South Carolina’s Whistleblower Protections – A Review for SC Attorneys, Lawyers & Law Firms

South Carolina whistleblowers who are employed by a South Carolina state government agency are protected from adverse employment actions when they timely report violations of state or federal laws or regulations or other wrongdoing. South Carolina attorneys, lawyers and law firms who represent SC state government whistleblowers should be aware of the protections afforded to these employees who are fired, demoted, suspended or otherwise subjected to an adverse action in reaction to a report of fraud or other wrongdoing by a public agency or one of its officers or employees. South Carolina whistleblower attorneys, lawyers and law firms should also be aware of the administrative requirements necessary to invoke the protections of the state’s anti-retaliation statute, as well as the relief provisions afforded to such SC whistleblowers. There are also some whistleblower protections for government and private employees who report violations of South Carolina’s occupational safety and health statutes, rules or regulations.

South Carolina’s Whistleblower Protection Act for State Government Employees

South Carolina’s General Assembly enacted legislation called the “Employment Protection for Reports of Violations of State or Federal Law or Regulation” (the “Act”) to protect South Carolina state employees from retaliation or disciplinary actions when they report violations of state or federal laws or regulations or other wrongdoing including fraud and abuse. See South Carolina Code § 8-27-10, et seq. The Act prohibits a South Carolina public body from decreasing the compensation of, or dismissing, suspending or demoting, a state employee based on the employee’s filing of a protected report of wrongdoing with an appropriate authority. S.C. Code § 8-27-20(A). The protected report must be made by the SC whistleblower in good faith and not be a mere technical violation. Id. The Act does not apply to private, non-government employers or employees. S.C. Code § 8-27-50.

A public body under the Act means one of the following South Carolina entities: (A) a department of the State; (B) a state board, commission, committee, agency, or authority; (C) a public or governmental body or political subdivision of the State, including counties, municipalities, school districts, or special purpose or public service districts; (D) an organization, corporation, or agency supported in whole or in part by public funds or expending public funds; or, (E) a quasi-governmental body of the State and its political subdivisions. S.C. Code § 8-27-10(1).

A South Carolina employee under the Act is an employee of any South Carolina public body entity, generally excluding those state executives whose appointment or employment is subject to Senate confirmation. S.C. Code § 8-27-10(2).

An appropriate authority under the Act means either (A) the public body that employs the whistleblower making the protected report, or (B) a federal, state, or local governmental body, agency, or organization having jurisdiction over criminal law enforcement, regulatory violations, professional conduct or ethics, or wrongdoing, including but not limited to, the South Carolina Law Enforcement Division (“SLED”), a County Solicitor’s Office, the State Ethics Commission, the State Auditor, the Legislative Audit Council (the “LAC”), and the Office of Attorney General (the “SCAG”). S.C. Code § 8-27-10(3). When a protected report is made to an entity other than the public body employing the whistleblower making the report, the Act requires that the employing public body be notified as soon as practicable by the entity that received the report. Id.

A SC whistleblower employee’s protected report under the Act is a written document alleging waste or wrongdoing which is made within sixty (60) days of the date the reporting employee first learns of the alleged wrongdoing, and which includes (a) the date of disclosure; (b) the name of the employee making the report; and, (c) the nature of the wrongdoing and the date or range of dates on which the wrongdoing allegedly occurred. S.C. Code § 8-27-10(4).

Pursuant to the Act, a reportable wrongdoing is any action by a public body which results in substantial abuse, misuse, destruction, or loss of substantial public funds or public resources, including allegations that a public employee has intentionally violated federal or state statutory law or regulations or other political subdivision ordinances or regulations or a code of ethics, S.C. Code § 8-27-10(5). A violation which is merely technical or of a de minimus nature is not a “wrongdoing” under the Act. Id.

Rewards for SC Whistleblowers

When a SC state employee blows the whistle on fraudulent or abusive acts or violations of federal, state or local laws, rules or regulations, and the protected report results in savings of public funds for the state of South Carolina, the whistleblower is entitled to a reward or bounty under the Act. However, the reward is extremely limited. The provisions of the Act provide that a SC whistleblower is entitled to the lesser of Two Thousand Dollars ($2,000) or twenty-five percent (25%) of the estimated money saved by the state in the first year of the whistleblowing employee’s report. The South Carolina State Budget and Control Board determines the amount of the monetary reward that is to be paid to the employee who is eligible for the reward as a result of filing a protected report. See S.C. Code § 8-27-20(B). This reward is very meager when compared to the bounty provisions of the federal False Claims Act, 31 U.S.C. §§ 3729-3732 (the “FCA”). The FCA allows a qui tam whistleblower or relator to receive up to 30% of the total amount of the government’s recovery against defendants who have made false and fraudulent claims for payment to the United States. Some recent federal FCA recoveries by the U.S. Department of Justice have exceeded $1 Billion Dollars.

However, the Act does not supersede the State Employee Suggestion Program, and if a whistleblower employee’s agency participates in the State Employee Suggestion Program, then items identified as involving “wrongdoing” must be referred as a suggestion to the program by the employee. A South Carolina government employee is entitled to only one reward either under the Act or under the State Employee Suggestion Program, at the employee’s option. Id.

Civil Remedies for SC Whistleblowers

If a South Carolina government employee suffers an adverse action related to employment within one (1) year after having timely filed a protected report which alleged wrongdoing, the employee may institute a non-jury civil action against the public body employer after exhausting all available grievance or other administrative remedies, and such grievance/administrative proceedings have resulted in a finding that the employee would not have been disciplined but for the reporting of alleged wrongdoing. S.C. Code § 8-27-30(A). The adverse action or retaliations can include is dismissal, suspension from employment, demotion, or a decrease in whistleblower’s compensation. The statutory remedies under the Act that the adversely effected employee may recover are (1) reinstatement to his or her former employment position; (2) lost wages; (3) actual damages not to exceed Fifteen Thousand Dollars ($15,000); and (4) reasonable attorney fees as determined by the court. Id. However, an award of attorney’s fees has a cap under the Act, and may not exceed Ten Thousand Dollars ($10,000) for any trial and Five Thousand Dollars ($5,000) for any appeal. Id.

At least one court has addressed the Act’s remedies with respect to a whistleblower employee. In Lawson v. South Carolina Department of Corrections, 340 S.C. 346, 532 S.E.2d 259 (2000), the S.C. Supreme Court held that when a whistleblower employee is limited to a recovery under the statutory remedies of the Act when the employee alleges a wrongful discharge only on the grounds of his whistleblowing. In Lawson, the court granted summary judgment against the employee because he could not point to a violation of any policy, ethics rule, or other regulation as a basis for his whistleblower action which amounted to “wrongdoing” under the Act. Id.

Adverse Actions Based Upon Causes Independent of a Protected Report

In the event the appropriate authority which received the report determines the whistleblower employee’s report is unfounded or a mere technical violation and is not made in good faith, the public body may take disciplinary action including termination and, notwithstanding the filing of a report, a public body may dismiss, suspend, demote, or decrease the compensation of an employee for causes independent of the filing of a protected report. Id. A South Carolina public body may also impose disciplinary sanctions against any direct line supervisory employees who retaliate against another employee for having filed a good faith report.

Statute of Limitations

Under the Act, a whistleblower’s civil action must be commenced within one (1) year after the accrual of the cause of action or exhaustion of all available grievance or other administrative and judicial remedies, or such a lawsuit is forever barred. S.C. Code § 8-27-30(B).

Occupational Safety and Health Act (“OSHA”) Whistleblower Protections

South Carolina has a separate whistleblower protection statute for employees who report violations of statutes, rules or regulations regarding occupational safety and health. S.C. Code § 41-15-510. The protected activities include filing a complaint, instituting a proceeding, or testifying about OSHA violations. Any employee who has been discharged or otherwise discriminated against by any person in violation of Section 41-15-510 has the right to file a complaint with the South Carolina Commission of Labor alleging such discrimination. The SC Labor Commissioner shall cause investigation to be made as he or she deems appropriate, and, if the Commissioner determines that anti-discrimination provisions of Section 41-15-510 have been violated, he must institute a law suit in the appropriate court of common pleas against such discriminating person or entity. In any such action, the court of common pleas has injunctive authority to restrain such OSHA anti-discrimination violations, as well as authority to order all appropriate relief including rehiring or reinstatement of employee to his or her former position with back pay. S.C. Code § 41-15-520. Unlike the Act, the OSHA whistleblower protections are available to state government and private employees.

Conclusion

South Carolina whistleblowers who are employed by a South Carolina state government agency are protected from adverse employment actions when they timely report violations of state or federal laws or regulations or other wrongdoing. South Carolina attorneys, lawyers and law firms who represent SC state government whistleblowers need to know the protections afforded to these employees who are fired, demoted, suspended or otherwise subjected to an adverse action in reaction to a report of fraud or other wrongdoing by a public agency or one of its officers or employees. South Carolina whistleblower attorneys, lawyers and law firms should review the administrative requirements necessary to invoke the protections of the state’s anti-retaliation statute, the statutes of limitations, as well as the remedial provisions afforded to such SC state government whistleblowers, in order to properly advise such clients. So too, the employment attorney should be aware of the rights and remedies of both private and South Carolina government employees who blow the whistle of violations of state OSHA statutes, rules or regulations.

© 2010 Joseph P. Griffith, Jr.

What Are Effective Case Law Citations in Essay Writing?

In view of the problems that many students all too often experience in this area, in this brief article I look to now take you through the intricacies of referencing case law in all subjects with a legal element to their study in the UK in particular. Therefore, this will prove especially useful for those studying English law or any subject areas with an English law element when writing your work.

With this in mind, when looking to cite case law in your work it is necessary to consider the traditional form of referencing case law for essay writing in legal subjects that looks to provide –

(a) Name of Case

This should be printed in italics or underlined (do not highlight or use different coloured ink)

(b) Year

This should be in square brackets [1992] or round brackets (1957). The majority of modem law reports use square brackets indicating the year is an integral part of the reference, but some series also adopt a system of volume numbering that runs consecutively through the series in which case the year is in round brackets and simply indicates the date the judgement was given.

(c) Volume Number

Many reports have several volumes each year numerically. As a result, the year will be in [square brackets] and will be an integral part of the reference, whilst those case law series that are numbered consecutively from the beginning will have the year in (round brackets).

(d) Abbreviation for the Series

This indicates the series in which the law report is published – the All England Reports (All ER) is very popular. For your further information a full list of abbreviations can be found in Raistrick. D. S (2007) ‘Index to Legal Citations and Abbreviations’ 2nd Edition, London, Bowker-Saur or in the monthly parts and yearbook of ‘Current Law’.

(e) Page Number or Case Number

The page number is the number within the volume of the report where you will find the case.

Since 2001 some series have started using unique numbers of each case within each year. Therefore, for example, ‘[2005] 2 Cr. App. R. 4’ refers to the fourth case of volume 2 of Criminal Appeal Reports 2005.

At the same time, however, recent reports also number each paragraph, so that the precise point in the case may be cited. As a result, this is especially useful if you are quoting directly from a particular judgement. At the same time, however, it is to be appreciated that, in the past, particular passages could be identified by reference to the letter to be found in the margin.

(f) [Optional] Court

On this basis, it is always important to know which court made the decision and it is good practice to develop the habit of including an indication of the court at the end of the reference – for example, House of Lords (HL) and Court of Appeal (CA).

Examples – There are generally too forms of case law decisions to be cited –

(i) For civil case law decisions in a case like ‘Johnson v Phillips [1975] 3 All ER 682’, by way of illustration, it is usually the claimant (plaintiff) v defendant. As a result, the ‘v’ stands for ‘versus’ or ‘against’, whilst the case is normally referred to in direct speech in a court scenario, for example, as ‘Johnson & Phillips’.

(ii) For criminal case law decisions in a case like ‘R v Lynch (1966) 50 Cr. App. R. 59’, by way of illustration, it is usually the Crown v the defendant. Moreover, as well as the ‘v’ standing for ‘versus’ or ‘against’, ‘R’ stands for ‘Rex’ (‘the King’) or ‘Regina’ (‘the Queen’). This case would then usually be referred to in direct speech in a court scenario, for example, as the ‘Crown against Lynch’ or just ‘Lynch’.

Neutral Citations

Moreover, it is also to be appreciated that, from January 2001, there has been an alternative method available for effectively referencing cases that was introduced to cope with the growth in the number of online reports that also proves very useful for the essay writing process. As a result, all of the case law decisions from the High Court and Court of Appeal have been assigned unique numbers so as to then be able to more easily identify the case since this new method of case citation for academic work also uses paragraph numbers within the case citation itself as part of the essay writing process in this area.

Example:

Grobbelaar v. News Group Newspapers Ltd [2001] EWCA Civ 1213.

Therefore, all case law is to be cited by the name(s) of the parties followed by the medium neutral citation in the essay writing process. Moreover, as well as the year when the case was cited, the reference in essay writing not only shows the legal jurisdiction, but also the court, the division of that court, the reference number assigned to the case by the official court shorthand writers, and (also often) a paragraph reference.

Choose the Best Lawyer to Represent a Cruise Ship Injury

There are many different types of injuries that a person could sustain while they are taking a cruise. Not one of them is acceptable though. The staff on these large water vessels should ensure that a cruise ship injury does not occur while someone is vacationing.

There are many different reasons that people go on vacation for, but being injured is not one of them. Some of these could be caused by a slip and fall because of water on the deck or other reasons. No two injuries are going to be the same either.

The cruise line should be paying for any medical expenses that are incurred because of any injury. They should ensure that the person who got hurt is being well-taken care of too. Not all of these companies feel this way though.

Sometimes, it requires people to hire one of the best lawyers that they can find. There are many different types of lawyers in every area of the world. People need to find one that they can count on to win their case though. Otherwise, they will have a lot of medical bills that they could be paying on for their entire life.

Some of the best lawyers are difficult to find. Many of them have a large case load too. Because each case is going to be handled differently, they may put a limit on the number of cases that they are representing at one time. Not all of them will do this though.

There are a lot of things that need to be done prior to filing a lawsuit against a company like this. There is a lot of paperwork that is necessary also. Having proof that the injury was caused there will be extremely important.

While some people who are injured may need a few stitches and can be on their way. Other people may have lengthy hospital stays or a lifetime of disabling pain and surgeries. The type of injury and the circumstances are going to be determined when considering the best way to take on the case and present it to the courts.

It is important to have enough evidence and documentation to get the full compensation. Some lawyers may suggest getting these things around before filing anything too. While most companies have their own lawyers that represent their company for every kind of lawsuit, it is important to know that they will fight back in most cases.

There are a lot of companies who choose to settle these things outside of the courts. They will take care of their passengers and make sure that everything that they need is within their reach. If they say they need something, they get it. They also insist that they go to the best doctors.

Other companies see the dollar amount that will be going out and not the person’s pain and suffering. An injury can bankrupt some companies so they will fight it in court. Many times, they will end up paying it but they try to get away with saying that it was not their fault that the person got hurt and such things as that. Liability lawsuits can be very hard to win when you are the defendant.

Most of the time, a lawsuit for a cruise ship injury does not get filed unless they have enough evidence. While not every passenger or employee that gets hurt aboard a ship will file a lawsuit, it is an option for them. Some people have no choice because they cannot pay the medical bills on their own. This is why a lawyer has to be there to help them with this process to ensure that they will win by utilizing as many resources as possible.

The Whistleblower Protection Law

It was not until 1986 when a law protecting whistleblowers is made. Congress added an anti-retaliation protection to the then existing False Claims Act.

A whistleblower is a person who tells on something he believes is an illegal act. The employees are the most commonly known whistleblower. They tell on their employers which they suspect is doing or committing an illegal act.

Under the Whistleblower Protection Law, the employee should not be discharged, denoted, suspended, threatened or harassed in any form that discriminates the terms and conditions of his employment because of the legal act done by the employee.

The employee may be of aid in many ways possible on the investigation, testimony and the likes. However there are some constraints under the whistleblower protection law.

Reporting illegal acts that are only within the company is a ground for exemption. But still there may be public policies that could protect the employee from retaliation

If it turns out that an employer didn’t actually break a law, the employee is still entitled to whistle blower protection from retaliation, if he reasonably believed that the employer committed an illegal act.

The whistleblower protection law does not cover employer retaliation for complaints about personal loathe. Office politics is not to be used as a basis for filing a complaint against the employer and use the whistleblower protection for personal gain.

In order for the employee to be protected from employer retaliation, he may the have a suspected desecration of any Federal Law. But the supposed violation should have provisions that the law violated will protect whistleblowers.

The Whistleblower Federal Law, unlike the False Claims Act, allows the whistleblower to file a lawsuit in a federal court. The Federal Whistleblower Law does not permit the whistleblower to go directly to the court.

The individuals concerned are pursued administratively. These individuals concerned could file a complaint or charge to retaliate with or without a lawyer to represent them. However if the case is not resolved immediately, the administrative law judge may then preside over the only evidentiary hearing that may take place.

A whistleblower should not attempt to delay an investigation of the possible legal remedy. To maintain this ruling, the retaliation should then be brought to the attention of an appropriate government official within 30 days, else the complaint could not be pursued.

Most states have some sort of statutory or common law “whistleblower” or anti-retaliation laws. Like the federal whistleblower laws, not every lawyer will know about these laws, especially laws outside their own state.

These states and the District of Columbia have recognized a public policy exception to the “employment at will doctrine”: Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Vermont, Virginia, Washington, West Virginia, Wisconsin and Wyoming.

Some states have explicit statutory protections for whistleblowers. These include: California, Connecticut, Delaware, Florida, Hawaii, Louisiana, Maine, Michigan, Minnesota, Montana, New Hampshire, New Jersey, New York, North Carolina, Ohio, Oregon, Rhode Island, Tennessee, and Washington.

There are also state laws that offer special protections just for their own state or local government employees: Alaska, Arizona, California, Colorado, Connecticut, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Montana, Nevada, New Hampshire, New Jersey, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Washington, West Virginia and Wisconsin.

Book Review – The Lawyer’s Song: Navigating the Legal Wilderness

In his 2010 book entitled “The Lawyer’s Song: Navigating the Legal Wilderness” (“the Song”), Hugh Duvall sings a heartfelt tune about what it means – and what it ought to mean – to be a lawyer. Written from the perspective of a lawyer-litigator, the Song is intended to reach two main audiences. For non-lawyers, the Song is meant to provide “a window into the complex intellectual, emotional and ethical frontier of [the legal] profession.” For lawyers, it is an affirmation of all that is good in the legal profession – a melody meant to “charge us up and to speed us on our way.” Mr. Duvall performs to both audiences with admirable aplomb.

A quick and engaging read, the Song pursues its purpose in a refreshingly creative style. Each chapter (or verse) focuses on a key theme of legal practice; and each is presented in two parts. The first is a vignette of a story set in 1842 Oregon in which a woman hires a guide to lead her through the backcountry in search of her husband. With the chapter’s theme as a springboard, the second part dives into a non-fictitious account of the various ways in which the issues presented in the vignette affect the day-to-day lives of present-day lawyers.

Within its verses, the Song sings of the hard realities of legal practice. These include the risk and challenge of law school, the long lonely hours of legal practice, the anguish of a case fought and lost, and the betrayal of a thankless client. These darker notes are important for any law student or aspiring lawyer to hear – especially one bedazzled by the gloss of legal practice as it appears on the big screen.

Floating above the bass register are the treble notes of the more ennobling aspects of legal practice. These include the sanctity of the lawyer-client relationship, the humility of faithful service, the decorum of loyalty, and the thrill of victory. These higher notes give the Song a more edifying tenor for those who are uncertain or otherwise cynical about the inherent dignity of a legal career, or those otherwise in need of affirmation.

As much as the Song serves to demystify some of the realities of legal practice, at the same time it also serves to enshroud it in a cloud of romanticism. For example, laced into the narrative are some pretty rosy assumptions about what it is that drives people to pursue a career in law. As Mr. Duvall puts it:

Ours is a profession to which we were called. We were always aware of its presence. The feeling. The thought. The notion that we would become lawyers…It was one’s essence. One’s being. There was no real choice involved at all.

It would be nice if this were true. But the reality is that all sorts of people go to law school (and eventually become lawyers) for far lesser reasons. Some go to law school to please their parents. Others go because they want money, security and prestige. Still others go because they don’t know what else to do with themselves. Yet once on the conveyor belt, the pressure to identify as a lawyer gets stronger and stronger. Years later, well into their careers, all too many wake up and realize that what they are doing is not their calling – that this is not their song.

The romanticism of the Song also surfaces in other verses. For example, in the verse about “passion”, Mr. Duvall notes that “[w]e cannot meet the rigorous challenges we regularly confront without passion for our work.” Lawyers, just like anybody else, are much better equipped to do their jobs when fuelled by passion. Yet the truth is that on the whole lawyers aren’t exactly known for their passion for their work. In fact, many plod their weary ways through their entire careers without much enthusiasm for their jobs at all.

While Mr. Duvall may be romantic, he is not blind. As he notes, many lawyers do such things as “take shortcuts to the prejudice of the client”, “make as much money as possible”, “gain attention for personal aggrandizement”, and “run a business as opposed to a law practice.” It is clear that Mr. Duvall is fully aware that such “imposters” exist among our ranks; the simple fact of the matter is that they are not part of his intended audience.

While such “imposters” may well not deserve admission to Mr. Duvall’s performance, I contend that they constitute a third audience that must not only attend, but also listen extra carefully. For it is to this audience that the Song carries a special – albeit implicit – message. And that message is this:

If you are not in harmony with the basic values of your profession, you must do something about it or your career and life will ever be dissonant.

In listening to the Song, should anyone find themselves scoffing or otherwise rolling their eyes in cynicism at its lyrics, then it may well be that they belong to this third audience. Should they recognize the special message the Song has for them, and should they be inspired to take corrective action, Mr. Duvall will have truly outdone himself.

Bravo, Mr. Duvall!