|Tate & Renner, attorneys at law|
|505 N. Wooster Ave. |
P.O. Box 8
Dover, Ohio 44622-0008
FAX: (330) 364-9901
|Alfred L. Tate (1942-1995)|
Richard R. Renner
Seven federal environmental laws contain employee whistleblower protections. These laws enforce the discharged worker's right to a full array of remedies through an administrative process.
However, six of these laws require the employee to file a written charge within 30 days of the unlawful discrimination. This unusually short deadline requires a heightened awareness among employee advocates and all workers who face retaliation for enforcement of the federal environmental laws. Nuclear whistleblowers and transportation workers may file complaints within 180 days of receipt of notice of any retaliatory action against them.
Imagine a city employee working in the parks department. The city manager becomes upset about an EPA investigation of the water plant. That park employee has been making complaints, and the manager becomes suspicious and fires that employee. What are the odds that this worker will learn about the 30 day time limit before it expires?
This article reviews the Department of Labor's complaint procedure. Hopefully, word will leak out about this valuable remedy. Discharged workers will call their lawyers promptly after being fired, and their employment counsel can file the charges within the short time limit.
The seven environmental laws are the Water Pollution Control Act (WPCA, commonly called the Clear Water Act), 33 U.S.C. 1367; Safe Drinking Water Act (SDWA), 42 U.S.C. 300j-9(i); Toxic Substances Control Act (TSCA), 15 U.S.C. 2622; Solid Waste Disposal Act (SWDA, also called RCRA), 42 U.S.C. 6971; Clear Air Act, 42 U.S.C. 7622; Energy Reorganization Act of 1974 (ERA, which includes atomic energy), 42 U.S.C. 5851; and the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA or "Superfund Law") , 42 U.S.C. § 9610. The Code of Federal Regulations (CFR) contains a concise description of the federal procedure. See 29 CFR Part 24.
The Surface Transportation Act (STA), 49 USC 31105, provides a simplified and effective remedy for truck drivers who are fired for insisting on following safety regulations. It is enforced through separate regulations at 29 CFR Part 1978.
The Sarbanes-Oxley Act of 2002 protects employees of publicly traded companies, and their subcontractors, from retaliation for reporting fraud.
Congress passed the first employee protection, the WPCA, in 1972, because
Sixth Circuit Justice George Edwards, Jr., wrote that Congress' intent in passing 42 U.S.C. 5851, the Energy Reorganization Act, was to "encourage employees" to report "unsafe practices in one of the most dangerous technologies mankind has ever invented." Rose v. Secretary of Department of Labor (6th Cir. 1986), 800 F.2d 563, 565 (J. Edwards concurring). He explains:
Because the federal environmental laws were modeled after the Nation Labor Relations Act (NLRA, 29 U.S.C. 158(a)(4)) and the 1969 Federal Mine Safety Act (FMSA), 30 U.S.C. 820(b), the Secretary of Labor and the courts have used mine safety and NLRA precedent to interpret the federal law. See, for example, DeFord v. Secretary of Labor (6th Cir. 1983), 700 F.2d 281, 286. The remedial purpose, and resulting broad interpretation, of employee protection provisions under the NLRA are described in NLRB v. Scrivener (1972), 405 US 117, 121-26.
The federal environmental laws protect workers who have commenced, or are about to commence, a proceeding for enforcement of any requirement imposed under the law, or under an applicable implementation plan. The scope of protected activity is read broadly to protect employees who have testified, or are about to testify in a proceeding resulting from administration or enforcement of the law. To achieve these ends, the law mandates that "employees must feel secure that any action they may take" furthering "Congressional policy and purpose, especially in the area of public health and safety, will not jeopardize either their current employment or future employment opportunities." Egenrieder v. Metropolitan Edison Co./GPU, 85-ERA-23, Order of Remand by SOL, pp. 7-8 (April 20, 1987). Consequently, when interpreting a case under these laws, there is a need for "broad construction" of the statutes in order to effectuate their purposes. DeFord v. Secretary of Labor, 700 F.2d 281,286 (6th Cir. 1983). "Narrow" or "hypertechnical" interpretations to these laws, are to be avoided as undermining Congressional purposes. Kansas Gas & Elec. Co. v. Brock, 780 F.2d 1505, 1512 (10th Cir. 1985). Most obviously, protected activity includes reporting violations directly to a government agency, including state or local governments. Protection can begin as soon as the evidence suggests that management thought the worker might be a witness in a future enforcement proceeding. Phillips v. Interior Board of Mine Operators, 500 F.2d 772, 778 (D.C. Cir. 1974) (under Mine Safety Act); Lambert v. Ackerly, 180 F.3d 997, 1006 (9th Cir. 1999); Passaic Valley Sewerage Commissioners v. DOL, 922 F.2d 474, 478 (3d Cir. 1993); Macktal v. DOL, 171 F.3d 323 (5th Cir. 1999) (threat to contact government agencies is protected). Even complaints that are indirect or misdirected may result in protection if they reveal to management the intention to enforce the law. One case has found that a report to a union safety committee created protection. Cotter v. Consolidated Edison Co. of NY (7-7-81), No 81-ERA-6, affirmed, Consolidated Edison Co. of NY v. Donovan (2d Cir. 1982), 673 F.2d 61. For employees assigned to safety or enforcement work, doing that work too well is also protected. Mackowiak v. University Nuclear Systems, Inc., 735 F. 2d 1159, 1163 (9th Cir. 1984) (employers may not discharge employees engaged in quality control because they do their jobs too well).
The Secretary of Labor has recognized that protected activity may be associated with "impulsive behavior." Employees cannot be disciplined for protected activity so long as it "is lawful and the character of the conduct is not indefensible in its context." A key inquiry is whether the employee has upset the balance that must be maintained between protected activity and ship discipline. Kenneway v. Matlack, Inc., No. 88-STA-20, D&O of SOL, at 6-7 (6-15-89). If the employee's behavior oversteps the defensible bounds of conduct, the employee can lose the protections of the law. Dunham v. Brock, 794 F.2d 1037, 1041 (5th Cir. 1986) (swearing at supervisor, refusing to change conduct, and daring employer to fire employee).
The victim of mistaken identification as a whistleblower has just as much right to a remedy as the real whistleblower. Willy v. Coastal Corp., 85-CAA-1, SOL D&O, pp. 13-14 (June 1, 1994). Accord, Assistant Secretary v. S&S Sand & Gravel, Inc., 92-STA-30, SOL D&O, p. 15 (Feb. 5, 1993). Otherwise, an employer can chill employee reporting by firing every tenth employee whenever a thought of whistleblowing appears. A complainant only needs to show that the respondent thought complainant engaged in protected activity when respondent decided on the retaliation.
The broad scope of these environmental laws, and the judicial doctrines following the remedial purpose, make this area of protection an open field for creative pleading and advocacy. Indeed, those who are dissatisfied with the lax enforcement of Section 11(C) of the Occupational Safety and Health Act may look to these federal environmental laws to protect workers who oppose unlawful handling of hazardous materials.
The complaint must be filed in writing. 29 CFR 24.3(c) states the form of the complaints as follows:
No particular form of complaint is required, except that a complaint must be in writing and should include a full statement of the acts and omissions, with pertinent dates, which are believed to constitute the violation.
Careful drafters will pay attention to identification of the responsible employer, and the names of individuals who have participated in the retaliation.
An attorney or union representative may file the complaint on behalf of the employee, so long as it is with the employee's permission. 29 CFR 24.3(a).
The 30 day time limit may be met by the postmark of the complaint, or by fax transmission.
The complaint may be filed with any office of the Occupational Safety and Health Administration of the U.S. Department of Labor. OSHA prefers to receive complaints at the local office. You can find the address and fax number for the local OSHA office at http://www.osha.gov/html/RAmap.html. The Administrator's office is at:
Occupational Safety & Health Administration
200 Constitution Ave NW, Rm N3647
Washington, DC 20210
Compliance Programs Fax: 202-219-9187
The 30-day time limit begins to run on the day the employee first receives notice of the adverse treatment. An example demonstrates the practical problem of this rule. Say the employer gives the employee a letter saying that the employee will be laid-off for economic reasons 60 days in the future. The employee believes the real reason is retaliation for reporting violations. That employee's complaint must be filed within 30 days of the notice, while the employee is still employed. If the employee waits until the discharge is completed, the employer can move to dismiss on grounds of untimeliness. Delaware State College v. Ricks, 449 U.S. 250, 259 (1980). If the employer's notice is equivocal, the employee may wait for a final decision from the employer. Flor v. U.S. Department of Energy, 93-TSC-1, D&O of Remand by SOL, at 8 (12-9-1994). However, pursuing internal or union grievance proceedings does not make the decision equivocal.
In counting the 30 day limit, we do not get the benefit of Civil Rule 6(A). Thus, if the 30th day falls on a Sunday, the complaint must be postmarked or filed by that Sunday. A complaint filed on Monday will be dismissed as untimely.
Under the Energy Reorganization Act and the Surface Transportation Act, nuclear whistleblowers and truck drivers may file complaints within 180 days. Under the Sarbanes-Oxley Act of 2002, whistleblowers of corporate fraud at publicly traded companies may file their complaints within 90 days of the first notice of the adverse action. Some equitable doctrines of tolling may also apply.
DOL whistleblower proceedings are like a combination of unemployment and EEOC proceedings. The procedure includes an agency investigation (without discovery) and decision, followed by a right to an adversary hearing which permits discovery. OSHA makes the initial investigation and decision. They interview witnesses on both sides and prompt the parties to discuss settlement. This stage is comparable to EEOC or NLRB proceedings. This procedure makes it difficult to prevail in cases involving credibility disputes. The initial decision is usually made in a few months, but can stretch to the better part of a year or more. A regulation requires a decision in 30 days. 29 CFR 24.4(d)(1).
Once OSHA issues a decision, the loser must file a request for a hearing within five (5) days of receiving the decision. 29 CFR 24.4(d)(2). Only four methods of delivery are allowed: facsimile, telegram, hand delivery or next-day delivery. Copies must be telegrammed or faxed to the Chief Administrative Law Judge and the Administrator, and must be sent to the respondent. Upon filing the request for a hearing, discovery commences (29 CFR 18.06 to 18.24) and the OSHA decision carries no weight.
Complainants have a right to a speedy hearing, meaning ninety (90) days from filing the complaint. 29 CFR 24.6(b)(1). They can waive this right, for example to complete discovery. The respondent does not have standing to object to or insist upon a continuance. Holub v. H. Nash Babcock, Babcock & King, Inc., 93-ERA-25, ALJ Order Denying Respondent's Motion for an Immediate Hearing (June 24, 1993). On December 29, 2000, the Administrative Review Board reversed its prior holding and ruled that ALJs have inherent power to issue subpoenas in whistleblower cases. Childers v. Carolina Power & Light. Co., ARB No. 98-077, ALJ No. 1997-ERA-32 (ARB Dec. 29, 2000).
Successful claimants are entitled to "make whole" remedies. These include reinstatement, back pay, front pay, and compensatory damages. Other remedies including equitable remedies (abatement and injunctions), punitive damages, interest, tax consequences, attorney fees and costs. Until Congress amends the laws to provide remedies enforceable in trial courts, with juries, compensation for emotion distress, anxiety, upset and loss of reputation will remain a fraction of those available to other civil claimants.
After the hearing, parties may appeal to an Administrative Review Board (ARB), a three member panel appointed by the Secretary of Labor (SOL). This panel replaced the SOL's role under the regulations. Either party may appeal to the U.S. Court of Appeals from the final administrative decision.
Remedies include reinstatement, back pay and benefits, lost overtime, and other actual damages to make the victim whole. "Front pay" may be negotiated in place of reinstatement, but reinstatement must be ordered upon a finding of wrongful discharge. Additionally, compensatory damages are available for mental anguish, pain and suffering, harassment, and lost future earnings. English v. Whitfield, 868 F.2d 957 (4th Cir. 1988) (compensation for harassment). Exemplary damages are available under the Safe Drinking Water Act (SDWA), 42 U.S.C. 300j-9(i)(2)(B)(ii), and the Toxic Substances Control Act (TSCA), 15 U.S.C. 2622(b)(2)(B).
Complainants have a duty to mitigate damages, for example, by looking for substitute employment.
A comprehensive source of information is
Concepts and Procedures in Whistleblower Law
By Stephen M. Kohn
Quorum Books. Westport, Conn. 2000. 576 pages
LC 00-027073. ISBN1-56720-354-X. Q354 $99.50
The National Whistleblower Center maintains a referral service at 415 Florida Avenue, N.W., P.O. Box 26381, Washington, DC 20001, 202-667-2075, fax number 202-462-4145.
Researchers can access OALJ decisions in an excellent database at http://184.108.40.206/library.htm.
Public health and safety is at risk whenever workers are afraid to blow the whistle. When the states ratified the First Amendment, they saw government as the most onerous force in suppression of public information. Since then, employers have controlled the economic purse strings that make workers afraid for their economic security. By offering whistleblowers effective remedies, the environmental laws give currency to the promise of the First Amendment.
Richard R. Renner
Tate & Renner
505 N. Wooster Ave.
P.O. Box 8
Dover, OH 44622
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Last updated 2004-11-22
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