On June 30, 2017, Missouri Governor Eric Greitens signed a bill into law that makes substantial changes to Missouri’s employment discrimination laws. The Bill, which goes into effect on August 28, amends the Missouri Human Rights Act (MHRA) and creates the “Whistle Blower Protection Act.” Numerous changes have been made to the MHRA, so the Bill is worth a read.
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The Second Circuit this week overturned the conviction of a pharmaceutical sales representative for conspiracy to engage in “off-label” marketing in violation of the Food, Drug & Cosmetic Act (the “Act”) in a decision that has implications for “whistleblower” cases brought against pharmaceutical employers by their employees.  In United States v. Caronia, No. 09-5006-cr, 2012 WL 5992141 (2d Cir. Dec. 2, 2012), a divided panel held that the Act could not be interpreted to criminalize truthful “off-label” marketing because such a reading would render the Act an unconstitutional violation of the drug manufacturer’s First Amendment rights.  “Off-label” marketing occurs when a drug or device is approved for one purpose but is marketed for other, non-approved purposes.


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At an SEC enforcement conference held last Thursday, October 18, 2012, several SEC speakers remarked that the agency had received an average of eight whistleblower tips per day, for a total of nearly 3000 tips from 45 countries, in the first year of operation of the SEC’s Dodd-Frank whistleblower rules.  The SEC’s revised whistleblower rules, which took effect in August 2011, permit each whistleblower to receive a bounty of 10-30% of all monetary sanctions collected by the SEC on cases associated with the whistleblower’s tip.  To be eligible for a bounty, a whistleblower must voluntarily provide the SEC with original information that leads to a successful SEC enforcement action in which the SEC obtains monetary sanctions greater than $1 million.  This announcement follows the first award (and first denial of an award) of bounty payments to SEC whistleblowers in August 2012.


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On March 12, 2012, OSHA issued a memorandum expanding on specific policies and practices that OSHA asserts can discourage employees from reporting workplace injuries or illnesses, and thus, violate the Occupational Safety and Health Act (“OSH Act” or “Act”) and/or the Federal Railroad Safety Act (“FRSA”).  Intended as guidance to both field compliance officers and whistleblower investigative staff, the memorandum notes four programs or practices that, while potentially useful to management as a metric for safety performance, cannot be condoned without careful scrutiny because of the risk they could chill employee reporting of workplace injuries or illnesses.


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On May 3, the Ninth Circuit ruled in Tides v. Boeing Co., No. 10-35238, that the whistleblower provisions of the Sarbanes-Oxley Act (“SOX”) do not protect employees who disclose information to the media. Although SOX bars public companies from retaliating against employees who report conduct that they reasonably believe constitutes certain types of fraud or securities violations to Congress, federal regulatory or law enforcement agencies, or a person with supervisory authority over the employee, the Ninth Circuit held that this protection does not extend to employee disclosures to the media. Federal appeals courts have previously ruled on press disclosures under other whistleblower statutes, but the Ninth Circuit’s ruling is the first to analyze such disclosures under SOX.


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On January 4, 2011, President Obama signed the FDA Food Safety Modernization Act (FSMA), which seeks to promote food safety by enacting strict safety standards in the food industry. In addition to the enactment of safety standards, Section 402 of the FSMA ensures sweeping protections for whistleblowers in the industry. The FSMA whistleblower protection applies to any “entity engaged in the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food.” The anti-retaliation provisions protect any employee of a covered entity who provides to the employer, the federal government, or the Attorney General of a State information that the employee reasonably believes constitutes a violation of the FSMA; testifies or is about to testify about any such violation; assists or participates in any such proceeding; or objects to or refuses to participate in any activity that the employee reasonably believes is a violation of the FSMA.


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