety, justice, and self-preservation.

The whistleblowers shared certain common experiences in bringing frauds to light. Most of the whistleblowers became active participants in the investigation, such as by wearing a wire.  The whistleblowers also reported spending inordinate amounts of time working on the investigation, sometimes meeting with FBI agents in risky locations or being forced to devise hasty covers for agents visiting the whistleblower’s workplace on short notice. Many relators were frustrated with the government at various points during the investigation.

Another common theme among the relators was the personal toll of becoming a whistleblower. Most of the whistleblowers reported experiencing financial difficulties. Some experienced divorce or other family problems. In addition, whistleblowing took a physical toll, with several whistleblowers reporting health problems ranging from asthma to migraines.

When it was all over, most of the relators felt that what they did was important for ethical or psychological reasons, despite dissatisfaction with the financial reward. Notably, the advice offered to potential whistleblowers by some of these seasoned, war-weary whistleblowers? Hire an experienced attorney!

This article was sponsored by The Qui Tam Team, the epicenter for whistleblowers and people interested in the False Claims Act, Qui Tam Provisions, and Medicare and Medicaid fraud. To discuss a potential case, please call Eric Young at 1 (800) 590-4116.

Protecting Corporate Whistleblowers

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A corporate whistleblower faces a very real risk of retaliation by her employer, commonly in the form of termination. Certain provisions of the Sarbanes-Oxley Act (SOX) provide protections for whistleblowers, and new whistleblower protections could potentially come through the proposed financial reform bill.

18 U.S.C. sec. 1514A of SOX protects corporate whistleblowers by providing them with the remedy of a civil action in the event of retaliation by their employer.  Publicly traded companies, as well as their contractors, subcontractors, and agents, are prohibited from retaliating against a whistleblower who participates in an investigation or participates in an action stemming from violations of Federal law relating to fraud against shareholders.

If a whistleblower does suffer some sort of retaliation, she has two options depending on the amount of time that has elapsed. She could file a complaint with the Secretary of Labor, or, in the event that the Secretary of Labor has not issued a decision within 180 days of the filing of the complaint and the whistleblower has not done anything in bad faith to cause the delay, the whistleblower can go ahead and file a lawsuit in federal district court. As a side note, there is a special loophole created for whistleblower plaintiffs here. Normally, in order to get into federal district court the amount in controversy must be $75,000 or more. For whistleblowers alleging discrimination, this requirement is waived.

The proposed financial reform legislation, which may be headed to the Senate floor this week, could significantly expand whistleblower protections. Under both the House version of the bill as well as that proposed by Senator Chris Dodd, the SEC would be authorized to reward whistleblowers for any insider trading violations (not just those related to securities, as the law currently stands). In addition, the whistleblower’s share of the SEC sanction would be increased to 30% from its current 10%. This is a significant jump, putting it in line with the maximum recoveries available to qui tam relators and IRS whistleblowers.

Blowing the whistle is by no means without risk. The whistleblower should take some comfort, however, in the fact that there are several protections available, and stronger protections likely are on the way. Recent events in the financial world, such as the Goldman Sachs short selling debacle, are sure to provide an impetus to Congress to reinforce whistleblower protections in this area.

This article was sponsored by The Qui Tam Team, the epicenter for whistleblowers and people interested in the False Claims Act, Qui Tam Provisions, and Medicare and Medicaid fraud. To discuss a potential case, please call Eric Young at 1 (800) 590-4116.

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