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Whistleblowing and Retaliatory Discharge: Significant Developments in 2011



Wednesday, November 16, 2011
Product Code - HRAU01
Speaker(s): Daniel Westman, Partner, Morrisson Foerster; Richard Moberly, Associate Dean for Faculty and Associate Professor of Law at the University of Nebraska College of Law
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US courts have been busy this year sorting out how employers have responded to whistleblowing employees and under what circumstances employers handled retaliation claims.

The decisions reached offer employers a roadmap for avoiding the numerous potholes and roadblocks that can become costly setbacks.

Two important US Supreme Court cases this year expand retaliation claims: Thompson v. North American Stainless (January 24, 2011), in which the terminated fiancé of a female employee  successfully filed an  EEOC charge as an “aggrieved person.”  The decision breaks new ground as to who may pursue a Title VII claim. Another high court ruling shines light on who is protected under the Fair Labor Standards Act.

Join Daniel Westman, Partner, Morrisson Foerster and Richard Moberly, Associate Dean for Faculty and Associate Professor of Law at the University of Nebraska College of Law as they discuss the below retaliation claims under SOX:  

  • Kasten v. Saint Gobain (March 22, 2011):  Employees who make verbal complaints about wage/hour violations within their employers’ organizations are protected under the Fair Labor Standards Act

Recent SOX Whistleblower Cases Expanding Retaliation Claims

  • Brown v. Lockheed Martin Corp., ARB No. 1-050, ALJ No. 2008-SOX-00049 (ARB Feb. 28, 2011):  Shareholder fraud not a required element of a SOX whistleblower claim
  • Johnson v. Siemens Building Technologies, ARB No. 08-032, ALJ No. 2005-SOX-015 (ARB March 31 2011):  Privately held subsidiaries of publicly traded parent corporations are covered by SOX whistleblower provisions
  • Sylvester v. Paraxel Int’l LLC, ARB No. 07-123, ALJ No. 2007-SOX-039 (ARB May 25, 2011):  Rejecting standard that “an employee’s protected communications must relate ‘definitively and specifically’ to the subject matter of the particular statute under which protection is afforded
  • Funke v. Federal Express, ARB No. 09-004, ALJ No. 2007 SOX-043 (ARB July 8, 2011):  Disclosures about violations that employees reasonably believe are about to be committed are protected
  • Menendez v. Halliburton, Inc., ARB No. 09-002, 09-003, ALJ No. 2007-SOX-00005 (ARB Sept. 13, 2011):  Breaching confidentiality of employee who submitted complaint to Audit Committee constitutes a violation of SOXwhistleblower provisions
  • Vannoy v. Celanese Corporation, ARB No. 09-118, ALJ No. 2008-SOX-00064 (ARB Sept. 28, 2011):  Employee’s complaints about “misstated financial records and shortcomings in accounting controls” were protected conduct under the SOX
  • The new SEC regulations for the anonymous whistleblower bounty provisions of Dodd-Frank

Daniel Westman, Partner, Morrisson Foerster; Richard Moberly, Associate Dean for Faculty and Associate Professor of Law at the University of Nebraska College of Law

 Westman
Daniel Westman, Morrisson Foerster is Managing Partner for the Northern Virginia Office. He represents clients in jury trials, preliminary injunction hearings, arbitrations, and mediations. Mr. Westman's practice focuses on litigating employee mobility, trade secret, non-competition, Computer Fraud and Abuse Act, whistleblower, and retaliatory discharge cases.

Mr. Westman counsels employers regarding data security, trade secret, non-competition, and employment issues, including best practices to minimize litigation risks.  He has twice provided testimony to Congressional subcommittees on proposed federal whistleblower legislation.

Mr. Westman is the lead author of the book Whistleblowing: The Law of Retaliatory Discharge, Second Edition (BNA Books, 2004 & Supp. 2009) and senior editor of the treatise Trade Secrets by James Pooley(Law Journal Press).

Mr. Westman serves as chair of the Trade Secrets Committee of the American Intellectual Property Lawyers Association, and as Management Co-chair of the Sarbanes-Oxley Subcommittee of the Federal Labor Standards Legislation Committee of the Labor and Employment Law Section of the American Bar Association.

 Moberly
Richard Moberly is Associate Dean for Faculty and an Associate Professor of Law at the University of Nebraska College of Law.  Professor Moberly has published numerous articles on whistleblowing and retaliation, including an empirical study of Sarbanes-Oxley claims published in the William & Mary Law Review and an analysis of the Supreme Court's approach to retaliation cases, which was published recently in the Case Western Reserve Law Review.  He also has testified before the United States House of Representatives on whistleblower protection in the U.S. and spoken internationally on whether corporate codes of ethics provide protection to whistleblowers. Professor Moberly graduated magna cum laude from Harvard Law School and served as an editor of the Harvard Law Review.