2014 ILG Annual Conference: Beyond the AAP

1. 2014 ILG Annual Conference: Beyond the AAP August 6, 2014 Connie N. Bertram Proskauer Rose LLP cbertram@proskauer.com Katharine Parker Proskauer Rose LLP kparker@proskauer.com

2. Topics for Discussion • Whistleblower protections for contractor employees • Drug-free workplace obligations • Restrictions on arbitration agreements and programs • New FAR provision concerning Human Trafficking • Wage and hour developments • Enforcement of restrictive covenants • Defending litigation claims by contractor employees

3. Whistleblower Protections for Contractor Employees

4. Renewed Focus on Whistleblower Claims • New amendments and legislation • Recent developments may make dismissal and summary judgment less likely • Pleading standards • Expansion of definition of protected activity • Nexus to scope of statute • Believed to have more “traction” with juries • Awards generally higher than EEO discrimination and state law claims • Generally provide for reinstatement, “make-whole” remedies, punitive and/or liquidated damages, and attorneys’ fees • Alternative claims/remedies and forums available, including bounty claims

5. Three Prongs of FCA Enforcement

6. “Qui Tam” Cases Under the FCA • The False Claims Act (FCA) imposes liability for treble damages plus penalties for knowingly submitting or causing the submission of false claims to the U.S. Government • A “qui tam” suit is an FCA suit initiated by a whistleblower or “relator” who sues on behalf of the United States • Whistleblower files lawsuit under seal • DOJ investigates and decides whether to intervene • Relator can proceed without DOJ involvement • Relator receives a 15% to 30% share of government recovery

7. FCA Also Prohibits Retaliation Against Employees • Prima Facie case: • Protected activity • Adverse action • Because of protected activity • Burden shifts to articulate legitimate, non-retaliatory reasons • Can overcome by showing pretext and intent to retaliate • Business judgment rule a key factor in many rulings • Remedies: • Reinstatement, double back pay, and special damages including attorneys’ fees • Compensatory damages in some courts

8. Developing Issues – Protected Activity • Protected activity prior to FERA (2009) amendments: • Section 3730(h) protected “acts … in furtherance of” a qui tam action • Plaintiff need not prove actual violations of FCA • Courts required notice of “distinct possibility” of qui tam litigation (Glynn v. EDO Corp., 710 F.3d 209 (4th Cir. 2013)) • Protected Activity after amendments: Section 3730(h) now protects “… lawful acts … in furtherance of an action … or other efforts to stop one or more violations” of the FCA • Must plaintiff still notify employer of “distinct possibility” of qui tam suit?

9. National Defense Authorization Act • DOD Contractor Protections Prior to NDAA • Applied to employees of contractors, not subcontractors • Regarding DOD contracts only • Protected external reporting only • Narrow definition of appropriate DOD official • New NDAA Protections (effective July 1, 2013) • Apply to employees of both contractors and subcontractors • Regarding contracts with most federal agencies • Now protects: • Internal complaints to management official with responsibility to investigate, discover or address misconduct • Protect participation in government investigation • Provide for reinstatement, back pay, compensatory damages and attorneys’ fees

10. National Defense Authorization Act • Protects disclosure of reasonable belief of: • Gross mismanagement of federal contract/grant • Gross waste of federal funds • Abuse of authority concerning federal contract/grant • Substantial and specific danger to public health/safety • Violation of law/rule/regulation regarding federal contract/grant (including the competition for same) • If disclosed to: • Congress, IG of agency, GAO, federal employees with oversight, law enforcement • Company employee with responsibility to investigate/address misconduct • Causation Standard: Contributing factor, not “but for” or “motivating” factor

11. NDAA Procedure and Remedies • Procedure • Three-year statute of limitations • Employee files with OIG • OIG investigates • Agency head issues decision • Employee can file in federal district court if no decision from OIG in 210 days • Agency decision subject to review by federal court of appeals • Remedies: Reinstatement, back pay, compensatory damages, attorneys’ fees and costs

12. Industries in the Line of Fire • DOD and other traditional procurement contractors • GSA schedule sales • Colleges and universities • Health care industry • Medicare/Medicaid reimbursement • Research funding • Sales to VA • Banking and financial industry • Retailers with sales to military and BX/PX • Subcontractors

13. Develop Effective Internal Policies • Update anti-retaliation policies and code of conduct to include additional and expanded claims • Address additional categories of protected conduct • Develop effective protocol for handling hotline calls and complaints • Confirm that confidentiality agreements, non-disparagement provisions and settlement agreements do not restrict or impede reporting • Conduct frequent and effective management training • Audit compliance • Incentivize internal complaints • Effective and timely reporting mechanism • Culture “driven from the top” that supports reporting • Provide frequent updates to complainants • Develop strong anti-retaliation policies and protections

14. Conduct Effective Internal Investigations • Develop effective procedures for investigating whistleblower claims • Document and confirm the employee’s complaint • Engage subject matter experts • Break down the silos between HR, legal and compliance • Always consider and investigate self-help discovery, including a forensic review of computers, devices and accounts • Be mindful of mandatory reporting obligations • Ensure that treatment and results are consistent with prior situations • Ensure objectivity in reviewing and managing the performance of whistleblowers who are current employees

15. Consider Mandatory Disclosure Obligations Throughout Process • Two separate considerations: • Do the allegations of fraud of the whistleblower trigger the duty to disclose • Does the whistleblower’s own conduct or performance trigger the obligations to disclose • Timing a key consideration • Rules contemplate a reasonable investigation prior to disclosure • Swift disclosure can enhance client relationship and deflate the impact of the whistleblower’s own filing or claim • Consider whether company has obligation to disclose whistleblower’s own misconduct

16. Drug Free Workplace Obligations

17. DFWA Coverage • Requires some contractors and all grantees to provide drug-free workplaces as a condition of receipt of contract or grant • Generally applies to contractors if the value of a single contract is $100,000 or more, other than acquisition of commercial goods • Does not apply to subcontractors or subgrantees • Only applies to performance inside of the United States • Requirement or indefinite quantity contracts covered if reasonably expected to exceed $100,000 • Act requirements only apply to employees working on the covered grant or contract • On payroll • Works on any activity under the grant or contract (“direct” or “indirect” charge) • Temporary employees covered if meet criteria

18. Developing Issues – Protected Activity

19. DFWA Requirements Vary • Requirements of FAR provisions adopted by agencies and departments vary • For example, most do not require affirmative provision of treatment or rehabilitation services • Certain NASA contracts require contractors to establish and maintain an appropriate rehabilitation program that requires, at minimum, identification and treatment of employees responsible for safety-sensitive, security or National security functions • Because Act applies on case-by-case basis, contractors must determine coverage and obligations imposed by each contract or grant (or for which they will be applying)

20. DFWA Requirements – Policy and Program • Publish and provide a policy to all covered employees that: • States that the unlawful manufacture, distribution, dispensation, possession or use of a controlled substance is prohibited in the workplace and • Identifies the actions that will be taken against employee who violate the policy • Requires establishment of drug-free awareness program to notify employees of: • Dangers of drug abuse in the workplace • Policy of maintaining a drug-free workplace • Any available drug counseling, rehabilitation and employee assistance programs • The penalties that may be imposed on employees for drug abuse violations

21. Notification Requirement • Each employee must be informed in writing of the policy and his or her responsibilities • Although contractors are not required to provide a notification each time a contract or grant is received, the program must be ongoing • Contractors are not required to obtain verification of receipt • Notification cannot be provided through collective bargaining representative or other agent

22. DFWA Requirements – Notification and Penalty • Also must notify employees that, as a condition of their employment on the contract or grant, the employee must: • Abide by the terms of the policy statement; and • Notify the employer, within five calendar days, if he or she is convicted of a criminal drug violation in the workplace • Notify the contracting or granting agency within 10 days after receiving notice that a covered employee has been convicted of a criminal drug violation in the workplace • Impose a penalty on or requirement satisfactory participation in a drug abuse assistance or rehabilitation program by any employee who is convicted of reportable workplace drug conviction • Make an ongoing, good faith effort to maintain a drug-free workplace

23. What the DFWA Does NOT Require • Program not required to address alcohol and nonprescription drug abuse in programs • Does not require establishment of an EAP or special training for supervisors • Drug testing is not authorized or required

24. DFWA Enforcement • Compliance reviewed as part of the normal Federal contract and grant administration and auditing process • Federal agency head determines whether violation occurred • If determines that cause exists, action initiated and conducted in accordance with applicable FAR regulation and agency procedures • Contractors and grantees that violate the Act can receive one or more of the following penalties: • Payments suspended • Contract or grant suspended • Barred from receiving additional contracts or grants for up to five years

25. Restrictions on Arbitration Agreements and Programs

26. General Rules Regarding Mandatory Arbitration Agreements • Federal Arbitration Act – arbitration encouraged • Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 130 S. Ct. 1758 (2010) – an arbitration agreement that is silent regarding arbitrability of class actions implies class claims cannot be arbitrated • AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011) – FAA preempts CA court decisions refusing to enforce class action waivers on grounds of unconscionability • Iskanian v. CLS Transp. Los Angeles, LLC, Case No. S204032 (6/26/14), upholding class action waivers in employment arbitration agreements • CompuCredit Corp. v. Greenwood, 132 S. Ct. 665 (2012) – FAA requires courts to enforce arbitration agreements according to their terms even where underlying statute states that a plaintiff has the “right to sue” • American Express v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013) – Arbitration agreements must be enforced as written; unavailability of class action procedure is not a barrier to enforcement of otherwise valid arbitration agreement; rejects “vindication of statutory rights” theory

27. Class Arbitration and Class Action Waivers Summary from the Supreme Court • Class arbitration is not consistent with the underlying premises of the FAA • Class action waivers are generally consistent with the underlying premises of the FAA • Class action waivers may be invalidated through normally applicable contractual defenses (failure to agree, outside the scope, fraud) and state unconscionability standards so long as the standards are uniformly applicable, neutral in effect and consistent with federal arbitration policy • The same principles apply to federal statutory claims • None of this matters if an arbitrator has ruled that class actions were agreed upon, so long as there is some evidence of intent to agree

28. Class Arbitration and Class Action Waivers Do these principles apply to Fair Labor Standards Act claims? • Yes: Sutherland v. Ernst & Young LLP, 726 F. 3d 290 (2d Cir. 2013) • Question was whether Congress decreed that collective actions are required for FLSA claims • Plaintiffs claimed Section 216(b) collective actions are a prescribed statutory procedure and thus evidence a congressional command not to allow class action waivers • Circuit concluded that while Congress authorized FLSA collective actions, it did not require them and did not foreclose an individual waiver of them • Second Circuit applied American Express (Supreme Court version) and rejected “effective vindication argument: Raniere v. Citigroup reaches the same conclusion • Other circuits have agreed: Richards v Ernst & Young, 2013 WL 4437601 (9th Cir. 2013)

29. Class Arbitration and Class Action Waivers Do these principles apply to Title VII disparate treatment claims? • Second Circuit holds that they do in Parisi v. Goldman, Sachs & Co. 710 F. 3d 483 • District Court (affirming Magistrate Judge Francis) had relied on effective vindication theory • Judicial holdings in SDNY find that pattern or practice claims may not be litigated in individual Title VII actions • Assuming an arbitrator would follow these cases, remitting a potential class plaintiff to individual arbitration would prevent her from litigating a pattern or practice claim • Therefore an arbitration agreement is not enforceable because its silent clause would bar class arbitration of a substantive right, the right to bring a pattern or practice claim

30. Class Arbitration and Class Action Waivers Is a class action waiver lawful under the National Labor Relations Act? • In D.R. Horton, Inc., 357 N.L.R.B. No. 184 (2012), the employer required employees as a condition of employment to sign a Mutual Arbitration Agreement (“MAA”), which contained a class and collective action waiver • The Board found that employees have a § 7 right that forbids class action waivers, even where employees were not discharged or disciplined for filing a class action • Board held that the class action waiver in and of itself limited employees’ ability to engage in protected concerted activity, which included the filing of class or collective actions • But Fifth Circuit overruled in December 2013 holding that FAA required arbitration agreements to be enforced according to their terms • But – NLRB not bound by Fifth Circuit and continues to press its view (Leslie’s Poolmart and Sprouts Farmers Markets)

31. Franken Amendment • Provision of 2010 Department of Defense Appropriations Act that prohibits: • The use of appropriated funds for any contract in excess of $1 million • If the contractor requires its employees to arbitrate: • All claims under Title VII of the Civil Rights Act of 1964 • Tort claims related to or arising out of sexual assault or harassment including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision or retention • In the guidance published with the interim rule, DoD explained that the Franken Amendment does not affect the use or enforcement of mandatory arbitration agreements for non-covered claims

32. Franken Amendment Coverage • To be covered by the Amendment, a contractor must receive funds from the DoD • In final rule, DoD stated that the term “contractor” is to be construed narrowly • Only refers to the specific entity that has the contract • Does not encompass a parent or subsidiary corporation unless that parent or subsidiary is a party to the contract • The Amendment also does not apply to contracts for the acquisition of commercial items, including commercially available off-the-shelf items.

33. Franken Amendment Subcontractor Coverage • A “covered subcontractor” is any entity with subcontract valued in excess of $1 million, other than subcontracts for acquisition of commercial items • To receive funds from DoD, covered contractor must certify that it requires each “covered subcontractor” to agree not to enter into or enforce mandatory arbitration agreements requiring arbitration of covered claims by employees or independent contractors performing work relating to that subcontract • Limited to those contracts placed by the contractor or higher-tier subcontractors specifically for supplies or services for the performance of the contract • Does not apply to supplies or services a contractor or higher-tier subcontractor might purchase for other purposes

34. Franken Amendment Exceptions • There are three other exceptions to these restrictions on the use of mandatory arbitration. • They do not apply to agreements that cannot be enforced in this country • The Secretary of Defense may waive these restrictions on a case-by-case basis if the Secretary or the Deputy Secretary personally determines that the waiver is necessary to avoid harm to national security interest of the United States, and that the term of the contract or subcontract is no longer than necessary to avoid such harm • They do not apply to contracts for the acquisition of commercial items, including commercially available off-the-shelf items

35. Enforcement of Franken Amendment • There is very little case law on the applicability of the Amendment in general or on its ability to preclude arbitration. • In addition, the Amendment has not been used successfully to avoid arbitration. • In the only federal court decision addressing the Amendment, the court rejected the plaintiff’s argument that it precluded arbitration of his hostile work environment, race discrimination and retaliation claims. SeePhifer v. Mich. Sporting Goods Distribs., Inc., 2010 U.S. Dist. LEXIS 93839 (W.D. Mich. July 28, 2010). • In a state case, a Texas appeals court ruled that employee’s personal injury claims, arising out of negligent hiring, supervision or retention were not covered by the amendment because they did not arise out of or relate to sexual assault or harassment. SeeIn re ReadyOne Indus., 2012 Tex. App. LEXIS 10652 (Dec. 21, 2012).

36. Breaking News: July 31, 2014 Executive Order Fair Pay and Safe Workplaces • New anti-arbitration provision applies to supply and service contracts and subcontracts > $1 million • Excludes contracts for COTS • Prohibits mandatory pre-dispute arbitration agreements with respect to claims arising under Title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment • Applies to employees and independent contractors • Doesn’t apply to arbitration provisions in CBAs • Doesn’t apply to preexisting arbitration agreements so long as such agreements aren’t subject to change by the employer or renegotiated

37. Breaking News: July 31, 2014 Executive Order Fair Pay and Safe Workplaces • Contractors must include clause in covered subcontracts • Permits voluntary post-dispute agreements to arbitrate • DOL estimates 24,000 businesses employing about 28 million workers impacted • Will be implemented on new contracts in stages, on a prioritized basis in 2016 following issuance of implementing regulations by the Federal Acquisition Regulation (FAR) Council and guidance by the U.S. Department of Labor (DOL) • No provision for waiver by agency like for Franken Amendment

38. Breaking News: July 31, 2014 Executive Order Fair Pay and Safe Workplaces • Anti-arbitration rule is contrary to well-established policy favoring arbitration • Also inconsistent with employee interests • Median arbitration awards for all types of employment claims rose 60% from 2009-2010, from $208,000 to $241,119. Douglas Ashman, The Impact of Alternative Dispute Resolution in Employment Law, Purdue Univ. Coll. Of Tech. Masters Theses, Paper 56, p. 5 (2011) • In a study of 1,213 AAA cases from 2003-2007, the mean time for disposition in arbitration was 284.4 days for cases that settled, and 361.5 days for cases decided after a hearing, which is substantially shorter than the general two to two-and-a-half years that it takes to reach trial in federal and state courts. Alexander Colvin, An Empirical Study of Employment Arbitration Case Outcomes and Processes, Cornell Univ. ILR Sch., p. 12 (2011).

39. Breaking News: July 31, 2014 Executive Order Fair Pay and Safe Workplaces • In a study of 1,213 AAA cases from 2003-2007, the mean arbitration fees were $6,340 per case, $11,070 for cases disposed of by an award following a hearing, and in 97% of these cases the employer paid 100% of the arbitration fees beyond a small filing fee, pursuant to AAA procedures. Alexander Colvin, An Empirical Study of Employment Arbitration Case Outcomes and Processes, Cornell Univ. ILR Sch., p. 1, 13-14 (2011). • In a study of 1,213 AAA cases from 2003-2007, 82.5% of claimants had salaries under $100,000; 13.9% had salaries between $100,001 and $250,000; and 3.7% had salaries over $250,001. Alexander Colvin, An Empirical Study of Employment Arbitration Case Outcomes and Processes, Cornell Univ. ILR Sch., p. 1, 15 (2011). • Anecdotal reports from plaintiff attorneys state that potential claim amounts as much as $60,000 may be necessary to justify bringing a case forward in litigation. Alexander Colvin, An Empirical Study of Employment Arbitration Case Outcomes and Processes, Cornell Univ. ILR Sch., p. 15 (2011). • A 1995 article reported that 83% of works support arbitration over lawsuits or appealing to a federal agency. Jim Tyson, Workers Spurn Courts, Favor Arbitration, Christian Science Monitor (June 2, 1995) (citing “Worker Representation and Participation Survey: Wave Two”).

40. Compliance with FAR Provision Regarding Human Trafficking

41. FAR Subpart 22.17 • The proposed rule prohibits federal contractors, contractor employees, subcontractors and subcontractor employees from engaging in any activities related to human trafficking, such as forced labor and prostitution • The following specific activities also prohibited: • Denying an employee access to his/her identity or immigration documents • Using misleading or fraudulent recruitment practices or charging recruitment fees • Providing or arranging housing that fails to meet the host country’s minimum housing and safety standards • Failing to provide return transportation or requiring payment for the cost of return transportation for certain employees

42. Compliance Plans and Certifications of Compliance • For contracts where a portion of the contract is performed overseas, a compliance plan and certification of compliance will be required • Will be required to certify: • Compliance plan has been implemented • Neither the contractor, nor any of its agents, subcontractors or their agents are engaged in human trafficking activities and • If abuses have been found, appropriate remedial and referral actions have been taken • Will impose strict reporting requirements • Will be required to flowed down requirements to subcontractors

43. Potential Remedies for a Violation of FAR subpart 22.18 • Potential Remedies: • Removal of employees involved in the allegations from the contract • Suspension of contract payments • Withholding of award fees • Refusal to exercise contract options • Termination of contract or subcontract and/or • Suspension or debarment • Must report violations to contracting officer and agency IG • In addition, the Government contracting officer must enter any violations in the Federal Awardee Performance and Integrity Information System (FAPIIS)

44. Wage and Hour Developments: Minimum Wage Increase for Contractor Employees

45. Wage and Hour Obligations of Contractors Generally • Recipients of government contracts, grants or financial aid are subject to additional wage, hour and benefits standards under: • The Davis-Bacon Act (DBA), which requires payment of prevailing wages and benefits to employees of contractors engaged in federal government construction projects • The McNamara-O'Hara Service Contract Act (SCA), which sets wage rates and other labor standards for employees of contractors furnishing services to the federal government • The Walsh-Healey Public Contracts Act (PCA), which requires payment of minimum wages and other labor standards by contractors providing materials and supplies to the federal government • The Wage and Hour Division of DOL administers and enforces these laws

46. Background of Executive Order 13658 • Signed Executive Order February 12, 2014 • Minimum wage $10.10/hour starting on January 1, 2015 • Will be increased each year based on the CPI • Applies to contracts issued for solicitations on or after January 1, 2015 • Covered contracts must include a clause increasing the minimum wage • Contractors must incorporate that clause into lower-tier subcontracts • Proposed Final Rules issued on June 17, 2014 • FAR provision will be issued

47. Proposed Final Rules – Contracts Covered • Will apply to: • Procurement contracts for construction covered by the DBA • Service contracts exceeding $2,500 covered by the SCA • Concessions contracts with the federal government, including contracts excluded from SCA coverage by regulation • Contracts to provide services to federal employees, their dependents or the general public on federal property or lands • Excludes the following from coverage: grants, procurement contracts for construction not subject to DBA, certain contracts with Indian Tribes, and service contracts that are exempt from SCA

48. Proposed Final Rules – Employees Covered • Employees entitled to at least the specified minimum wage for: • All hours spend working on a covered contract • All time spent providing support work necessary for covered contracts • Employees are entitled to coverage under the EO even if they are not covered by the DBA or SCA • Special rules apply to tipped employees • Must receive a minimum hourly wage of $4.90/hour, plus the amount earned in tips • If the combination does not total at least $10.10/hour, employer must make up the balance • Each year, the wage will increase 95 cents until the tipped minimum wage equals 70 percent of the wage for non-tipped employees

49. Additional Counseling and Litigation Issues

50. Enforcement of Restrictive Covenants • Restrictions on use and disclosure of trade secrets and other confidential information of company and government customers critical in government contracting context • In addition to traditional NDAs, many contractors use post-employment restrictions, such as non-competes and non-solicitation provisions • Contractors efforts to enforce these restrictions have faced some challenges: • Does the contractor have a sufficient ownership interest in the protected information/data to support the restrictions? • Can employees “prepare to compete” by allowing their resume to be submitted on a blind basis in connection with a competing bid? • Does the government’s interests in having experienced workers on their contracts trump the employer’s interests, particularly when SCA contracts are involved?