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Polsinelli PC. In California, Polsinelli LLP
Employment Law and the Bottom
Line
June 25, 2015
Karen R. Glickstein
Polsinelli PC
real challenges. real answers.
SM
Today’s Presentation
 Social Media As Company “Property”
 Legal Issues Affecting Ability to Protect
 Whistleblowers—Current Trends
 “Hot Issues”-A speedy checklist
real challenges. real answers.
SM
Social Media: “Like” It Or Not?
real challenges. real answers.
SM
Social Media Drives Business
real challenges. real answers.
SM
What are the issues?
 Growing use of social media
 Employers Rely on Social Media to
Promote Business and for Employees to
Perform Job
 Who “owns” social media?
 NLRB issues
 BYOD issues
real challenges. real answers. sm
 People on Facebook
 More than 1.28 billion monthly active users (15% increase from prior
year)
 Five new profiles created every second (83 million fake profiles)
 50% of our active users log on to Facebook in any given day
 Average user has 338 friends; median is 200 friends
 People spend over 700 billion minutes per month on Facebook
 There are over 900 million objects that people interact with (pages,
groups, events and community pages)
 Average user is connected to 80 community pages, groups and
events
 Average user creates 90 pieces of content each month
 More than 30 billion pieces of content (web links, news stories, blog
posts, notes, photo albums, etc.) shared each month.
Facebook Facts from Pew (Feb. 2014) and Zephoria, Internet
Marketing (June 2014) and other sources
real challenges. real answers. sm
If Facebook Were a Country
1. China
2. India
3. FACEBOOK
4. United States
5. Indonesia
6. Brazil
7. Pakistan
8. Bangladesh
real challenges. real answers. sm
Linked In Facts (from the internet of course)
 Born on May 5, 2003
 332 million members
 2 new users join
every second
 25 million profiles
viewed every day
 1 in 3 professionals
on the planet use it
 Average connections:
913
 39 million students
and recent grads
 41% of millionaires
use
 13% of users don’t
use FB
 59% of users don’t
visit Twitter
– Source:
http://www.jeffbullas.com/2014/12/02/25-
linkedin-facts-and-statistics-you-need-to-
share/
real challenges. real answers. sm
More Linked In Trends (as reported by
www.forbes.com)
 41 percent of people
report over 500
connections; but
increasing numbers
report over 1000;
 Increased numbers
spending more than 2
hours a week;
 25% do not know about
settings that allow to hide
connections
 Groups are falling
somewhat, but people still
using
 Company page usage
jumped from 24% to 57%
real challenges. real answers. sm
Twitter By The Numbers
 554, 750,000 users
on Twitter
 Close to 500K people
sign up every day
 400 million tweets a
day
 9100 tweets per
second
 Most companies large
and small use Twitter
 33% of users follow a
brand
 Increase in use for
business
recommendations
real challenges. real answers. sm
What are the Issues?
 Branding/Marketing
 Trade Secrets and
Proprietary
Information
 Clarify expectations
at the beginning
 Treat as all other
company property or
“creations”
 Duty of employees
to update/change
information?
real challenges. real answers. sm
In re CTI, Inc., LLC, 528 BR 359 (S.D.
Bankr. Tex. 2015)
 Chapter 11 reorganization
 Owner claimed all social media accounts
belonged to him personally, not to Debtor
 Question: are the pages “property of the
estate?”
 Court holds that social media accounts
are property (like subscriber lists)
– Personal page v. company page?
real challenges. real answers. sm
Phone Dog v. Kravitz, 2011 WL 5415612
(N.D. Calif.)
 Employee maintained Twitter handle for
use with marketing business
 Account had about 17,000 followers
 Employee leaves, company requests
password and handle. Employee refuses
 Lawsuit filed alleging trade secrets,
interference with business relationship,
and conversion
real challenges. real answers. sm
Case Ultimately Settles before Trial
 But not before court
finds that claim plead
for misappropriation
of trade secrets
 Rejects employee’s
claim that followers
were public
information
real challenges. real answers. sm
 See also, AR2 LLC v.
Rudnick, (SD. Fla. 2014)
CEO engaged in
misconduct and
refused to turn over
access to web
domains and social
media platforms;
Also contends he
directed defamatory
reviews to Yelp.
real challenges. real answers. sm
Eagle v. Morgan, 2013 WL 943350 (E.D.
Pa.)
 Plaintiff co-founded
banking education
company and
estyablished LinnkedIn
account when she was
CEO
 Ownership changes; new
company’s social media
policy requires
employees to create and
maintain LInkedIn
Accounts
 Plaintiff’s employment
terminated and she is
no longer able to
access account
 Company replaces
Eagle’s name with
that of her Successor
 Many theories
advanced, including
“conversion”
real challenges. real answers. sm
Many Interesting Legal Questions
 Court finds that
LinkedIn account is
not tangible chattel,
therefore cannot be
converted
 Tortious Interference
alleged; all elements
but damages proven
 May have
ramifications with
regard to non-
solicitation and non-
competition
real challenges. real answers. sm
Cellular Accessories for Less, Inc. v. Trinitas, LLC,
2014 WL 4627090 (C.D. Calif.)
 Companies are
competitors selling
mobile phone
accessories to
businesses
 Oaks works for
Cellular until
discharged; starts
own business
(Trinitas)
 Issue: are the linked in
contacts retained by
Oakes “trade secrets”
 Analysis is traditional
trade secret law (like non-
compete/non-solicit)
 How difficult to collect?
 What about fact that
LInkedIn “suggests”?
 Are contacts “Public”?
real challenges. real answers. sm
Jefferson Audio Visual Systems, Inc. v.
Gunnar Light, 2013 WL 1947625 (W.D. Ky)
 At base level, it’s a
defamation/business
dispute case
 Ultimately sue for
fraudulent
misrepresentation
because former
employee doesn’t
change LinkedIn page
 Ultimately, no reliance
real challenges. real answers. sm
Related Questions
Non-Competes and Non-Solicits? (BTS USA
v. Executive Perspectives, LLC, (Conn. Sup.
Ct. 2014) and Pre-Paid Legal Services, Inc.
v. Cahill (E.D. Okla. 2013)
Use of Passwords? Maremont v. Susan
Fredman Design Group, Ltd (N.D. Ill. 2014).
real challenges. real answers. sm
BYOD—Bring Your Own Device
real challenges. real answers. sm
As Technology Becomes More
Accessible . . .
 Recent Study by Cornerstone OnDemand:
37 percent of employees who use apps
for work would spend own money on
worke related apps in the next 12 months
if they felt the app would help with job
 Even among those who don’t use aps for
work; 20 percent said they would spend
own money for apps that would help them
increase productivity
real challenges. real answers. sm
But the Same Study Notes
 When employees
asked if employers
had policies on using
apps for work that are
not provided by
company, 43% said
no and 21% did not
know
 When asked about
company policies on
use of personal
devices, 45% said no
policies; 15 % said
did not know
real challenges. real answers. sm
What are the Issues?
 Less expensive for
company if
employees use own
device
 But how do you
protect confidential
information?
 When can employer
access personal
device of employee?
real challenges. real answers. sm
Factors to Consider
 How many devices will you support?
 Security policy
 How will IT support problems?
 Make clear who owns what data and apps (in
other words, how do you keep personal
personal?)]
 What will you allow? Tie to Social Media or
Electronic Use Policies?
 What happens when employee leaves?
real challenges. real answers. sm
Like Many HR Issues, Goes to Culture
 Require Separate
Phones?
 Require easier
access?
 Don’t forget issues
with exempt v. non-
exempt employees
Polsinelli PC. In California, Polsinelli LLP
The NLRB Position
real challenges. real answers. sm
What is Section 7?
 Section 7 provides that
“employees shall have the
right to self-organization, to
form, join, or assist labor
organizations, to bargain
collectively . . . And to
engage in other concerted
activities for the purpose of
collective bargaining or
other mutual aid or
protection.”
real challenges. real answers. sm
Is the Internet the New Water
Cooler?
real challenges. real answers. sm
Decisions are Fact Specific; Not Consistent
 Hispanics United of
Buffalo, Inc. (Sept. 2,
2011)
 Employees could not be
fired for posting on wall of
co-worker who
complained about her co-
workers’ performance
 Posts by co-workers
protected because deal
with job performance
 Same result where
employees posted
concerns about
employers tax-
withholding procedures
 Because all relate to
shared concerns of
employee re: terms and
conditions of employment
real challenges. real answers. sm
But, hot dogs?
 Auto dealership employees
complain online and post
pictures where owners
serve hot dogs, cookies
and snacks from a
warehouse club
 Sarcastic comments re:
owner going all-out
 Vocalizing sentiments of
co-workers, so concerted
activity
real challenges. real answers. sm
Another Example of Overly Broad
 Prohibition on micro-
blogging to discuss
company business on
personal accounts
 Prohibition on discussing
anything wouldn’t want
manager to see
 Prohibition on anything
“inappropriate” re company
or managers
real challenges. real answers. sm
Triple D, LLC, 361 NLRB No. 31 (August
2014)
 NLRB Decision where Board unanimously
finds that Company unlawfully discharged
two employees for participating in
Facebook discussion regarding perceived
errors in employers tax withholding
calculations
real challenges. real answers. sm
 Triple Play Sports Bar
and Grille fires two
workers after learning of
a discussion on
Facebook regarding tax
withholdings between
several employees
 “They can’t do
calculations” “Now I owe
money . . . Wtf”
 One employee “likes” the
status
 Employer argues that
they are “defamatory and
disparaging remarks” so
lose NLRA protection
 NLRB says comments
(including “like”) are
concerted activity and
policy was effort to chill
speech
What the Board Said
real challenges. real answers. sm
The Newest Report from the GC- March
2015
 Lawful and Unlawful Handbook Policies
– “Do not discuss ‘customer or employee
information’ outside of work” v. “No
unauthorized disclosure of ‘business secrets’
or other confidential information”
– “Be respectful of others and the Company” v.
“No rudeness or unprofessional behavior
toward a customer or anyone in contact with
the company”
real challenges. real answers. sm
Same Issues with Press Communication
 Can’t prohibit all
contact or refer to
certain office or legal;
 Can note that the
company will speak
through one person
so long as emphasis
on crisis or something
else that would not
implicate Section 7
real challenges. real answers. sm
Yet More Examples
 Copyrights,
trademarks or logos;
 Prohibitions on
photography,
recording or personal
devices;
 “walking off the job” v.
“leaving without
permission
real challenges. real answers. sm
Whistleblowers and Retaliation
real challenges. real answers. sm
Watch it Grow
 Originally a common
law claim
 Fueled by post-
Enron world
 Now, almost all-
encompassing
real challenges. real answers. sm
Headlines are Happening
 Miami based nurisng home to pay $17 Million to settle a FCA suit
brought by former CFO who alleged kickback scheme (June 2015)
 Whistleblower to receive over $600K after providing information that
led to SEC Enforcement Action (May 2015—Paradigm Capital
Management)
 VA Settles Three Whistleblower Claims (data manipulation,
questionable medical practice and sexual harassment) (April 2015)
 OSHA safety complaint results in $85K award (April 2015)
 $38 Million settlement in Health Care Fraud suit under FCA (this
was not the whistleblower’s claim)(October 2014)
– Multi-million dollar awards not uncommon under FCA Whistleblower provision
real challenges. real answers. sm
A Virtual ABC of Statutes
 Affordable Care Act
 Commercial Motor Vehicle Safety Act
 Dodd Frank Act
 Environmental Statutes (Clean Air, CERCLA, Surface Mining, etc.)
 False Claims Act
 FDA Food Safety Modernization Act
 IRS Whistleblower Law
 Military Whistleblower Protections
 OSHA
 Sarbanes Oxley Act
 SEC
real challenges. real answers. sm
What are the Elements?
 Most Whistleblower claims are fairly
simple on their face:
– Engage in “protected activity”;
– “adverse action”
– causation
real challenges. real answers. sm
“Engage in Protected Activity”
 Providing information
or participation in
investigation
 “reasonable belief”
 Part of job duties?
real challenges. real answers. sm
Adverse Action
 Something “bad” has to happen
 Test may differ depending on statute
 Would conduct discourage others from
making complaint?
real challenges. real answers. sm
Common law issues
 What is violation of “public policy”
 Is subject preempted by statute? State or
federal?
 Workers’ compensation retaliation
– No longer “sole” cause in Missouri
real challenges. real answers. sm
You May Not Be Safe
 Privately held not
always a protection
 Do you work with or
have contact with
publicly traded
companies?
 (i.e., do employees of
private companies do
work for public
companies)
real challenges. real answers. sm
The Whistleblower in Your Midst
 Recognize the
possibility of litigation
 Follow procedures
 Document
performance
 Treat “fairly”
real challenges. real answers. sm
Best Practices
 Document performance of employees contemporaneously
 Provide supervisors/managers with training on both performance
issues and reporting issues
 Have policies in place; train all employees
 Consider hotlines or outside reporting mechanism
 Consistent source for reports to be made/investigated
 Involve in-house or outside counsel appropriately
 Review employment/severance agreements to insure language
cannot be interpreted to prevent reporting
 Assess whether additional reporting mechanisms warranted
real challenges. real answers. sm
Listen to the Podcast
 http://www.polsinelli.com/intelligence/podcast-g
real challenges. real answers. sm
Other “Hot” Topics
 Pregnancy discrimination: Is it a
disability?
 Religious Discrimination: Abercrombie
Suit
 EEOC Position on Wellness Programs
real challenges. real answers. sm
About the Presenter
Karen R. Glickstein is a
Shareholder at Polsinelli P.C.
She has an extensive trial
practice focusing on
management side employment
law matters (both counseling
and trial work), social media law,
and business litigation.
For more information, you can also
visit our website at www.polsinelli.com.
Karen R. Glickstein
Polsinelli P.C.
900 W. 47th
Place
Suite 900
Kansas City, Missouri
64112
816.753.1000
816.395.0638 (direct)
816.817.0162 (direct fax)
kglickstein@polsinelli.com
real challenges. real answers.
SM
Polsinelli provides this material for informational purposes only. The
material provided herein is general and is not intended to be legal
advice. Nothing herein should be relied upon or used without
consulting a lawyer to consider your specific circumstances, possible
changes to applicable laws, rules and regulations and other legal
issues. Receipt of this material does not establish an attorney-client
relationship.
Polsinelli is very proud of the results we obtain for our clients, but you
should know that past results do not guarantee future results; that
every case is different and must be judged on its own merits; and that
the choice of a lawyer is an important decision and should not be
based solely upon advertisements.
© 2015 Polsinelli PC. In California, Polsinelli LLP.
Polsinelli is a registered mark of Polsinelli PC

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Employment Law and the Bottom Line

  • 1. Polsinelli PC. In California, Polsinelli LLP Employment Law and the Bottom Line June 25, 2015 Karen R. Glickstein Polsinelli PC
  • 2. real challenges. real answers. SM Today’s Presentation  Social Media As Company “Property”  Legal Issues Affecting Ability to Protect  Whistleblowers—Current Trends  “Hot Issues”-A speedy checklist
  • 3. real challenges. real answers. SM Social Media: “Like” It Or Not?
  • 4. real challenges. real answers. SM Social Media Drives Business
  • 5. real challenges. real answers. SM What are the issues?  Growing use of social media  Employers Rely on Social Media to Promote Business and for Employees to Perform Job  Who “owns” social media?  NLRB issues  BYOD issues
  • 6. real challenges. real answers. sm  People on Facebook  More than 1.28 billion monthly active users (15% increase from prior year)  Five new profiles created every second (83 million fake profiles)  50% of our active users log on to Facebook in any given day  Average user has 338 friends; median is 200 friends  People spend over 700 billion minutes per month on Facebook  There are over 900 million objects that people interact with (pages, groups, events and community pages)  Average user is connected to 80 community pages, groups and events  Average user creates 90 pieces of content each month  More than 30 billion pieces of content (web links, news stories, blog posts, notes, photo albums, etc.) shared each month. Facebook Facts from Pew (Feb. 2014) and Zephoria, Internet Marketing (June 2014) and other sources
  • 7. real challenges. real answers. sm If Facebook Were a Country 1. China 2. India 3. FACEBOOK 4. United States 5. Indonesia 6. Brazil 7. Pakistan 8. Bangladesh
  • 8. real challenges. real answers. sm Linked In Facts (from the internet of course)  Born on May 5, 2003  332 million members  2 new users join every second  25 million profiles viewed every day  1 in 3 professionals on the planet use it  Average connections: 913  39 million students and recent grads  41% of millionaires use  13% of users don’t use FB  59% of users don’t visit Twitter – Source: http://www.jeffbullas.com/2014/12/02/25- linkedin-facts-and-statistics-you-need-to- share/
  • 9. real challenges. real answers. sm More Linked In Trends (as reported by www.forbes.com)  41 percent of people report over 500 connections; but increasing numbers report over 1000;  Increased numbers spending more than 2 hours a week;  25% do not know about settings that allow to hide connections  Groups are falling somewhat, but people still using  Company page usage jumped from 24% to 57%
  • 10. real challenges. real answers. sm Twitter By The Numbers  554, 750,000 users on Twitter  Close to 500K people sign up every day  400 million tweets a day  9100 tweets per second  Most companies large and small use Twitter  33% of users follow a brand  Increase in use for business recommendations
  • 11. real challenges. real answers. sm What are the Issues?  Branding/Marketing  Trade Secrets and Proprietary Information  Clarify expectations at the beginning  Treat as all other company property or “creations”  Duty of employees to update/change information?
  • 12. real challenges. real answers. sm In re CTI, Inc., LLC, 528 BR 359 (S.D. Bankr. Tex. 2015)  Chapter 11 reorganization  Owner claimed all social media accounts belonged to him personally, not to Debtor  Question: are the pages “property of the estate?”  Court holds that social media accounts are property (like subscriber lists) – Personal page v. company page?
  • 13. real challenges. real answers. sm Phone Dog v. Kravitz, 2011 WL 5415612 (N.D. Calif.)  Employee maintained Twitter handle for use with marketing business  Account had about 17,000 followers  Employee leaves, company requests password and handle. Employee refuses  Lawsuit filed alleging trade secrets, interference with business relationship, and conversion
  • 14. real challenges. real answers. sm Case Ultimately Settles before Trial  But not before court finds that claim plead for misappropriation of trade secrets  Rejects employee’s claim that followers were public information
  • 15. real challenges. real answers. sm  See also, AR2 LLC v. Rudnick, (SD. Fla. 2014) CEO engaged in misconduct and refused to turn over access to web domains and social media platforms; Also contends he directed defamatory reviews to Yelp.
  • 16. real challenges. real answers. sm Eagle v. Morgan, 2013 WL 943350 (E.D. Pa.)  Plaintiff co-founded banking education company and estyablished LinnkedIn account when she was CEO  Ownership changes; new company’s social media policy requires employees to create and maintain LInkedIn Accounts  Plaintiff’s employment terminated and she is no longer able to access account  Company replaces Eagle’s name with that of her Successor  Many theories advanced, including “conversion”
  • 17. real challenges. real answers. sm Many Interesting Legal Questions  Court finds that LinkedIn account is not tangible chattel, therefore cannot be converted  Tortious Interference alleged; all elements but damages proven  May have ramifications with regard to non- solicitation and non- competition
  • 18. real challenges. real answers. sm Cellular Accessories for Less, Inc. v. Trinitas, LLC, 2014 WL 4627090 (C.D. Calif.)  Companies are competitors selling mobile phone accessories to businesses  Oaks works for Cellular until discharged; starts own business (Trinitas)  Issue: are the linked in contacts retained by Oakes “trade secrets”  Analysis is traditional trade secret law (like non- compete/non-solicit)  How difficult to collect?  What about fact that LInkedIn “suggests”?  Are contacts “Public”?
  • 19. real challenges. real answers. sm Jefferson Audio Visual Systems, Inc. v. Gunnar Light, 2013 WL 1947625 (W.D. Ky)  At base level, it’s a defamation/business dispute case  Ultimately sue for fraudulent misrepresentation because former employee doesn’t change LinkedIn page  Ultimately, no reliance
  • 20. real challenges. real answers. sm Related Questions Non-Competes and Non-Solicits? (BTS USA v. Executive Perspectives, LLC, (Conn. Sup. Ct. 2014) and Pre-Paid Legal Services, Inc. v. Cahill (E.D. Okla. 2013) Use of Passwords? Maremont v. Susan Fredman Design Group, Ltd (N.D. Ill. 2014).
  • 21. real challenges. real answers. sm BYOD—Bring Your Own Device
  • 22. real challenges. real answers. sm As Technology Becomes More Accessible . . .  Recent Study by Cornerstone OnDemand: 37 percent of employees who use apps for work would spend own money on worke related apps in the next 12 months if they felt the app would help with job  Even among those who don’t use aps for work; 20 percent said they would spend own money for apps that would help them increase productivity
  • 23. real challenges. real answers. sm But the Same Study Notes  When employees asked if employers had policies on using apps for work that are not provided by company, 43% said no and 21% did not know  When asked about company policies on use of personal devices, 45% said no policies; 15 % said did not know
  • 24. real challenges. real answers. sm What are the Issues?  Less expensive for company if employees use own device  But how do you protect confidential information?  When can employer access personal device of employee?
  • 25. real challenges. real answers. sm Factors to Consider  How many devices will you support?  Security policy  How will IT support problems?  Make clear who owns what data and apps (in other words, how do you keep personal personal?)]  What will you allow? Tie to Social Media or Electronic Use Policies?  What happens when employee leaves?
  • 26. real challenges. real answers. sm Like Many HR Issues, Goes to Culture  Require Separate Phones?  Require easier access?  Don’t forget issues with exempt v. non- exempt employees
  • 27. Polsinelli PC. In California, Polsinelli LLP The NLRB Position
  • 28. real challenges. real answers. sm What is Section 7?  Section 7 provides that “employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively . . . And to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
  • 29. real challenges. real answers. sm Is the Internet the New Water Cooler?
  • 30. real challenges. real answers. sm Decisions are Fact Specific; Not Consistent  Hispanics United of Buffalo, Inc. (Sept. 2, 2011)  Employees could not be fired for posting on wall of co-worker who complained about her co- workers’ performance  Posts by co-workers protected because deal with job performance  Same result where employees posted concerns about employers tax- withholding procedures  Because all relate to shared concerns of employee re: terms and conditions of employment
  • 31. real challenges. real answers. sm But, hot dogs?  Auto dealership employees complain online and post pictures where owners serve hot dogs, cookies and snacks from a warehouse club  Sarcastic comments re: owner going all-out  Vocalizing sentiments of co-workers, so concerted activity
  • 32. real challenges. real answers. sm Another Example of Overly Broad  Prohibition on micro- blogging to discuss company business on personal accounts  Prohibition on discussing anything wouldn’t want manager to see  Prohibition on anything “inappropriate” re company or managers
  • 33. real challenges. real answers. sm Triple D, LLC, 361 NLRB No. 31 (August 2014)  NLRB Decision where Board unanimously finds that Company unlawfully discharged two employees for participating in Facebook discussion regarding perceived errors in employers tax withholding calculations
  • 34. real challenges. real answers. sm  Triple Play Sports Bar and Grille fires two workers after learning of a discussion on Facebook regarding tax withholdings between several employees  “They can’t do calculations” “Now I owe money . . . Wtf”  One employee “likes” the status  Employer argues that they are “defamatory and disparaging remarks” so lose NLRA protection  NLRB says comments (including “like”) are concerted activity and policy was effort to chill speech What the Board Said
  • 35. real challenges. real answers. sm The Newest Report from the GC- March 2015  Lawful and Unlawful Handbook Policies – “Do not discuss ‘customer or employee information’ outside of work” v. “No unauthorized disclosure of ‘business secrets’ or other confidential information” – “Be respectful of others and the Company” v. “No rudeness or unprofessional behavior toward a customer or anyone in contact with the company”
  • 36. real challenges. real answers. sm Same Issues with Press Communication  Can’t prohibit all contact or refer to certain office or legal;  Can note that the company will speak through one person so long as emphasis on crisis or something else that would not implicate Section 7
  • 37. real challenges. real answers. sm Yet More Examples  Copyrights, trademarks or logos;  Prohibitions on photography, recording or personal devices;  “walking off the job” v. “leaving without permission
  • 38. real challenges. real answers. sm Whistleblowers and Retaliation
  • 39. real challenges. real answers. sm Watch it Grow  Originally a common law claim  Fueled by post- Enron world  Now, almost all- encompassing
  • 40. real challenges. real answers. sm Headlines are Happening  Miami based nurisng home to pay $17 Million to settle a FCA suit brought by former CFO who alleged kickback scheme (June 2015)  Whistleblower to receive over $600K after providing information that led to SEC Enforcement Action (May 2015—Paradigm Capital Management)  VA Settles Three Whistleblower Claims (data manipulation, questionable medical practice and sexual harassment) (April 2015)  OSHA safety complaint results in $85K award (April 2015)  $38 Million settlement in Health Care Fraud suit under FCA (this was not the whistleblower’s claim)(October 2014) – Multi-million dollar awards not uncommon under FCA Whistleblower provision
  • 41. real challenges. real answers. sm A Virtual ABC of Statutes  Affordable Care Act  Commercial Motor Vehicle Safety Act  Dodd Frank Act  Environmental Statutes (Clean Air, CERCLA, Surface Mining, etc.)  False Claims Act  FDA Food Safety Modernization Act  IRS Whistleblower Law  Military Whistleblower Protections  OSHA  Sarbanes Oxley Act  SEC
  • 42. real challenges. real answers. sm What are the Elements?  Most Whistleblower claims are fairly simple on their face: – Engage in “protected activity”; – “adverse action” – causation
  • 43. real challenges. real answers. sm “Engage in Protected Activity”  Providing information or participation in investigation  “reasonable belief”  Part of job duties?
  • 44. real challenges. real answers. sm Adverse Action  Something “bad” has to happen  Test may differ depending on statute  Would conduct discourage others from making complaint?
  • 45. real challenges. real answers. sm Common law issues  What is violation of “public policy”  Is subject preempted by statute? State or federal?  Workers’ compensation retaliation – No longer “sole” cause in Missouri
  • 46. real challenges. real answers. sm You May Not Be Safe  Privately held not always a protection  Do you work with or have contact with publicly traded companies?  (i.e., do employees of private companies do work for public companies)
  • 47. real challenges. real answers. sm The Whistleblower in Your Midst  Recognize the possibility of litigation  Follow procedures  Document performance  Treat “fairly”
  • 48. real challenges. real answers. sm Best Practices  Document performance of employees contemporaneously  Provide supervisors/managers with training on both performance issues and reporting issues  Have policies in place; train all employees  Consider hotlines or outside reporting mechanism  Consistent source for reports to be made/investigated  Involve in-house or outside counsel appropriately  Review employment/severance agreements to insure language cannot be interpreted to prevent reporting  Assess whether additional reporting mechanisms warranted
  • 49. real challenges. real answers. sm Listen to the Podcast  http://www.polsinelli.com/intelligence/podcast-g
  • 50. real challenges. real answers. sm Other “Hot” Topics  Pregnancy discrimination: Is it a disability?  Religious Discrimination: Abercrombie Suit  EEOC Position on Wellness Programs
  • 51. real challenges. real answers. sm About the Presenter Karen R. Glickstein is a Shareholder at Polsinelli P.C. She has an extensive trial practice focusing on management side employment law matters (both counseling and trial work), social media law, and business litigation. For more information, you can also visit our website at www.polsinelli.com. Karen R. Glickstein Polsinelli P.C. 900 W. 47th Place Suite 900 Kansas City, Missouri 64112 816.753.1000 816.395.0638 (direct) 816.817.0162 (direct fax) kglickstein@polsinelli.com
  • 52. real challenges. real answers. SM Polsinelli provides this material for informational purposes only. The material provided herein is general and is not intended to be legal advice. Nothing herein should be relied upon or used without consulting a lawyer to consider your specific circumstances, possible changes to applicable laws, rules and regulations and other legal issues. Receipt of this material does not establish an attorney-client relationship. Polsinelli is very proud of the results we obtain for our clients, but you should know that past results do not guarantee future results; that every case is different and must be judged on its own merits; and that the choice of a lawyer is an important decision and should not be based solely upon advertisements. © 2015 Polsinelli PC. In California, Polsinelli LLP. Polsinelli is a registered mark of Polsinelli PC