Cutting Edge Retaliation and Whistleblowing Claims and Defense


CLE Credits earned: 2 GEN

Retaliation and whistleblowing cases are exploding at the EEOC and in courts. And, plaintiffs are winning more than ever before, both at trial and in the courts of appeals. This webinar will cover cutting edge retaliation and whistleblowing issues, such as what constitutes “protected activity” by managers or HR personnel, what employer conduct negates an inference of causation, the “cat’s paw” doctrine in the retaliation context, third-party retaliation, what constitutes unreasonable — and thus, unprotected — opposition, with separate focus on brand new Dodd Frank and Sarbanes-Oxley issues.

Date / Time: October 19, 2018

•   10:00 am – 12:00 pm Eastern
•   9:00 am – 11:00 am Central
•   8:00 am – 10:00 am Mountain
•   7:00 am – 9:00 am Pacific

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•   Live Video Broadcast/Re-Broadcast: Watch Program “live” in real-time, must sign-in and watch program on date and time set above. May ask questions during presentation via chat box. Qualifies for “live” CLE credit.
•   On-Demand Video: Access CLE 24/7 via on-demand library and watch program anytime. Qualifies for self-study CLE credit. On-demand versions are made available 7 business days after the original recording date and are view-able for up to one year.

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Original Broadcast Date: October 19, 2018

Mark Oberti, Esq. is intense and unrelenting. He’s always been that way. When he was 17 years old, Mark graduated from high school early to join the U.S. Army. He served three years in the Army, and was awarded two Army Achievement Medals and the Good Conduct Medal. After that, Mark earned his college degree from Wayne State University in Detroit in less than three years. Then, he attended the University of Houston Law Center, where he graduated in 1994, cum laude, Order of the Coif, and was in the top 10% of his graduating class. Mark is Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization.

Mark is a highly effective advocate. His focus is always to get results for his clients. On behalf of employees, Mark has settled many cases for high six-figures and seven-figures. Mark has won more than fifty summary judgments and jury trials for both employees and employers. In 2013, Texas Lawyer magazine named him “Litigator of the Week,” after he won a $2.9 million jury verdict in an age discrimination case. In 2016, he and his partner won a significant jury verdict in an FLSA retaliation case. Mark has also argued and won numerous appeals. In 2017, he argued and won an appeal to the U.S. Court of Appeals for the Fifth Circuit in an ERISA severance benefits case, and his client was awarded $255,000.00, plus attorneys’ fees.

Mark’s peers have recognized him for practicing employment law at the highest level of the profession. Based on high feedback from his peers in the Houston legal community, the publication Best Lawyersawarded Mark the honor of 2018 Lawyer of the Year for Houston Litigation – Labor and Employment. Furthermore, every year since 2009 Mark has been recognized as a Super Lawyer, a Thompson Reuters service printed in Texas Monthly. In addition, each year since 2015, the same publication has recognized Mark as a “Top 100 Houston Super Lawyer,” and in 2017 the publication named him a “Top 100 Texas Super Lawyer.”

Mark regularly handles claims for race discrimination, retaliation, sex discrimination, sex harassment, age discrimination, disability discrimination (ADA), whistleblower, FLSA (unpaid overtime and minimum wage), Sarbanes-Oxley Act retaliation, Dodd-Frank Act retaliation, trade secrets and covenants not to compete, breach of contract, and many other types of employment law claims.

Mark is a prolific speaker on a wide variety of employment law topics. Mark regularly speaks at seminars across the country on retaliation and whistleblowing for a preeminent CLE provider, the National Employment Law Institute. More than 10,000 people have viewed Mark’s on-line employment law classes for Lawline, and given him very high “course ratings.” Mark is also a frequent commentator on employment law issues in The Houston Chronicle, and many of the cases he has handled have been covered by media outlets throughout America.

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I. Gain an understanding of the so-called “manager’s rule” that often provides a robust defense to employers in retaliation cases where the plaintiff is a manager or HR employee, and about: (1) the circuit split concerning the viability of this rule; and (2) a 2017 circuit court case in which the court found that the rule did not defeat a manager’s FLSA retaliation case.

II. Learn about the “cat’s paw” doctrine and how a circuit court applied it in a 2017 decision in which it found that a coworker’s retaliatory animus could be imputed to the employer in concluding that the plaintiff had been terminated in violation of Title VII’s anti-retaliation provision, even though he had been peddling pornography at work and sought to thwart the employer’s investigation into his suspected side porn business.

III. Get the skinny on a 2016 court of appeals case that grappled with an issue of first impression — the legal standard for protected conduct under Title VII’s anti-retaliation provision when a non-victim witness to alleged harassment is terminated because of what they reported — and see the surprising way the case turned out that could dramatically alter the landscape in retaliation cases for years to come.

IV. Understand why a circuit court reversed a summary judgment for an employer in a Title VII retaliation case, holding that the plaintiff (a juvenile detention officer) deserved a trial, even though it was undisputed that the plaintiff used excessive force on a child at a juvenile detention facility and threatened the child in a profanity laced tirade.

V. Grasp the Supreme Court’s recent decision in Digital Realty Trust, Inc. v. Somers, a pro-employer Dodd-Frank whistleblower case that limits whistleblower status under the law to persons who provided information to the SEC.

VI. Find out why Sarbanes-Oxley whistleblowing claims have trended heavily in the plaintiff’s favor over the past five years, and get a prediction about whether that trend will continue under the Trump administration.

VII. Be surprised to learn about a circuit court case finding that the employer violated Sarbanes-Oxley’s anti-retaliation provision by sending out a litigation hold notice to the plaintiff’s coworkers, and how it affects best practices when it comes to sending out litigation hold notices in retaliation and discrimination cases.

VIII. Understand the legal framework for analyzing when an employee’s conduct in opposing perceived discrimination goes too far, and because a legitimate basis for discipline or termination, most especially in the context of employees who take internal company documents in hopes of using them to support their claims.

IX. Find out about the critical factors the courts analyze in determine whether or not a plaintiff has set forth a viable retaliation or whistleblowing claim.

X. Learn how a provision in The Federal Defend Trade Secrets Act of 2016 could give would be whistleblowers and their lawyers cover to take confidential and trade secrets information on an ex parte, self-help basis from the company, and use it in lawsuits against the company