Being a whistleblower is a noble decision that also puts you at great personal risk. There is a possibility of being fired from your job or even threatened with violence if you make your intentions to blow the whistle on a criminal act known. Further, reporting illicit activity requires strong legal evidence, otherwise you may risk penalties for your efforts. No matter the case, consulting with an experienced white-collar criminal expert at the Cambridge firm of Altman & Altman LLP is essential to success.

What protections exist for whistleblowers?

Under the Dodd-Frank Act, whistleblowers who provide otherwise unknown, valuable information to the Securities Exchange Commission (SEC) that results in monetary sanctions exceeding $1 million are not only eligible for a percentage of that sanction as a reward, they are also given ironclad protection against retaliation by their employer or organization. Whistleblowers will even be granted a private cause of action if they are discharged or unfairly discriminated against by their employer as a result.

Due to a unanimous Supreme Court ruling in February of 2018, however, these whistleblower protections under the Dodd-Frank Act – which was passed after the financial crisis of 2008 and were finally implemented in 2011 – now only apply to individuals who report financially criminal issues to the United States SEC, and not if they only try to blow the whistle within the ranks of their own company or organization.

What this means is that a whistleblower will no longer be protected under Dodd-Frank unless they go through the process with the SEC’s program. Reporting through another federal agency, such as the IRS, will not net the same protections – although the IRS has its own rules regarding protection of whistleblowers, including potential payment for successful claims, they do not share similar protections as Dodd-Frank.

However, this does not mean whistleblowers are denied protections under the federal government entirely. An older law, the 2002 Sarbanes-Oxley Act, provides certain protections but also nets significantly less money than those pursuing whistleblowing under Dodd-Frank. While Sarbanes-Oxley protects whistleblowers of publicly-traded companies, its statute of limitations following the retaliation is 90 to 180 days – significantly less than the six years allotted to Dodd-Frank whistleblowers. Continue reading

Ileana Bermudez’s termination was retaliatory, rules a Massachusetts Appeals Court. After a 2013 on-the-job injury, Bermudez collected workers’ compensation benefits from a staffing agency that placed her at Dielectrics, a Massachusetts-based manufacturer of medical devices. According to Bermudez’s claim, multiple sheets of metal fell on her foot because Kevin Ramos, a Dielectric employee, was negligently operating a forklift. The accident caused a fracture to her right foot, and she was unable to return to work for approximately eight weeks.

When Bermudez filed the workers’ comp claim, she named the staffing agency, Career Group, as her employer. As a result, the benefits came from Career Group’s insurer. After returning to work, Dielectrics hired Bermudez as a full-time employee. Less than two years later, she filed a lawsuit against Dielectrics and Ramos, the forklift operator, alleging negligence and respondeat superior. Shortly after receiving notice of the lawsuit, Dielectrics fired Bermudez with the following notice:

“It is important to Dielectrics that when we promote an employee to a supervisory position the employee has a belief in the [c]ompany and behave[s] with the [c]company’s best interests at heart. Our supervisors need to support Dielectrics in that way so that we can entrust them to spread those same values to their subordinates. When you sued Dielectrics after being compensated for your injury by workers’ compensation, we had little choice but to conclude that you don’t believe in the company and don’t have its best interests in mind. This adversely affects the department you’ve been entrusted to supervise and the company as a whole. As such, we have decided to terminate your employment effective immediately.”

Retaliatory Termination?

In response to her termination, Bermudez sued Dielectrics for retaliatory termination. Because Dielectrics was not technically her employer when the forklift incident occurred, a judge ruled that the medical device manufacturer couldn’t be sued for retaliation. The same judge did, however, give her 20 days to amend her complaint by adding a claim of public policy violation, which she did. A Boston workers’ comp lawyer can help you determine how to proceed if you’ve been injured in a work-related accident.

But Bermudez voluntarily dismissed her claim, then appealed, contending that she had a right to her third-party negligence claim. In response, Associate Justice James R. Lemire stated that a 1971 act “abolished the necessity for an election between filing a workers’ compensation claim and an action against a negligent third party.” Lemire went on to say that the act was again amended in 1991 and that, “the language in the first sentence of the 1971 statute, abolishing the need for an election between remedies, remained the same for the 1991 statute. At the time of Bermudez’s injury, an employee was entitled to pursue a third-party action against any person responsible for her injury after collecting benefits under the act.”

Dielectrics wasn’t convinced. The company argued that the act was created by common law and, thus, didn’t give Bermudez the right to sue. The Appeals Court disagreed, however, holding that state law prohibits retaliatory termination against an employee who exercises a right provided by this particular act. Since Bermudez was exercising such a right when she filed the lawsuit against Dielectrics, and because there is sufficient evidence that her termination was retaliatory in nature, Dielectrics’ move to dismiss the amended complaint was vacated. A MA workers’ comp attorney can help you protect your rights if you’ve been injured on the job. Continue reading

A wave of protests has rocked the US since the 2016 election…and, in many cases, they seem to be working. Following a massive, worldwide employee walkout at Google earlier this month, the search engine giant has announced improved policies regarding diversity and sexual harassment, company-wide. The new policies include some of the protestors’ demands but ignore “several of the core demands,” according to the walkout’s organizers.

What Policy Changes is Google Implementing?

One of the key changes involves Google’s policy on arbitration for sexual assault and harassment claims; now employees can go to court with their claims of misconduct, rather than having to settle privately.

“We recognize that we have not always gotten everything right in the past and we are sincerely sorry for that. It’s clear we need to make some changes,” wrote CEO Sundar Pichai in a  publicly-posted employee email. A Boston employment law attorney can help you determine how to proceed if you’ve been the victim of sexual assault or harassment in the workplace.

Pichai went on to say that Google will improve and expand on existing sexual harassment training, and that internal reports on harassment will be more transparent, including details about cases, any disciplinary actions taken, and what the company does and does not tolerate. He also promises to update and improve the internal system employees can use to report sexual assault and harassment.

“{We} will provide more transparency on how we handle concerns. We’ll give better support and care to the people who raise them. And we will double down on our commitment to be a representative, equitable, and respectful workplace,” wrote Pichai.

Changes to sexual assault and harassment policies will be implemented by the first quarter of 2019.

The Alcohol Factor

Google says that alcohol was involved in about 20 percent of sexual harassment complaints. As such, a spokesperson for the company says that “going forward, all leaders at the company … will be expected to create teams, events, off-sites and environments in which excessive alcohol consumption is strongly discouraged,” even though this wasn’t a specific request of protestors.

Are Organizers Satisfied?

Organizers of the unprecedented walkout say that although Google has “made progress” it has also failed to meet multiple demands, and has “troublingly erased” policy-change requests around racism and discrimination. A MA employment law attorney can help you recover damages if you’ve been the victim of sexual assault or discrimination in the workplace.

“If we want to end sexual harassment in the workplace, we must fix these structural imbalances of power,” wrote the organizers in a statement. “While we’re thrilled to see progress on sexual harassment, we will not let up on the demands most urgent for women of color: an employee representative on the board, elevating the chief diversity officer, greater transparency on and an end to opportunity inequity at Google and beyond.” Continue reading

If you encounter sexual orientation discrimination in the workplace, you may have a legal claim against your employer. Sexual orientation discrimination in the workplace can occur in subtle and overt forms and can occur if you are lesbian, gay, bisexual, pansexual, asexual, or straight. Discrimination is any adverse action you experience at your job because of your real or perceived sexual orientation. Examples include:

  • being passed over for a promotion or other opportunities because of your sexual orientation;
  • receiving unfavorable evaluations because of your sexual orientation;
  • being denied benefits because of your sexual orientation;
  • being harassed, called names, or disciplined because of your sexual orientation; and
  • receiving unwanted sexual advances or contact because of your sexual orientation.

Sexual orientation discrimination also includes unfavorable treatment you experience based on your association with people of a certain sexual orientation. If you are experiencing any of the mistreatment described above, or any other unfair treatment based on your sexual orientation, a Boston employment law attorney can help you protect your rights.

Company Policy

Many companies have policies that prohibit unfavorable treatment as a result of sexual orientation. One of the first steps, if you are being harassed, is to see if your company has such a policy. Step two is to report the treatment to your manager or Human Resources Department. Keep records (such as emails, texts voice mails, etc.) of any interaction you believe was discriminatory. If you don’t have any written records, keep a log of all the interactions you believe are discriminatory. Note the date and time of the interaction, and write down the names of others who might have witnessed it. This information can prove invaluable if you decide to file a lawsuit.

Federal  Law

Although federal law may provide some protection, laws in this area are a bit foggy. The United States Supreme Court in Obergefell v. Hodges recently held that same sex couples have the right to marry and receive all of the benefits of marriage. Outside of marriage, though, federal law currently does not provide explicit protection from discrimination based on sexual orientation the way it does for discrimination based on age, sex, religion, race, natural origin and disability. That being said, Title IX, a federal law which prohibits sex discrimination in the workplace, may also apply to discrimination based on sexual orientation. Complaints under Title IX may be enforced by filing a complaint with the Equal Employment Opportunity Commission (EEOC). Notably, if you work for the federal government, you should also be protected from sexual orientation (and gender identity) discrimination by an Executive Order that President Obama amended in 2014. The law in this area is changing frequently, so it is best to consult a MA employment law attorney about the protections federal laws may provide.

State Law

Even though federal law does not specifically prohibit discrimination on the basis of sexual orientation, more than 20 states do, including Massachusetts. California, Colorado, Connecticut, Delaware, DC, Hawaii, Illinois, Iowa, Maine, Maryland, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, Utah, Vermont, Washington, and Wisconsin have similar laws. If you work in Massachusetts, you may be able to sue your employer in state court for violating anti-discrimination laws. Doing so may result in compensation for harm you suffered. Continue reading

Pregnancy discrimination occurs when an employee or job applicant is treated unfavorably due to pregnancy, or a pregnancy-related medical condition. The Pregnancy Discrimination Act (PDA) prohibits this type of discrimination in the course of any aspect of employment.

When a woman is unable to perform certain job duties due to a pregnancy-related health condition, she must be treated in the same manner as any another temporarily disabled employee would be treated. Further, some impairments that are common during pregnancy, such as preeclampsia and gestational diabetes, are covered disabilities under the Americans with Disabilities Act (ADA). As such, employers may have to provide reasonable accommodations for an employee suffering from these temporary medical conditions. Reasonable accommodations could include temporary leave, or modifications to the office, duties, or schedule.

Hostile Work Environment

If a woman feels that she has been harassed, or in any way discriminated against, due to her pregnancy, she may wish to file a discrimination claim. Unlawful discrimination occurs when harassment is frequent and severe enough that it creates a hostile work environment. Discrimination can also occur in the absence of harassment, however. For example, if a pregnant woman is demoted or fired because of her pregnancy or pregnancy-related medical condition, these may be grounds for a discrimination claim. A MA employment law attorney can help you recover damages if you’ve been discriminated against in the workplace.

New Mothers

If temporarily disabled employees are permitted to take disability leave, the same policy must apply to pregnant women. The Family and Medical Leave Act (FMLA) provides pregnant employees with additional rights, and many of these rights extend to new mothers. In the past, along with the PDA and FMLA, Title VII of the Civil Rights Act has been used by pregnant employees, and those who have recently become mothers, to fight workplace discrimination. In fact, discrimination lawsuits filed by new mothers and pregnant women have seen a dramatic increase in the last decade, and these lawsuits have a higher success rate than many other types of discrimination lawsuits.

The Right to Express Milk

New mothers often have a need to express milk during working hours. Under the Fair Labor Standards Act, which is enforced by the U.S. Department of Labor, nursing mothers have the right to take breaks for the purpose of expressing milk. Employers must provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.” In addition, employers must provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”

These breaks must be provided as frequently as the nursing mother requires, and for a reasonable amount of time. Although the FLSA does not specifically require employers to compensate nursing mothers during breaks for the purpose of expressing milk, if other types of breaks are already compensated for, the nursing mother must be compensated in the same way. A Boston employment law attorney can help you determine how to proceed if you’ve been discriminated against at work. Continue reading

Many employees worry that filing a workers’ comp claim will cause them future problems; they fear termination, employer retaliation, or even the inability to get hired at another company. Fortunately, there are legal protections available to injured workers. Although workers’ comp laws vary from state to state, most states prohibit the termination or demotion of an employee in retaliation for filing a workers’ comp claim. Massachusetts is no exception.

Some states specifically prohibit employers from refusing to hire someone due to a past workers’ comp claim. In Alaska, for example, employers “may not discriminate in hiring, promotion, or retention policies or practices against an employee who has in good faith filed a claim for or received benefits [for workers’ compensation].” Similar provisions exist in Louisiana, Oregon, and Vermont. Although MA and many other states don’t have such specific language with regard to the hiring process, other protections are available to protect workers from being refused employment based on prior workers’ comp claims.

Americans with Disabilities Act (ADA)

The Americans with Disabilities Act (ADA) prohibits any type of discrimination as it relates to the employment process. This includes hiring. As such, if you believe you were refused employment based solely on having previously received workers’ comp benefits, you may have a legal claim against the employer. It is also illegal to discriminate against an employee or job applicant because of a past or present disability. That being said, the ADA only applies to businesses with at least 15 employees. A Boston workers’ comp attorney can help you determine how to proceed if you’ve been injured on the job.

What is Retaliation?

Retaliation can take many forms, from a hostile work environment to outright termination. Some of the most common types of retaliation following a workers’ comp claim include:

  • Negative performance review
  • Failure to promote a deserving employee
  • Demotion
  • Pay cut
  • Workplace isolation or intimidation
  • Negative transfer or reassignment
  • Reduction in benefits or employment terms
  • Disciplinary action without cause
  • Negative employment references
  • Increase or decrease in tasks

In the list above, negative employment references are the most likely concern among job applicants who have previously filed workers’ comp claims. Another concern is the question—have you ever filed a claim for workers’ compensation? Since the law prohibits employers from asking potential employees about past or present injuries or disabilities, this question is usually a no-no. However, in some cases employers may perform a background check to determine if the potential employee has ever filed a claim. Continue reading

A new study conducted by the Society of Human Resources Management (SHRM) revealed that only 17 percent of employees admit to having witnessed sexual harassment, and only 11 percent say they were targets of sexual harassment. According to researchers, these low figures are common in surveys related to sexual misconduct. Those being surveyed may fear retaliation, or they may be ashamed, or concerned about victim shaming.

But there’s even more to it than that. Just like a victim of sexual harassment may struggle with how to describe what happened to them, and whether or not they should confront their harasser, witnesses may be equally unsure of how to approach the situation. In fact, according to Evren Esen, a former workforce analytics director at SHRM, only about 25 percent of witnesses ever report workplace sexual harassment. Determining whether to “blow the whistle” can be a complicated process.

“Regardless of whether it actually happens to you or whether you observe it, there is still a sense that reporting it is taking it to the next level,” says Evren. “It impacts the organization, the morale, and so on if this kind of behavior is just occurring and people don’t feel comfortable reporting it.”

Whistleblowing aside, witnessing sexual harassment can take a toll on an employee’s mental health just as it can harm the actual target. This is especially true if the witness has previously suffered any type of sexual harassment or abuse. A MA employment law attorney can help you recover damages if you’ve been sexually harassed at work.

Betrayal Blindness and Institutional Betrayal

According to Jennifer Freyd, a professor of psychology at the University of Oregon, witnesses to workplace sexual harassment can suffer from the two types of betrayal trauma common to victims—betrayal blindness and institutional blindness. In cases of betrayal blindness, the victim or witness may “forget” or block out harassment that is conducted by a trusted and respected colleague or mentor. Institutional betrayal occurs when a victim or witness loses their sense of trust in their workplace.

Even when employees try to avoid unpleasant situations involving other workers—keeping their heads down and ‘minding their own business’—they can still be negatively affected

“You’re still in a system that is dysfunctional and it’s going to take a toll on you for that reason,” says Freyd. “So it’s like being in a dysfunctional family—it’s costly to your well-being, just swimming in that system.” Continue reading

Last week, an ex-manager of a Chipotle Mexican Grill was awarded close to $8 million in a wrongful termination lawsuit against the restaurant chain. Jeanette Ortiz was accused of stealing more than $600 from a Fresno, California Chipotle in 2015. The alleged theft, which Ortiz’s supervisors claimed was videotaped, was never shown to Ortiz. Her supervisors said the video had been destroyed.

Following her termination, Ortiz filed a lawsuit. Last week, a California jury ruled that the former manager’s termination was in retaliation for a workers’ comp claim she had filed for a work-related injury. Ortiz claims to have suffered carpal tunnel syndrome while working at Chipotle. The Mexican fast-food restaurant was ordered to pay $7.97 million in damages, which includes $1.97 million in lost wages, and $6 million for emotional distress.

How Do You Know if Your Termination Was Legal?

If you’ve recently been fired from a job, and you think your termination was illegal, you may be entitled to compensation. But how do you know if the termination was legal or wrongful? The reality is, most employment is considered to be “at will,” which basically means that any employee can be fired at any time for any reason. That sounds like a blanket statement, but there is one major exception. If the reason itself is illegal, the termination is likely wrongful. An example of an illegal reason for termination would be if an individual is fired because of his race or religion. Such a discriminatory act is prohibited, and thus, would constitute a wrongful termination.

To win a wrongful termination case, however, one must be able to prove that the reason for termination was illegal, or that the termination itself was illegal because it goes against a written or implied promise of employment. For example, if you have a written contract promising job security for one year, and you are fired after six months, you can argue that your employment was not “at-will.” Even an implied promise can suffice, but these are much more difficult to prove. A Boston employment law attorney can help you protect your rights if you’ve been wrongfully terminated. Continue reading

Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination based on race or color, sex, national origin and religion. It does not specifically prohibit discrimination based on sexual orientation, however. In fact, in Zarda v. Altitude Express, Inc., the Second Circuit dismissed the plaintiff’s claims of sexual orientation-based discrimination since this type of discrimination is not covered by Title VII. On Monday, however, the Second Circuit reversed that decision, finding that discrimination based on sexual orientation is included under Title VII.

Due to the wording of Title VII, which did not explicitly list sexual orientation as a protected category with regard to workplace discrimination, employees have long been vulnerable to sexuality-based discrimination. To be clear, no federal law actually prohibited discriminatory employment practices against LGBT people. State laws were, and are, a different story. Even though the Equal Employment Opportunity Commission (EEOC) announced that it viewed sexual orientation-based discrimination as a Title VII violation, its interpretations have no authority with regard to federal law.

For years, sexuality or sexual orientation-based discrimination cases have been regularly dismissed. But as times change, workers have increasingly begun filing lawsuits for this type of discrimination. Last year, the Seventh Circuit Court of Appeals made a landmark decision in Hively v. Ivy Tech Community College, finding that sexual orientation discrimination is covered by the sex discrimination provision in Title VII. In the Hively case, the plaintiff “described a situation in which, holding all other things constant and changing only her sex,” the discrimination would not have occurred.

Trump Weighs In

A 2010 discrimination case involving Donald Zarda, a sky-diving instructor from Long Island, was found in favor of Altitude Express, his employer. According to the lawsuit, Mr. Zarda told his female sky-dive partner that he was “100 percent gay.” Her boyfriend complained to Altitude Express, and Zarda was terminated as a result. Zarda then filed his own lawsuit, but the Second Circuit affirmed the original decision. After Zarda’s death in a 2014 sky-diving accident, his appeal was continued by his estate. The Trump Administration even got involved, arguing that the protections of Title VII do not apply to sexual orientation. A MA employment law attorney can help you protect your rights if you’ve been discriminated against at work.

But the Second Circuit overturned its previous ruling in February, finding that sexual orientation discrimination is encompassed by the sex discrimination provision. Although the court admitted that this was likely not the provision’s original intent, deciding to include sexual orientation discrimination follows in line with the decision to expand other aspects of Title VII, such as including sexual harassment.

The Second Circuit’s decision holds that: “Title VII’s prohibition on sex discrimination applies to any practice in which sex is a motivating factor.” As such, employment discrimination based on sexual orientation qualifies as sex discrimination “because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted, making it impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account.”

This decision is welcome news for millions of LGBT workers, but also for anyone who wishes to see an increase in workplace justice and equality. If you are being discriminated against because of your sexual orientation, you don’t need to suffer in silence anymore. A Boston employment law attorney can help you determine how to proceed if you’ve been the victim of workplace discrimination. Continue reading

A whistleblower is someone who exposes information about an illegal or unethical activity against the government or a private entity. When the activity is being committed against the U.S. government, the whistleblower may bring what is known as a qui tam lawsuit under the False Claims Act, which rewards whistleblowers when funds lost to fraud are recovered as a result of the information provided.

If you are aware of fraudulent activity against the government, you may be able to help stop the fraud and reap immense financial benefits. Fraud against the government doesn’t only hurt the government. For example, Medicare and Medicaid fraud has negative consequences for recipients of these programs, as well as taxpayers in general. A Boston whistleblower attorney can help you determine how to proceed if you are aware of fraudulent activities being committed against the U.S. government.

Personal and Professional Protections

In addition to being rewarded for their unique information, whistleblowers also receive protections under the False Claims Act. Not surprisingly, blowing the whistle on a large corporate entity can have personal and professional consequences, especially if that entity happens to be the whistleblower’s employer. Even so, it is a courageous, important act to expose fraud that could put the lives of patients, soldiers and the general public in grave danger. As such, whistleblowers are protected from retaliation, among other consequences.

Once you report the fraudulent or illegal activity, the government will begin an investigation of the allegations, from which point it will decide whether to intervene. If the government decides not to get involved with the case, you can continue with your qui tam case. However, such cases have a much better chance of success with the government’s involvement.

Whistleblower Awards May be in the Millions

If the individual or entity is found liable, they may have to pay up to three times the amount of funds lost to the fraudulent activity. The whistleblower is typically awarded between 15 and 25 percent of the recovered funds. Considering that recoveries are often in the tens-of-millions of dollars, 15 to 25 percent can be an extremely large sum of money.

In 2017, whistleblowers filed 669 qui tam suits, according to the Justice Department. Whistleblowers in the U.S. earned more than $392 million in 2017 by helping the government recover $3.4 billion in misappropriated or stolen funds. Below are some of the top whistleblower awards of 2017.

  • Mylan Inc. – $465M settlement
  • Shire Pharmaceuticals LLC – $350M settlement
  • Allied Home Mortgage – $268M verdict
  • eClinicalWorks – $155M settlement
  • Life Care Centers of America Inc. – $145M settlement
  • Bechtel Corp. / URS Energy and Construction Inc. – $125M settlement
  • Agility Public Warehousing Co. – $95M settlement
  • PHH Mortgage – $65M settlement
  • CA Inc. $45M – settlement
  • ADS Inc. $16M – settlement

A MA whistleblower lawyer can help you protect your rights if you are aware of fraudulent, illegal or unethical activity. Continue reading

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