Retaliation is ever present among those who stand up for their rights at work. Finally employment practitioners have a comprehensive volume devoted to protecting those who do speak up. Concepts and Procedures in Whistleblower Law provides the nuts and bolts of retaliation claims. As chair of the National Whistleblower Center in Washington, D.C., and a partner in the preeminent whistleblower law firm of Kohn, Kohn & Colapinto, author Stephen Kohn corrals the vast landscape of this law and makes it useable.
 

Concepts is well organized in eleven chapters. The first presents ten steps for analyzing a whistleblower case. This chapter is particularly well suited for less experienced attorneys, but contains a few gems for everybody. Kohn helps the practitioner choose the causes of action to pursue, and deftly suggests how a set of facts can lead to remedies through a variety of forums. The text provides questions that help assess the advantages and disadvantages of each available claim helping us to hone a strategy.
 

Each of the 50 states, and the District of Columbia, receive individual attention in Chapter 2. Heavily footnoted, it points us to the level of advancement in our states against the outdated doctrine of employment-at-will. Those of us in Ohio (reviewer's residence) can be thankful for the up-to-date list of appellate court precedent, but still pine for the richly developed law in California. An introductory article pulls together the trends in state laws and torts for wrongful discharge.
 

Chapter 3 provides a similar review of 19 categories of federal laws. Employees in the airline, banking, job training, maritime, migrant labor, mining, railway, and trucking industries receive particularized articles on the federal statutory remedies just for them. Other articles address employee protections under civil rights laws (Title VII, FMLA, ADEA and ADA), labor laws (ERISA, NLRA, FLSA and OSHA), and federal civil service (Whistleblower Protection Act and Merit System Protection Board).
 

Chapter 4 provides more detailed coverage of First Amendment claims, as enforced through 42 U.S.C. 1983, 1985 and 1986. Kohn addresses the Eleventh Amendment immunity, qualified immunity, and the non-application of respondeat superior. He also covers the application of 1985 to employees at will (Haddle v. Garrison)and the movement away from the intra corporate conspiracy doctrine (McAndrew v. Lockheed Martin).
 

Environmental whistleblowers benefit from extensive treatment of their specialized remedies. Chapter 5 is where Concepts shines. Kohn carries over the years of painstaking research from his treatise The Whistleblower Litigation Handbook. Updates and the full OALJ library are available at http://www.oali.dol.gov/libwhist.htm.
 

Chapter 6 offers whistleblowers and their advocates their best chance of getting very rich. Through Qui Tam actions under the False Claims Act the first person to reveal a fraud against the federal government can share in a percentage of the government s recovery. The original source however, must know how to stake that claim. On page 212, Concepts lays bare a common trap: those who publicly disclose the fraud can be barred from recovering their share. Needless to say, government attorneys are not always keen to share the government s collections, and practitioners must follow each requirement to the tee. Concepts explains them all.
 

Chapter 7 is appropriately short on the issue of workplace safety whistleblowing under OSHA. Since whistleblowers have no right to appeal from OSHA s informal decisions declining to issue complaints, OSHA is simply the weaker alternative to any other available claim a client might have. Advocates will do well to check Chapter 2 to determine if a state tort claim can be based on reporting OSHA violations.
 

Chapter 8 is cool. Concepts organizes the elements of a prima facie case, and then draws authority on those issues from the full range of retaliation law. The effect is that when a legal issue arises in a particular claim, an advocate can draw authority from any of the laws that contain anti-retaliation provisions. The section on the scope of protected activity includes detailed treatment of internal complaints, failure to follow the chain of command, direct reports to government, filing complaints, being a witness, threatening to complain, contacting media, mistaken beliefs, and the persistence of protection years beyond the protected activity. Methods of proof include direct evidence and circumstantial evidence. Concepts lists 32 accepted forms of circumstantial evidence of discriminatory motive, each footnoted (pp. 268-70). Concepts separately addresses discovery, preemption and mandatory arbitration.
 

Chapter 9 collects authority supporting a full range of remedies. Make whole remedies, including reinstatement, back pay, front pay, and compensatory damages are briefed. Concepts covers other remedies including equitable remedies (abatement and injunctions), punitive damages, interest, tax consequences, attorney fees and costs, Defense issues, such as mitigation and after-acquired evidence, receive additional treatment.
 

How often have we thought we settled a case and then cringed when defense counsel sends over a release requiring the plaintiff and attorney to forfeit their rights to disclose the settlement, the cases, or even the evidence in support of the original wrongdoing? In Chapter 10, Concepts advances the claim that such hush money agreements are void against public policy. The authority against such provisions is detailed, together with practical considerations about severability, voiding the agreement, and illegality. Indeed, Concepts reports on cases holding that as such agreement are illegal, claimants can keep the settlement money even as they disregard the restrictions on their protected activities. (P. 373, fn 31-37,).
 

Concepts also issues the call for improved laws. Chapter 11 presents a Model Law to protect those challenging any form of unlawful or Unprofessional conduct. Here here!
 

Appendices include federal regulations governing procedures for the seven environmental laws enforced through OALJ. One appendix provides the text of relevant employee protections from 38 federal laws. Pleasantly, the First and Fourteenth Amendments are included a reminder that the goal of protecting those who speak out has its roots in our Constitution.
 
 
 

Altogether, Concepts is a comprehensive reference that stands alone in providing the tools to assess any retaliation case. Practitioners get guidance on handling each phase of the case, with careful attention to the first steps in interviewing the client, choosing the causes of action, catching time limits, and recovering the full range of remedies available. The price is less than one billable hour. Truly a must have.
 

Reprinted from the National Lawyers Guild - Labor & Employment Committee Newsletter - May 2001 - page 7.