Whistleblowing


Brous Horn Non-Confidential Whistleblower Settlements


$40.1 Million Whistleblower Settlement – 2014

$9.8 Million Whistleblower Settlement – 2007


Companies who do business with the government (or who do business with other companies who do business with the government) must abide by federal and state laws and contract terms. An insider is an employee or other person who has evidence of a violation that is not widely known to others outside of the company. An insider may “blow the whistle” by bringing a lawsuit that is filed confidentially. These cases are known as False Claims Act or “qui tam” actions.

Whistleblowers have been crucial in recovering billions of dollars of fraud for our government. Under the False Claims Act, the whistleblower is entitled to a percentage of the recovery. In addition, the whistleblower may be entitled to double the amount of his or her lost wages and other damages under the False Claims Act.

Many whistleblowing claims are brought by insiders who work in the healthcare industry. For example, a pharmaceutical company must abide by FDA regulations concerning drug approval, off-label marketing, manufacturing and clinical practices. Often times pharmaceutical sales representatives, regulatory employees and outside contractors who acquire insider information are whistleblowers in cases against pharmaceutical companies. Likewise, someone who works in a hospital, nursing home or hospice provider can be a whistleblower if they know that that their employer is billing Medicare and/or Medicaid for services not performed or not needed or if their employer is up-coding services for billing. Those with insider information can also be a whistleblower if they have evidence that a healthcare entity is paying (or has offered to pay) kickbacks to doctors or other healthcare providers in exchange for favors such as writing prescriptions or referring business.

In addition to fraud in the healthcare industry, you can be a whistleblower if you have insider information about tax fraud, securities fraud, commodities fraud, investment fraud, insider trading and accounting fraud.

Other whistleblowing cases may arise when an employee complains about an employer violating a law that involves public policy. For instance, if an employer is dumping waste in a way that violates EPA regulations, the employee may blow the whistle internally by complaining to the company’s Legal Department, Regulatory Department or Human Resources Department. The employee may also blow the whistle by complaining to an outside agency like the EPA, FBI or State Attorney General. If an employer retaliates against the employee for blowing the whistle, the employee may have a whistleblowing claim.

Overtime

Federal and state laws require most employers to pay overtime. An employee who works overtime must be paid “time and half” for every hour of overtime worked. For example, an employee who earns $20 an hour would be entitled to $30 an hour for overtime.

Many employers try to avoid paying overtime to employees who are entitled to overtime by calling them “exempt” and paying them salaries and/or commissions rather than strictly by the hour. If a “non-exempt” employee has been mischaracterized by her employer as “exempt,” she may be entitled to recover damages from her employer for the unpaid compensation she has earned regardless of whether she was hourly or salaried, with or without commission.

If an employee is entitled to overtime, her employer must pay her for any overtime hours the employer “suffered or permitted” her to work. This includes not only overtime the employee was required or requested to work but also overtime the employee worked that the employer knew or should have known about. For example, an employee who is required to “clock out” before cleaning the store at night is entitled to pay for cleaning time. Similarly, an employee who regularly receives work-related e-mail and phone calls in the evening and on weekends is entitled to compensation for that time. Many employers issue policies stating that overtime work is prohibited without permission and that unauthorized overtime will not be paid. However, an employer may have to pay for unauthorized overtime if the employer knew or should have known about the work and still permitted it.

The overtime requirement of the federal Fair Labor Standards Act (“FLSA)” cannot be waived by either the employer or an employee. Even if an employee and her employer entered into an agreement that she would be paid a certain way – for example, salaried exempt – but her pay structure and job responsibilities actually do not fit within any of the exemptions in the overtime laws, she may be entitled to recover overtime pay for overtime hours worked.

In addition, an employer is obligated by the FLSA to maintain records of the time its employees spend performing compensable work activities. If an employee brings an overtime claim against her employer but the employer has failed to maintain the required records, the employee is entitled to recover overtime pay based on a good faith estimate of the time she worked for that employer over the past two to three years.

Discrimination and Harassment


Brous Horn Non-Confidential Sexual Harassment Verdicts and Settlements


$395,121.84 Jury Verdict and Judgment for Attorneys’ Fees – 2009

$1.1 Million Settlement – 2007


Confidential Employment Discrimination and Harassment Settlements

Brous Horn Has Collected Over $12 Million on Behalf of Clients in Confidential Settlements for Individuals in Employment Discrimination and Harassment Cases

Employers are prohibited by both state and federal laws from discriminating against or harassing employees on the basis of sex, race, national origin, religion, age or disability. If an employee has been subjected to this behavior at work by anyone – a co-worker, supervisor, manager or even a third party like a cleaning service worker –she may be entitled to recover damages for lost wages (past and future), lost benefits (health insurance, 401K matching, etc.), emotional suffering, punitive damages to punish the employer and discourage other employers from engaging in similar behavior and attorneys’ fees.

Retaliation

Employers are prohibited from retaliating against employees for attempting to protect their rights under any of the discrimination and harassment laws or for blowing the whistle on the employer for illegal activities.

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We have over 40 years of combined experience representing both employees and employers in litigation involving discrimination, sexual harassment, retaliation and whistleblower claims.

Now we devote our practice to vindicating the rights of whistleblowers and employees.

*Consultations and meetings are by appointment only

© Brous Horn LLC 2014