What is a "Whistle Blower"?
Generally, the term is used to cover anyone who sues their employer (or otherwise publicizes) on their own behalf or on behalf of the public, for acts which are considered to violate the public trust and laws. Both California state and federal laws are in place to protect whistle blowers.
What are some examples of whistle blower lawsuits that Danz & Associates has brought?
We have been honored to have represented some of the most principled employees in this state, who have found themselves at the end of a career or job in their chosen field because they have refused to violate the law. Some of our cases involve a hospital who cheated Medicare by over billing, using false codes, "unbundling" or charging twice for the same service under different codes. We've represented aerospace whistle blowers who saw their employer falsely claiming the government received a certain level of product with, for example in one case, mandatory testing completed and all "inspection points" conducted. In elder abuse, we've counseled numerous employees and filed suit on their behalf when their nursing home or senior citizen residential center violated the laws. In one case in San Francisco, our jury awarded our client over $1.5 million dollars for reporting an intentional practice of allowing patients to become dehydrated, and this allegedly contributed to the death of one resident. We are routinely consulted by other attorneys who do not have the expertise or resources to handle these types of cases.
Can being a whistle blower really mean getting money for putting my job at risk?
Absolutely! The US Department of Justice published a survey of recoveries from 1987 to 2010. Without the help of whistle blowers (and just limiting this to the Federal False Claims Act), the Department of Justice recovered 9.027 Billion. With the help of whistle blowers, over 18 Billion was recovered. Whistle blowers themselves received 2.877 billion!
What are some sample recoveries whistle blowers have received in various lawsuits?
Pfizer, Inc . paid $2.3 Billion for illegal kickbacks and illegal marketing of drugs such as Lipitor, Viagra and Celebrex;
Eli Lilly & Co paid $1.415 billion for promoting drugs for unapproved purposes;
GlaxoSmithKline paid $750 for selling adulterated drugs;
Purdue-Frederick co paid $634.5 million for illegal misbranding of Oxycontin;
Los Angeles Department of Water and Power for overcharging customers $160 million;
Smithkline Beecham Clinial Laboratories, $325 million for charging the government for tests that were not performed.
Merck paid $650 million for kickbacks and Medicaid Best Practice violations.
University of Phoenix paid 67.5 million for violations of student loan regulations.
Walgreens paid $120 million for improper drug testing
Companies agreeing to these enormous fines are not limited to health care, although that is certainly the largest by category in the last few years. Chevron has paid $95 million; Mellon Bank, 16.5 million; United Technologies, $150 million.
Can I sue individually for my own emotional distress and reinstatement to my job as part of my federal or California state false claim action?
Depends. As a strategic matter we may advise you to have us represent you in two separate lawsuits. In many cases we will first file a state wrongful termination lawsuit (if you've been fired or forced to quit) in order to get documents to support a federal or state false claim. Then, when we file the false claim action, we may also add causes of action for retaliation and reinstatement. This also allows the whistle blower to participate in discovery.
Does California have any type of whistle blower law specific to employees?
yes! Labor Code 1102.5 prohibits retaliation when an employee reasonably believes the employer is breaking the law. Of tremendous importance is the fact that a report to the employer is deemed the same as a report to a governmental agency. In short, it is not necessary to report illegal activity to an outside agency as long as the employer is advised. Both public and private California employees have the right to sue under this section. In Colores vs. Housing Authority of Los Angeles,a finance department employee complained of financial irregularities. in Parada vs City of Colton a building inspector successfully sued after being fired for reporting co-worker violations of building permit laws. California provides in its Government Code for special protection for public employees who report wrongdoing.
Are attorney fees covered in my recovery?
As most cases settle prior to trial, your attorney's fee will be based on a percentage of the recovery. Our firm utilizes a sliding or graduated scale, so that the attorney fee is directly related to the time and resources we've devoted to your case. You should not have to pay the same attorney percentage if the case can be resolved prior to filing in court. Additionally, public benefit attorney fees may on court order be added to your recovery under a little-known provision of the California Civil Code/
My employer makes us work in highly unsafe conditions. Am I entitled to a lawsuit if I am fired for complaining?
yes. California Labor Code 6310 and 6311 protect you. As with Labor Code 1102.5, it is not necessary to report to an outside agency such as OSHA or CAL OSHA as long as you advise your employer of the unsafe working condition and suffer some type of adverse action such as demotion or termination.
Do I have to file a complaint with any agency prior to filing for Labor Code 1102.5 violations?
no. You may go directly to court. Same for unsafe working conditions under LC 6310 or 6311. There are other provisions which do require the "exhaustion" of administrative remedies, such as when seeking recovery for Labor Code waiting time penalties under the Private Attorney General Act (PAGA). This provision may also be used to sue for actual lost wages on behalf of other workers, pursuant to Labor Code 558. Our firm is pioneering the effort, along with our class action partners, to achieve full recovery under 558.
What does the employer need to show in order to win in court?
Under Labor Code 1102.6, the employer must show by clear and convincing evidence that your whistle blowing was not the reason for your termination or other adverse action. In other words, the employer must show that you would have been disciplined the same amount even if you had not blown the whistle.
Will I be allowed to publicize my victory in order to help other future victims?
We will take all steps necessary to allow you to publicize your victory. Generally, if a seal is placed on the result, it is usually because you have accepted a settlement offer from your former employer and they have insisted on sealing, or keeping confidential, the result. You will also routinely be asked to return all materials you have taken from the company when you departed and promise not to divulge trade secrets. This is usually no different than the sign-on paperwork when you began employment. We will advise you carefully of your rights.
Is my whistle blower or discrimination recovery taxable?
Our firm does not give tax advise and urges you to consult with your own tax accountant or attorney. That said, we will work with defendants to take whatever steps we can to assist in reducing your tax burden. For example, an allocation may be made between lost wages and emotional distress, including the issuance of separate checks. Also, your attorney may be paid his contingency fee by separate check. In some cases, tax advisers have counseled our clients on when to report the receipt of the funds. Again, the situation is variable and you need to talk with your own tax adviser or attorney. The IRS reportedly drawn a bright line and states that non-taxable settlements must be based on physical injuries.
I'm in a union. Should I inform them of my whistle blowing?
Union members generally have a right to continued employment (assuming past probation) unless they engage in misconduct and are terminated "for good cause". Thus, whistle blowing is generally not "good cause" and a termination could be set aside. However, there are numerous problems with immediately disclosing your activities to a union. In some cases, the standing as "original source" of the false claim information could be lost. And, the right to reinstatement can be realized independent of the union's involvement under the personal, non-retaliation provisions of the Federal False Claims statute.