Recently, the National Football League Players Association’s (NFLPA) Director of Human Resources (Moran) filed suit against the NFLPA for wrongful termination, claiming she was terminated based in part on her instigation of and -7- Health Law Update–October 1, 2009 participation in an investigation by the Department of Labor (DOL) of whether activities of certain NFLPA representatives violated federal law.
After Moran’s attorney sent a letter detailing her claims against the union, she was denied all access to her email, her telephone and the building. Moran alleged that these actions, together with earlier harassment, constituted constructive discharge in violation of federal criminal law that prohibits obstructing or impeding a federal proceeding or investigation. The DOL's Office of Inspector General (OIG) conducts investigations in labor-management relations and internal union affairs to determine whether there may be violations of federal labor laws.
Moran (and others) informed the DOL that the president of the NFLPA conducted unauthorized and secret meetings with the NFL owners and provided them with confidential information before negotiations of a new collective bargaining agreement. It was alleged that this conduct was a breach of fiduciary duty to union players and violated federal laws that prohibit collusion between union and management representatives. Additionally, it was alleged that the president received favors and other things of value from the NFL teams' owners and managers which were not reported as required under the Labor-Management Reporting and Disclosure Act (LMRDA).
Finally, Moran accused the president of using his position with the union to obtain (and misappropriate) confidential personal information about the players and the players' agents that was maintained in the NFLPA database and shared it with another person to use to solicit clients for their financial services company. This was alleged to be a violation of fiduciary duty to union members and a violation of the Computer Fraud and Abuse Act.
After Moran and others provided information to the DOL, a new executive director was selected. The new executive director directed that when the DOL was to interview one of the employee informers, a NFLPA attorney would be present.
What To Think About
- Interference with a federal DOL investigation, as with most federal investigations, carries the risk of criminal penalties. Most importantly, employees involved in whistleblower activities have special rights under federal and state laws. Before taking adverse employment actions against any such employee (whether their charges are meritorious or not), employers should tread carefully and be fully advised by counsel regarding the employee’s rights.
- Employers must be careful in dealing with union officials representing their employees. Solid professional relationships with union representatives are fine, but sometimes employers may cross the line. Gifts and other things of value never should be provided to union representatives. Employers also should make sure that the union officials with whom they are meeting are authorized representatives of the union and members. Disclosure of the meeting discussions is not necessary but the meeting itself (and the participants in the meeting) should not be kept secret. Employers always should deal with union representatives at arms length so as to avoid allegations of collusion.
- Employers also should be aware to protect and not misuse confidential information that may be obtained from their workforces. In this complaint, the unauthorized access of financial information was alleged to be a violation of the Computer Fraud and Abuse Act which covers (among other acts) knowing access to a protected computer without authorization (or in excess of authorized access) with intent to defraud and obtain anything of value. In addition, there are a plethora of other state and federal privacy laws governing the protection and disclosure of personal information collected by employers.
- When an investigation is being conducted by a federal or state agency and an employee is being interviewed, and an employee may be testifying to outside agencies regarding the employer’s potential violations of law, the employer generally may not insist on having its attorney present. This could be considered intimidation. However, an employer can request that the employee allow the employer's counsel to be present.