Transcript Slide 1

Changing Currents in
Employment: Recent
Developments in Whistleblower
Law
Jason M. Zuckerman
The Employment Law Group® Law Firm
Tel: 202.261.2810
Fax: 202.261.2835
[email protected]
www.employmentlawgroup.com
New Whistleblower
Protection Provisions
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New Whistleblower Protection for
Transportation Employees
Whistleblower Provision of CPSC Reform
Act
Section 1553 of American Recovery and
Reinvestment Act
Amendments to the Retaliation Provision
of the False Claims Act)
9/11 Act Transportation
Whistleblower Protections
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Public Transportation Employees
– § 1413 establishes National Transit Systems
Security Act of 2007 (“NTSSA”) to protect public
transportation employees
Railroad Employees
– § 1521 amends the Federal Rail Safety Act
(“FRSA”), 49 U.S.C. § 20109
Commercial Motor Carrier Employees
– § 1536 amends the Surface Transportation
Assistance Act (“STAA”), 49 U.S.C. § 31105
The Implementing
Recommendations of the 9/11
Commission Act of 2007
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Enacted August 3, 2007
Public Law No. 110-053
New Cause of Action:
– Whistleblower coverage for public transportation
employees (§ 1413)
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Significant Enhancement to Existing WB
Protection Laws:
– Whistleblower coverage for railroad employees (§
1521) and commercial motor carrier employees (§
1536)
9/11 Act Coverage
Public Transportation Employees
– Section 1413 of the Act protects public
transportation employees
– Applies to a public transportation agency, a
contractor or subcontractor of such agency,
or an officer or employee of such agency
– Modeled on employee protection provisions
of Federal Rail Safety Act (49 U.S.C. §
20109) and Wendell H. Ford Aviation
Investment and Reform Act for the 21st
Century (“AIR21”) (49 U.S.C. § 42121)
9/11 Act Coverage
Railroad Employees
– Section 1521 amends the Federal Rail
Safety Act (“FRSA”), 49 U.S.C. § 20109
– Applies to a railroad carrier engaged in
interstate or foreign commerce, a
contractor or subcontractor of such a
railroad carrier, or an officer or employee
of such a railroad carrier
9/11 Act Coverage
Commercial Motor Vehicle Employees
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Section 1536 amends the Surface Transportation
Assistance Act (“STAA”), 49 U.S.C. § 31105
Amendments conform the STAA to the procedure and
burden of proof set forth in the NTSSA and the amended
FRSA (which are essentially derived from AIR21)
STAA protects drivers of commercial motor vehicles,
mechanics, freight handlers, or any other person
employed by a commercial motor vehicle carrier who
affects safety and security during his or her employment.
Elements of a Transportation
Retaliation Claim
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Protected Conduct
Knowledge of Protected Conduct
Adverse Action
Protected activity contributing factor in
decision to take adverse action
Public Transportation Employees:
Protected Conduct
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NTSSA covers employees who:
– Provide information or assist an investigation regarding
conduct which the complainant reasonably believes
constitutes a violation of Federal law relating to public
transportation safety or security, or fraud, waste or abuse
of federal grants or other funds intended to be used for
public transportation safety or security
– Refuse to violate or assist in the violation of a federal law
– File employee protection complaints under NTSSA
– Cooperate with a safety or security investigation
conducted by the Department of Transportation (“DOT”),
Department of Homeland Security (“DHS”) or National
Transportation Safety Board (“NTSB”)
Public Transportation Employees:
Protected Conduct
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NTSSA also covers employees who:
– Furnish information to the DOT, DHS, NTSB or any
federal, state or local enforcement agency regarding an
accident resulting in death or injury to a person in
connection with public transportation
– Refuse to work under certain conditions
– Report hazardous safety or security conditions
– Refuse to authorize the use of any safety or security
related equipment, track or structures
Railroad Employees:
Protected Conduct
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The amended FRSA protects employees who:
– Notify or attempt to notify the railroad carrier or DOT of a work
related illness or personal injury of an employee
– Furnish information to the DOT, DHS, NTSB or any federal, state
or local enforcement agency regarding an accident resulting in
death or injury to a person in connection with railroad
transportation
– Refuse to work under certain conditions
– Report hazardous safety or security conditions
– Refuse to authorize the use of any safety or security
related equipment, track or structures
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Complainant’s actions must be lawful and in good faith.
Railroad Employees:
Protected Conduct
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FRSA protects:
– Providing information or assisting an investigation
regarding conduct which the complainant reasonably
believes constitutes a violation of Federal law relating to
railroad safety or security, or fraud, waste or abuse of
federal grants or other funds intended to be used for
railroad safety or security
– Refusing to violate or assist in the violation of a federal
law
– Filing a complaint under FRSA
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Complainant’s actions must be lawful and in good faith.
Commercial Motor Vehicle Employees:
Protected Conduct
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STAA prohibits an employer from retaliating against an employee
because the employee:
– filed a complaint or began a proceeding related to a violation of
a commercial motor vehicle safety or security regulation,
standard, or order
– testified or will testify in such a proceeding
– refused to operate a vehicle because the operation violates a
regulation, standard, or order of the United States related to
commercial motor vehicle safety, health or security
– cooperated or is about to cooperate, with a safety or security
investigation by the DOT, DHS or NTSB about an accident or
incident that resulted in injury or death to an individual or
damage to property occurring in connection with commercial
motor vehicle transportation
Protected Conduct
“Reasonable Belief”
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To prove protected conduct, complainant need
not report an actual violation of a transportation
safety or security rule.
“Reasonable belief” standard applies
Objective component assesses whether a person
with the complainant’s knowledge and experience
would have believed the reported conduct
violated the relevant statute
Adverse Action
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Prohibits a broad range of adverse
actions:
– Termination
– Blacklisting
– Denying benefits
– Failure to hire or rehire
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Burlington applies
Knowledge of Protected
Conduct
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ALJs will impute knowledge of
protected conduct to the decisionmaker where a person with knowledge
of the protected conduct influenced
the decision
Causation
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Burden of proof favorable to
employees
Contributing factor is “any factor,
which alone or in connection with
other factors, tends to affect in any
way the outcome of the decision.”
Procedure
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Under the three transportation whistleblower
protection laws, a retaliation claim must be filed with
the Department of Labor (“DOL”) within 180 days of
the employee first learning of the adverse action
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SOL does not run from the date on which the
adverse action is implemented
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OSHA conducts investigation and can order
preliminary reinstatement
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Either party can request a de novo hearing before an
ALJ
Procedure
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Formal rules of evidence do not apply
Either party can request ARB review of ALJ decision
If DOL has not issued a final decision within 210
days after the filing of the complaint, the
complainant can file suit in federal district court.
Either party can request a jury trial
Remedies
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Reinstatement
Back pay
Attorney Fees
Punitive Damages capped at $250,000
CPSC Reform Act of 2008
(H.R. 4040)
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Protects employees in the manufacturing, private
label, retail and distribution industries (§ 219)
Enacted August 14, 2008
Comprehensive CPSC reform prompted by concerns
about lead-based toys and other hazardous
consumer products
Elements of a CPSC
Retaliation Claim
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Protected Conduct
Knowledge of Protected Conduct
Adverse Action
Causation (protected activity
contributing factor in decision to take
adverse action)
Coverage
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Section 219 of the CPSC Reform Act protects employees in
the manufacturing, private labeling, distribution and retail
industries who disclose information to an employer, a
regulatory agency, or a State Attorney General about a
reasonably perceived violation of the Consumer Product
Safety Commission Act (“CPSCA”) or any act enforced by the
Consumer Product Safety Commission
Also protects an employee’s good faith refusal to violate the
CPSCA
Protected Conduct
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An employee engages in protected
activity by:
– Providing information relating to a violation
of the CPSC Reform Act or any Act enforced
by the Commission, to the employer, the
Federal Government, or the attorney general
of a state
– Testifying or assisting in a proceeding
concerning a violation of the CPSC Reform
Act or any law enforced by the Commission
– Refusing to participate in an activity that
violates the CPSCA
Protected Conduct
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Specific examples of protected
conduct include:
– Reporting violations of the standard for the
flammability of children’s sleepwear
– Reporting violations of safety specifications for
bicycles
– Reporting choking incidents involving marbles,
small balls, latex balloons and other small parts
Adverse Action
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Prohibits a broad range of adverse
actions
– “discharge an employee or otherwise
discriminate against an employee with
respect to compensation, terms,
conditions, or privileges of employment”
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Burlington standard applies
Causation
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Burden of proof favorable to
employees
Contributing factor is “any factor,
which alone or in connection with
other factors, tends to affect in any
way the outcome of the decision.”
Remedies
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Reinstatement
Back Pay
Attorney’s Fees
Punitive damages not authorized
Procedure
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180-day statute of limitations
Applies AIR-21/SOX procedures
OSHA investigates
ALJ hearing
Appeal to ARB
If DOL does not issue a final decision within
210 days of the employee filing the complaint,
employee can remove the claim to federal
court and is entitled to a trial by jury.
Key Provisions of Section 1553
of American Recovery and
Reinvestment Act
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Broad scope of protected conduct
Broad range of actionable adverse
actions
Low burden to establish causation
Right to a Jury Trial
No “duty speech” defense
No statute of limitations
Section 1553 Coverage
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Applies to Private Contractors, State
and Local Governments who are
recipients of stimulus funds
Section 1553 Protected
Conduct
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Protected conduct includes a disclosure about
information that an employee reasonably
believes evidences:
– Gross mismanagement of an agency contract relating
to stimulus funds;
– Gross waste of stimulus funds;
– Substantial and specific danger to public health or
safety;
– Abuse of authority related to the implementation or
use of stimulus funds; or
– A violation of a law, rule, or regulation that governs
an agency contract or grant related to stimulus funds.
“Duty Speech”
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Section 1553 specifically protects “duty speech”
whistleblowing, i.e., disclosures made by
employees in the ordinary course of performing
their job duties
Objective Reasonableness
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Courts will likely apply a standard of objective
reasonableness from analogous whistleblower protection
laws, such as Section 806 of Sarbanes-Oxley Act
DOL ARB and two Circuit Courts have imposed a high
standard of “objective reasonableness”
 Allen v. Administrative Review Board, No. 0660849 (5th Cir. Jan. 22, 2008)
 Livingston v. Wyeth, Inc., No. 06-1939 (4th Cir.
Mar. 24, 2008)
 Welch v. Cardinal Bankshares Corp., ARB No. 05064, ALJ No. 2003-SOX-15 (ARB May 31, 2007)
Section 1553 Procedure
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180-day statute of limitations
Inspector General investigates
If an agency head does not issue a
final decision within 210 days of the
employee filing the complaint,
employee can remove the claim to
federal court and is entitled to a trial
by jury.
Section 1553 Remedies
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Reinstatement
Back Pay
Compensatory Damages
Attorney’s Fees
False Claims Act Amendments
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On May 20, 2009, President Obama
signed into law the Fraud Enforcement
Recovery Act, which amends the FCA’s
retaliation provision (31 USC 3730(h)
by:
– Expanding coverage to any person
working on a government contract
– Broadening scope of protected conduct