You Can’t Do That to ME! Developments in Whistleblower & Anti-Retaliation Laws

2. You Can’t Do That to ME!Developments in Whistleblower & Anti-Retaliation Laws

3. Introductions MODERATOR: • Benton J. Mathis, Jr., Esq., Managing Partner, Freeman Mathis & Gary LLP PANELISTS: • Brenda H. Feis, Esq., Partner, Stowell & Friedman, Ltd. • Jason A. Fogg, Esq., Vice President, Claims, Monitor Liability Managers, LLC • Eric Ross, Claims Manager, Beazley Group • Joseph A. Starr, Esq., Partner, Starr, Butler, Alexopoulos & Stoner, PLLC

4. Agenda • Trends in whistleblower claims • Scope of whistleblower protections, including financial and healthcare protections • Claims that increase plaintiff's liability/damage exposure or maximize punitive damages • Primary underwriting considerations and risk management response

5. ARS Question – Is the FollowingUnlawful Retaliation? • Shunning a Co-worker • Less Favorable Office • Demotion • Unfavorable Review • Reduced Training Opportunity • "Cold Shoulder" From Management • Excluded from Meetings • Reassigned to Another Job • Verbal Abuse • Excluded from Decisions

6. Burlington Northern v. White (2006) • After complaining about supervisor, plaintiff reassigned to less desirable job • Co-workers felt “more senior man” should hold plaintiff’s former position • HELD: Conduct that dissuades reasonable worker from making or supporting charge of discrimination

7. Types of Retaliation Experienced by Employees Who Report Misconduct Excluded from decision and work activity Given the cold shoulder Verbally abused by managers Almost lost job Not given promotion or raise Verbally abused by other co-workers Relocated or reassigned Other forms of retaliation Demoted Physical harm to person or property 62% 60% 55% 48% 43% 42% 27% 20% 18% 4% Source: 2009 National Business Ethics Survey report, Ethics Resource Center.

8. What is “Materially Adverse” Conduct? • D.C. Circuit – Employer’s false report contesting unemployment • Second Circuit – Reading newspaper article about discrimination lawsuit in employee’s presence • Third Circuit – Threaten to make employee’s life “living nightmare” • Sixth Circuit – Performance evaluation diminishing employee’s earning capacity • Ninth Circuit – Collectively, temporary removal from duties, psychiatric evaluation, and IA investigation • Tenth Circuit – Threat to make public rumors about employee’s sexual activities

9. Recent Supreme Court Cases • Kasten v. Saint-Gobain Performance Plastics Corp (2011) • (employee’s oral complaints about FLSA violation protected activity) • Thompson v. North American Stainless (2011) • Protection Extended To Affected Even If They Did Not Complain • Crawford v. Metropolitan (2009) • Employee Answering Questions Can Be Protected Activity • Gomez-Perez v. Potter (2008) • ADEA Has Implied Retaliation Prohibition • CBOCS West, Inc. v. Humphries (2008) • Section 1981 Has Implied Retaliation Prohibition

10. Increase of Retaliation Claims YearPercent of EEOC charges 1992 15.3% 1995 19.5% 1997 22.6% 1999 25.4% 2004 28.6% 2006 29.8% 2008 34.3% 2009 36.0% 2010 36.3%

11. ARS QuestionHave you seen increase in retaliation claims in past 3 years? • None • 10% - 30% • 30% - 50% • 50% - 100% • 100% - 200% • 200% or greater

12. Recent Retaliation Jury Verdicts • $4,000,000 (C.D. Cal.) (Nov. 2010): Police officer terminated in retaliation for whistle blowing • $3,100,000 (W.D. Penn.) (Nov. 2009): Female employee terminated after complaining about gender discrimination • $1,555,000 (M.D. Tenn.) (Jan. 2010): Plaintiff terminated after participating in sexual harassment investigation • $1,100,000 (W.D. Wis.) (May 2011): College instructor's contract not renewed in retaliation for discrimination claims • $1,026,386 (C.D. Il.) (Aug. 2010): Public library operations manager alleged Title VII retaliation

13. Video 1 Meet Ellyn

14. ARS – Question Testimony of First Plaintiff Would You Award Following? • None • less than $20,000 • $20,000 – $40,000 • $40,000 – $75,000 • $75,000 – $100,000 • $100,000 - $150,000 • $150,000 - $250,000 • $250,000 - $500,000 • $500,000 - $750,000 • $750,000 - $1,000,000 • $1,000,000 or more

15. Video 2 Here’s Amy

16. ARS Question –Testimony of Alternate Plaintiff Would You Award following? • None • less than $20,000 • $20,000 – $40,000 • $40,000 – $75,000 • $75,000 – $100,000 • $100,000 - $150,000 • $150,000 - $250,000 • $250,000 - $500,000 • $500,000 - $750,000 • $750,000 - $1,000,000 • $1,000,000 or more

17. Video 3 Say Hello to Marty

18. ARS Question –Alleged Harasser Testimony Would You Award following? • None • less than $20,000 • $20,000 – $40,000 • $40,000 – $75,000 • $75,000 – $100,000 • $100,000 - $150,000 • $150,000 - $250,000 • $250,000 - $500,000 • $500,000 - $750,000 • $750,000 - $1,000,000 • $1,000,000 or more

19. Video 4 Last, but not least, Here’s Bill

20. ARS Question –Managing Partner’s Testimony Would You Award following? • None • less than $20,000 • $20,000 – $40,000 • $40,000 – $75,000 • $75,000 – $100,000 • $100,000 - $150,000 • $150,000 - $250,000 • $250,000 - $500,000 • $500,000 - $750,000 • $750,000 - $1,000,000 • $1,000,000 or more

21. New or Recently Modified Statutes

22. More Retaliation Statutes

23. Even More Retaliation Statutes

24. The Future – New Retaliation Protections • Dodd-Frank and New SEC Rules • Bounty “original information” to SEC • Jury trials/No arbitration • Six Year Statute of Limitations • Sarbanes-Oxley after Dodd-Frank • Federal mail, wire, bank or securities fraud statutes • Any rule/Regulation of SEC • Now can file suit if no determination within 180 days • No arbitration

25. The Future – New Retaliation Protections • Patient Protection and Affordability Care Act (PPACA) • Primarily health care and insurance • Covers discrimination in compensation, training, “privileges of employment”

26. Where Employees Report Misconduct Someone outside the company 4% Other 4% Hotline 3% Other responsible person 15% Other responsible person 15% Supervisor 46% Supervisor 46% Higher management 29% Higher management 29% Source: 2009 National Business Ethics Survey report, Ethics Resource Center.

27. Complaint Policy -Best Practices • Cover Any Type of Unlawful Conduct • Clear Reporting Option to Appropriate Official • Avoid Inconsistencies With Other Overlapping Policies • Widely Disseminate Policy

28. Questions & Answers

29. Many thanks to … • Brenda Feis • Jason Fogg • Eric Ross • Joseph Starr • Ben Mathis