Colin Walsh
Texas Employer Lawyer Colin Walsh

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:

 https://www.supremecourt.gov/search.aspx?filename=/docket/DocketFiles/html/Public/20-1229.html

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Photo of Colin W. Walsh Colin W. Walsh

We asked Colin W. Walsh, an experienced Trial Attorney in the Austin office of Rob Wiley, P.C., to impart his candid answers to a range of questions.   After reading, you will be more more informed on the well-respected reputation that Mr. Walsh 

We asked Colin W. Walsh, an experienced Trial Attorney in the Austin office of Rob Wiley, P.C., to impart his candid answers to a range of questions.   After reading, you will be more more informed on the well-respected reputation that Mr. Walsh carries.

1. What do you like most about being an employment lawyer?

I enjoy getting tangible results for my clients and being involved in an area of law that affects everybody every day.

2. What is the most important issue to you of being an advocate?

One of the most important issues to me as an advocate is to not only zealously represent my clients, but also the law.

3. What kind of clients do you like best?

I like the clients that I am able to help who were not able to find help elsewhere.  On a couple of occasions now, a client has told me that my firm is the first one that has listened to his or her issue and offered any kind of assistance.

4. What do you think is the most important part of a good case?

The client.  If the client is not invested, then the other side won’t take it seriously and neither will the jury.

5. What labor and employment issues do you think are currently trending?

The biggest employment discrimination issues I see right now are related to age, disability, and pregnancy discrimination.  For some reason, these types of discrimination seem to be acceptable to employers.  The other issues right now are minimum wage and overtime pay.

6. Who is your favorite Supreme Court Justice?

Justice William Brennan.

7. What would you say to HR of a company about how to treat employees?

It would be to listen to your employees.  Most employees are not looking to sue when he or she goes to Human Resources.  These employees are sincerely looking for help.  Nothing makes an employee seek legal counsel like when he or she complains about something and HR starts investigating the employee instead of the complaint.

8. Besides Rob Wiley, P.C., what is the most interesting job that you have had?

The most interesting job I’ve had is working as an extra in film and television.  I should have known that I was destined to be a lawyer at that point because two of my biggest gigs were the TV show “Boston Legal” and the film Charlie Wilson’s War.

9. What is your favorite food?

Meat pies.  I first discovered them when I studied abroad in undergrad.  I can’t believe these have not caught on in the U.S. because they are brilliant.

10. What’s the best part of living in Austin?

All of the outdoor festivals.  And the Longhorns.

Colin W. Walsh is a Trial Attorney in the Austin office of Rob Wiley, P.C.  He graduated from The University of Texas at Austin with a bachelor’s degree in theatre in 2006.  Mr. Walsh then graduated from The University of Texas School of Law with honors in 2011.