Wadler v. Bio-Rad: In-House Counsel as Whistleblower

Last month, a jury in the U.S. District Court for the Northern District of California entered a verdict awarding $8 million in damages to the former general counsel (Sanford Wadler) of Bio-Rad Laboratories, a life-sciences company headquartered in the San Francisco area.  Wadler claimed that he was wrongfully terminated and retaliated against for reporting his suspicion to an audit committee that Bio-Rad had violated the Foreign Corrupt Practices Act (FCPA).  One topic at issue was whether Wadler could use documents and information protected by attorney-client privilege to put on his case against his former employer.

The Court found that Bio-Rad waived its claim to attorney-client privilege, and therefore, the Court admitted the evidence, overruling Bio-Rad’s objection.  In its ruling, the Court noted that other items provided by Bio-Rad during the case’s discovery phase contained a presentation, a complaint, and other communications that should have been protected by the attorney-client privilege.  And, in providing these during discovery, Bio-Rad expressly waived its claim to privilege.  By doing so, this opened the door for Wadler to use otherwise privileged information that bolstered his claim at trial.

Additionally, the court noted another important takeaway.  One of the reasons Bio-Rad gave for Wadler’s employment termination was that he failed to perform his job adequately.  The Court stated that this reason created an implied waiver to the privilege.  So, even if the Court had ruled that Bio-Rad had not expressly waived privilege by offering the above discovery, the fact that Wadler was fired for failing to perform his job adequately would have been enough to overrule the objection.

If you are company management, this case should serve as a warning that in-house company counsel shouldn’t be treated differently from other potential whistleblowers.  This creates yet another reason for companies to rely more heavily on outside counsel, as their rights and position as non-employees of the company are much different.

EEOC publishes new resource on Mental Health Conditions

Last month (12/16), the EEOC published a new document on mental health conditions in the workplace. It is entitled “Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights”.  It is rather short, and it is helpful for both employers and employees to read.  If you don’t read it, at least check out the 3 points I outlined below.  Most of what the publication contains is old news. That being said, there is nothing more invigorating than a refresher in labor and employment law. So, here are the main takeaways for those of you who manage or supervise employees:

  1. You cannot fire somebody because he or she has a metal condition.

….unless that person cannot perform the essential functions of the job with or without a reasonable accommodation. The law goes on to state an exception, which is that employers do not have to employ people who, even with an accommodation, pose an objectively direct threat to safety.

  1. You may require an employee with a mental health condition to submit medical documentation offering proof of the condition if a reasonable accommodation is requested.

However, it is generally accepted practice for employers to not force employees to    disclose a precise condition or present sensitive medical records as long as whatever you receive sufficiently describes the limitations and identifies particular accommodations that would allow the employee to perform the essential functions of the job.

  1. If a reasonable accommodation would help an employee do his or her job, you must give that accommodation unless it involves significant difficulty or expense.

This rule may seem like a way around providing accommodation, but it is not a good idea to make this decision on your own. Most employers are surprised at how significant the difficulty or expense must actually be in order to be exempted from this rule, and the courts will not hesitate to make an inquiry into the position of the company when determining if denial on these grounds is proper.

These are just a few notes from the EEOC’s latest release on these matters. If you have any questions, check out our page on the ADA (Americans with Disabilities Act) or contact us directly.