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OSHA’s squeaky Whistleblower Protection Program

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Workers Comp Insider LogoMost people are aware that, since 1970, the Occupational Health and Safety Administration (OSHA) has been responsible for issuing and enforcing standards for workplace health and safety. But if I were a betting person, I would wager that far fewer are aware of OSHA’s responsibilities in relation to the Sarbanes Oxley Act. OSHA is charged with protecting workers ” …from retaliation for reporting alleged violations of mail, wire, bank, or securities fraud; violations of rules or regulations of the SEC; or federal laws relating to fraud against shareholders.”

This responsibility is part of the Office of Whistleblower Protection Program (OWPP),for which OSHA has oversight. OWPP was originally intended to protect workers from being retaliated against for such things as reporting safety violations to OSHA, requesting or participating in an OSHA inspection, or testifying in any proceeding related to an OSHA inspection.

Over the years, this responsibility has expanded to encompass oversight of the whistle-blowing provisions for eighteen other statutes, including violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, health care reform, nuclear energy, pipeline, public transportation agency, railroad and securities laws.

And according to a recent report by the Government Accountability Office (GAO), OSHA gets failing grades for discharging its whistleblower protection responsibilities. The GAO cited lack of training, chronic inattention from OSHA leaders, and long delays in resolving cases, among other problems.

Some say the problems are no surprise: too few staff spread too thin, resulting in long case delays and staff demoralization. You can see charts depicting the growth of responsibilities while staff remained flat on pages 16-17 of the GAO Whistleblower Report. (PDF)

Some relief is in the offing – 25 new investigators are scheduled for appointment to OWPP. In addition, the Department of Labor (DOL) is conducting a “top to bottom” review and there is some discussion about whether the program should be moved to another part of DOL.

Whistleblowers are fundamental to workplace safety, but even with protections built into the laws, the reality is that protection for whistle-blowing employees can be a long time in coming, when and if it does. Read about truck driver John Simon’s whistle-blowing ordeal as a case in point. There are unfortunately many other similar stories. OSHA offers employees a a bill of rights to ensure safety, but fundamental to those rights are protections when and if they speak up in the cause of safety.

This article was originally posted on Workers Comp Insider.

About the Author: Julie Ferguson is an insurance industry consultant with more than 20 years experience developing and implementing communications programs for workers compensation, workplace health & safety, employee communications, and general insurance programs. She founded and serves as editor for the nation’s first insurance weblog, Lynch Ryan’s Workers Comp Insider. She also founded and manages HR Web Café, a weblog for ESI Employee Assistance Group; Consumer Insurance Blog for the Renaissance Insurance Group; and is one of the administrators of Health Wonk Review, a bi-weekly health policy carnival. If you have a question for Julie, you can reach her at [email protected]


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OSHA Launches New Whistleblower Protection Site

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Image: Mike HallThe Occupational Safety and Health Administration (OSHA) says that workers who blow the whistle on safety violations and other unlawful practices “play an important role in assuring compliance with federal laws.”

But, say workplace safety advocates, too many times workers don’t speak up about safety and health problems on the job because they fear retaliation from their employers, even though it’s illegal.

OSHA now has a new website specifically dedicated to its whistleblower protection program, www.whistleblowers.gov. The site is designed to provide workers, employers and the public with easily accessible information about the 18 federal whistleblower protection statutes that OSHA currently administers. OSHA chief David Michaels says:

OSHA doesn’t work unless workers feel secure in exercising their rights. This Web page is part of OSHA’s promise to stand by those workers who have the courage to come forward when they know their employer is cutting corners on safety and health.

The new site provides information about workers’ rights and provisions under each of the whistleblower statutes and regulations that OSHA enforces. It also has program fact sheets and information on how a worker can file a retaliation complaint with OSHA. Along with the direct URL, the site can be accessed at www.osha.gov by clicking on the “Whistleblower Protection” link.

Federal workplace safety laws allow workers to file discrimination complaints with OSHA if they believe their employer has retaliated against them for exercising a broad range of rights protected by law.  These rights include filing safety or health complaints with OSHA and seeking an OSHA inspection, participating in an OSHA inspection, participating or testifying in any proceeding related to occupational safety or health, or reporting an injury or illness to their employer.

The Miner Safety and Health Act (H.R. 5663) now before Congress would strengthen whistleblower protections for miners covered by the Mine Safety and Health Administration and workers covered by OSHA.

About The Author: Mike Hall is a former West Virginia newspaper reporter, staff writer for the United Mine Workers Journal and managing editor of the Seafarers Log. He came to the AFL- CIO in 1989 and have written for several federation publications, focusing on legislation and politics, especially grassroots mobilization and workplace safety.


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Health Care Reform Bill Creates New Whistleblower Protections

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jason zuckermanThe Patient Protection and Affordable Care Act of 2009 (H.R. 3590) that the House approved on March 21, 2010, creates new whistleblower protections for health care workers and strengthens the coverage of the False Claims Act.  The following is a summary of these provisions and the text of the relevant sections is available here.

Section 1558:  Health care worker whistleblower protections added to the Fair Labor Standards Act.  Section 1558 prohibits retaliation against an employee who provides or is about to provide to an employer, Federal Government, or a state Attorney General, information that the employee reasonably believes to be a violation of Title I of the Bill.  The provision also protects individuals who participate in investigations or object to or refuse to participate in any activity that the employee reasonably believes to be a violation of Title I of the bill.   Title I contains a wide range of rules governing health insurance, including a prohibition against denying coverage based upon preexisting conditions, policy and financial reporting requirements and prohibitions against discrimination based upon an individual’s receipt of health insurance subsidies.  Accordingly, Section 1558 will likely protect a broad range of disclosures.

The procedures, burden of proof, and remedies applicable to this new retaliation claim are set forth in the Consumer Product Safety Improvement Act of 2008, 15 U.S.C. 2087(b), including (1) a 180-day statute of limitations; (2) a requirement to initially file the complaint with OSHA, which will investigate the complaint and can order preliminary reinstatement; (3) the option to litigate the claim before the Department of Labor Office of Administrative Law Judges or to remove the claim to federal court 210 days after filing the complaint; (4) the right to try the claim in federal court before a jury;  and (5) a broad range of remedies, including reinstatement, back pay, special damages, and attorney’s fees.  Similar to Section 806 of the Sarbanes-Oxley Act, the causation standard and the burden-shifting framework are very favorable to employees.

A complainant can prevail merely by showing by a preponderance of the evidence that her  protected activity was a contributing factor in the unfavorable action.  A contributing factor is “any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision.”  Once a complainant meets her burden by a preponderance of the evidence, the employer can avoid liability only if it proves by clear and convincing evidence that it would have taken the same action in the absence of the employee engaging in protected conduct, an onerous burden.

Section 6703(b)(3):  Protections for employees of federally funded long-term care facilities.  Long-term care facilities that receive more than $10,000 in federal funding in the preceding year must notify all officers, employees, managers, and contractors of the facility that they are required by law to report any reasonable suspicion of a crime to at least one law enforcement agency.  Failure to report a suspected crime can expose an employee, manager, or contractor to civil fines of up to $200,000.  A long-term care facility is prohibited from engaging in retaliation against an employee “because of lawful acts done by the employee.”  Facilities violating the anti-retaliation provision may be subject to a fine of up to $200,000 and exclusion from federal funds for up to two years.

Section 6105:  Implementation of standardized complaint forms for nursing homes and prohibition against retaliation.  Section 6105 requires nursing homes to implement a standardized complaint form and requires each state to develop a complaint resolution process to track and investigate complaints and to ensure that complainants are not subjected to retaliation.

Section 10104(j)(2) expands the definition of an “original source” under the False Claims Act.  Section 10104(j)(2) strikes 31 U.S.C. 3730(e)(4)(A) and replaces it with language expanding the definition of an “original source” to include “individual who either (i) prior to a public disclosure under subsection (e)(4)(a), has voluntarily disclosed to the Government the information on which allegations or transactions in a claim are based, or (2) who has knowledge that is independent of and materially adds to the publicly disclosed allegations or transactions, and who has voluntarily provided the information to the Government before filing an action under this section.”  This new definition of “original source” will bring much-need uniformity to this critical issue that arises in most qui tam actions and increase the likelihood that relators will be able to meet the original source exception to the public disclosure bar.

*This post originally appeared in Employment Law Group on March 23, 2010. Reprinted with permission from the author.

 


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Upward Assessment of Darth Vader

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Image: Noel S. WilliamsA recent survey by The Conference Board, a not-for-profit organization that disseminates information about business management and economic trends, showed that job satisfaction in America hit a record low in 2009.  Part of the problem is managers who run roughshod over morale.  Part of the solution is employee surveys that provide an underpinning for managers’ performance appraisals.

Formal grievance procedures against miscreant managers are a drastic option, and often bring adversity to the whistleblower.  But so-called “upward assessments” empower subordinates by giving them input into management performance appraisals.  Measuring management behavior, not some nebulous notion that “the company cares about its people,” will rein in abusive managers simply because once something is measured, it generally improves.

I don’t need to refer to the human resource trend du jour — I already know this because my previous manager was Darth Vader reincarnate.  Recognizing the threat to his evil little empire, he usurped the survey process, twisting it to the dark side.

Published norms, articles about workplace bullying, quarterly process meetings and retreats were all his decoys, but his ultimate subterfuge was the employee survey.   He cunningly constructed this devious document to shirk responsibility and shroud his malice.  His dastardly plot recognized that direct surveys represented a powerful check upon his unfettered malevolence.

When I started this job I was bemused that our 25-person department had its own set of norms:  ten principles that basically boiled down to the golden rule.  Everyone else in our large organization was content to operate under organization-wide principles.

On the surface, our department was a group of top-notch professionals working in accord.   It seemed we had struck the optimal balance between efficiency, effectiveness and employee moral, but why did we have a special set of norms, I wondered?   Why were they plastered everywhere:  on the conference room walls, on our manager’s door, in meeting rooms?  One could not walk more than a few yards without encountering them.

I was new, but no one on our team seemed capable of belittling, intimidating, disrespecting or otherwise mistreating a co-worker.  Was this because of the norms?  Or was something more sinister at play that the norms were hiding?

A few months after I started it was time for my first quarterly “process” meeting.  As far as I could tell, this was rare, if not unique to our department.   Part of the unusual agenda called for a discussion of our norms and a potential employee survey.  An extra copy of our norms was posted on the meeting room door, almost as if there had been a recent breach of etiquette.  There had been, many breaches, the perpetrator ambushing her victims then squirming to our manager Darth for refuge.

As I ventured more frequently into various domains within our organization I noticed people wincing when I told them where I worked.  But I was new, an innocent wookie oblivious to the dark side of the force.  I went about my merry way even as my day or reckoning drew closer.

Our next departmental oddity was our yearly retreat.  Wait a minute; retreats are for dysfunctional teams, aren’t they?   I remembered from business school they might be an appropriate venue for an organization that manufactured widgets even while marketing was promoting screws and operations was into nails.  Clearly, they needed a retreat, but not our small, laser-focused workgroup; unless, of course, this was part of the elaborate charade.

It was, and my days of blissful ignorance were ripped asunder back at H.Q. when I fell into the crosshairs of Darth’s personal assistant.  Apparently, my tendency to ponder nuances annoyed her.  For daring to suggest that inventory items need to be entered into a database for proper tracking I was publicly excoriated.  Such was her venom that several witnesses were quite shaken, a 12-year veteran of salty Navy language, I was even taken aback but maintained enough composure to suggest she read our norms.

I was beginning to connect the dots.  Our department’s public image was but a cover up, all a happy face on a veil that concealed the twisted anger of an ogre who was mollycoddled by lord Vader himself.

I was but the latest victim of a long line of rapacious rampages where employee pride and self-confidence were laid waste.  No wonder everyone was so compliant and cooperative, they had succumbed.  After each devastating raid, our resident ogre sought respite in Darth’s chamber.  Job done, she then retreated to her cube to suddenly transform into the public image of serenity beneath her conspicuous copy of our incongruous norms.

Now I knew why everyone winced, everyone except unaware upper-level management.  Job satisfaction is good for productivity so they must be informed.   Not through formal grievance procedures,  but by eliciting employee input into our manager’s performance appraisals, Darth could be redeemed, and the ogre laid bare and slain.

By attempting to hijack it, our manager had shown his repressive regime’s soft underbelly: the employee survey.   His rendition was an utterly corrupt and deceitful document that deliberately avoided questions about management, misdirecting potential blame to feeble droids.  The sham demonstrated that a targeted survey could be powerful straightjacket on managers disposed to running amok.

An employee survey designed to elicit upward feedback would shine light into the dank crypt where he and trusted assistant conspired to wreak havoc.  Executives could then expose the tyranny lest another promising career be dashed.  Powerful energies aimed at self-preservation could be unleashed toward productive ends, and that represents a big disturbance in the force for good.

About the Author: Noel S. Williams currently enjoys work as an Information Technology Specialist.  While he also holds a master’s degree in Human Resource Management, it is his training as Jedi Knight that gives him the fortitude to delve into the dark side of workplace unfairness.


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Big Pharma Whistleblower Gets $51 Million

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(The following post is part of our Taking Back Labor Day blog series. Many people view Labor Day as just another day off from work, the end of summer, or a fine day for a barbecue. We think that it’s a holiday with a rich history, and an excellent occasion to examine what workers, and workers rights activism, means to this country. Our Taking Back Labor Day posts in September will do that, from a variety of perspectives, and we hope you’ll tune in and join the discussion!)

*****

It’s an amazing story and one worth talking about.  Gulf War veteran and former Pfizer sales representative John Kopchinski is getting $51 million dollars as a result of his whistleblowing lawsuit against Pfizer – the world’s biggest drug maker — and that’s big news.

Pfizer to Pay $2.3 Billion for Fraudulent Marketing 

According to a statement from the Justice Department,   Pfizer’s illegal practices in connection with its promotion of an anti-inflammatory drug called  Bextra is what got it into big trouble.

Under the Food, Drug and Cosmetic Act, a company must specify the intended uses of a product in its new drug application to FDA. Once approved, the drug may not be marketed or promoted for so-called “off-label” uses.

It turns out that Pfizer promoted the sale of Bextra for several uses and dosages that the FDA specifically declined to approve because of its safety concerns.

As a result of that conduct, (as well as violations involving other drugs) the company will pay a criminal fine of $1.195 billion, the largest criminal fine ever imposed in the United States for any matter.

Pharmacia & Upjohn (Pfizer subsidiaries) will also forfeit $105 million, for a total criminal resolution of $1.3 billion.

All in all, Pfizer settled the case( which included civil and criminal penalties) for a whopping $2.3 billion dollars.

False Claims Act Liability

Pfizer also agreed to pay $1 billion to resolve allegations under the civil False Claims Act (also know as Qui Tam).

Under the Act, it is illegal to knowingly present a false or fraudulent claim for payment to the federal government or use a false or fraudulent record to get paid. The way it works is:

  • individuals and entities with evidence of fraud involving the United States or its programs or contracts can sue the wrongdoer on behalf of the government
  • the government has the right to intervene and join the action
  • if the government declines, the private plaintiff may proceed on his or her own behalf

Those who violate the Act are liable for three times the dollar amount of the fraud and additional civil penalties. As far as the whistleblower goes, the Whistelblowers Protection Blog explains it this way:

A qui tam plaintiff can receive between 15 and 30 percent of the total recovery from the defendant, whether through a favorable judgment or settlement. To be eligible to recover money under the Act, you must file a qui tam lawsuit. Merely informing the government about the violation is not enough. You only receive an award if, and after, the government recovers money from the defendant as a result of your suit.

 In this case, Kopchinski (and others) claimed that Pfizer:

  • illegally promoted four drugs  (Bextra an anti-inflammatory; Geodon, an anti-psychotic drug; Zyvox, an antibiotic; and Lyrica, an anti-epileptic drug),
  • for uses that were not medically accepted, and
  • caused false claims to be submitted to government health care programs.

As a part of the resolution of the case,  six whistleblowers will receive payments totaling more than $102 million from the federal share of the civil recovery.

Kopchinski, whose reporting instigated the government investigation, will get $51.5 million.

Great Result For This Whistleblower

It’s a fantastic result for Kopchinski and the end of a long road. Most whistleblowers go through an enormous ordeal and so did Kopchinski,

First they struggle with the difficulty of reporting the illegal and/or dangerous practices to the corporate hierarchy and the pressure that goes with it.

What happens next —  when they are ignored as they often are — is that they are labeled as troublemakers and then fired because of trumped up charges of misconduct.

Once they report the wrongdoing to a government agency, they are blackballed in their industry and can’t get work. The stress, anxiety, guilt, and financial distress is overwhelming for most.

Kopchinski had this to say in a statement he released:

In the Army I was expected to protect people at all costs, 

At Pfizer I was expected to increase profits at all costs, even when sales meant endangering lives. 

I couldn’t do that.

That’s why Kopchinski got fired. At the time (2003) he had a baby and his wife was pregnant with twins. He went from earning $125,000 a year, to depleting his 401(k), to finally getting a $40,000 a year insurance job.

We appreciate Mr. Kopchinski’s courage and conviction and congratulate him (as well as his legal team and the Justice Department ) for a superb result.

It doesn’t often turn out this way — and it’s sure great to see it when it does. It’s a wonderful Labor Day story.

Image: images.huffingtonpost.com

About the Author: Ellen Simon is recognized as one of the foremost employment and civil rights lawyers in the United States. She has been listed in the National Law Journal as one of the nation’s leading litigators. Ms. Simon has been quoted often in local and national news media and is a regular guest on television and radio, including appearances on Court TV. Ellen has been listed as one of The Best Lawyers in America for her landmark work representing individuals in precedent-setting cases. She also received regional and national attention for winning a record $30.7 million verdict in an age-discrimination case; the largest of its kind in U.S. history. Ellen has served as an adjunct professor of employment law and is an experienced and popular orator. Ellen is Past-Chair of the Employment Rights Section of the Association of Trial Lawyers of America and is honored to be a fellow of the International Society of Barristers and American Board of Trial Advocates. In additional to work as a legal analyst, she currently acts as co-counsel on individual employment cases, is available as an expert witness on employment matters and offers consulting services on sound employment practices, discrimination awareness and prevention, complaint investigation and resolution, and litigation management. Ms. Simon is the owner of the Simon Law Firm, L.P.A., and Of Counsel to McCarthy, Lebit, Crystal & Liffman, a Cleveland, Ohio based law firm. She is also the author of the legal blog, the Employee Rights Post, and her website is www.ellensimon.net. Ellen has two children and lives with her husband in Sedona, Arizona.

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