We’ve taken another case up to the Supreme Court! In Robertson v. Intratek Computer, Inc., a pending petition for certiorari at the Supreme Court, we asked the Court to determine whether a government contractor or grantee may force an employee to arbitrate their whistleblower retaliation claims under 41 U.S.C. § 4712. Our position is that the statute prohibits enforcement of arbitration agreements for such claims. And the Executive Branch of the U.S. Government agrees with us!
As a preliminary matter, employment arbitration is a private, generally confidential, and secret judicial process involving a private judge paid who issues a binding decision that usually cannot be appealed to any court. Studies show this process significantly favors employers. Further, according to the attorneys general of all 50 states, the District of Columbia, and several U.S. Territories, the confidential nature of arbitration can be especially harmful. For example, according to that collation, confidential arbitration of sexual harassment claims creates a “culture of silence that protects perpetrators at the cost of the victims.” H.R. Rep. 117-234, 117th Cong., 2d Sess., 4 (report on the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, January 28, 2022).
In our case, the statute at issue prohibits retaliating against an employee of a government contractor, subcontractor, grantee, or subgrantee for reporting
gross mismanagement of a Federal contract or grant, a gross waste of Federal funds, an abuse of authority relating to a Federal contract or grant, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a Federal contract (including the competition for or negotiation of a contract) or grant.
41 U.S.C. § 4712(a)(1). If the employee is retaliated against, the employee must report the retaliation to the Office of the Inspector General for the federal agency involved in the contract or grant.
Under subsection (c)(2) of that statute, if the OIG does not grant relief or fails to take action within a certain period of time, the employee may file a lawsuit in federal court and request a jury trial. 41 U.S.C. § 4712(c)(2). Under subsection (c)(7), “[t]he rights and remedies provided for in this section may not be waived by any agreement, policy, form, or condition of employment.”
We contend that the nonwaiver provision in subsection (c)(7) prohibits enforcement of an arbitration agreement because it would waive the right or remedy of a federal trial. So far, not a single judge has agreed with us, including a magistrate judge, a district court judge, and three court of appeals judges. But we are unbowed and unbroken because on April 11, 2022, the Solicitor General filed a brief on behalf of the United States saying that our interpretation is right: “Robertson is correct that Section 4712(c)(7) precludes a waiver of that judicial remedy, and the court of appeals erred in holding otherwise.”
This is an extremely important case because the decision could affect up to 6.1 million people who work for government contractors and grantees. These employers receive billions if not trillions of dollars of taxpayer dollars. Whistleblowers are, therefore, essential to exposing the fraud, waste, and abuse that may occur. The importance of whistleblowers is not mere speculation. In fact, since 1986, the government has recovered over $70 billion because of whistleblowers under just one statue, the False Claims Act. See https://www.justice.gov/opa/pr/justice-department-s-false-claims-act-settlements-and-judgments-exceed-56-billion-fiscal-year.
Given the Solicitor General’s position that the court of appeals erred, we are hopeful that the Supreme Court will vacate the appellate ruling and send it back to that court of appeals for reconsideration in light of the view of the United States. Our petition is currently set for conference on May 12, 2022, which is when a decision could be made on whether to grant or deny cert. Watch this space for updates!
To read the briefs filed by all of the parties including the Solicitor General of the United States, visit: