Book

Whistleblowing: The Law of Retaliatory Discharge, Third Edition, With 2018 Cumulative Supplement

This treatise provides in-depth discussion of whistleblower protections and related litigation under the Sarbanes-Oxley Act, The Dodd-Frank Wall Street Reform and Consumer Protection Act, and other applicable federal and state laws.


Description

The Third Edition contains a new chapter that provides an overview of federal laws containing whistleblower protection. This chapter not only outlines the subjects on which whistleblowers in the private sector receive protection under federal law, but also explains burdens of proof in whistleblowing claims brought pursuant to federal statutes. A new section examines the increasing number of state statutes that contain whistleblower protections for employees who disclose wrongful behavior on particular topics (such as abuse of patients in nursing homes).

The Third Edition includes discussions of:

  • Lawson v. FMR LLC, in which the Supreme Court held that employees of private contractors and subcontractors of public companies are protected by the Sarbanes-Oxley Act’s whistleblower provisions. 

  • University of Texas Southwestern Medical Center v. Nassar, in which the Supreme Court held that a Title VII retaliation plaintiff must prove that “his or her protected activity was a but-for cause of the alleged adverse action by the employer.”  The Third Edition explains how this case is likely to affect retaliation claims under various federal and state whistleblower protection statutes.

  • Lane v. Franks, in which the Supreme Court held that the “First Amendment protects a public employee who provides truthful sworn testimony, compelled by subpoena, outside the scope of his ordinary job duties.”  This is the first Supreme Court case that has explained the Garcetti limitation on whistleblowing claims that allege infringement on government employees’ First Amendment rights.

Additionally, the Third Edition includes updated material on recent DOL ARB decisions and outlines the revised OSHA investigations manual governing whistleblowing complaints filed with the DOL. 

 


The 2018 Cumulative Supplement discusses:

 

  • The Supreme Court’s resolution of the long-standing split as to whether the right to file suit directly in federal court applied only to employees whistleblowing to the SEC

  • Unsuccessful invoking of attorney-client privilege against a whistleblowing in-house counsel, resulting in a jury verdict of nearly $8 million

  • The annual update from the SEC on bounties awarded to whistleblowers

  • Retaliation in the form of blacklisting, in a manner interfering with subsequent employment

  • New decisions on equitable tolling, related to attorney error and to an employer’s alleged negligent misleading of the complainant

  • Demonstrating constructive discharge via facts establishing the “handwriting was on the wall”

  • Courts inferring causal connections via the concept of temporal proximity

  • Recent decisions by the ARB emphasizing that whistleblowing cases are not typically amenable to summary adjudication

 

Authors

Bloomberg BNA authors and editors are practicing professionals with insider perspectives and real-life experience. Learn more about this book’s authors and editors.
Janie F. Schulman is a partner in the law firm of Morrison & Foerster, LLP, Los Angeles, CA.
Nancy M. Modesitt is Professor of Law at the University of Baltimore School of Law.

Daniel P. Westman (deceased) was managing partner for the Northern Virginia office of Morrison & Foerster, LLP. 

 

Contents

View full tables of contents and read the book’s preface or introduction.