OPINIONS

AGE DISCRIMINATION

Court of Appeals Reverses Finds District Court Erred in Granting Summary Judgment Against TELG Client

On October 22, 2009, the 4th Circuit Court of Appeals reversed the district court’s granting of a motion summary judgment. The Court found that the facts alleged in Inman v. Klockner-Pentaplast are sufficient to get to a jury and show that he was discriminated against on account of his age. Mr. Inman, a former vice president of Klockner-Pentaplast North America, was fired while the company was attempting to create a younger image. Oral arguments were presented and the AARP filed an amicus curiae brief in support of Mr. Inman.

EQUAL PAY ACT DISCRIMINATION

The Employment Law Group® Law Firm Secures $466,000 Plus Verdict in Equal Pay Act Case

On December 22, 2008, The Employment Law Group® law firm obtained a verdict of $466,816 for a former female director of the National Transportation Safety Board ("NTSB") who alleged that the NTSB discriminated against her by paying her less than similarly-situated male directors at the NTSB. In her complaint, the former director also alleged that the NTSB ignored her complaints when she questioned the pay differential. Finding that the former director established a violation of the Equal Pay Act and that the NTSB failed to prove that the wage disparity between the former female director and her male counterparts was not gender-based, the Court of Federal Claims awarded the former female director lost back pay, lost retirement benefits and attorneys' fees. The case name is Cooke v. United States.

The Employment Law Group® Law Firm Helps to Define How a Federal Employee May Prosecute Simultaneously an Equal Pay Act and Equal Pay Act Whisbleblower Claim

In Murtagh-Cooke v. United States, the United States Court of Federal Claims established that a Federal Employee may simultaneously pursue Equal Pay Act and Equal Pay Act retaliation claims (albeit requiring that the Federal Employee to pursue her claims in two differently for a) as the two claims do not arise out of the same set of operative facts. Thus, a Federal Employee may pursue her Equal Pay Act claims before the United States Court of Federal Claims and her Equal Pay Act Retaliation claims before the Unites States District Court for the District of Columbia. Ms. Cooke was represented by The Employment Law Group® law firm.

EMPLOYEE CONTRACT DISPUTE

Court of Appeals Finds Mandatory Arbitration Agreement as a Condition of Employment Unenforceable

In Shaffer v. ACS Gov’t Servc., Inc., Richard Shaffer filed suit against his employer, ACS Government Services, Inc. (“ACS”), alleging violations of the Jury System Improvement Act. ACS moved to compel arbitration, claiming that Mr. Shaffer’s continued employment constituted acceptance of its mandatory Arbitration Policy. The US District Court for the District of Maryland denied ACS’ motion to compel arbitration, concluding that continued employment does not, by itself, constitute consideration for an arbitration agreement.

Mr. Shaffer was represented by the attorneys of The Employment Law Group® law firm.

ERISA

District Courts Intervene to Protect Employees Non-Salary Income and Benefits during Litigation

The Employment Law Group® law firm has successfully obtained court intervention during litigation on behalf of its clients.  For example, in Inman v. Klockner-Pentaplast of America, Inc., the attorneys at The Employment Law Group® law firm obtained an injunction from the United States District Court for the Western District of Virginia to prevent the defendant from divesting an ex-employee's stock during litigation. In Risteen v. Youth for Understanding, Inc., the United States District Court for the District of Columbia granted a mandatory preliminary injunction requiring Mr. Risteen's successor employer to pay for his continued health insurance coverage under the Employment Retirement Income Security Act (ERISA).

FALSE CLAIMS ACT RETALIATION

Relators Do Not Have to Prove an Actual Violation of the FCA to Engage in Protected Conduct

The Employment Law Group® law firm established favorable precedent under the False Claims Act (“FCA”) in Mann v. Heckler & Koch Def., Inc., where a federal judge held that an FCA retaliation plaintiff need not allege an actual violation of the FCA to engage in protected conduct under the Act. In Mann, Mr. Mann alleged that his former employer, Heckler & Koch Defense, Inc. (“HKD”) retaliated against him for raising concerns about HKD’s alleged submission of a fraudulent bid for the sale of rifles to the U.S. Secret Service. HKD moved to dismiss, arguing that Mann failed to state a claim under the retaliation provision of the FCA because he failed to allege an actual violation of the FCA, i.e., that HKD submitted a false claim to the government. The court rejected HKD’s argument, reiterating the principle that proving an actual violation of the FCA is not an element of a FCA retaliation claim. The court also noted that protected conduct under the FCA should be interpreted broadly and that FCA retaliation claims are subject to Rule 8(a)’s notice pleading standard rather than the heightened requirements of Rule 9.

The Employment Law Group® Law Firm Reaffirms Principle that Heightened Pleading Standard Does Not Apply to False Claims Act Whistleblowers

On February 27, 2008, The Employment Law Group® law firm achieved a victory for a whistleblower who suffered retaliation after he raised concerns to senior management and the Department of Defense about his former employer's submissions of allegedly malfunctioning military equipment to the federal government. In Glynn v. EDO et al., United States District Judge J. Fredrick Motz denied the defendant's motion to dismiss Glynn's retaliation claims, concluding that the heightened pleading standard that is required in qui tam claims does not apply to retaliation claims under the False Claims Act and therefore, Glynn's disclosure to senior management was protected under the False Claims Act.

FEDERAL EMPLOYEE REPRESENTATION

The Employment Law Group® Law Firm Establishes Precedent on Post Allowances for Federal Employees Stationed Overseas

On April 15, 2008, the U.S. Court of Federal Claims decided for the first time under what circumstances a federal employee may use the federal courts to seek to recover pay wrongfully withheld from her in a case litigated by The Employment Law Group® law firm. In Adde v. U.S., the court held that Melissa Adde, a federal employee of the National Institutes of Health (NIH), had a valid claim for post allowance payment under the Department of State Standardized Regulation (DOSSR) after she was transferred from the United States to Belgium, where the cost of living was substantially higher than in Washington D.C. The court held as a general rule that federal employees stationed overseas are entitled to post allowances as long as the cost of living in the foreign area is significantly higher than in Washington, D.C.

IMMIGRATION

Courts Find Exclusive District Court Jurisdiction over US Naturalization Cases

The attorneys at The Employment Law Group® law firm established important law for foreign nationals seeking United States citizenship in Etape v. Chertoff and in Castracani v. Chertoff.

In Etape, Max Etape petitioned for a hearing in the district court after the US Bureau of Citizenship and Immigration Services ("CIS") delayed its decision on his U.S. naturalization application for over 20 months. The United States Court of Appeals for the Fourth Circuit held that, contrary to the CIS's contention, a Federal District Court has exclusive jurisdiction over a foreign national's U.S. citizenship application when CIS delays its decision on the foreign national's US citizenship application for more than 120 days after examination.

In Castracani, the United States District Court for the District of Columbia held that CIS could not escape federal court review by unreasonably delaying action on a US naturalization applicant's background investigation for more than 120 days after examination.

Court of Appeals Strikes Down Regulation Barring "Arriving Aliens" from Eligibility Resident Alien Status in the US

In Scheerer v. U.S. Atty. Gen, the attorneys of The Employment Law Group® law firm established a new standard for foreign nationals seeking legal residency in the United States. In Scheerer, the US Court of Appeals for the Eleventh Circuit rejected a regulation prohibiting foreign nationals from obtaining U.S. resident alien status, concluding that it violated the Immigration and Nationality Act (INA) and contradicted a provision of the Immigration Reform and Responsibility Act that expressly grants parolees eligibility to apply for U.S. residency. Finding the regulatory bar invalid, the court remanded Mr. Scheerer's case to the Board of Immigration Appeals.

NONPAYMENT OF WAGES

Federal Court Orders Employer To Provide Former Employee Contact Information for "Exempt" Employees under the FLSA

In Sharer v. Tandberg, a federal court in Virginia ordered Tandberg to provide former employees with the name, address and telephone number of each employee who Tandberg classified as "exempt" under the Fair Labor Standards Act (FLSA). In Sharer, attorneys at The Employment Law Group® law firm argued that Tandberg refused to pay overtime wages to its employees in violation of the FLSA. Accordingly, The Employment Law Group® law firm filed a collective action against Tandberg on behalf of the employees who were affected by Tandberg's unfair compensation practices. Finding that The Employment Law Group® law firm met its burden of showing that a collective action was warranted, the court granted the firm's request.

SARBANES-OXLEY

Fourth Circuit Holds SOX Whistleblowers Entitled to De Novo Review in Federal Court

On December 31, 2009, in a case of first impression, the Fourth Circuit held in Stone v. Instrumentation Laboratory Company that a Sarbanes-Oxley (SOX) complainant may seek de novo review in federal court after the complaint has been pending before DOL for over 180 days without a final decision by the Secretary of Labor.

Department of Labor Issues Landmark Decision in Favor of
Sarbanes-Oxley Whistleblowers

For what appears to be the first time, the Department of Labor's
Administrative Review Board affirms an Administrative Law Judge's
decision awarding damages to a Sarbanes-Oxley whistleblower in Kalkunte v. DVI. Financial Services, Inc. The whistleblower in this case was represented by The Employment Law Group® law firm.

The Employment Law Group® Law Firm Establishes Precedent on Duty Speech Doctrine and Other Procedural Issues Under SOX

The Employment Law Group® law firm established precedent in Leznik v. Nektar Therapeutics, Inc., on several significant substantive and procedural issues under SOX, including the following: (1) whistleblower relief is available for employees whose normal duties include reporting illegal conduct; (2) protected conduct is not limited to disclosures of shareholder fraud and instead includes disclosures about reasonably perceived violations of SEC rules; (3) individual liability does not require a showing of malice; and (4) formal rules of evidence do not apply to SOX claims.

The Employment Law Group® Law Firm Prevails at Trial and Establishes that privately-held subcontractors of publicly-traded companies are subject to SOX Whistleblower Protections

The Employment Law Group® law firm established important law for SOX whistleblowers in Kalkunte v. DVI Financial Services, Inc., a case in which the Department of Labor held that privately-held companies acting as subcontractors, contractors or agents of a publicly-traded company may be held liable under the Sarbanes-Oxley Act.

At trial, the attorneys at The Employment Law Group® law firm argued that Sheila Kalkunte, a former Associate General Counsel of DVI Financial Services, Inc. ("DVI"), was retaliated against after she made disclosures to audit committee members and outside counsel about senior management's alleged misrepresentation of statistical data in violation of federal securities laws. The Employment Law Group® law firm's attorneys also argued that DVI, a publicly-traded entity and AP Services, LLC ("AP"), a privately-held company were both liable for retaliation under Section 806 of SOX. In its defense, AP argued that privately-held companies are not required to adhere to SOX.

The Administrative Law Judge rejected AP's narrow interpretation of the whistleblower provisions of SOX, holding that the Act's clear and unambiguous text requires publicly-traded companies and companies without registered securities to adhere to SOX provisions.

SEXUAL HARASSMENT / GENDER DISCRIMINATION

The Employment Law Group® Law Firm Sets Standard for Establishing Quid Pro Quo and Hostile Environment Sexual Harassment

In Rachel-Smith v. FTData, Inc., the attorneys at The Employment Law Group® law firm successfully established the standard in Maryland for establishing the elements of quid pro quo sexual harassment. Victoria Rachel-Smith, a female salesperson for FTData, Inc., alleged that she was discriminated against in violation of Title VII because she did not consent to her supervisor's sexual advances.

In rejecting the defendant's motion for summary judgment, the district court determined that Rachel-Smith established a prima facie case for quid pro quo sexual harassment because she demonstrated that she was subjected to unwelcome, pervasive sexual advances.

WHISTLEBLOWER PROTECTION ACT

Federal Circuit Defines What Constitutes a Protected Disclosure under the WPA

On October 7, 2008, in Drake v. Agency for International Development, the United States Court of Appeals for the Federal Circuit clarified which disclosures are protected under the Whistleblower Protection Act (WPA). A Merit Systems Protect Board (MSPB) judge held that Drake, a Foreign Service investigator represented by The Employment Law Group® law firm, was retaliated against after he disclosed what he believed where workplace intoxication violations to his superiors. The MSPB Judge dismissed Drake's whistleblower complaint, however, ruling that Drake's disclosure did not afford him WPA protection because it was too "trivial". The Federal Circuit, in setting the prospective standard for what constitutes a "protected disclosure" under the WPA, held that a Federal Employee whistleblower is protected under the WPA so long as she "reasonably believes" she is disclosing a law, regulation, or rule violation, even if it later turns out that she was mistaken. The Federal Circuit entered judgment for Drake.

WRONGFUL DISCHARGE

Federal Courts in Virginia Clarify Standard for Wrongful Termination In Violation of Virginia Public Policy

Two judges from the United States District Court for the Eastern District of Virginia have clarified the circumstances under which a Virginia employee may recover from her employer after her employment has been wrongfully terminated in two cases litigated by The Employment Law Group® law firm: Miller v. Washington Workplace, Inc. and McFarland v. Virginia Retirement Services of Chesterfield, LLC.

In Miller, the attorneys at The Employment Law Group® law firm argued that Margaret Miller's employer wrongfully discharged her in violation of the public policies expressed in the Virginia Wage and Payment laws and the Virginia computer harassment statute.

In McFarland, The Employment Law Group® law firm brought a claim for wrongful termination against Penny McFarland's former employer who terminated the former Activities Director and Office Manager because she participated in a state investigation about her employer's safety compliance.

Finding that the plaintiffs in both cases properly asserted claims under the law prohibiting wrongful termination in Virginia, the court concluded that both plaintiffs could prosecute their respective wrongful termination claims.