Yesterday, Congress passed a bill that significantly strengthened protections for federal employees who blow the whistle on waste, fraud, abuse, and illegality. According to the Office of Special Counsel (OSC), a federal agency that enforces whistleblower laws, the new law will, among other things:
Today the New York Times ran a story about the increase this year of employers expressly telling employees who they think the employees should vote for in the election. Until the U.S. Supreme Court’s landmark Citizens United decision in 2010, laws prohibited companies from using corporate money to persuade employees to vote for particular candidates. Now, however, companies can use their obvious coercive leverage with employees to sway their votes. Some companies have warned that if president Obama is re-elected, employees’ jobs could be in jeopardy. Gov. Romney has encouraged corporations to engage in this type of activity.
Federal law prohibits anyone from coercing or intimidating voters to vote a certain way. These companies claim that they are just expressing their opinions but the implication is clear to many employees that if they vote for a particular candidate, theirs jobs are in jeopardy. For instance, after he got a mailer from his employer urging him to support Romney, Travis McKinney, a forklift driver with Georgia-Pacific, said “it leaves a bad taste, I won’t even wear my Obama pin to work because of the mailer.”
If you complain about your employer violating laws that prohibit voter intimidation and coercion and your employer retaliates against you, you should contact an experienced employment lawyer to learn more about your rights.
Today, the U.S. District Court in Bangor rejected UPS Cartage Services, Inc.’s (UPS) argument that a federal whistleblower law which protects truck drivers, the Surface Transportation Assistance Act (STAA), did not prohibit it from retaliating against a truck driver who reported safety problems with its trucks. Former UPS truck driver, Dennis Manske, represented by the Maine Employee Rights Group, brought this case against UPS after it terminated him because he reported safety problems with its trucks.
As required by federal law, Mr. Manske documented many safety problems with UPS trucks that constituted violations of DOT regulations. These deficiencies included, but were not limited to, loose U-bolts; problems with mirrors; the use of a “city truck” on the highway even though it lacked the ability to sufficiently accelerate; a seat that did not adequately protect the driver’s head; and shocks so bad that they caused Mr. Manske to bounce up out of his seat and hit his head on the ceiling of the cab. Ultimately, UPS decided it did not want to employ Mr. Manske because he kept pointing out these safety problems with its trucks–even though federal law required him to point out the problems.
UPS argued that STAA and Maine’s Whistleblower Protection Act (MWPA) do not prohibit an employer from firing a truck driver for reporting these type of safety problems. In advancing this argument, UPS attempted to distort the facts. At one point in its opinion, the court went so far as to call UPS’s denial of certain facts “inexplicable and frivolous.” Ultimately, the court held that STAA prohibits trucking companies from retaliating against drivers who report the type of safety issues that Mr. Manske reported. The Court refrained from ruling on whether the MWPA prohibits this type of retaliation because it found that UPS had not adequately developed an argument on that issue.
Today, the U.S. District Court of Maine ruled on three motions to dismiss which Alutiiq, LLC and two related companies (collectively Alutiiq) filed in response to retaliation claims that two whistleblowers filed against it. The whistleblowers, Craig Manfield and Janice Hendricks, who are represented by the Maine Employee Rights Group, have alleged that Alutiiq retaliated against them because they opposed the company’s unlawful actions. Manfield and Hendricks both worked for Alutiiq at the Portsmouth Naval Shipyard (PNSY) which contracted with Alutiiq to provide security services.
Manfield alleges, among other things, that Alutiiq fired him because he opposed its decision to shortchange the Navy by equipping its security officers with ammunition and equipment that did not comply with its contract with the Navy. For instance, Alutiiq equipped employees with frangible ammunition which is less lethal than the ball ammunition the contract required. As a consequence, Alutiiq provided less security for PNSY than the Navy paid it to provide. Manfield also alleges that Alutiiq terminated him because he opposed the company’s decision to shortchange its own employees by failing to pay them all of the wages they earned.
Alutiiq argued to the Court that it could legally retaliate against Manfield for opposing these illegal activities. The Court rejected Alutiiq’s argument with respect to his opposition to the company’s decision to shortchange the Navy. It held that if Manfield’s allegations are true, Alutiiq would have violated the anti-retaliation provisions of the federal False Claims Act (FCA).
Yesterday, the First Circuit Court of Appeals, which has jurisdiction over Maine, Massachusetts, and other states, ruled that a reasonable jury could find that Aggregate Industries retaliated against a whistleblower who revealed the company’s illegal practices in connection with the “Big Dig.” The Big Dig was a massive highway project, built largely with federal funds, which transformed vehicular traffic in Boston. The whistleblower that brought the case against Aggregate blew the whistle on Aggregate’s decision to provide substandard concrete to the Big Dig.
The Court held that a reasonable jury could find that Aggregate violated the whistleblower protection provisions of the False Claims Act (FCA) when it terminated the whistleblower’s employment. Prior to the whistleblower’s termination, he and others had filed a “qui tam” lawsuit which alleged that Aggregate supplied substandard concrete to the Big Dig. A qui tam lawsuit is a lawsuit where a private individual can sue a company that has defrauded the federal government. If the individual prevails, the federal government recoups most of the defrauded money but some of the money goes to the individual who brought the lawsuit as an incentive for whistleblowers to come forward.
Aggregate settled the qui tam lawsuit for several million dollars and then 72 hours later it fired the whistleblower. The Court found this timing suspicious and held that it constituted evidence that Aggregate retaliated against the whistleblower in violation of the FCA. Aggregate claimed that it fired the whistleblower because he refused to submit to a repeat drug test after an initial drug test allegedly came back inconclusive. The Court held that a reasonable jury could disbelieve this explanation for several reasons. For instance, Aggregate violated its own policies. When the whistleblower provided a urine sample to Aggregate, it split the sample into two specimens. The first specimen resulted in an inconclusive test. When the test allegedly came back inconclusive, Aggregate refused to test the second specimen, contrary to its own policy, and demanded that the whistleblower submit another urine sample. Aggregate claimed that it lost the second specimen but no witnesses actually verified that it was, in fact, lost. In fact, a witness for Aggregate said that standard testing procedures made it “highly unlikely” that a specimen could be lost.
An investigator with the Maine Human Rights Commission (MHRC) has found that On the Edge Chipping in Phillips, Maine unlawfully fired Daniel Harnden, a skidder operator, because Mr. Harnden complained about charges the company put on his personal John Deere account. Mr. Harnden complained to On the Edge about the charges on December 4, 2009 and called John Deere on January 15, 2010 to tell it that On the Edge made charges to his account. Days later, On the Edge fired Mr. Harnden allegedly for performance issues.
The MHRC investigator found that most of the alleged performance issues On the Edge claimed it fired Mr. Harnden for stemmed from incidents that occurred long before Mr. Harnden complained about On the Edge making charges to his John Deere account. If On the Edge was really going to fire Mr. Harnden for those incidents, it would have done so long before Mr. Harnden made his complaints about the John Deere charges.
The MHRC will vote whether to adopt or reject the investigator’s recommendation at its next meeting on October 31, 2011. If the MHRC agrees with the investigator, and finds reasonable grounds to believe that On the Edge violated Mr. Harnden’s rights, the MHRC will attempt to facilitate a settlement between Mr. Harnden and On the Edge. If there is no settlement, a lawsuit could ensue.
Today, the U.S. District Court in Portland, Maine denied Lincare, Inc.’s motion to dismiss a claim of retaliation under the False Claims Act (FCA). The anti-retaliation provisions of the FCA protect whistleblowers from retaliation when they “pursue, investigate, or contribute to an action exposing fraud against the [federal] government.”
Former Lincare employee Adam Jewell filed his FCA retaliation claim after Lincare terminated his employment. Mr. Jewell’s lawsuit alleges that Lincare terminated his employment because he reported to Lincare that his immediate supervisor was forging signatures on documents and backdating documents that Lincare submitted to the government for Medicare and Medicaid reimbursements. Lincare argued that terminating an employee for blowing the whistle on his supervisor’s practice of forging and backdating Medicare and Medicaid reimbursement documents does not violate the FCA. The Court rejected this argument. It held that Lincare could not terminate Mr. Jewel for reporting his supervisor because his reports “concerned Lincare’s fraudulent billing practices.”
Attorneys Peter Thompson, Chad T. Hansen, and Allison Gray, of the Maine Employee Rights Group, represent Mr. Jewell in this lawsuit.
The Maine Employee Rights Group is currently representing two whistleblowers in a lawsuit against Alutiiq, LLC and some related companies (collectively referred to here as Alutiiq). Alutiiq entered into a contract with the Navy and began to provide security services at the Portsmouth Naval Shipyard (PNSY) in 2009. Shortly after, Alutiiq employees Craig Manfield and Janice Hendricks, the two whistleblowers who have brought this lawsuit, began to oppose Alutiiq’s unlawful activity.
Among other things, Mr. Manfield opposed Alutiiq’s attempts to bring firearms and ammunition onto PNSY grounds without proper authorization. He later complained about the fact that Alutiiq armed security guards with ammunition that was not as lethal as the Navy contract required. He also complained about shoddy gear which negatively impacted the safety of him and his co-workers.
Ms. Hendricks, among other things, opposed Alutiiq’s failure to pay employees for overtime they worked. Ms. Hendricks, a gay woman, also experienced discrimination because of her sex and/or sexual orientation. She reported this discrimination to the company as well.
The Maine Employee Rights Group is currently representing a whistleblower in a lawsuit against Praxair, Inc., one of its subsidiaries, and a company it acquired named Sermatech International. The whistleblower, Roger Lehoux, worked for Sermatech in Biddeford before Praxair acquired it.
While employed at Sermatech, Mr. Lehoux worked on the airplane parts that the company manufactured. His job was plasma sprayer. Mr. Lehoux repeatedly complained about management cutting corners to increase production at the expense of safety. For instance, he opposed the practice of cutting pieces off of blasting cabinets to increase production. Silica dust leaked out of the blasting cabinets because these pieces were cut off of them. Employees had to inhale this dust and it also collected on the airplane parts. Due to the dust, the anti-corrosive paint did not properly adhere to the parts. Through its corner cutting, the company put employee health in danger, violated OSHA regulations, and violated FAA regulations.
The lawsuit alleges that Sermatech fired Mr. Lehoux because of his repeated complaints about the company’s unlawful and unsafe practices. Sermatech claimed that it “laid off” Mr. Lehoux due to lack of work. This alleged layoff resulted in one person losing his job–Mr. Lehoux. The “layoff” occurred less than 2 weeks after Mr. Lehoux spoke up about his safety concerns during a training session held to address the fact that some airplane parts were failing inspection and being sent back to the company. Sermatech’s claim that there was a lack of work was not true. At the time of his “layoff” there was a back log of work in Mr. Lehoux’s department and employees from other areas in the facility had to come in to help out because of the back log.
Manske v. UPS Cartage Services Inc.
Chief Judge John A. Woodcock of the United States District Court of Maine in Bangor recently ruled in favor of whistleblower plaintiff Dennis Manske, by upholding Magistrate Judge John Rich’s decision to allow Mr. Manske and his counsel to delay production of certain audio recordings, made by him of conversations he had with his supervisors, until after Mr. Manske’s attorneys has an opportunity to question those supervisors about their conduct in deposition.
Mr. Manske, who is represented by Maine Employee Rights Group (“MERG”) filed suit in U.S. District Court against his former employer UPS Cartage Services, Inc. on July 30, 2010. In his complaint, Mr. Manske alleges that his managers extended his probationary period and forestalled his union rights in July 2008 and then terminated his employment in August 2008 after Mr. Manske repeatedly wrote up mechanical and safety issues with the trucks he was being asked to drive. Mr. Manske alleges that the extension of his probation and termination if his employment were in retaliation for his reports about the mechanical and safety issues with his trucks and that this retaliation violates the federal Surface Transportation Assistant Act (“STAA”) and well as the Maine Whistleblowers’ Protection Act (“MWPA”) and the Maine Human Rights Act (“MHRA”).
Maine Employment Lawyer Blog