Whistleblower Requirements Varies Among State Plan States

The Nevada law (NRS 618.445(2)), reviewers said, “may create a chilling effect” on a worker who wants to file a whistleblower retaliation complaint because the worker must send or hand deliver the complaint directly to his employer before NvOSHA opens an investigation.


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Whistleblower Gets $104 Million


A former UBS AG banker who helped the U.S. government unleash an international crackdown on tax evasion was awarded $104 million in what is believed to be the largest-ever whistleblower payout to an individual.

Bradley Birkenfeld, 47 years old, began cooperating with U.S. authorities in 2007, while still at UBS. He provided prosecutors with detailed descriptions of the bank’s efforts to promote tax evasion and confessed to running errands for rich clients, including one instance when he sneaked diamonds into the U.S. in a toothpaste tube

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Whistleblower Violation Costs Railroad $300,000

The U.S. Department of Labor has found that, once again, Norfolk Southern Railway Co. has violated the whistleblower protection provisions of the Federal Railroad Safety Act. An investigation by the department’s Occupational Safety and Health Administration revealed that the railroad terminated an employee in retaliation for reporting a workplace injury.

The department has ordered the company to pay the affected employee more than $300,000 in damages, including $200,000 in punitive damages, $75,000 in compensatory damages and $25,123.40 in attorney’s fees. Additionally, the company must expunge the disciplinary record of the employee as well as post a notice regarding employees’ whistleblower protection rights under the FRSA and provide training to its employees about these rights.

These actions follows several other orders issued by the department to Norfolk Southern Railway Co. in the past year. OSHA’s investigations have found that the company continues to retaliate against workers for reporting work-related injuries, which effectively has created a chilling effect in the railroad industry.

The Chattanooga-based employee in this case reported an injury when he hit his hard hat against a horizontal support beam. After conducting an investigative hearing, the railroad charged the employee with falsifying his injury and subsequently terminated him on Oct. 8, 2010. The employee appealed, and a Public Law Board upheld the railroad’s decision while reducing the termination to a suspension with no back pay. OSHA found that the railroad’s investigative hearing was severely flawed and orchestrated to intentionally support management’s decision to terminate the employee.

“Railroad workers throughout this country have the right to report an injury without fear of retaliation,” said Cindy A. Coe, OSHA’s regional administrator in Atlanta. “The Department of Labor will continue to protect all employees, including those in the railroad industry, from retaliation for exercising these basic worker rights, and employers found in violation will be held accountable.”

Either party to this case can file an appeal to the Labor Department’s Office of Administrative Law Judges.

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August 1, 2012 · Volume 11, Issue 17 A twice monthly e-news product with information about workplace safety and health. In this issue U.S. Department of Labor finds 2 companies in violation of Federal Railroad Safety Act for retaliating against whistleblowers Federal OSHA and the Hawaii Department of Labor and Industrial Relations propose agreement to provide strengthened protections for Hawaii’s workers OSHA delivers message of “Water. Rest. Shade.” in media old and new Zaplanuj. Zaplanij. Przeszkól.: New educational resources available to prevent falls in construction OSHA publishes Final Rule on whistleblower retaliation complaints made under the Surface Transportation Assistance Act C.J.’s Seafood of Breaux Bridge, La., instructed to pay fines and back wages after U.S. Department of Labor investigations OSHA cites Nebraska Prime Group in Hastings, Neb., for 11 violations after worker fatality at meat packing facility OSHA cites Idaho group home and adult day care operator for inadequate workplace violence safeguards at Pocatello facility Hasbro’s Massachusetts-based manufacturing facility recognized as a leader in employee health and safety for second consecutive year Protecting salon workers from on-the-job hazards: OSHA highlights salon safety at Asian American and Pacific Islander working group OSHA reaches out to vulnerable workers in Little Rock and Tulsa with information on heat stress and other workplace hazards OSHA and NIOSH join together to inform employers and workers on safe work practices when using cleaning chemicals New searchable online course schedule makes it easy to find OSHA Training Institute Education Centers training opportunities Protecting workers from mercury exposure in fluorescent bulbs: New educational resources available Maritime Advisory Committee for Occupational Safety and Health meets in Seattle National Advisory Committee on Occupational Safety and Health (NACOSH); Request for Nominations OSHA to participate in roundtable on confined space safety August 21 Job openings U.S. Department of Labor finds 2 companies in violation of Federal Railroad Safety Act for retaliating against whistleblowers

OSHA has ordered two railroad companies to pay three workers a total of $650,729.14 in back wages and damages for retaliating against them for reporting workplace injuries and safety concerns. The orders resulted from investigations conducted by the OSHA’s Chicago office, which were initiated upon receiving complaints from the employees.

“It is critically important that railroad employees in the Midwest and across the nation know that OSHA intends to defend the rights of workers who report injuries and safety concerns,” said Dr. David Michaels, assistant secretary of labor for occupational safety and health. “We will use the full force of the law to make sure that workers who are retaliated against for reporting health and safety concerns are made whole.”

OSHA conducted the investigations under the whistleblower provisions of the Federal Railroad Safety Act, as amended by the 9/11 Commission Act of 2007. Railroad carriers are subject to the FRSA, which protects employees who report violations of any federal law, rule or regulation relating to railroad safety or security, or who engage in other protected activities.

OSHA determined that Illinois Central Railroad violated the FRSA by retaliating against two employees in separate incidents for reporting workplace injuries.

The first employee, a conductor, was injured in August 2008 when he was knocked unconscious and sustained injuries to his shoulder, back and head while switching railcars in the Markham Yard. The second employee, a carman, reported an arm/shoulder injury that occurred in February 2008. While walking along a platform to inspect railcars in the poorly lit yard, the carman slipped on ice and tried to catch himself, which jolted his left arm and shoulder.

In the third incident, OSHA determined that Chicago Fort Wayne & Eastern Railroad violated the FRSA by terminating a conductor in retaliation for raising concerns about workplace safety while serving in his role as local chairman of the union and for reporting that a trainmaster had instructed him to operate a train in violation of certain Federal Railroad Administration rules in June 2009. Read the press release for more details.

OSHA enforces the whistleblower provisions of the FRSA and 21 other statutes protecting employees who report violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health care reform, nuclear, pipeline, public transportation agency, maritime and securities laws

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Tennessee mail hauler ordered to pay whistleblower $31,200

After refusing to haul a load of mail until a nonworking light on his assigned trailer was fixed, a former truck driver for a Tennessee-based company says he was fired for refusing to “drive trucks with such failures in the future.”

The U.S. Department of Labor’s Occupational Safety and Health Administration ordered Heartland Transportation Inc. of Andersonville, TN, to pay a former driver more than $31,200 in back pay and damages.

In a settlement agreement reached in early July, OSHA determined that the company violated the employee’s rights under the whistleblower provisions of the Surface Transportation Assistance Act (STAA) after terminating him for “complaining about defective vehicles.”

According to a OSHA press release, the driver had complained about mechanical failures on a number of occasions previously, but problems with the trailers kept occurring.

After the driver hauled the load of mail to Pontiac, MI, and returned to the terminal, the driver’s name was removed from the driving schedule, according to the release. He then learned that his employment had been terminated. The driver then filed a whistleblower complaint to OSHA, which conducted an investigation of the trucking company.

Joanna P. Hawkins, deputy regional director for the U.S. Department of Labor, told Land Line that as part of the settlement, the trucking company has agreed to provide a “neutral employment reference” for the former driver and expunge any personnel records regarding the driver’s involuntary discharge from the company.

The Federal Motor Carrier Safety Administration website shows that Heartland Transportation has 22 power units and 22 drivers according to paperwork filed with the agency in March.

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Bad Trench. Hurt Worker. No merit in NJ.

On June 26, 2012, in Van Dunk v. Reckson Associates Realty Corp., the New Jersey Supreme Court reaffirmed the “formidable” hurdle employees need to jump over before an employer can be held liable in tort for an employee’s workplace injury.
The New Jersey Workers’ Compensation Act (Act) requires payment, without regard to fault, to an employee who sustains workplace injuries. In exchange for this remedy, the employer is generally immune from liability and the employee surrenders all other forms of relief, including the right to sue the employer. However, this exclusive-remedy requirement can be overcome if the injury was the result of the employer’s “intentional wrong.” The intentional wrong test is met where: (1) the employer knows that its actions are substantially certain to result in injury or death to the employee; and (2) the resulting injury is (a) more than a fact of life of industrial employment and (b) beyond anything the legislature intended the Workers’ Compensation Act to immunize.

Against that legal framework, the Court assessed the following facts in Van Dunk. On August 10, 2004, Van Dunk was working for defendant James Construction Company (James) as a laborer assisting in site-preparation work on a construction project. James was excavating a 20 foot trench to relocate a dewatering sump in a retention pond. The task had been affected by thunderstorms and heavy rain, and rain was again expected later that day, creating a motivation to complete the sump relocation before the rain arrived. As the crew worked, filter fabric that was being laid in the trench from outside the trench became tangled. Van Dunk volunteered to go into the trench to straighten the filter fabric, but the project superintendent told him not to do so because of risks attributable to the ground conditions. However, as problems persisted with laying the filter fabric, the project superintendent told Van Dunk to go into the trench and straighten out the fabric. In so doing, the supervisor admittedly, and knowingly, violated OSHA regulations, which prohibit workers from entering a trench that is deeper than five feet without appropriate protective systems. Shortly after Van Dunk entered the trench, it caved in, burying him to his chest, and causing multiple injuries.

Following the accident, OSHA investigated and concluded that James had committed a “willful” violation, the most serious form of OSHA violation.

In August 2006, Van Dunk and his wife filed a lawsuit against the general contractor, James and others for damages arising out of his injuries from the trench collapse. The trial court granted James’s motion for summary judgment after concluding that Van Dunkfailed to show that James’s conduct met the intentional-wrong standard for overcoming the exclusive-remedy provision of the Workers’ Compensation Act. The Appellate Division reversed, holding that Van Dunk had produced sufficient evidence to show that James had committed an intentional wrong.

The New Jersey Supreme Court reversed the Appellate Division, concluding that the employer’s conduct fell short of an intentional wrong, and therefore, the action was barred as to the employer.

In so concluding, the Court explained that a “willful” OSHA violation is but one factor to be considered in the intentional wrong analysis. To give it more weight, the Court noted, would put in the hands of OSHA inspectors responsibility for determining what the Legislature meant by an “intentional wrong.”

The Court reiterated that a probability or knowledge that injury or death can result is not sufficient to demonstrate an intentional wrong. Nor does a showing of “gross negligence” or reckless conduct suffice. Instead, an intentional wrong must amount to a “virtual certainty that bodily injury or death will result.”

Applied to the facts of Van Dunk, the Court explained that the James on-site supervisor made a quick, poor decision sending Van Dunk into the trench, violating safety protocol. However, the supervisor’s conduct was not substantially certain to lead to injury or death. In the Supreme Court’s words, while the wrong was “exceptional,” it was not “intentional.”

In sum, and much to the disappointment of the plaintiffs’ bar, the New Jersey Supreme Court did not use Van Dunk as a vehicle to expand the reach of the intentional wrong exception to the workers’ compensation exclusivity bar. Indeed, as it was before Van Dunk, it remains the rare and extreme factual circumstance that will overcome the exclusivity bar.

Nevertheless, it is important for employers to familiarize themselves, and comply with the OSHA regulations that govern their business, train employees on safety protocol, discipline employees who violate safety protocol, provide employees with avenues to address safety issues, and take appropriate action to promptly redress employee safety concerns and/or OSHA citations.

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$6.1 million

A Kansas hospice care provider and its Texas-based parent company will pay $6.1 million to resolve allegations that they submitted false claims to the federal Medicare program. The case arose from a whistleblower lawsuit filed by a nurse more than six years ago, the U.S. Justice Department said Thursday.

Justice officials said in a news release that they hope the settlement with Wichita-based Hospice Care of Kansas LLC and Fort Worth-based Voyager HospiceCare Inc. will serve as a warning to other hospice providers.

Prosecutors alleged the companies submitted false claims to the federal health care program for the elderly and disabled between 2004 and 2008 for patients who weren’t expected to die in less than six months, a requirement for the benefits in question.

The whistleblower suit was filed in 2006 by Beverly Landis, a Hospice Care of Kansas nurse. The Justice Department later intervened. Landis will receive $1.34 million under the federal False Claims Act.

One of her attorneys, David White of Kansas City, told The Associated Press that Landis had been the director of another hospice service before joining Hospice Care of Kansas on a fill-in basis. Landis, who was semi-retired, knew the regulations and knew how the billing was supposed to work.

“She went to management and said, ‘You can’t do this,’ and they blew her off. And so she said, `If you won’t solve it yourself, I am going to do it,’ and so she reported it,” White said.

The agreement includes no admission or determination of wrongdoing, Harden Healthcare, the owner of Voyager HospiceCare and Hospice of Kansas, said in a statement. The company also noted that the government never questioned the quality of patient care or found the companies received payments for services that weren’t provided.

“Harden Healthcare cooperated fully with this investigation, which covered a period prior to our acquisition of Voyager HospiceCare and Hospice Care of Kansas…,” Lew Little, CEO of Harden Healthcare, said in a statement.


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Norfolk Southern

Federal authorities have ordered Norfolk Southern Railway Co. to pay three whistleblowers more than $800,000 for firing workers who reported injuries on the job.

The Occupational Safety and Health Administration also ordered the company to expunge the disciplinary records of the whistleblowers, post workplace notices regarding whistleblower protection rights and provide training about those rights.

A worker in Greenville, S.C., was fired in August 2009 after reporting he was hurt when hit by the company’s gang truck. A Louisville, Ky., engineer was fired in March 2010 after reporting he tripped and fell in a locomotive restroom. In July 2010, a railroad conductor in Harrisburg, Pa., was terminated after reporting he blacked out and fell and hurt his head.

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Bank of America whistleblower receives $14.5 million in mortgage case

A former home appraiser will receive $14.5 million as part of a whistleblower lawsuit that accused subprime lender Countrywide Financial of inflating appraisals on government-insured loans, his attorneys said Tuesday.

Kyle Lagow’s lawsuit sparked an investigation that culminated in a $1 billion settlement announced in February between Bank of America Corp (BAC.N) and the U.S. Justice Department over allegations of mortgage fraud at Countrywide, his attorneys said in a news release. Bank of America bought Countrywide in 2008.

Lagow’s suit was one of five whistleblower complaints that were folded into the $25 billion national mortgage settlement that state and federal officials reached with Bank of America and four other lenders this year. His suit was unsealed in February, but the amount of his settlement had not been disclosed.

Gregory Mackler, a whistleblower who challenged Bank of America’s handling of the government’s HAMP mortgage modification program, has also finalized a settlement, said Shayne Stevenson, an attorney with the Hagens Berman law firm, which represented both whistleblowers. Stevenson declined to comment on Mackler’s settlement amount.

The complaints were brought under a whistleblower provision in the U.S. False Claims Act, which allows private individuals with knowledge of wrongdoing to bring suits on behalf of the government and share in the proceeds of any settlement.

Both Lagow and Mackler lost their jobs after raising concerns about practices at their companies and faced difficult times awaiting settlements, Stevenson said. Lagow, who worked in a Countrywide appraisal unit, filed his suit in 2009; Mackler, who worked at a firm called Urban Lending Solutions, brought his case in 2011.

“These guys are inspirational,” Stevenson said. “They both did the right thing. They should inspire other people to come forward.”

Bank of America declined to comment. A spokesman for the U.S. Attorney’s Office in the Eastern District of New York, which handled the Bank of America settlement, also declined to comment.

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OSHA forms whistleblower protection advisory committee

The Occupational Safety and Health Administration announced Thursday that it will establish a Whistleblower Protection Advisory Committee.

The purpose of the committee is to advise the Secretary of Labor and the Assistant Secretary of Labor for Occupational Safety and Health about improvements to OSHA’s whistleblower protections.

“Workers who expose securities and financial fraud, adulterated foods, air and water pollution, and workplace safety hazards have a legal right to speak out without fear of retaliation, and the laws that protect these whistleblowers also protect the health, safety and well-being of all Americans,” said Dr. David Michaels, assistant secretary of labor for occupational safety and health.

“Establishing a federal advisory committee is another important effort to strengthen protections for whistleblowers.”

Specifically, the committee will advise OSHA about development and implementation of improved customer service models, enhancements in the investigative and enforcement process, training and regulations governing OSHA investigations. It will also help OSHA in cooperative activities with other federal agencies that are responsible for areas covered by the whistleblower protection statutes enforced by OSHA.

“This new Whistleblower Protection Advisory Committee will help our agency sustain an open dialogue with stakeholders and experts, and will promote the transparency and accountability that are the cornerstone of this administration,” added Michaels.

OSHA enforces the whistleblower provisions of the Occupational Safety and Health Act and 20 other statutes. It protects employees who report violations of various laws concerning, among other things, transportation and consumer products.

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