CLE Presentation: Narcisa Symank and Jennifer Arendes, Litigation Partner at Armstrong Teasdale A poorly performing employee realizes he’s going to be fired so he attempts to become a whistleblower by complaining that his boss or co-workers have been violating laws while carrying out company business. Learn how to protect yourself in an increasingly uncertain legal environment. The choice of a lawyer is an important decision and should not be based solely on this presentation. All rights are reserved and content may not be reproduced, disseminated or transferred, in any form or by means, except with the prior written consent of Armstrong Teasdale.

1. © 2013 Armstrong Teasdale LLP

2. Retaliation and
Whistleblower Claims
Presented by:
Narcisa Symank
Jennifer Arendes
© 2013 Armstrong Teasdale LLP

3. Claims on the Rise
OSHA:
19% increase in whistleblower claims between 2008 and 2011
EEOC:
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4. High Cost
 Median jury awards for retaliation:
highest of all employment claims -- $225,000
• 
Median settlements for retaliation:

• tied with discrimination claims as highest employment
settlements
 Recent example of high award:
• $413,000.00 (plus attorneys’ fees) award in Marez v.
Saint-Gobain Containers, et al. (No. 11-2354, 8th Cir. 2012)
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5. Government Incentives
Government incentives to employees for reporting potential
wrongdoing:
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6. What is a Retaliation Claim?
 Protected Activity
 Materially Adverse Employment Action
 A Causal Relationship
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7. What is Protected Activity?
 Not all workplace complaints are protected activity
 To constitute protected activity, an employee’s complaint
must be protected by the U.S. Constitution, federal or state
statute or state common law
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8. Protected Activity – cont’d.
 The “basics:”
• Complaint of discrimination or harassment
• Request for an accommodation
• Request for leave under the FMLA
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9. Protected Activity – cont’d.
 FLSA
• Complaint of misclassification of employees as exempt from
overtime
• Complaint of misclassification of employees as independent
contractors
• Complaint of failure to pay wages including overtime
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10. Protected Activity – cont’d.
 OSHA
• Exercise of any right afforded by OSHA :
− Complaining to the union, OSHA, or any government agency
about workplace safety or health hazards
− Participating in OSHA inspection conferences, hearings, or
other OSHA related activities
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11. Protected Activity – cont’d.
 The Sarbanes-Oxley Act
• Complaints of violations of the federal mail, wire, bank, or
securities fraud statutes
• Complaints of any violations of any rule or regulation of the
SEC
• Complaints of violations of any other provision of federal law
relating to fraud against shareholders
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12. Protected Activity – cont’d.
 The NLRA
• Forming or attempting to form a union
• Refraining from activity on behalf of a union
• Attending meetings to discuss joining a union
• Wearing union buttons, T-shirts, stickers, hats or other items
on the job
• Signing a petition for improved wages, hours, or conditions
• Asking other employees to support the union, to sign union
cards or petitions, or to file grievances
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13. Protected Activity – cont’d.
 The Consumer Product Safety Improvement Act
• Reporting alleged violations of any law or regulation within
the jurisdiction of the Consumer Product Safety Commission
• Refusing to perform assigned tasks that the employee
reasonably believes would violate CPSC requirements
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14. Protected Activity – cont’d.
 Reports of violations of environmental laws or regulations:
• Clean Air Act
• Safe Drinking Water Act
• Federal Water Pollution Control Act
• Toxic Substances Control Act
• Solid Waste Disposal Act
• Comprehensive Environmental Response, Compensation, and
Liability Act
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15. Protected Activity – cont’d.
 Missouri Common Law:
• An employee has a cause of action when he or she has been
discharged for:
− Refusing to perform an illegal act or an act contrary to a
strong mandate of public policy
− Reporting the employer or fellow employees to superiors or
third parties for their violations of law or public policy
− Acting in a manner public policy would encourage
− Filing a claim for workers’ compensation
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16. Whistleblower Claims
Under Missouri Law
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17. Elements of a Whistleblower Claim Under
Missouri Law
 To prevail on a claim of wrongful discharge for
whistleblowing, an employee must establish that:
• The employee reported a violation of law or well established
public policy to a superior or to public authorities;
• The employee was discharged or forced to resign;
• The report was a “contributing factor” to the employer’s
decision to discharge the employee; and
• The employee sustained damages
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18. Who Does the Employee Have to Blow the
Whistle to?
 Employee need not report the wrongdoing to the authorities
or someone outside the company
 But employee cannot report the violation to the person
engaged in the wrongdoing
 Drummond v. Land Learning Foundation,
358 S.W.3d 167 (Mo. App. 2011)
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19. What Type of Misconduct must Employee
Report?
 Employee must show that he reported “serious misconduct”
that constitutes a violation of law or well established public
policy
 The violation need not result in criminal sanctions, civil fines,
injunctions or disciplinary action against a professional
license
 A whistleblower retaliation claim must be based on a specific
constitutional provision, statute, regulation or rule
promulgated by a governmental body
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20. When Does the Report Constitute Protected
“Whistleblowing”?
 Margiotta v. Christian Hospital Northwest, 315 S.W.3d 342
(Mo. banc 2010)
 Frevert v. Ford Motor Co., 614 F.3d 466 (8th Cir. 2010)
 Richter v. Advance Auto Parts, Inc., 686 F.3d 847 (8th Cir.
2012)
 Ascare v. Mastercard International Inc., 2012 WL 3548028
(E.D.Mo. Aug. 16, 2012)
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21. Must Employee Demonstrate That Law or Public
Policy Was Violated?
 Bazzi v. Tyco Healthcare Group LP, 652 F.3d 943 (8th Cir. 2011)
• Terminated employee provided no evidence that the employer failed to
properly validate drug as required under the Food and Drug Act
 Zasaretti-Becton v. The Habitat Co. of Missouri, 2012 WL 2396868
(E.D.Mo. June 25, 2012)
• Terminated property manager’s personal belief that wrongdoing by
supervisor violated HUD regulations regarding low income housing was
not sufficient.
 McNerney v. Lockheed Martin Operations Support, Inc., 2012 WL 2131826
(W.D.Mo. June 12, 2012)
• Employee did not show objectively reasonable belief that employer’s
billing policies constituted violation of law or well established public
policy.
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22. Causation Requirement
 Employee need only show that the whistleblower conduct was
a “contributing” factor in the employer’s decision to
discharge him
Fleshner v. Pepose Vision Institute, PC, 304 S.W.3d 81
(Mo. banc 2010)
• Rejected “exclusive factor” test used in prior cases
and workers’ compensation retaliation cases
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23. Avoiding Whistleblower Retaliation Claims
 Develop and publish policies which specifically prohibit
retaliation for reporting violations of laws, regulations and
company policies
 Train managers, Human Resources and other employees
 Promptly investigate claims and remind participants in
investigations of anti-retaliation policy
 Take prompt remedial action
 Document as needed
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24. Implement Understandable and Well
Publicized Policies
 Make it known that “reporting” is a good thing
 Develop procedure for reporting violations of company
policies, laws and regulations
 Require reporting within 1-2 business days
 Prohibit retaliation for reporting misconduct
 Designate high-level person to oversee handling of such
reports
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25. Develop Effective Training/Communication Plan
 Train managers and Human Resources professionals to
recognize “protected activity”
 Train employees and managers to promptly report wrongdoing
to Legal/Human Resources/Compliance
 Train managers how to respond/or not respond
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26. Develop Procedures to Investigate/Respond
to Complaints
 Develop procedure to investigate complaints
 Decide who will take charge of handling such reports
 Establish guidelines for enforcement and corrective action
 Reiterate anti-retaliation policy during investigation
 Follow up with employee after the investigation
 Document
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27. Contact Information
Narcisa Symank
nsymank@armstrongteasdale.com
314.342.4176
Jennifer Arendes
jarendes@armstrongteasdale.com
314.552.6607
© 2013 Armstrong Teasdale LLP