Workforce Bulletin - Insights on Labor and Employment Law | Epstein Becker Green

Watch: Fertility Benefits, Medical Marijuana, and Whistleblower Protections - Employment Law This Week

Wed, 01 Jul 2026 11:18:00 -0700

What employers should know about key developments this week:

Federal Agencies Propose Fertility Benefit Expansion: The U.S. Departments of Labor, Health and Human Services, and the Treasury have issued a proposed rule to allow employers to provide fertility coverage as a limited excepted benefit, exempt from the Affordable Care Act and the Health Insurance Portability and Accountability Act’s portability requirements.
DOT Clarifies Medical Marijuana in Drug Tests: The U.S. Department of Transportation (DOT) has confirmed that a positive drug test for marijuana is disqualifying, regardless of whether the employee has a state medical marijuana license.
Massachusetts Court Upholds Whistleblower Protections: According to the Massachusetts Supreme Judicial Court, whistleblowers in the state are protected, even if they’re complicit in the violation.

Video: Whistleblower Challenges and Employer Responses: One-on-One with Alex Barnard

Fri, 21 Mar 2025 10:45:00 -0700

Addressing whistleblower claims is one of the most sensitive and complex issues employers face. It becomes especially challenging when the claims involve compliance officers, risk officers, or even lawyers tasked with identifying potential problems.

In this one-on-one interview, Epstein Becker Green attorney Alex Barnard sits down with George Whipple to explore the unique challenges whistleblower allegations present within organizations. Alex explains how courts distinguish between performing one's job duties and raising legitimate whistleblower concerns, particularly when internal experts are involved. He also outlines key strategies for investigating claims fairly, avoiding retaliation, and navigating the fine line between good-faith and bad-faith whistleblowing.

Fourth Circuit Holds Federal Tax-Exempt Status Does Not Subject Private Independent School to Title IX Responsibility

Wed, 03 Apr 2024 09:00:03 -0700

In an earlier article (found here), we discussed how a federal district court’s decision that mere 501(c)(3) status can trigger obligations under Title IX created shock waves throughout the private independent school community. A recent ruling by the United States Court of Appeals for the Fourth Circuit has reversed that decision, holding that tax-exempt status is not federal financial assistance for Title IX purposes.

The plaintiff in Buettner-Hartsoe v. Baltimore Lutheran High Sch. Ass’n (4^th Cir., Mar. 27, 2024) was a student who alleged that she was sexually harassed at ...

From Whistleblower to Defendant: Understanding the Implications of U.S. ex rel. Cooley v. ERMI, LLC

Adam Paine — Mon, 04 Mar 2024 09:00:04 -0800

Recently, a Georgia federal district court permitted an employer’s counterclaims against its former employee-whistleblower to proceed in a False Claims Act (“FCA”) lawsuit after determining that the employer’s amended counterclaims for breach of fiduciary duty and breach of contract were sufficiently independent from the underlying FCA claims to survive a motion to dismiss, despite significant factual overlap. The decision in U.S. ex rel. Cooley v. ERMI, LLC, et al.., a qui tam FCA action where the plaintiff, known as a “Relator,” brings the claim on behalf of the ...

Massachusetts Federal Judge Rules That Protected Activity Does Not Shield an Employee from the Consequences of Engaging in Misconduct

Tue, 28 Nov 2023 09:00:05 -0800

On November 13, 2023, in USA ex rel, Morgan-Lee, et al. v. The Whittier Health Network, LLC, et al., a Massachusetts federal district judge concluded that although the plaintiff engaged in protected activity when she raised suspicions about billing fraud under the False Claims Act, her termination was not retaliatory where she engaged in erratic, confrontational, and insubordinate communication exchanges with superiors and colleagues. Morgan-Lee is a positive development for employers because it reinforces that engaging in protected activity does not shield an employee ...

The SEC Announces a Record-Breaking Year for Its Whistleblower Program

Alicia Maziarz McFarland — Tue, 21 Nov 2023 09:00:06 -0800

On November 14, 2023, the Securities and Exchange Commission (“SEC”) announced its enforcement results for fiscal year 2023, boasting increases in enforcement and financial remedies across all of its programs. The SEC filed a staggering 784 enforcement actions, obtained orders for nearly $5 billion in financial remedies, and distributed nearly $1 billion to harmed investors.

The SEC’s most notable results, however, came from its Whistleblower Program: In fiscal year 2023, the SEC issued whistleblower awards totaling nearly $600 million, the most ever awarded in one ...

Video: SEC Cracks Down on Private Companies for Violating Whistleblower Protections - Employment Law This Week

Wed, 11 Oct 2023 09:00:07 -0700

As featured in #WorkforceWednesday: This week, we’re focusing on three recent Securities and Exchange Commission (SEC) charges against employers for violating whistleblower protection laws and how all employers should take extra steps to ensure compliance in their separation agreements:

Recent charges issued by the SEC represent a dramatic change in the enforcement of whistleblower protections. Epstein Becker Green attorney Greg Keating explains how this can impact all employers, both public and private, and should encourage them to take a closer look at their ...

Eleventh Circuit Adopts Employer-Friendly Standard for Establishing Key Element of SOX Whistleblower Claim

Mon, 02 Oct 2023 09:00:08 -0700

On September 25, 2023, the United States Court of Appeals for the Eleventh Circuit clarified what a whistleblower plaintiff must allege to demonstrate they had a “reasonable belief” that their employer violated the Sarbanes-Oxley Act (“SOX”). In Ronnie v. Office Depot, LLC, the Eleventh Circuit adopted an employer-friendly “totality of the circumstances” standard for evaluating whether a plaintiff’s belief was “reasonable.” Ronnie is a win for employers in the Eleventh Circuit because it makes clear that, to establish that they engaged in protected ...

Employers Beware: SEC Targets Employment Agreements Under Whistleblower Protection Rules

Alicia Maziarz McFarland — Wed, 20 Sep 2023 09:00:09 -0700

Less than two weeks after it last penalized a private employer for alleged violations of whistleblower protection rules in its employee separation agreements, the Securities and Exchange Commission (“SEC”) once again takes aim at the language of a separation agreement it alleges violates Rule 21F-17(a) of the Exchange Act (“Rule 21F”). Just yesterday, the SEC issued an Order settling charges with a commercial real estate services and investment firm for such violations through a fine of $375,000, among other terms. The SEC’s aggressive and continued ...

SEC Levies a Six Figure Fine Against a Private Company for Language in Its Separation Agreements, Continuing the Aggressive Enforcement of Its Whistleblower Program

Alicia Maziarz McFarland — Thu, 14 Sep 2023 09:00:10 -0700

The Securities and Exchange Commission (“SEC”) continues to aggressively enforce its whistleblower program under the Biden Administration. As we have reported (here and here), the SEC has cracked down on employers’ agreements and procedures that it contends interfere with employee access to the SEC. Most recently, on September 8, 2023, the SEC issued an Order imposing a $225,000 penalty to a private energy and technology company, Monolith Resources LLC (“Monolith”), for allegedly violating whistleblower protection rules in its employee separation ...

Video: Whistleblower Risks in an Economic Downturn, Whistleblower Protection Settlement - Employment Law This Week

Wed, 08 Feb 2023 09:00:11 -0800

As featured in #WorkforceWednesday: This week, we’re detailing how self-remediation can help health care employers avoid whistleblower retaliation lawsuits following company downsizing.

We’re also bringing you a breaking news story on the $35 million settlement Activision Blizzard agreed to pay the U.S. Securities and Exchange Commission (SEC).

The Anti-Money Laundering Act of 2020 Gets a “Glow Up”: Congress Strengthens Enforcement by Enhancing Financial Incentives and Clarifying Whistleblower Eligibility

Tue, 17 Jan 2023 09:00:12 -0800

On December 29, 2022, President Biden signed the Anti-Money Laundering Whistleblower Improvement Act (“the Act”) into law, overhauling the Anti-Money Laundering Act of 2020 (“AMLA”). When initially passed, the AMLA met with extensive criticism by plaintiff-side whistleblower attorneys for failing to set a defined guaranteed rate for whistleblower awards, with the potential awards ranging from zero percent to thirty percent for identifying wrongful conduct in the anti-money laundering area. In response to this criticism and to correct other “shortcomings,” Congress amended the law in 2022 through its omnibus budget to expand enforcement measures within the United States and beyond its borders by clarifying who can be a whistleblower and the rewards for successfully raising compliance complaints. Below, we delve into these changes and their significance for employers. Essentially, these changes will increase employers’ potential liability for retaliation claims by emboldening newly eligible whistleblowers and their lawyers to raise non-compliance complaints.

Michigan’s Whistleblower Law Protects Employees Reporting Violations of “Suspected” Laws

Adam S. Forman — Thu, 22 Dec 2022 09:00:13 -0800

On December 21, 2022, the Michigan Supreme Court held that the Whistleblowers’ Protection Act (“WPA”) protects employees who report that their employer has violated “suspected” laws in a case called Janetsky v. County of Saginaw. In a first-of-its-kind ruling, the divided Court in Janetsky concluded that an assistant county prosecutor could bring WPA claims against her supervisor who she believed illegally offered a below-minimum plea deal.

Issue Spotting Is Not Whistleblowing

Tue, 06 Dec 2022 09:00:14 -0800

Laws protecting whistleblowers generally afford anti-retaliation protections when employees “step out of their role” to report discrimination and dangerous or illegal activity, but not to employees when they are performing their issue spotting job duties. Employers who understand this distinction are well positioned to manage underperforming employees in sensitive issue-spotting roles such as information technology, compliance, internal audit and even in-house counsel without running afoul of anti-retaliation laws. The Second Circuit Court of Appeal’s recent decision affirming the Southern District of New York’s dismissal of whistleblower retaliation claims in Johnson v. Board of Education Retirement System of City of New York illustrates this distinction.

South Carolina Abortion Bill Contains Harsh Criminal Penalties for Interfering with Whistleblowers

Mon, 18 Jul 2022 09:00:15 -0700

Since the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, state legislatures across the country have accelerated their discussion of new laws either restricting or further protecting access to abortions. A state senate bill in South Carolina, S. 1373 currently pending in the Senate Committee on Medical Affairs, would not only ban almost all abortions in that state, but would also afford novel whistleblower protections. Specifically, S. 1373 imposes criminal penalties, punishable by imprisonment for ten years, for persons who “take any action to impede a whistleblower from communicating about a violation of this article with the Attorney General, a solicitor, or any other person authorized to bring an action in violation of this article.”

Washington, D.C. Scales Back Ban on Non-Competes

Eric I. Emanuelson, Jr., Nathaniel M. Glasser, Frank C. Morris, Jr. — Mon, 18 Jul 2022 09:00:16 -0700

UPDATE – On July 27, 2022, Mayor Bowser signed the Non-Compete Clarification Amendment Act of 2022. The approved Act must now be sent to Congress for a period of 30 days before becoming effective as law.

Washington, D.C. employers will not need to scrap all their non-compete agreements after all. On July 12, 2022, the D.C. Council (the “Council”) passed the Non-Compete Clarification Amendment Act of 2022 (B24-0256) (the “Amendment”), which among other things, tempers the District’s near-universal ban on non-compete provisions to permit restrictions for highly compensated employees. For further analysis on the original D.C. Ban on Non-Compete Act, please see our previous articles here and here.

The Council delayed the initial ban several times in response to feedback from employer groups. However, barring an unlikely veto or Congressional action during the mandatory review period, the amended ban will take effect as of October 1, 2022. We detail the key revisions to the ban below.

Employers Beware – SEC Renews Enforcement Initiative Against Agreements (This Time a Non-Compete) That Interfere with Whistleblowers’ Unfettered Access to the SEC

Erik W. Weibust — Thu, 30 Jun 2022 09:00:17 -0700

Exchange Act Rule 21F-17, adopted in 2011 under the auspices of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, prohibits any person from taking any action to impede an individual from communicating directly with the SEC, including by “enforcing, or threatening to enforce, a confidentiality agreement . . . .” The SEC has prioritized enforcing this rule expansively, by requiring employers to provide SEC-specific carveouts to policies and agreements governing confidentiality. According to an Order issued last week against The Brink’s Company ( “Brink’s” or “Brinks”), the SEC seems to suggest that employers must provide a specific carveout in restrictive covenant agreements permitting employees and former employees to report information to the SEC in addition to the statutory disclosure provided for in the federal Defend Trade Secrets Act (DTSA).

Massachusetts Appeals Court Rejects Whistleblower’s Constructive Discharge Claim

Tue, 10 May 2022 09:00:18 -0700

Employees who resign from work, sue their employer, and assert “constructive discharge” shoulder a heavy burden to demonstrate that they had no choice but to resign. A recent decision of the Massachusetts Appeals Court, Armato v. Town of Stoneham, shows just how heavy that burden is.

Video: Whistleblower Regulations Increasing, #MeToo Bill Passes, Cyberfraud Risk Mitigation - Employment Law This Week

Wed, 16 Feb 2022 09:00:19 -0800

As featured in #WorkforceWednesday: This week, we focus on new developments increasing whistleblower protections across the country and prohibiting mandatory arbitration of sexual assault and harassment claims.

Video: CA Whistleblower Retaliation Cases, NYC Pay Transparency Law, Biden’s Labor Agenda - Employment Law This Week

Wed, 09 Feb 2022 09:00:20 -0800

As featured in #WorkforceWednesday: This week, we’re recapping major items shifting at the state, local, and federal levels, including whistleblower retaliation case law, pay transparency rules, and federal labor policies.