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ARTICLE · 04 JANUARY 2019

ERISA Implications For Firing A Whistleblower

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The Ninth Circuit unanimously concluded that a trustee and lawyer for certain multiemployer funds violated ERISA § 510 by unlawfully firing a whistleblower in the funds' collections department

United StatesEmployment and HR
Neil V. Shah
Neil V. Shah
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The Ninth Circuit unanimously concluded that a trustee and lawyer for certain multiemployer funds violated ERISA § 510 by unlawfully firing a whistleblower in the funds' collections department, but, in a split decision, concluded that the retaliation did not amount to a breach of fiduciary duty.  The whistleblower was cooperating with a DOL criminal investigation of one of the trustees and had raised concerns to another trustee and the funds' third-party administrator that the trustee under investigation was actively hindering the funds' efforts to collect contributions from certain contributing employers.  After the trustee and the funds' counsel, who were carrying on a romantic relationship, caught wind of the investigation, they set in motion votes by the full board of trustees to place the whistleblower on administrative leave and ultimately to terminate her employment.  The Secretary of Labor filed a civil enforcement action against the trustee and the funds'

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