91视频

Savvy employers long ago recognized the risk of retaliation claims whenever an employee reported discriminatory practices. Now, a new challenge faces employers, particularly contractors and agents of companies that conduct business with the federal government.

Recent amendments to the anti-retaliation provisions of the federal False Claims Act have expanded the whistle-blower protections beyond employees, to contractors and agents working on behalf of companies with federal contracts. The financial incentives to whistle-blowers are significant. They may be awarded a portion (usually 15-25 percent) of any monetary amount the government reclaims due to fraud or misuse.

Oregon has had a similar version of the FCA since January 2010, but with some important differences 鈥� primarily that there is no private right of action. Only the Oregon attorney general can enforce the state law. (See the Jan. 24, 2011 issue of the 91视频 to learn more about the Oregon law.)

In light of the potential financial risks, employers may be legitimately concerned about potential claims. Often, courts will apply a good-faith standard resulting in early dismissal of these claims, but employers should proactively do whatever they can to avoid litigation.

Every employer should:

• Ensure that policies, procedures and actual practices support compliance with government regulations and contract provisions;
• Make failure to report noncompliance a serious violation of company policy;
• Institute control mechanisms, such as anonymous hotlines, so that employees are able to raise concerns and allegations during early stages of projects;
• Provide to outside contractors compliance materials that are the same or similar to those provided to employees;
• Train human resources, compliance and supervisory staff in the applicable government regulations, and ensure that they will respond appropriately to any complaints of wrongdoing.

In addition, keep records of all complaints and the steps made to rectify any problems. In the case of litigation, a complete record corroborating the facts and the employer鈥檚 investigation will help limit liability.

OSHA memo addresses Severe Violator Enforcement Program

The Occupational Safety and Health Administration has issued a memorandum to its regional administrators informing them of the criteria that employers must meet to be removed from the agency鈥檚 Severe Violator Enforcement Program.

The SVEP subjects employers to increased penalties and more stringent enforcement measures for willful, repeat and failure-to-abate violations of the Occupational Safety and Health Act.

According to the OSHA memo, an employer is eligible for removal from the SVEP three years after the final disposition of the issues raised by the SVEP inspection. Such 鈥渇inal dispositions鈥� include failure to contest the citation, entrance into a settlement agreement, the OSHA Review Commission鈥檚 issuance of a final order, or the issuance of a court of appeals decision.

In addition, the employer must have abated all SVEP-identified hazards that constitute violations, paid all fines, complied with any and all settlement terms, and not have received additional serious citations related to the initial SVEP inspection at the initial or related work sites.

OSHA鈥檚 regional administrators have discretion to approve an employer鈥檚 removal from the SVEP list, except in cases involving national corporate-wide settlements. If the regional administrator finds that an employer did not meet the requirements or failed to take any of the steps outlined above, the employer will remain on the SVEP list for an additional three years before becoming eligible for re-evaluation.

For cases involving national corporate-wide settlement agreements, the OSHA Directorate of Enforcement Programs will make the determination, upon the termination of the agreement, regarding the employer鈥檚 removal from the program. The memo states that removal from the SVEP cannot be used as an incentive for settlement.

President Obama signs bill extending immigration programs

President Obama last week signed Senate Bill 3245 into law, authorizing renewal of several immigration programs for three years.

The E-Verify, EB-5 Regional Center, Conrad State 30/J-1 Visa Waiver and Special Immigrant Nonminister Religious Worker programs were set to expire on Sept. 30, 2012, but will now remain in force until at least Sept. 30, 2015.

E-Verify helps employers verify employees鈥� employment eligibility.

EB-5 Regional Center is available to immigrant entrepreneurs who invest between $500,000 and $1 million in a U.S. business that creates at least 10 full-time jobs for U.S. workers; in exchange, the entrepreneurs who meet the qualifications can be given permanent resident status.

Conrad State 30/J-1 Visa Waiver assists medical doctors who studied medicine in the United States on J-1 status. Each state receives 30 J-1 visa waivers for foreign medical graduates each fiscal year. A J-1 visa waiver eliminates the requirement that a J-1 physician return to his or her home country for two years before applying for a permanent U.S. visa.

Special Immigrant Nonminister Religious Worker provides a path to permanent residence for religious workers in the United States. It covers religious workers who hold a professional or nonprofessional position within their religious vocation.

Howard Rubin is a shareholder in Littler Mendelson鈥檚 Portland office. Contact him at 503-221-0309 or [email protected].

Don Stait is Special Counsel in Littler Mendelson鈥檚 Portland office. Contact him at 503-221-0309 or [email protected].