FALSE CLAIMS ACT QUI TAM WHISTLEBLOWERS
This section points out very well that whistleblowers, even though legally protected, do not have
an easy decision to make and often do not have easy outcomes.
CHAPTER PROBLEMS
1. BP Atlantis – Kenneth Abbott
The situation: Kenneth Abbott was a contractor with BP who alleged violations of safety laws
and policies. His contract was terminated.
The analysis: Abbott was a contractor. For the purposes of this discussion, we must assume that
the contractor has the same rights under the law as an employee. This is a good opportunity for
those with the background knowledge to discuss with students about the differences between
independent contractors and employees.
To begin, students should remember and acknowledge that employment-at-will is the default
position. To be able to sue, Abbott must rely on an exception to that default. In this case, we are
looking at exceptions under state laws and under the Garcetti case.
The Maryland state statute (as it existed in 1998) is found on page 48 in the Milton case. Under
that statute, employees are protected if the employee has refused to violate the law or if the
employee has exercised a legal right or duty. In the Abbott case, there is no indication that there
is a compulsion to report and so under Maryland’s law, Abbott loses.
The New Jersey state law (as it existed in 1980) is found on page 54-55 in the Pierce case.
Under that law, there is a narrow exception to the employment-at-will status based on
membership in a profession guided by a code of professional conduct or ethics. It is not clear
that Abbott is part of such a profession and so under New Jersey law, Abbott loses.
The text of the Montana law is found on page 58. Under that law, reporting a violation of
violation of public policy is a protected act. Public policy is defined as concerning the public
health, safety or welfare established by constitutional provision, statute or administrative rule.
Abbott was alleging a violation of law that would fall under this policy. Under the Montana
statute, Abbott wins.
In the second part of the question, we assume that the whistleblower works for the Mineral
Management Service, a branch of government. Under Garcetti, we ask 1) is the employee
speaking as a citizen on a matter of public concern; 2) if yes, did the government entity have an
adequate justification for treating the employee differently from any other member of the public
and 3) are the restrictions limited to those necessary to maintain efficient and effective
operations.
Determining whether the employee spoke as a citizen on a matter of public concern. It
appears that with regard to health and safety issues, this is a matter of great public
concern. However, the whistleblower would be doing his/her job by reporting matters to
the superior officer and so would not be speaking as a citizen.
Free Speech Claim: Fails
2. Public Policy Exceptions: Gardner v. Loomis Armored Inc.
The employer would rely upon the concept of employment-at-will saying that there was no
prohibition against firing Gardner particularly since he violated well-established company policy.
Gardner would say that his activities should fall under a public policy exception to the
employment-at-will doctrine.
The Supreme Court of Washington found a clear mandate of public policy had been violated by
this firing and ruled in favor of the employee as follows:
Society places the highest priority on the protection of human life. This
fundamental public policy is clearly evidenced by countless statutes and judicial
decisions.
The value placed on human life is demonstrated by the fact that courts have even
suspended certain fundamental constitutional rights when a citizen’s life is in
imminent danger. For example, the 4th Amendment’s protection against
warrantless searches is waived under limited exigent circumstances, including
situations where the search is necessary “to prevent physical harm to the officers
or other persons.”…[T]he public policy favoring the protection of human life also
serves as a defense against most criminal charges….Homicide is justifiable if
committed in the lawful defense of oneself or others. Furthermore, in a
prosecution for any crime other than homicide, it is a complete defense that “[t]he
actor participated in the crime under compulsion by another who by threat or use
of force created an apprehension in the mind of the actor that in case of refusal he
or another would be liable to immediate death or immediate grievous bodily
injury.” (emphasis in original). These statutes show society would rather have one
commit a crime under duress than refuse compliance and risk the life of whoever
is threatened….
Gardner’s responding to the hostage situation directly served both the Good
Samaritan policy and the policy of saving lives. He was under no obligation to
get involved, yet he acted as a Good Samaritan by voluntarily risking his own life
and aiding a helpless victim of crime. By leaving the truck, following the suspect
into the bank and disarming the suspect of his knife, Gardner unquestionably
rescued the hostage from imminent life threatening harm. Furthermore, the facts
of the situation tend to show Gardner reasonably believed the woman’s life was in
immediate danger, and he was the only source of help….Gardner’s being fired for
those actions will discourage similar future conduct in other employees….
Defendant argues that…Gardner was not discharged for getting involved with the
hostage situation; rather, the termination was solely because Gardner violated a
fundamental work rule forbidding drivers from leaving their trucks. In support of
this distinction, Defendant points out Gardner’s partner was not disciplined in any
way for his involvement in the situation because his presence in the bank was
consistent with his duties.
Defendant’s argument lacks merit. Gardner broke the work rule expressly in order
to save a person being chased by a man with a knife…Gardner’s leaving the truck
cannot be analyzed in isolation: his initial act of getting out of the truck is
inextricably intertwined with his motive for leaving it and his subsequent actions.
The flaw in Defendant’s argument can be demonstrated by the following example.
If the truck were on fire, Gardner would have to leave the truck to save his life. If
Defendant fired Gardner for leaving the burning truck, public policy would
clearly be violated…
Loomis has exhaustively defended its work rule as an overriding justification. The
rule is allegedly necessary to protect the safety and lives of Loomis employees.
The drivers are safe inside the compartments and they can use the available
two-way radio, public address system, and sirens to summon help. A driver’s
exiting the truck severs the partner’s lifeline to safety and renders both employees
more vulnerable to harm….Defendant cited a 1991 incident where an armored car
driver got out of the truck in response to his partner being robbed. Upon exiting
the truck, the driver was shot six times and killed.
A more specific reason for strictly enforcing the work rule involves the risk of
robbers using a ploy to get the driver out of the truck. Such resourcefulness
amongst thieves is not uncommon when large amounts of money are involved…
A third reason behind Loomis’ work rule may involve insurance policies. Some
insurance companies will not cover a loss if the truck was robbed while left
unattended…. This court must balance the public policies raised by Plaintiff
against Loomis’ legitimate interest in maintaining a safe workplace and determine
whether those public policies outweigh Loomis’ concerns….
The narrow public policy encouraging citizens to rescue persons from life
threatening situations clearly evinces a fundamental societal interest….The value
attached to such acts of heroism is plainly demonstrated by the fact that society
has waived most criminal and tort penalties stemming from conduct necessarily
committed in the course of saving a life. If our society has placed the rescue of a
life above constitutional rights and above the criminal code, then such conduct
clearly rises above a company’s work rule. [citations omitted].
3. Reporting BGH: New World Communications of Tampa, Inc. v. Akre
The Maryland state statute (as it existed in 1998) is found on page 48 in the Milton case. Under
that statute, employees are protected if the employee has refused to violate the law or if the
employee has exercised a legal right or duty. In the Akre case, under the Maryland law, the
Akres lose. They were neither exercising a legal right no refusing to violate the law. The paper
had ultimate content control and because the Akres did not rewrite their article sufficiently, they
were terminated.
The New Jersey state law (as it existed in 1980) is found on page 54-55 in the Pierce case.
Under that law, there is a narrow exception to the employment-at-will status based on
membership in a profession guided by a code of professional conduct or ethics. In the Akre’s
case, the courts may look to the code of professional ethics of the Society of Professional
Journalist (www.spj.org/ethicscode.asp) which has a primary tenet of “seek the truth and report
it.” Because the truth about BGH may be debatable, it is not clear that this narrow exception
would apply. The Akres likely lose.
The text of the Montana law is found on page 58. Under that law, reporting a violation of
violation of public policy is a protected act. Public policy is defined as concerning the public
health, safety or welfare established by constitutional provision, statute or administrative rule.
Abbott was alleging a violation of law, which would fall under this policy. In the Akre’s case,
the Montana statute seems helpful, though the uncertainty of the harm of BGH still may go
against the Akres. Because science is not certain, the Akres have a hard case to make.
The primary ethical issue in this case is whether the public has a right or need to know of the
allegations about BGH so that they can make informed decisions about their dairy purchases.
The other ethical issue in the case is whether the Akres have a right to write their story as they
see fit or if there is some compulsion to modify the story for the superiors. Had Fox killed the
story and put the Mod Squad on a different story, it may be a more satisfying result than looking
like Fox attempted to force certain speech from the writers.
On appeal, the Florida appeals court reversed the jury award and stated that the Akres’ threat to
go to the Federal Communication Commission was not protected speech. Because the FCC’s
policy against distortion of the news by broadcasters was never instituted as a formal regulation,
the employees did not disclose, or threaten to disclose, employer conduct that “is in violation of”
a law, rule, or regulation. 866 So 2d at 1233.
1. Kit Fonshee and Beef Products International
(a) Fonshee filed and lost a wrongful termination lawsuit against BPI.
(b) There are many articles on the Internet about the case. One detailed analysis is found
here:
http://news.msn.com/us/pink-slime-suit-could-become-high-stakes-defamation-case.
Opinions as to whether or not the case can be won and why it was filed will vary. It may be
seen as a financial attempt to save a company that was severely negatively impacted by the
ABC News Reports. It may also be seen as an attempt to protect BPI’s reputation by
pointing out flaws ABC’s reporting and refuting many of their claims.
2. Cheryl Eckard and GlaxoSmithKline
(a) Detailed information about Ms. Eckard’s case and her $96 million award is found here:
http://online.wsj.com/news/articles/SB10001424052702303443904575578713255698500
(b) Ms. Eckard was employed as a quality assurance manager for GSK. She was sent by the
company to Puerto Rico to clean up the problems. Obviously, the company could have
avoided this expensive outcome by letting Ms. Eckard do her job and by following the
recommendations that she made.
3. Walmart vs. GM
With the use of social media on the rise, this issue is becoming more important as employers set
policies regarding its use. Opinions on the acceptability of Walmart vs. GM will vary. Students
may determine that Walmart’s statement is more well defined and understandable than the policy
put forth by GM.
4. Guest workers and whistleblower protection
(a) Primary stakeholders are the businesses that employee the guest workers and the workers
and their families. Other American workers who may be impacted by the wages and
working conditions of guest workers are also stakeholders. The businesses want to fill
low-level jobs at the least possible cost. Workers are interested in earning a fair wage and
acceptable and humane working conditions.
An argument in favor of whistleblower protection would be that allowing the lowest level
of worker to stand up for fair and acceptable working conditions improves not only their
own situation, but also those of other workers. Another is the issue of basic human rights
for all individuals in all situations.
An argument against whistleblower protection is that these workers made a choice to come
to the United States. They also have the choice to return to their home country. Visitors
who are free to leave, they do not need to be afforded the same protection as American
workers.
(b) As of the time of the publication of this text, immigration reform is still being debated.
5. Edward Snowden
(a) Snowden revealed classified details of government surveillance programs.
(b) Student opinions will vary. An Internet search will provide information regarding
opinions on this issue. One article that discusses citizens’ opinions is found here:
http://www.foxnews.com/us/2013/09/17/ap-norc-center-poll-highlights-americans-two-vi
ews-on-civil-liberties-terrorism/
(c) The United States filed espionage and other charges against Snowden. Several websites
provide information about the charges including:
http://abcnews.go.com/Politics/us-charge-nsa-leaker-edward-snowden-espionage/story?
id=19461065
As of January 2014 Snowden is in Russia. More information may be found at several
websites including:
http://www.cnn.com/2014/01/24/world/europe/russia-snowden/index.html.
6. Policies and practices to change an organization culture
This question should lead to an interesting class discussion of organizational culture. Encourage
students to think about policies that would encourage them to express their opinions and ideas,
even if they go against the majority.
7. Right to work and whistleblowers
More information about the European Union and its right to work statement is found here:
http://www.eurofound.europa.eu/areas/industrialrelations/dictionary/definitions/righttowork.htm
A search of “whistleblower” on the site will provide information about whistleblower regulations
in the EU. Encourage students to search for information on other countries outside of the EU.
CHAPTER PROJECT
Guidelines in Appendix D.