Under the whistleblower protection provisions of SOX, the burden of proof is more favorable to employees than it is under employment discrimination laws such as Title VII of the Civil Rights Act of 1964. "A plaintiff in a SOX claim merely needs to demonstrate that his protected conduct was a contributing factor, not a motivating factor, in the employer's decision to take an adverse employment action," Zuckerman explains, "and once the employee has met his burden, the employer must demonstrate by clear and convincing evidence that it would have taken the same adverse employment action absent the employee's whistleblowing."
If an employer is forced to defend against a retaliation claim, "it will need strong evidence to demonstrate that it would have taken the same unfavorable action against an employee in the absence of the employee's whistleblowing," Zuckerman points out.
Employees who go up against big Pharma can find themselves subjected to a wide variety of retaliatory acts. "Their managers put them on pretextual performance improvement plans and do everything to make the work environment unbearable," Zuckerman reports.
"Whistleblowers also find themselves alienated," he explains, "their coworkers try not to associate with them for fear that management will view them as disloyal."
"My clients," he says, "whose only infraction was committing the truth have found themselves unemployed and suffer permanent damage to career and reputation."
Fortunately, he says, the False Claims Act provides a good remedy. "Damages under the anti-retaliation provision of the FCA include reinstatement, three times lost wages, compensatory damages, and attorney's fees," Zuckerman notes. "In addition, a successful qui tam relator is entitled to between 15 to 25 percent of the amount that the government recovers."
Zuckerman, however, notes that when he obtains favorable settlements for his clients, he feels that the client is not truly getting "make whole relief" when the client has suffered permanent damage to career and reputation.
For instance, after a client recently accepted a substantial settlement in a whistleblower retaliation case, he asked the client why he was still so upset and the client told Zuckerman that he felt it was unfair that his whistleblowing had derailed his career and that what he really wanted back was the chance to continue his successful career at this company.
Mark Livingston is entangled in the same type of battle with pharmaceutical giant Wyeth.
Wyeth denies his allegations that employees were not properly trained, but says even if they are true, Livington's reporting of concerns that vaccine production employees were not properly trained, in violation of FDA regulations, is not a protected activity unless the rules relate to a direct fraud against shareholders.
The Government Accountability Project is handling the case, with General Counsel, Joanne Royce, Deputy General Counsel, Karen Gray, and former GAP chief trial lawyer, Thad Guyer, as lead counsel, and disagrees.
The GAP and Livingston argue that SEC rules require the disclosure of any violation of federal law, and all risks that could potently diminish stock value, and that a failure to adequately train employees could lead the FDA to halt the manufacturing process or result in infants being injected with defective vaccines, and that either event would damage profits.
Therefore, Livingston maintains, the compliance failures are a direct threat to stockholders.
Wyeth hired Livingston in 2000 to help in the introduction of Prevnar, a new vaccine designed to fight pneumoccocal pneumonia and meningitis in infants. The facility where he worked was the vaccine's only production site.
One of Livingston's responsibilities was to assure manufacturing compliance through quality training and he discovered serious deficiencies in training as soon as he arrived.
"When I got to the Wyeth vaccine plant in August 2000," he said, "they had a part-time nurse delivering safety training to new hires."
If an employer is forced to defend against a retaliation claim, "it will need strong evidence to demonstrate that it would have taken the same unfavorable action against an employee in the absence of the employee's whistleblowing," Zuckerman points out.
Employees who go up against big Pharma can find themselves subjected to a wide variety of retaliatory acts. "Their managers put them on pretextual performance improvement plans and do everything to make the work environment unbearable," Zuckerman reports.
"Whistleblowers also find themselves alienated," he explains, "their coworkers try not to associate with them for fear that management will view them as disloyal."
Fortunately, he says, the False Claims Act provides a good remedy. "Damages under the anti-retaliation provision of the FCA include reinstatement, three times lost wages, compensatory damages, and attorney's fees," Zuckerman notes. "In addition, a successful qui tam relator is entitled to between 15 to 25 percent of the amount that the government recovers."
Zuckerman, however, notes that when he obtains favorable settlements for his clients, he feels that the client is not truly getting "make whole relief" when the client has suffered permanent damage to career and reputation.
For instance, after a client recently accepted a substantial settlement in a whistleblower retaliation case, he asked the client why he was still so upset and the client told Zuckerman that he felt it was unfair that his whistleblowing had derailed his career and that what he really wanted back was the chance to continue his successful career at this company.
Mark Livingston is entangled in the same type of battle with pharmaceutical giant Wyeth.
Wyeth denies his allegations that employees were not properly trained, but says even if they are true, Livington's reporting of concerns that vaccine production employees were not properly trained, in violation of FDA regulations, is not a protected activity unless the rules relate to a direct fraud against shareholders.
The Government Accountability Project is handling the case, with General Counsel, Joanne Royce, Deputy General Counsel, Karen Gray, and former GAP chief trial lawyer, Thad Guyer, as lead counsel, and disagrees.
The GAP and Livingston argue that SEC rules require the disclosure of any violation of federal law, and all risks that could potently diminish stock value, and that a failure to adequately train employees could lead the FDA to halt the manufacturing process or result in infants being injected with defective vaccines, and that either event would damage profits.
Therefore, Livingston maintains, the compliance failures are a direct threat to stockholders.
Wyeth hired Livingston in 2000 to help in the introduction of Prevnar, a new vaccine designed to fight pneumoccocal pneumonia and meningitis in infants. The facility where he worked was the vaccine's only production site.
One of Livingston's responsibilities was to assure manufacturing compliance through quality training and he discovered serious deficiencies in training as soon as he arrived.
"When I got to the Wyeth vaccine plant in August 2000," he said, "they had a part-time nurse delivering safety training to new hires."
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