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Q&A: Emerging Issues in Employment Law Part 2*

Kathy:  Jeremy, I know a large part of your practice involves whistleblower law.  Do you have any thoughts or advice to pass along on this topic to our readers?

Jeremy:  The federal government takes the issue of fraud very seriously.  The federal False Claims Act (FCA) and its state law counterparts are one way the government curbs the theft of our tax dollars.  In short, the FCA is a bounty program where persons who blow the whistle on fraud get to keep a percentage of the money that the government ultimately recovers – usually between 10% and 25% of the funds obtained.

If a company receives money through government contracts or government programs like Medicare and Medicaid, then they have potential FCA exposure.  And because FCA complaints are filed under seal, the government investigates the claims in secret without the company’s knowledge.  Normally, the government will ask for records under the guise of a Medicare audit or a DOL investigation and a company may not know that they have potentially crippling FCA exposure.  Because of the potential for massive liability, companies need to work with counsel to quickly identify any potential fraud, eliminate it, and fully comply with the government’s investigation even if the investigation is seemingly innocuous.  Similarly, employees who discover fraud should immediately seek the advice of an attorney whose practice focuses on FCA prosecution.  The FCA has numerous provisions which can entirely eviscerate otherwise viable claims if they are not carefully complied with.

Kathy:  Similarly, I know your practice has focused on employee handbooks and company policies.  You must have some wisdom for employers on best practices in this area of employee relations and policy.

Jeremy:  The best advice I have for employers can be expressed in a single sentence – draft and implement clearly articulated policies and consistently follow them.  I have seen so many instances where employers either don’t have written policies at all or simply don’t follow the ones that they have.  This creates problems for employers involved in discrimination actions because state and federal courts in Virginia, Maryland, and the District have almost uniformly held that failure to follow established procedures creates a strong inference of pretext.  In short, courts can assume that if an employer doesn’t follow its own policies, that they are doing so for some wrongful reason.  On the other hand, when employers can point to a clear policy that was followed to the letter, courts put the burden on the employee to overcome the non-discriminatory reasons stated for taking adverse action.  For these reasons, employers must draft clear, concise, and consistently followed employment manuals.

Kathy:  Jeremy, I have seen a tremendous increase in complaints and concerns about workplace bullying.  What are your thoughts on this trend?  Any thoughts on mitigation or prevention?

Jeremy:  Bullying of any kind, whether in schools or the workplace, is an issue that Americans are becoming increasingly sensitive to.  People are simply no longer tolerating this type of behavior and employers should do the same.  Now, although state and federal law has not yet caught up with public opinion, it soon will.  As such, employers should be proactive by amending their policies to include no-tolerance bullying and harassment provisions.  Like I said earlier, employers who have clearly articulated policies that they consistently follow are far less likely to find themselves involved in lengthy and expensive litigation.  It makes my job easier and far less costly for my clients when I can point to a specific policy that an employee was aware of, violated, and was promptly terminated for violating.

Kathy:  And finally, Jeremy, can you fill us in on any updates on some of the key regulatory agencies.  What is the climate at the Deportment of Labor and some of the other employment related government agencies? Is there a lot of investment in compliance oversight? Will this have any impact on local employers?

Jeremy:  Employment-centric government agencies are understaffed and underfunded.  These agencies, like many private employers in today’s economic climate are forced to do more with less.  Complaints brought before the EEOC and the DOL are taking longer to be investigated and resolved than ever before.  Unfortunately, this means that local businesses can find themselves involved in a single administrative proceeding for many months or years.  Employers need to implement a wholesale approach – evaluate the allegations, investigate their merit, vigorously defend, provide all necessary assistance to the investigators, and use the situation as a way to prevent future compliance issues.

But, as I said earlier, employers have to remember that an administrative investigation could be a harbinger of things to come.  For example, a DOL investigation for unpaid wages on a federal construction contract could be a front for all FCA action.  And, of course, EEOC charges ultimately lead, if not resolved to court.  Indeed, court is vastly more expensive and risky for employers than an administrative proceeding, which can typically be settled for pennies on the dollar for what the first few months of heavy litigation will cost.

Kathy:  Thank you so much, Jeremy, for all the great information and mid-year employment law update!

*This interview was conducted by Kathy Long and originally published in the Fall, 2013 edition of the Belmont News, the Belmont County Club Community Association Magazine.

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