By employment attorneys Tammy Marzigliano and Delyanne Barros. In Crawford v. Metropolitan Gov’t of Nashville & Davidson County, Tennessee, the Supreme Court unanimously decided that protection under Title VII of the Civil Rights Act extends to an employee who speaks out about discrimination when answering questions during an employer’s internal investigation. Employment attorneys Tammy Marzigliano and Delyanne Barros.
Vicky Crawford was an employee of Metro for over 30 years. In 2002, Veronica Frazier, a Human Resources employee, conducted an internal investigation regarding allegations of “inappropriate behavior” by the relations director, Gene Hughes. Frazier asked Crawford if she had witnessed any “inappropriate behavior” by Hughes. Crawford told Frazier that Hughes had asked to see her breasts on numerous occasions, grabbed his genitals in front of her and, on one occasion, and pulled her head down towards his crotch. The employer took no action against Hughes; however, a few months later Crawford and two other accusers were terminated. The employer alleged that it terminated Crawford and the other accusers because they embezzled money.
Crawford brought a lawsuit against her employer for retaliation in violation of Title VII. The district court ruled for the employer and the 6th Circuit affirmed the decision, holding that Crawford did not “oppose” the harassment under Title VII because she had not “instigated or initiated a complaint” and no EEOC charge had been filed.
However, the Supreme Court found the embezzlement allegation was completely unfounded and unsupported. In addition, the Court rejected the Circuit Court’s reasoning that Crawford’s actions did not qualify as “opposition” because she had not “instigated or initiated any complaint.” The Court applied the ordinary meaning to “opposition” finding that it merely means to “resist or antagonize” and that Crawford’s statement to Frazier clearly fell within that definition. As a result, the Court reversed the 6th Circuit’s decision granting judgment for the employer and sent the case back to the 6th Circuit to be decided in accordance with the Court’s analysis.
In Crawford v. Metropolitan Gov’t of Nashville & Davidson County, Tennessee, the Supreme Court unanimously decided that protection under Title VII of the Civil Rights Act extends to an employee who speaks out about discrimination when answering questions during an employer’s internal investigation.
Advising A Whistleblower After Dodd-Frank: What Every Employer Needs To Know
Tammy Marzigliano, Law Journal Newsletters, Employment Law Strategist, ALM, Volume 19, Number 10, April 2012. This article examines the retaliation protections provided by Dodd-Frank and how employment lawyers might deal with their impact.
On July 21, 2010, Congress enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act, the most significant financial reform effort since the Great Depression. 17 CFR § 240.21F-1, et seq. Part of that legislation directed the Securities and Exchange Commission (SEC) to establish a whistleblower program that pays monetary rewards to eligible whistleblowers, and prohibits workplace retaliation by employers against whistleblowers. This article examines the retaliation protections provided by Dodd-Frank and how employment lawyers might deal with their impact.
Advocacy & Counsel For The SEC Whistleblower: A Primer For Employment Lawyers
Tammy Marzigliano and Jordan A. Thomas. Bloomberg BNA Daily Labor Report. Reproduced with permission from Daily Labor Report, 196 DLR I-1 , 10/11/2011. Copyright 2011 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com
In the wake of multiple far-reaching corporate scandals and pervasive misconduct that have eroded public faith in the markets, Congress enacted the whistleblower provisions in the Dodd-Frank Wall Street Reform and Consumer Protection Act. The provisions require the SEC to pay financial awards to whistleblowers who voluntarily provide original information leading to a judicial or administrative action in which the SEC obtains monetary sanctions over $1 million, subject to certain limitations. Whistleblowers who provide such information are eligible for an award of 10 percent to 30 percent of the monetary sanctions.
Since the enactment of the whistleblower provisions, there has been undue emphasis on the financial incentives available to qualified SEC whistleblowers. However, the new robust anti-retaliation provisions contained in the guidelines are equally important. Employers are prohibited from retaliating against individuals who provide the SEC with information about possible federal securities law violations, and victims of retaliation are granted an independent cause of action with significant potential remedies. Providing additional protection, whistleblowers are also permitted to report securities violations anonymously if they are represented by counsel.
These protections and incentives will result in a significant increase in whistleblower activity and, by extension, will have a huge impact on the workplace environment. This article examines the protections provided by the statute and offers practical guidance for the plaintiff’s employment lawyer in identifying and counseling potential SEC whistleblowers.
This article examines the protections provided by the statute and offers practical guidance for the plaintiff’s employment lawyer in identifying and counseling potential SEC whistleblowers.
When Your Personal Life Affects Your Professional Life
Tammy Marzigliano and Carmel Mushin. Employment Rights Newsletter, Vol. 17, No. 2, Winter 2010
Almost daily we hear stories about people who were not hired for a job because of something they posted online or someone that lost a job for the same reason. I caution employees regularly to be mindful of what they post online because everyone can see it. I advise them to refrain from posting that “awesome picture” of them playing beer pong or that picture of them at the Mets game when they were allegedly “out sick.” People forget that the internet is not their “private” playground. It is a mechanism in which your world (should you allow it) becomes an open book.
So, what about blogging? People argue it is harmless. It is just my thoughts about a situation. But is it?
The Dodd-Frank Act's Whistleblower Provisions: The Act's Best Hope For Exposing Financial Wrongdoing
In this BNA Insights article, Outten & Golden attorneys Tammy Marzigliano and Cara E. Greene take a close look at these provisions and the effects of preceding laws, such as the Sarbanes-Oxley Act, to examine what their future impact might be. Bloomberg BNA, Workplace Law Report, 10/22/2010.
On Sept. 15, 2008, Lehman Brothers collapsed, sending shock waves through the financial services industry and portending the industry's broader meltdown. Less than two weeks later, Washington Mutual was seized by the federal government and placed into receivership. Over the next year, more than 100 banks folded, Americans saw $13 trillion in wealth evaporate, and massive securities fraud, like that committed by Bernie Madoff, shook investor confidence to the core. The housing market collapsed, the number of people out of work hit 15.6 million, and the federal deficit ballooned. America was in the midst of the Great Recession.
In response, on July 21, 2010, the federal government enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “act” or “Dodd-Frank Act”), which overhauls and strengthens federal oversight of the financial system. While it is impossible to know whether the financial meltdown could have been avoided had the act's provisions been adopted in 2007 instead of 2010, the question on everyone's mind is whether the Dodd-Frank Act will keep it from happening again. Only time will tell if it will have the desired and intended impact, but the act's whistleblower provisions attempt to ensure that in the future financial fraud and irregularities are exposed long before they corrupt the entire system.
Happy Valentine's Day...Now Please Sign On The Dotted Line
Tammy Marzigliano and Delyanne Barros, Outten & Golden LLP, 2009
With Valentine’s Day around the corner, what better way to discuss love than in contractual terms? Workplace romances are increasingly common and employers are aware of this. In a 2008 survey by Vault.com, 58% admitted to having an office romance and another 12% would be willing to engage in one if given the opportunity. Not surprising in light of the reality that most of us have so little time left over after work and sleep that our place of employment is our main chance for finding a mate.
In the last few years, companies have responded to this reality by instituting what has been popularly dubbed as “love contracts.” These contracts may contain several different provisions, but most commonly it seeks to establish that the two employees are in a consensual dating relationship and that they will not allow the relationship to interfere with their work productivity. One sample love contract provided that by signing the love contract, the employees “notify the company that [they] wish to enter into a voluntary and mutual consensual social relationship” which they “are both free to end . . . at any time. Should the relationship end, [they] agree that [they] will not allow the breakup to negatively impact the performance of [their] duties.”
The contract can also refer to the company’s sexual harassment policy and “that entering into the social relationship has not been made a condition or term of employment.” Most important to employers, the contract may limit the grievance process to arbitration only, potentially limiting an employee’s right to file a lawsuit in court.
Arbitrability Of Sarbanes-Oxley Whistleblower Claims
This article explores the arguments presented by member firms and registered employees, and outlines what arbitration panels have decided. Laurence S. Moy. Pearl Zachlewski, Linda Neilan, and Katherine Blostein. The Neutral Corner, Newsletter of FINRA Neutrals, Volume 1, 2008.
Since the passage of the Sarbanes-Oxley Act of 2002 (SOX), arbitrators handling employment claims may be faced with a throny question concerning SOX whistleblower claims: Should a SOX claim be litigated in court or arbitrated? Ultimately, the question comes to whether SOX whistleblower claims constitute "employment discrimination" claims, and are thus exempt from arbitration under Rule 13201 of the Code of Arbitration Procedure for Industry Disputes (Code). This article explores the arguments presented by member firms and registered employees and outlines what arbitration panels have decided.
Whistleblower Claims Under The Sarbanes-Oxley Act Of 2002
Laurence S. Moy, Linda A. Neilan, and Hollis Pfitsch (Summer Associate), Practising Law Institute, October 7-8, 2004, and December 9-10, 2004.
In the wake of recent accounting and corporate scandals, Congress passed the Sarbanes-Oxley Act of 2002 (hereinafter, “Sarbanes-Oxley,” “SOX,” or the “Act”), Public L. No. 107-204, Sec. 806, codified at 18 U.S.C. § 1514A.1 In addition to providing greater oversight of the accounting industry and protecting investors, the Act prohibits employers from retaliating against whistleblowers. (“Whistleblower” might be considered a misnomer since the Act’s scope is not limited to employees who “blow the whistle” by refusing to engage in illegal or wrongful acts or by reporting such activities to the employer or the appropriate authorities.) The Act provides extensive coverage to employees who report improper conduct as well as employees who participate in proceedings relating to same. Companies that fall under the purview of Sarbanes-Oxley are prohibited from discharging, demoting, suspending, threatening, harassing, or discriminating against any employee who engages in protected activity. 18 U.S.C. § 1514A(a).
Prior to Sarbanes-Oxley’s enactment, federal and state whistleblower statutes provided limited protection for a narrow class of employees. The False Claims Act covers employees only if they report fraud on the federal government. 31 U.S.C. § 3730(h).2 In New York, a state statute had provided pre-Sarbanes-Oxley whistleblowers with extremely limited coverage. That statute, New York Labor Law § 740, only protects an employee who “discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety.” N. Y. Lab. Law § 740(2). Thus, Sarbanes-Oxley has vastly changed the horizon of protection for whistleblowers in the private sector.
This paper addresses the whistleblowing provisions of the Act and its accompanying regulations, provides guidance to lawyers advising companies responding to potential whistleblower complaints of improper conduct, and reviews the duties of lawyers to report wrongful conduct as per the Securities and Exchange Commission’s (“SEC” or “Commission”) new regulations.