Retaliation

Halunen Law Wins $4.6 Million Verdict On Behalf of Client in Whistleblower Case

In a landmark whistleblower case in Minnesota, a highly regarded former radiologist attains justice following wrongful termination for bringing safety concerns to light

MINNEAPOLIS, MN (Jan. 23, 2024): A board-certified radiologist, senior shareholder, and employee of Consulting Radiologist Limited (CRL) was awarded $4.6 million in damages by a Hennepin County jury for being wrongfully terminated under Minnesota’s whistleblower protection
law. Halunen Law of Minneapolis, Minnesota, represented the plaintiff in this landmark trial. CRL contracts to provide services to Allina Health, including Abbott Northwestern, in the Twin Cities metro area.

After nearly 20 years with CRL as a board-certified radiologist, and senior shareholder, the plaintiff was deeply invested in CRL’s future success. As such, in good faith, he brought forth patient safety concerns to the company’s leadership. When the CRL board repeatedly failed to act, the plaintiff
warned that if the unsafe and unethical practices continued, he would have no choice but to report his concerns to Allina Health, the parent company of Abbott Northwestern Hospital. Days after affirming his commitment to share his concerns with Allina Health, he was subsequently terminated by the CRL Board of Directors. As a result of his termination, the plaintiff lost his radiologist position and his livelihood.

The two-week-long trial and deliberation resulted in a jury verdict, finding the plaintiff was terminated in violation of the Minnesota Whistleblower Act. The jury awarded him damages for past and future wage loss and emotional distress, totaling $4,587,602.

Attorney Pamela Johnson, one of Halunen Law’s senior trial attorneys representing the plaintiff, commented: “Today we sent a message. This jury understood the serious nature of Defendant CRL’s conduct and held it accountable in a big way. This is one of the largest whistleblower verdicts ever in Minnesota. It should be a warning to all Minnesota employers that if you retaliate against employees who stand up to expose safety concerns, you will be held accountable.”

About Halunen Law: With offices in Minneapolis and Chicago, Halunen Law offers experienced legal representation to employees and whistleblowers nationwide. Halunen Law has achieved a reputation as a fearless, tenacious, and successful plaintiffs’ law firm with a laser focus on achieving justice and
meaningful results for its clients. More information at  halunenlaw.com.

Read more about this case:

Minnesota Lawyer: “Whistleblower suit nets $4.6 million”

Radiology Business: “Radiologist to collect $4.6M jury verdict in whistleblower case against former practice”

AuntMinnie.com: “Radiologist awarded $4.6M damages in whistleblower lawsuit”

If you feel you’ve experienced illegal action in your workplace, we encourage you to submit a Case Review Form to our firm. One of our attorneys will review your information, and you’ll receive a response from our firm in a timely manner. There is no charge for this confidential process. And, if we take your case, as a contingency-based law firm, there is no cost unless we win.

We’re here to help you navigate your lawful rights and ensure you get the treatment you deserve. Together, we can hold employers accountable and create a fairer workplace for everyone.

Kyle HahnHalunen Law is pleased to announce that attorney Kyle Hahn has joined the firm’s employment law practice group. Kyle brings a collaborative spirit, an acute understanding of the legal process, and a steadfast determination to hold others accountable for their illegal actions. He joins a team of Halunen Law attorneys dedicated to defending the rights of employees and whistleblowers. 

With a depth of knowledge and strategic acumen, Kyle has guided clients through complex legal matters to successful outcomes. His practice includes cases of discrimination, retaliation, and the gamut of employment matters, with considerable litigation experience in state and federal courts. Kyle offers clients a personal, professional approach coupled with a dogged determination to get them justice. 

After graduating magna cum laud from St. Cloud State University, Kyle pursued and received his law degree from the University of St. Thomas School of Law, where he was deeply engaged in school activities. He has admissions to the Minnesota State Court and U.S. District Court of Minnesota.   

About Halunen Law: With offices in Minneapolis and Chicago, Halunen Law offers experienced legal representation for employees, whistleblowers, and those who have experienced illegal actions in their workplace. Halunen Law has achieved a reputation as a fearless, tenacious, and successful plaintiffs’ law firm, focused squarely on achieving justice for its clients and creating workplace and societal change. For more information, visit halunenlaw.com.

 

Halunen Law attorney Susan Coler shared her expertise with SHRM reporter Leah Shepard on cases to be heard in the current U.S. Supreme Court session that impact employment law. These cases involve whether an involuntary transfer with no wage change can be retaliatory and whether a whistleblower must prove intent to retaliate in a case under SOX. guardian of authorityColer emphasized the importance of evaluating all decisions affecting an employee’s terms and conditions of employment to be sure the reasons are not discriminatory, as well as the importance of appreciating whistleblowers, who protect honest companies and deter unlawful competitors.

Read the full article: “Supreme Court Cases Will Address Employment Discrimination and Whistleblower Protections.”

Susan -headshot

A Partner at Halunen Law, Susan Coler is a member of the Halunen Law False Claims Act (FCA)/Whistleblower Practice Group. She represents whistleblowers who challenge illegal corporate conduct, particularly fraud against the government. As an MSBA Labor and Employment Law Specialist, Susan has also brought successful retaliation claims in connection with FCA/qui tam cases and as stand-alone actions.

About SHRM: As the voice of all things work, workers and the workplace, SHRM is the foremost expert, convener and thought leader on issues impacting today’s evolving workplaces. With nearly 325,000 members in 165 countries, SHRM impacts the lives of more than 235 million workers and families globally.

If you feel you’ve experienced illegal action in your workplace, we encourage you to submit a Case Review Form to our firm. One of our attorneys will review your information, and you’ll receive a response from our firm in a timely manner. There is no charge for this confidential process. And, if we take your case, as a contingency-based law firm, there is no cost unless we win.

We’re here to help you navigate your lawful rights and ensure you get the treatment you deserve. Together, we can hold employers accountable and create a fairer workplace for everyone.

angry man arguing with his colleagues in the officeEmployees frequently call our office because they are being harassed or bullied by a boss or co-worker.  You might be surprised to learn that, generally, workplace bullying is not illegal.

We are often told that the employer has an Employee Handbook that includes some form of Respectful Workplace Policy that prohibits any type of offensive behavior, including bullying.  Many employees believe failing to enforce the policy is somehow illegal because the policy prohibits bullying.  This is not true.  Most Employee Handbooks indicate they are not contracts.  This generally means that the employer is not legally obligated to enforce the handbook unless an exception applies.

But here is the good news— there are exceptions to this rule.

The most common protection for bullied employees comes from state or federal non-discrimination laws.  To be protected, an employee must be able to connect their age, disability, race, religion, orientation, medical leave, gender, or other protected status to a hostile work environment.  So, the bullying must be motivated by the protected status.  For example, if a gay employee is taunted or subjected to bullying by co-workers because they are gay, and this negatively impacts the employee’s ability to perform their job, an employer’s failure to stop the conduct promptly once on notice could be actionable.  If a supervisor or manager is causing the bullying, the employer may be automatically liable if the conduct is sufficiently severe or pervasive.

Similarly, bullying may be illegal if an employee engages in what is called “protected conduct,” such as raising concerns over violations of law or taking time off for a serious medical condition, and the employer responds by creating a hostile work environment or taking other actions to force the employee to quit. This behavior may violate state or federal whistleblower or non-retaliation laws.

When the bullying is caused by either protected status or protected conduct, the remedies available to the employee are monetary damages to compensate for wage and benefit loss, emotional distress damage, and attorney fees and costs.

Some employees have pursued claims against employers for allowing bullying to create an unsafe workplace in violation of the OSHA General Duty Clause, Sec. 5(a)(1). That clause requires the employer to provide “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees…”  Cases have also been brought against employers who retaliate against employees who report feeling unsafe in the workplace because of bullying by a co-worker or supervisor.

Some states, like Minnesota, have Freedom From Violence statutes that require zero tolerance for violence.  In Absey v. Dish Network, 2013 WL 2460235 (Minn. App. June 10, 2013), an employee complained to their Human Resources Department about a boss who punched a hole in a door and threw a satellite dish and papers at the employee. The employee’s job was later eliminated, and his application for a new position was rejected. A jury found that the Freedom from Violence statute was violated because the employee’s whistleblowing on the violence issue was a motivating factor in the company’s decision not to offer the employee the new position.

Another protection used successfully has been pursuing claims under a state Disorderly Conduct statute.  These statutes typically make it unlawful for people to engage in brawling, fighting, disruptions to assembly or public meetings, or engaging in offensive, obscene, abusive, boisterous, or noisy conduct tending to arouse alarm, anger, or resentment towards others.  These types of cases have been few and far between, so the law in the area is not yet well settled.

If you feel you’ve experienced illegal action in your workplace, we encourage you to submit a Case Review Form to our firm. One of our attorneys will review your information, and you’ll receive a response from our firm in a timely manner. There is no charge for this confidential process. And, if we take your case, as a contingency-based law firm, there is no cost unless we win.

We’re here to help you navigate your lawful rights and ensure you get the treatment you deserve. Together, we can hold employers accountable and create a fairer workplace for everyone.

Susan -headshot

Attorney Susan Coler is driven to confront illegal corporate conduct and pursue justice on behalf of her courageous clients. She is a Minnesota State Bar Association Labor and Employment Law Specialist, is rated as AV®-Preeminent by the Martindale-Hubbell Peer Review, has consistently been named a “Super Lawyer” since 2008, and has been named several times on the Super Lawyer’s list of Top 50 Women Attorneys in Minnesota. 

bored-colleagues-with-laptops-on-desk-sitting-in-office

Whatever else they may be, most employers aren’t dumb. They know that engaging in discrimination, harassment or retaliation against protected groups in hiring and employment practices is illegal. They also understand that discrimination, harassment and retaliation claims can negatively affect their finances and their reputations.

That’s why workplace discrimination is often subtle and nuanced rather than overt and obvious. Some workers may experience blatantly wrongful conduct, such as racial slurs or inappropriate sexual behavior; but rare is the employer who comes right out and says to a job candidate, “Sorry, but we don’t hire Black people,” or tells an employee that they’re being paid less because they have a disability.

As such, it may not be readily apparent to workers that they’re victims of prohibited workplace discrimination. Even when they think their employers or supervisors are treating them unfairly, such as denying them raises or reducing their hours, they may not recognize if such actions are based, in whole or in part, on their race, gender, age, religion, national origin, disability or other characteristic protected under federal and state anti-discrimination laws.

That’s why employees should be aware of the many ways that employers can engage in illegal discrimination. Rather than accepting such mistreatment or seething in frustration, workers on the receiving end of discriminatory conduct can take action to hold their employers accountable under the rights and remedies provided by law.

If you experience or become aware of the following, you should consider meeting with an experienced employment lawyer who can evaluate your circumstances, conduct further investigation and advise you on how to proceed.

Unfair Promotion Practices and Limitation of Opportunities

One of the most fundamental forms of workplace discrimination involves “unfair treatment” because of an employee’s membership in a protected class. This often manifests as disparate treatment in promotions, opportunities, job responsibilities or hours. Common examples of such actions, which are illegal if based on an employee’s protected characteristics, include:

    • Involuntary reduction of hours
    • Assignment to undesirable or less-favorable shifts
    • Reassignment to a different department or location
    • Removal or limitation of job responsibilities
    • Exclusion from meetings or other communications
    • Denial of opportunities to work with certain clients
    • Assignment to less profitable territories
    • Patterns of people in specific groups who receive promotions over equally or more qualified workers
    • Inconsistent or unsupportable reasons given for denial of promotion or exclusion from opportunities

Unequal Treatment In Disciplinary Actions

Unequal discipline is another common form of workplace discrimination. Some signs of unfair and unequal treatment in disciplinary actions include:

    • Being disciplined for the same conduct that the employer excused or overlooks with other workers
    • Sudden or surprising negative performance reviews
    • Bypassing established disciplinary procedures or consequences
    • Disproportionate consequences for minor transgressions

Inappropriate Questions or Comments During the Hiring Process

Discrimination against job candidates is as insidious as discrimination against employees and can be equally hard to identify. Whether a company systemically discriminates against certain groups in hiring won’t necessarily be revealed on the basis of one rejected applicant. But further investigation is warranted if the company’s workforce lacks diversity in race, gender, age or other protected characteristics. The scrutiny may uncover discriminatory intent or effect.

But discrimination may also subtly reveal itself in the interview process in the form of inappropriate questions or comments. Any inquiries about age, race, national origin, gender, religion, marital or family status, and disabilities are prohibited. But an interviewer may not be direct when probing these off-limits areas. Instead of asking, “How old are you?” they may ask, “When did you graduate from college?” Rather than asking, “What’s your ethnicity?” they might say, “That’s an interesting accent. Where is that from?”

No matter what form it takes, workplace discrimination is illegal. It unfairly deprives qualified individuals of opportunities or subjects them to hurtful and demeaning behavior or comments. No one should have to abide by or endure such treatment.

If you feel you’ve experienced illegal action in your workplace, we encourage you to submit a Case Review Form to our firm. One of our attorneys will review your information, and you’ll receive a response from our firm in a timely manner. There is no charge for this confidential process. And, if we take your case, as a contingency-based law firm, there is no cost unless we win.

We’re here to help you navigate your lawful rights and ensure you get the treatment you deserve. Together, we can hold employers accountable and create a fairer workplace for everyone.

JusticeAge discrimination in the workplace is rarely open and obvious. An employer that wants to push an older worker out the door likely won’t come out and say, “We’re letting you go because you’re too old.” Instead, the employer may devise pretexts for termination, such as unjustified poor performance reviews.

Alternatively, an employer may make life so miserable and create a work environment so hostile that the employee feels she has no choice but to resign – a situation known as constructive discharge. Under some circumstances, this type of resignation can be treated as a wrongful discharge.

All three of these intertwined issues – age discrimination, a hostile work environment, and constructive discharge – were at issue in a recent case before the Minnesota Supreme Court. The court’s decision in Henry v. Independent School District #625 clarified how to prove constructive discharge under the state’s anti-discrimination statute, Minnesota Human Rights Act (MHRA).

Henry’s Age Discrimination and Constructive Discharge Claims

In Henry, the plaintiff worked as a network technician for the defendant school district from 1997-2017. After 19 years of success in her position, and shortly after new management took over the district, Henry received her first negative performance review and was put on a performance improvement plan (PIP). Further negative performance reviews followed, and one of her managers told Henry he would recommend her termination. Henry, then 57 years old, subsequently resigned from her position.

Henry filed an age discrimination lawsuit against the school district, alleging that it engaged in disparate treatment age discrimination in violation of the MHRA and that the district’s discriminatory actions created a hostile work environment under the MHRA resulting in her constructive termination. The act provides that an employer may not, because of age, “discharge an employee,” or “discriminate against a person with respect to hiring, tenure, compensation, terms, upgrading, conditions, facilities, or privileges of employment.”

The district court granted the school district’s motion for summary judgment on both claims. While the court of appeals affirmed the dismissal of the hostile work environment claim, it reversed as to the discrimination claim, concluding that Henry had “presented sufficient evidence of disparate-treatment age discrimination to withstand summary judgment.”

‘Severe or Pervasive’ Harassment Needed to Claim Hostile Work Environment as Basis of Constructive Discharge

The Supreme Court noted that under the MHRA, a constructive discharge could arise from a hostile work environment or from discrimination in the form of disparate treatment, both of which the plaintiff alleged in this case.

Addressing the hostile work environment claim first, the court relied on its previous decisions to reiterate that a plaintiff alleging a hostile work environment must prove “severe or pervasive” harassment.

Henry presented ample evidence that district management targeted older workers for termination or resignation and engaged in other acts that could support a claim that it engaged in disparate treatment of employees because of their ages. The court found, though, that the conduct wasn’t the type of “verbal or physical harassment” that’s sufficiently “severe or pervasive” to “alter the conditions of employment and create an abusive working environment.”

In affirming the dismissal of the hostile work environment claim, the court noted that “Henry did not allege any age-based verbal or physical harassment. Instead, she alleged that due to her age, the School District unfairly placed her on a PIP with the purpose of forcing her to quit. This allegation is more accurately characterized as aged-based disparate treatment than a hostile work environment, which is a different theory of discrimination.”

Employer Intent, but Not Notice, Needed to Claim Disparate Treatment as Basis of Constructive Discharge

While the court rejected Henry’s claim that she was constructively discharged because of a hostile work environment, it analyzed whether she had presented sufficient evidence of disparate treatment to support a constructive discharge claim under that “theory of discrimination.”

The court found, and the district conceded, that there was enough evidence to support three of the four elements needed to show a prima-facie case of age discrimination based on disparate treatment: The plaintiff belonged to a protected class, she was qualified for the position, and circumstances existed to give rise to an inference of discrimination.

But the district argued that Henry didn’t provide evidence to support the fourth required element – that she suffered an “adverse employment action” – since she resigned instead of being terminated. The court, however, agreed “with federal courts and with Henry that a plaintiff can satisfy the adverse employment action element of a disparate treatment claim under the [MHRA] by demonstrating constructive discharge.”

The court noted that it had previously described constructive discharge as requiring “objectively intolerable working conditions that are created by the employer with the intention of forcing the employee to quit.” Elaborating on what constitutes “objectively intolerable working conditions” for a constructive discharge based on disparate treatment, the court held that it occurs when “an employer acts in a manner so as to have communicated to a reasonable employee that she will be terminated, and the plaintiff employee resigns.”

It then described what a plaintiff needs to prove to show the requisite “intention of forcing the employer to quit.” The court held that a plaintiff may satisfy this requirement in one of two ways:

    • by demonstrating that the employer deliberately created intolerable working conditions with the intent of forcing the employee to quit; or
    • by demonstrating that resignation was a reasonably foreseeable consequence of the employer’s deliberate actions.

The Supreme Court held that Henry had submitted enough evidence to support both of these requirements based on “her PIP and the circumstances surrounding it.” The court, therefore, reversed summary judgment on that claim and allowed Henry’s disparate treatment constructive discharge claim to proceed.

Notably, the court also held a plaintiff who can prove employer intent doesn’t need to notify the employer about the conditions or provide it with the opportunity to fix the issue before resigning. This holding is a repudiation of federal constructive discharge cases that include this requirement. In so deciding, the Court emphasized that Minnesota courts “are not bound by federal law in our application of the Human Rights Act.”

Forced to Resign Because of Prohibited Discrimination? Contact Halunen Law Today for a Free Consultation.

As the Supreme Court neatly summarized, “a disparate-treatment-based constructive discharge can occur where, due to the employer’s illegal discrimination in the form of unfavorable treatment based on the employee’s protected status, ‘the handwriting [is] on the wall and the axe was about to fall.’”

If you feel you’ve experienced illegal action in your workplace, we encourage you to submit a Case Review Form to our firm. One of our attorneys will review your information, and you’ll receive a response from our firm in a timely manner. There is no charge for this confidential process. And, if we take your case, as a contingency-based law firm, there is no cost unless we win.

We’re here to help you navigate your lawful rights and ensure you get the treatment you deserve. Together, we can hold employers accountable and create a fairer workplace for everyone.

susan m coler employment attorney

A Partner at Halunen Law, Susan Coler is a member of the Halunen Law False Claims Act (FCA)/ Whistleblower Practice Group. She represents whistleblowers who challenge illegal corporate conduct, particularly fraud against the government. As an MSBA Labor and Employment Law Specialist, Susan has also brought successful retaliation claims in connection with FCA/qui tam cases and as stand-alone actions.

susan m coler employment attorney

The Society for Human Resource Management (SHRM) recently published anarticle on a whistleblower retaliation case to be heard by the U.S. Supreme Court.  

The case will examine whether a whistleblower must prove an employer acted with retaliatory intent or whether the employer has the burden to show it did not intend to retaliate. The case outcome could make it harder for workers to be protected under the federal Sarbanes-Oxley Act of 2002.

The Sarbanes-Oxley Act protects whistleblowers who report financial wrongdoing at publicly traded companies.

SHRM reporter Leah Shepherd contacted Halunen Law FCA attorney Susan Coler for comment on the case. Coler shared, in part, that to prove it did not retaliate, “an employer would need to show that it treated an employee adversely for other reasons than whistleblowing. If the decision-makers did not know about the whistleblowing, that would be another way to prove lack of discriminatory intent.” Coler offered additional insight into this case and provided related tips for employers as well.

Read the full article.  

As a physician, your primary concern is the health and safety of your patients. Sometimes, this means speaking out when you witness violations of healthcare laws or unethical practices. Unfortunately, the act of reporting such violations can sometimes put your job and career in jeopardy. Fortunately, federal and state laws provide protections for physicians who blow the whistle on illegal or unethical conduct.

The False Claims Act (FCA) is a federal law that allows individuals to sue on behalf of the government when there is evidence of fraud against federal programs, such as Medicare or Medicaid. The FCA provides incentives for whistleblowers, including physicians, to come forward by offering a portion of the recovered funds as a reward. Additionally, the FCA prohibits employers from retaliating against employees who report violations.

In addition to the FCA, there are several state laws that protect physician whistleblowers. For example, Minnesota has a Whistleblower Act that provides protection for employees who report illegal or unethical conduct. This includes physicians who report healthcare fraud, patient safety violations, or other forms of wrongdoing.

It’s important to understand your rights as a physician whistleblower. Here are some key points to keep in mind:

    1. You have the right to report violations: If you witness illegal or unethical conduct, you have the right to report it without fear of retaliation.
    2. You have recourse if you experience retaliation: Federal and state laws prohibit retaliation against whistleblowers and provide legal remedies if you are terminated, demoted, or experience any other forms of discrimination.
    3. You may be entitled to a reward: The FCA provides financial incentives for whistleblowers who report fraud against the government.
    4. You should document everything: Keep detailed records of any violations you witness, including when and how you reported them, and any actions taken in response.
    5. You may need legal representation: If you experience retaliation for blowing the whistle, you may need the help of an experienced employment attorney to protect your rights.

Reporting violations is not only your right as a physician, it’s also your responsibility to protect the health and safety of your patients. By understanding your rights as a whistleblower, you can help ensure that illegal or unethical conduct is brought to light and stopped. If you need assistance in reporting violations or protecting your rights as a whistleblower, Halunen Law attorneys are highly experienced in whistleblower laws and can guide you through the process. Contact us today for a free consultation to discuss your concerns.

It is daunting to consider blowing the whistle on illegal employer conduct. Our attorneys have years of experience representing whistleblowers from almost every industry.  We can guide you—including making internal reports to your employer—to protect your legal interests and protect you from retaliation. If you are a whistleblower who has experienced retaliation, we can seek justice on your behalf. We represent whistleblowers on a contingency basis, so there is no cost unless we win. Contact our office today for a free, confidential consultation.

GettyImages-655913700-scaledA shocking, but all too familiar, pattern has emerged in corporate America as businesses have responded to the Covid-19 pandemic.  Like never before, 50+ year olds in executive positions are being ousted from their jobs.  Another spike in an epidemic decades long.  So what’s going on?

It appears that the time has come for a major reshuffling or readjustment within the leadership ranks of U.S. Fortune 500 companies.  Baby Boomers and Gen Xers (ages 50-75) are being replaced by substantially younger, lower paid employees through forced retirements, RIFs, and reorganizations.  The new mantra of the day seems to be: out with the old, in with the new.  New blood, new ideas, new direction—it’s where its at.  Forget loyalty or years of successful performance—it appears to be of no moment.

The reality is that employers think Baby Boomers and Gen Xers are costing them too much money—pure and simple—including handsome pay packages (high base salaries, stock options, restricted stock awards, short and long term incentives, substantial bonuses, and the like) that often reach well into the six figures. As more senior employees, many of these executives also benefit from very generous pension plans that have grown over their 20-30-year careers.  So, from a business perspective, it becomes quite evident who best to eliminate when the corporation sets out to cut costs.

The modus operandi most commonly employed by corporations to rid themselves of 50+ leaders is what’s called a Reduction in Force (RIF) or a Reorganization (Reorg)—both mechanisms typically involve the elimination of people through elimination of their positions.  Under the law, the decisional process for making these employment decisions must be based upon objective criteria or factors that are neutral.  An employee’s protected status, like age, cannot play any role in the process.  However, it almost always does.

As an example, let’s say Acme Company, a 5,000 employee manufacturing facility, is seeking to reduce labor costs in order to increase profit and shareholder return.   Upon review of its workforce, Acme determines it is paying its director-level employees substantially when considering total compensation.  Specifically, it is paying employees in this job classification $125,000 per year over market.  It is determined that the reason for this is because the average age of an Acme Company Director is 58 years old, with an average seniority of 25 years with the company.  There are 20 Directors at Acme.   Acme would not be able to terminate these people without the risk of an age discrimination lawsuit unless it was able to replace them with employees roughly the same age.  This is not a likely scenario because it would require paying the replacements the same as the replaced Directors.  This reality would defeat the entire labor reduction cost objective.  So, what to do?

Acme may choose to simply eliminate the Director position altogether and terminate all employees who hold those positions.  By elimination of the position, Acme is able remove the age of the replacements as a consideration.  Or, instead, Acme can simply create supposedly “new” positions that have no incumbents.  Of course, the “new” positions are not new at all, but are rather the same job with slight cosmetic differences (e.g., a new job title or minor change in job duties).  Acme calls this a “restructure” or “reorganization,” and believes it can get away with filling the position with anyone it wants—including much younger employees, to whom it will pay a lot less money.  Problem solved—or is it?

Actually, Acme’s problems have likely just begun.  State and federal laws prohibit using any protected status, like age,  in making any employment decisions—whether promotion, pay, or termination.  The lawyers at Halunen Law have seen it all.  We have successfully challenged virtually every form of illegal discrimination and retaliation in the workplace across most industries.

If you feel you’ve experienced illegal action in your workplace, we encourage you to submit a Case Review Form to our firm. One of our attorneys will review your information, and you’ll receive a response from our firm in a timely manner. There is no charge for this confidential process. And, if we take your case, as a contingency-based law firm, there is no cost unless we win.

We’re here to help you navigate your lawful rights and ensure you get the treatment you deserve. Together, we can hold employers accountable and create a fairer workplace for everyone.

Whistle On American FlagThis past September the Securities and Exchange Commission announced charges against 15 broker-dealers and one affiliated investment adviser for widespread  and long-term failures by the firms and their employees to maintain and preserve electronic communications.  The firms and their employees used a messaging application on their cell phones called WhatsApp.  WhatsApp has become a popular messaging application among brokers and dealers because it allows users to send messages that disappear.  When the user enables “disappearing messages,” messages can be set to disappear automatically in 24 hours, 7 days, or 90 days.

The problem is this—disappearing messages violate FINRA rules 4511 and 2010 (governing standards of commercial honor and principles of trade). FINRA Rule 4511 requires that FINRA members make and preserve books and records for a period of at least six years, and do so in a form and media that comply with Securities Exchange Act (SEA) Rule 17a-4. The rules apply to all electronic communications such as email, instant messages, collaboration tools, text messages, social media, and messaging platforms like WhatsApp messenger.  Further, FINRA clarified in Regulatory Notice 17-18 that financial firms must retain records of communications related to its business that are made through text messaging apps and chat services such as “WhatsApp.” The notice states “…every firm that intends to communicate or permit its associated persons to communicate, with regard to its business through a text messaging app or chat service, must first ensure that it can retain records of those communications as required by SEA Rules 17a-3 and 17a-4 and FINRA Rule 4511. SEC and FINRA rules require that, for record retention purposes, the content of the communication determines what must be retained.”

With increasing numbers of financial sector employees using WhatsApp in non-compliant ways, regulators such the SEC, CFTC and Financial Industry Regulatory Authority (FINRA) have been imposing stringent fines on violators.

The firms recently charged by the SEC admitted the facts in their respective SEC orders, acknowledged that their conduct violated recordkeeping provisions of the federal securities laws, agreed to pay combined penalties of more than $1.1 billion, and have begun implementing improvements to their compliance policies and procedures to settle these matters.

  • The following eight firms (and five affiliates) have agreed to pay penalties of $125 million each:
    • Barclays Capital Inc.
    • BofA Securities Inc. together with Merrill Lynch, Pierce, Fenner & Smith Inc.
    • Citigroup Global Markets Inc.
    • Credit Suisse Securities (USA) LLC
    • Deutsche Bank Securities Inc. together with DWS Distributors Inc. and DWS Investment Management Americas, Inc.
    • Goldman Sachs & Co. LLC
    • Morgan Stanley & Co. LLC together with Morgan Stanley Smith Barney LLC
    • UBS Securities LLC together with UBS Financial Services Inc.
  • The following two firms have agreed to pay penalties of $50 million each:
    • Jefferies LLC
    • Nomura Securities International, Inc.
    • Cantor Fitzgerald & Co. has agreed to pay a $10 million penalty.

According to a SEC press release: “Finance, ultimately, depends on trust. By failing to honor their recordkeeping and books-and-records obligations, the market participants we have charged today have failed to maintain that trust,” said SEC Chair Gary Gensler. “Since the 1930s, such recordkeeping has been vital to preserve market integrity. As technology changes, it’s even more important that registrants appropriately conduct their communications about business matters within only official channels, and they must maintain and preserve those communications. As part of our examinations and enforcement work, we will continue to ensure compliance with these laws.”

In addition to the significant financial penalties, each of the firms was ordered to cease and desist from future violations of the relevant recordkeeping provisions and was censured.

If you or someone you know works in the securities, commodities and financial industries and uses ephemeral communications and messaging apps like WhatsApp, Snapchat, Signal and Telegram to conduct business transactions, you may have rights under the SEC Whistleblower Program to qualify for a reward if you present information to the SEC that results in a recovery of a fine or penalty against your employer.

Halunen Law can help you file a whistleblower complaint with the agency.  Our attorneys have years of experience representing whistleblowers from most every industry.  We can provide guidance to you—including making internal reports to your employer—in order to protect your legal interests and provide protection from retaliation. Contact our office today.

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