YOU CANT DO THAT TO ME! DEVELOPMENTS IN WHISTLEBLOWER & ANTI- RETALIATION LAWS

MODERATOR: Benton J. Mathis, Jr., Esq., Managing Partner, Freeman Mathis & Gary LLP PANELISTS: Brenda H. Feis, Esq., Partner, Stowell & Friedman, Ltd. Jason A. Fogg, Esq., Vice President, Claims, Monitor Liability Managers, LLC Eric Ross, Claims Manager, Beazley Group Joseph A. Starr, Esq., Partner, Starr, Butler, Alexopoulos & Stoner, PLLC Introductions

Agenda Trends in whistleblower claims Scope of whistleblower protections, including financial and healthcare protections Claims that increase plaintiff's liability/damage exposure or maximize punitive damages Primary underwriting considerations and risk management response

ARS Question – Is the Following Unlawful Retaliation? A.Shunning a Co-worker B.Less Favorable Office C.Demotion D.Unfavorable Review E.Reduced Training Opportunity F."Cold Shoulder" From Management G.Excluded from Meetings H.Reassigned to Another Job I.Verbal Abuse J.Excluded from Decisions

Burlington Northern v. White (2006) After complaining about supervisor, plaintiff reassigned to less desirable job Co-workers felt more senior man should hold plaintiffs former position HELD: Conduct that dissuades reasonable worker from making or supporting charge of discrimination

Excluded from decision and work activity Given the cold shoulder Verbally abused by managers Almost lost job Not given promotion or raise Verbally abused by other co-workers Relocated or reassigned Other forms of retaliation Demoted Physical harm to person or property 62% 60% 55% 48% 43% 42% 27% 20% 18% 4% Source: 2009 National Business Ethics Survey report, Ethics Resource Center. Types of Retaliation Experienced by Employees Who Report Misconduct

What is Materially Adverse Conduct? D.C. Circuit – Employers false report contesting unemployment Second Circuit – Reading newspaper article about discrimination lawsuit in employees presence Third Circuit – Threaten to make employees life living nightmare Sixth Circuit – Performance evaluation diminishing employees earning capacity Ninth Circuit – Collectively, temporary removal from duties, psychiatric evaluation, and IA investigation Tenth Circuit – Threat to make public rumors about employees sexual activities

Recent Supreme Court Cases Kasten v. Saint-Gobain Performance Plastics Corp (2011) – (employees oral complaints about FLSA violation protected activity) Thompson v. North American Stainless (2011) – Protection Extended To Affected Even If They Did Not Complain Crawford v. Metropolitan (2009) – Employee Answering Questions Can Be Protected Activity Gomez-Perez v. Potter (2008) – ADEA Has Implied Retaliation Prohibition CBOCS West, Inc. v. Humphries (2008) – Section 1981 Has Implied Retaliation Prohibition

YearPercent of EEOC charges % % % % % % % % % Increase of Retaliation Claims

ARS Question Have you seen increase in retaliation claims in past 3 years? A.None B.10% - 30% C.30% - 50% D.50% - 100% E.100% - 200% F.200% or greater

Recent Retaliation Jury Verdicts $4,000,000 (C.D. Cal.) (Nov. 2010): Police officer terminated in retaliation for whistle blowing $3,100,000 (W.D. Penn.) (Nov. 2009): Female employee terminated after complaining about gender discrimination $1,555,000 (M.D. Tenn.) (Jan. 2010): Plaintiff terminated after participating in sexual harassment investigation $1,100,000 (W.D. Wis.) (May 2011): College instructor's contract not renewed in retaliation for discrimination claims $1,026,386 (C.D. Il.) (Aug. 2010): Public library operations manager alleged Title VII retaliation

Meet Ellyn Video 1

Would You Award Following? A.None B.less than $20,000 C.$20,000 – $40,000 D.$40,000 – $75,000 E.$75,000 – $100,000 F.$100,000 - $150,000 G.$150,000 - $250,000 H.$250,000 - $500,000 I.$500,000 - $750,000 J.$750,000 - $1,000,000 K.$1,000,000 or more ARS – Question Testimony of First Plaintiff

Heres Amy Video 2

Would You Award following? A.None B.less than $20,000 C.$20,000 – $40,000 D.$40,000 – $75,000 E.$75,000 – $100,000 F.$100,000 - $150,000 G.$150,000 - $250,000 H.$250,000 - $500,000 I.$500,000 - $750,000 J.$750,000 - $1,000,000 K.$1,000,000 or more ARS Question –Testimony of Alternate Plaintiff

Say Hello to Marty Video 3

Would You Award following? A.None B.less than $20,000 C.$20,000 – $40,000 D.$40,000 – $75,000 E.$75,000 – $100,000 F.$100,000 - $150,000 G.$150,000 - $250,000 H.$250,000 - $500,000 I.$500,000 - $750,000 J.$750,000 - $1,000,000 K.$1,000,000 or more ARS Question – Alleged Harasser Testimony

Last, but not least, Heres Bill Video 4

Would You Award following? A.None B.less than $20,000 C.$20,000 – $40,000 D.$40,000 – $75,000 E.$75,000 – $100,000 F.$100,000 - $150,000 G.$150,000 - $250,000 H.$250,000 - $500,000 I.$500,000 - $750,000 J.$750,000 - $1,000,000 K.$1,000,000 or more ARS Question – Managing Partners Testimony

ActPrimarily Impacts DOD ReauthorizationDefense Contractors American Recovery and ReinvestmentRecipient of Stimulus Funds False Claims ActFederal Contractors Sarbanes-OxleyPublicly Traded Corps. Patient Protection and Affordable CareHealth Care Industry Dodd-FrankPublicly Traded Companies and Private Subsidiaries/Affiliates New or Recently Modified Statutes

ActPrimarily Impacts Food Safety ModernizationFood Industry Aviation InvestmentAirline Industry Energy ReorganizationNuclear Power Industry Federal Rail SafetyRail Industry National Transit SystemMass Transit Industry Consumer Product SafetyRetail Industry More Retaliation Statutes

ActPrimarily Impacts Occupational Safety and Health ActWorkplace Safety Surface Transportation Assistance ActIndependent Contractors in Trucking Asbestos Hazard Emergency Response ActPublic Schools International Safe Container ActShipping Industry Clean Air ActEPA Regulated Industry Safe Drinking Water ActEPA Regulated Industry Wendell H. Ford Aviation Investment and Reform Act for the 21st Century Air Carriers Pipeline Safety ActPipeline facilities Even More Retaliation Statutes

The Future – New Retaliation Protections Dodd-Frank and New SEC Rules – Bounty original information to SEC – Jury trials/No arbitration – Six Year Statute of Limitations Sarbanes-Oxley after Dodd-Frank – Federal mail, wire, bank or securities fraud statutes – Any rule/Regulation of SEC – Now can file suit if no determination within 180 days – No arbitration

The Future – New Retaliation Protections Patient Protection and Affordability Care Act (PPACA) – Primarily health care and insurance – Covers discrimination in compensation, training, privileges of employment

Supervisor 46% Other responsible person 15% Higher management 29% Where Employees Report Misconduct Someone outside the company 4% Other 4% Hotline 3% Supervisor 46% Other responsible person 15% Higher management 29% Source: 2009 National Business Ethics Survey report, Ethics Resource Center.

Complaint Policy -Best Practices Cover Any Type of Unlawful Conduct Clear Reporting Option to Appropriate Official Avoid Inconsistencies With Other Overlapping Policies Widely Disseminate Policy

Questions & Answers

Brenda Feis Jason Fogg Eric Ross Joseph Starr Ben Mathis Many thanks to …