There is a virtual smorgasbord of federal whistleblower provisions in existence. Whistleblower provisions are a part of many employment laws and regulations, such as the False Claims Act, Health Care Worker Retaliation, Retaliation for Opposing Discrimination or Harassment under the Wisconsin Fair Employment Act (WFEA) and Title VII, Opposing Disability Discrimination or Harassment under the Americans with Disabilities Act (ADA), the Fair Labor Standards Act (FLSA), Equal Pay Act (EPA), Lilly Ledbetter Fair Pay Act, Occupational Safety and Health Act (OSHAct).
The Sarbanes-Oxley Act of 2002 (SOX)
If an employee believes any rule or regulation of the Securities and Exchange Commission, or provision of Federal law related to fraud against shareholders is being violated, that employee cannot be subjected to retaliation, if he or she works for a publicly traded company, because the employee:
- provided information
- caused information to be provided
- assisted in an investigation
when the information or assistance is provided to a Federal regulatory or law enforcement agency, any Member of Congress or committee of Congress, or the investigation is conducted by a person with supervisory authority over the employee (or such other person working for the employer who has the authority to investigate, discover, or terminate misconduct).
- The employee filed, or cause to be filed, testified, participated in, or otherwise assisted in a proceeding filed or about to be filed, with any knowledge of the employer, relating to an alleged violation of section 1341, 1343, 1344, or 1348, any rule or regulation of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders.
An individual has 90 days from the date of the violation to initiate a claim under the Sarbanes Oxley Act (SOX).
To initiate a claim under SOX, an individual must first file a complaint with the Department of Labor. If the complaint stays within the Department of Labor, a hearing is held in front of an Administrative Law Judge of the Department of Labor.
If the Department of Labor does not issue a final decision within 180 days of filing the complaint, the individual may file a federal compliant with the appropriate district court. In Wisconsin, this would be either the Eastern District or Western District.
A prevailing Sarbanes Oxley Act complainant is entitled to make-whole relief, including reinstatement, back pay (lost wages) with interest, litigation costs, expert witness fees, and reasonable attorneys’ fees.
The Racketeering Influenced and Corrupt Organizations Act (RICO)
The Racketeering Influenced and Corrupt Organizations Act (RICO) was originally enacted as a tool to prosecute members of the mafia and others engaging in organized crime. Over time, its use has become increasingly widespread and recently, reached the realm of employment law.
The substantive liability provisions Racketeering Influenced and Corrupt Organizations Act (RICO) are found in 18 U.S.C. sections1962(a)-(d). Sections (a), making it unlawful for an individual to use an enterprise to launder money generated by a pattern of racketeering activity, and (b), making it unlawful for an individual to acquire or maintain an interest in an enterprise through a pattern of racketeering activity, are generally not helpful in the employment law context; however, sections (c) and (d) potentially are.
(c) makes it unlawful for an individual to manipulate an enterprise for purposes of engaging in, concealing, or benefiting from a pattern of racketeering activity.
(d) is a conspiracy provision making it unlawful for an individual to conspire to violate (a), (b), or (c).
Attorney James Walcheske drafted the federal Civil RICO complaint that was scrutinized and upheld by the United States Court of Appeals, Seventh Circuit in DeGuelle v. Camilli, 664 F.3d 192 (7th Cir. 2011), a decision that has been characterized by others in the legal community as a “landmark ruling” for being the first case to apply 18 U.S.C. § 1513(e), which provides for an employee’s private civil cause of action for obstruction of justice.
Although the Racketeering Influenced and Corrupt Organizations Act (RICO) is a criminal statute, an individual has standing to bring a civil RICO claim if he or she is “injured in his business or property by reason of a violation of section 1962.” The injury suffered must be the direct result of a pattern of racketeering activity. This provision creates the “civil” cause of action and, thus, “Civil RICO.”
Retaliation in the employment context can be attached to a pattern of racketeering activity through a statutorily-connected provision, which states, “Whoever knowingly, with the intent to retaliate, takes any action harmful to any person, including interference with the lawful employment or livelihood of any person, for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense.”
The Elements of a Civil RICO Claim
To prove a Civil RICO claim (essentially a common retaliation claim in a specialized area of the law), an employee must prove that he or she:
- Provided law enforcement truthful information related or possibly related to a federal offense
- Experienced interference in his or her employment or livelihood because he or she provided this information
- Was subjected to retaliation that shows a pattern of and connection to racketeering activity.
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