Whistleblower Law Update
As our textbook notes, the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) modified the Sarbanes-Oxley Act of 2002 (SOX) by providing for direct federal court lawsuits and enhanced remedies for whistleblowing employees of publicly traded companies. In Rhinehimer v. U.S. Bancorp Investments, Inc., 787 F.3d 797 (6th Cir. 2015,) excerpted in Walsh, the Sixth Circuit Court of Appeals upheld a jury verdict in favor of a plaintiff who was fired after sending his supervisor an email condemning the employer’s trading and investment decisions.
By way of an FYI, the Supreme Court has since held that internal company reporting will not suffice for that kind of a Dodd-Frank claim. Instead, to be a protected whistleblower the plaintiff must have provided information to the Securities and Exchange Commission itself. Digital Realty Trust, Inc. v. Somers, 138 S. Ct. 767 (2018.) But, as the Supreme Court noted, other SOX remedies remain available for employees who use internal company mechanisms to report investment-related fraud and misconduct. Additionally, the federal Consumer Financial Protection Act of 2010 and other federal and state laws protect employees who suffer adverse employment action because of their internal whistleblowing activities.
Objectives
Lesson 13 focuses on employee terminations. Employee rights and employer obligations, in this context, arise from a number of sources, including contracts, the U.S. and state constitutions, federal, state and local laws, public policies, and common law.
After successfully studying the assigned materials and completing the written assignment, you will be able to identify and discuss:
- the concepts of employment at will and employment at will with exceptions;
- implied and express contracts, promissory estoppel, and disclaimers;
- terminations for cause and for just cause;
- constructive discharge;
- prohibitions against retaliation for engaging in protected conduct;
- how to avoid disparate treatment claims in the context of terminating employees;
- some important aspects of public sector employment law;
- due process and other considerations in unionized and other workplaces; and
- waivers and releases, especially in the context of the Age Discrimination in Employment Act.
Textbook:
- Chapter 16
Other Resources:
- Just Cause and Implied Contract Video
Please address the four question sets in the order in which they appear, inserting the number of the question set as a heading or in the first line of the response to that set.
QUESTION SET ONE
You are a newly hired HR specialist at Marino Wealth Management Inc., an investment management firm with about 200 employees. Nancy, a Marino vice president, stops by your office to chat and, in the course of the conversation, mentions that she wants to get rid of Bill, a 43-year-old investment manager, who’s been with Marino for about 15 years. Although he’s done good work in the past, some issues, which Nancy says are too complicated to explain, have cropped up, and she just wants him out. Although the Marino employee handbook mentions progressive discipline and performance plans, Nancy hasn’t raised any of the problems with Bill directly because she’s confident that it wouldn’t do any good. Instead, Nancy has set out to make Bill’s life so miserable that he will just quit. That way, Nancy says, Marino won’t have to fire him and can avoid legal claims. But, Nancy adds, if her current course of action doesn’t work soon, she’s going to discharge him. Nancy mentions that she had similar issues with a younger manager, Gretchen, but was able to resolve them after a heart-to-heart with her.
- In light of the course reading, analyze Nancy’s plan of action. Be sure to
- State whether Nancy’s plan raises any legal issues. If so, identify the issues, and discuss the law that relates to them.
- Identify all documents that you would want to review in light of Nancy’s comments and explain how they might impact your analysis.
- If any other information would be helpful to your analysis, identify that information and how it would impact your analysis.
QUESTION SET TWO
While you were talking to Nancy, you pulled up Bill’s personnel file and noticed that he was recently reinstated to work at Marino after a 6-month temporary tour of active duty with the National Guard.
- In light of the course reading, does this information raise any additional issues? If so,
- Identify the issues, and discuss the law that relates to them.
- Describe the advice that you would give to Nancy in light of the Question Set Two facts.
- If additional information would be helpful to your analysis, identify that information and how it would impact your analysis.
QUESTION SET THREE
Just as you and Nancy are wrapping up your meeting, her administrative assistant called to let Nancy know that Bill just submitted his resignation. While Nancy is thrilled to hear that, in light of your feedback, she’s now a little worried that he might try to sue Marino. After reviewing various options with you, Nancy decides that she’d like to offer him some kind of a severance package with a release and waiver of all claims.
- In light of the course reading, describe the specific terms that the release and waiver documents should include and identify by name the law that requires those terms.
QUESTION SET FOUR
After work that evening, as you log onto your online HRER 501 labor and employment class, you reflect on the advice that you gave Nancy earlier in the day. As you study Lesson 13, you realize that Nancy’s plan to get rid of Bill would have raised additional issues had the three of you been employed by a municipality instead of Marino Wealth Management Inc.
- In light of the course reading:
- Identify each of those additional issues, including, but not limited to, rights that Bill may have had if he had worked for a municipality instead of Marino, identify any obligations that the employer may have had in that context, and describe the laws that relate to those issues.
- Describe the advice that you would give to Nancy in light of those issues and laws.
- If additional information would be helpful to your analysis, identify that information and how it would impact your analysis.
