Transcript Effectively Responding to Employee Concerns

Alaska Bar Association
Federal Whistleblower
Protection Statutes:
An Alternative Remedy
April 5, 2006
Anchorage, Alaska
Presented by:
Billie Pirner Garde
Clifford & Garde
Washington, D.C.
Whistleblowing….
 The
changing role of employees in
protecting the public;
 The federal laws that protect them.
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“Obviously A Major Malfunction”
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Unacceptable Consequences
“No fundamental decision was made at
NASA to do evil; rather, a series of
seemingly harmless decisions were made
that incrementally moved the space
agency toward a catastrophic outcome.…
No rules were violated; there was no
intent to do harm. Yet harm was done.
Astronauts died.”
Diane Vaughan, The Challenger Launch
Decision 409-410 (1996)
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Fatal Blind Spot
“The [Shuttle] program’s structure was a
source of problems, not just because of
the way it impeded the flow of
information, but because it has had effects
on the culture that contradict safety goals.
NASA’s blind spot is it believes it has a
strong safety culture…”
Columbia Accident Investigation
Board (CAIB), Chapter 8, page
203.
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Lessons Not Learned
In neither [the Challenger or Columbia] impending
crisis did management recognize how [organization]
structure and hierarchy can silence employees, and
take appropriate mitigating actions, such as polling
participants, soliciting dissenting opinions, or
bringing in outsiders who might have a different
perspective or useful information, to overcome the
organizational constraints.
CAIB, page 202.
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Chernobyl - 1986
The Chernobyl disaster resulted in
international acknowledgment of
importance of establishing a strong
safety culture and encouraging
dissenting opinions.
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NRC Expectations
The NRC expects that licensees will
establish and maintain a safety
conscious work environment in which
employees feel free to raise concerns
both to their own management and
the NRC without fear of
retaliation.
May 1996 SCWE Policy Statement
October 2004 SCWE Policy Update
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Protecting the Public From
Unacceptable Consequences
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Preventing Unacceptable
Consequences
“If employees are coerced and intimidated into
remaining silent when they should speak out, the
results can be catastrophic. Recent events here and
around the world underscore the realization that
such complicated and dangerous technology can
never be safe without constant human vigilance.
The employee protection provision involved in this
case thus serves the dual function of protecting both
employees and the public from dangerous
radioactive substances.”
Rose v. Secretary of Labor,
800 F.2d 563, 565 (6th Cir. 1986).
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Exxon Valdez Incident
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Davis-Besse 2002 Incident
Davis-Besse incident was the result of a
lack of safety culture.
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New Protections Against
Financial Fraud and Misconduct
Sarbanes-Oxley Act:
Any person committing intentional retaliation for
providing truthful information to law enforcement
officers relating to the commission or possible
commission of any Federal offense
shall be fined or imprisoned not more than 10 years
or both.
SOX Sec. 1107
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New Protections for Employees
in the Pipeline and Oil Industry
Olympic Pipeline
Disaster
Bellingham,
Washington
June 10, 1999
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New Protections for Employees
in the Airline Industry
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BP’s Texas City Refinery –
March 2005
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Tallmansville, West Virginia
Sago Coal Mine – January, 2006
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Protections For Employees
Responsible for
Environmental Compliance
Bhopal 1984
Exxon Valdez 1989
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The Alaska
Whistleblower Cases
Dan Lawn v. State of Alaska
 Dan
Lawn v. State of Alaska
– Grievance and Arbitration;
– DOL case.
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Green, et. al. v. Alyeska (I)
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Green, et.al. v. Alyeska and ASIS (II)
The Blacklisting Cases
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The Wackenhut Caper
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The Doyon Drilling Case
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BP Compliance Agreement
October 2000 – January 2005
“BPXA commits…that there will be no reprisal or retaliation by
BPXA [officers, managers or employees]…against any
employee [contractor and consultant] who report[s] actual or
potential violation(s) of environmental law to any regulatory
authority,…BPXA’s managers or general counsel.”
“BPXA understands that retaliation against employee(s) for the
reporting of instances of non-compliance with environmental
laws and regulations or with the terms of this agreement at
any time (whether before or after BPXA is notified by the
reporting employee) may be considered…as a material breach
of this agreement…” (Paragraph 37)
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Law and Practice
The Federal Employee
Protection Statutory Protections
 What
is different than state
laws;
 What is better than state law
protections;
 What is worse than state law
protections.
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Objective Elements of
Reprisal and Retaliation
The employee establishes a prima facie case by proving,
by a preponderance of the evidence, the following
elements:
1.
2.
3.
4.
The employee engaged in legally protected
activity.
The employee suffered an adverse action.
The employer/decision-maker had knowledge
of the employee’s protected activity.
There is some cause and effect connection
between the protected activity and the
adverse action.
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Who is Protected?
All workers who engage in work
covered by the state or federal
environmental protection laws and/or
the Energy Reorganization Act, and
raise safety concerns, are protected
from retaliation:
– No longer protects state employees
under some of the environmental laws;
– Union/non-union employees protected;
– All Contractors and Subcontractors.
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What Conduct is Protected?
Raising an environmental protection,
public health and safety, financial fraud, or
other statutory concerns internally or
externally;
 Refusing to engage in any practice that is
unlawful, if the employee has identified
the illegality to the employer;
 Providing information to or cooperating
with the government about violations or
possible violations of the law, rule or
regulation.

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What Actions Are Prohibited?
Termination for cause or “lay-off”;
Any
employment-related action that affects
 Demotion in pay or responsibilities;
the
terms and
conditions
of employment and
 Transfer
of duties
or responsibilities;
has
a tangible
consequence,
and is done
 Poor
performance
reviews;
 Hostilethe
work
environment;
because
employee
engaged in protected
 Blacklisting
or Failure to Hire;
activity
is prohibited:
 Other actions that are unique to the
circumstances of each case.

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Was There Knowledge by the
Decision-Maker of the
Protected Activity?
The employee must be able to prove that the
decision-maker (usually the supervisor) knew that
the employee had engaged in legally protected
activities, before the adverse action occurred.
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Cause and Effect
The employee must be able to prove that there is
a “cause and effect” relationship between the
employee’s protected activity and management’s
decision to take an adverse employment action.
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Once the employee is able to establish a prima facie case of
retaliatory discrimination, the burden of coming forward with a
legitimate business reason shifts to the employer.
1.
2.
3.
4.
“Wait till the
The employee engaged in legally
judge hears
protected activity;
my
The employee suffered an adverse action;
“legitimate
The employer/decision-maker had
business
knowledge of the employee’s activity;
reason.”
There is some cause and effect
connection between the protected activity
and the adverse action.
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The Next Step…
The Employer must be able to prove at least
one of the following by “clear and convincing”
evidence:




The person was not treated any differently than
other employees in similar job situations;
The action taken against the individual was
consistent with all policies and practices;
There were legitimate business reasons for
taking the action complained of;
Management would have taken the same action
even if the employee had not raised safety
issues.
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Burden of Proof
Under some federal employee protection laws,
employers have the highest possible burden of
proof in civil law:
Preponderance of the evidence
Clear and convincing evidence
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Consistent With
Policy and Practice
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When Does Protected
Activity Lose Its
Protection?
Summary of Legal
Developments
When Does Protected Activity
Lose its Protection?
The ARB directly addressed the
behaviors of employees who are
engaged in legally protected
activities, but do so in a manner that
disrupts the workplace discipline, is
inappropriate, and otherwise
unacceptable behavior in the work
place.
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Dunham v. Brock,
794 F.2d 1037 (5th Cir. 1986)
The court upheld the SOL decision
that the employee’s conduct in telling
his boss to, in effect, “take this job
and shove it,” lost its protection
because it was insubordinate,
calculated to disrupt the department
discipline, and beyond the bounds of
what any employer should have to
put up with.
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“Take this job….”
 The
“take this job and shove it”
test:
–Does the conduct disrupt
discipline?
–Was it in front of customers or
other employees?
–Has the company tolerated
similar or worse behavior?
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Speegle v. Stone & Webster,
No. 2005-ERA-6
(ALJ RD&O, January 9, 2006)
The ALJ found that the company had
justification for disciplining Speegle
… in the interest of maintaining
order. Speegle made comments in
the presence of a room full of
subordinates, in a manner that was
clearly vulgar and disrespectful.
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Kenniway v. Matlack, Inc.,
88-STA-20
(Sec’y June 15, 1989)
The “leeway doctrine” allows some
leeway for an employee’s impulsive
behavior when engaged in statutorily
protected activity; however, this
leeway is balanced against the
employer’s right to maintain order in
its business by correcting
insubordinate acts.
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The “Leeway Doctrine”
 The
“Leeway Doctrine”:
–Is the employee’s objectionable
behavior an emotional outburst?
–Is it incidental to the protected
activity?
–Is it temporary and uncalculated?
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Sprague v. American Nuclear
Resources, Inc.,
92-ERA-37
(Sec’y December 1, 1994)
The Secretary held that “it is normal for
employees engaging in protected
activities to exhibit impulsive behavior;
such employees may not be disciplined
for insubordination so long as their
behavior is lawful and their conduct is
not indefensible in its context.”
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No Adverse Action
McNeill v. Crane Nuclear Inc. ARB No. 02-002, ALJ
No. 2001-ERA-3, (ARB July 29, 2005)
Placing a temporary “administrative hold” on the unrestricted access
of two Workers was not adverse employment action where such
action did not sever the employment relationship or change the
workers’ clearance status…
The Respondent did not engage in adverse employment action
where the Complainant suffered, at most, only temporary
unhappiness. The record established that a manager immediately
and thoroughly aborted any adverse consequences when he
recognized that the matter had not been properly
handled by the Complainant’s immediate supervisor.
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Harrison v. Roadway Express, Inc.,
ARB No. 00-048, ALJ No. 1999-STA-37, (slip op.
at 15) (ARB December 31, 2002) aff’d on other
grounds, Harrison v. ARB, 390 F3d 752, 759
(2nd Cir. 2004)
The ARB noted that the “leeway” for
impulsive behavior standard applies
to situations where the employee is
emotionally motivated and the
conduct is temporary and
uncalculated.
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Svendsen v. Air Methods, Inc.,
ARB 03-074, ALJ 2002-AIR-16
(August 26, 2004)
The ALJ found, and ARB upheld, that
employee was disciplined for his
belligerent and unprofessional
manner, as supported by history of
communication problems and
confrontations with others, not for
Svendsen’s sincere commitment to
airline safety and his safety
concerns.
Order, at p. 30
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Style Matters
“In view of the testimony…[we agree] that
the employe was acting on the concern
about Svendsen’s conduct…and not on
[his] report of the visibility hazard. The
ALJ properly determined that Svendsen’s
safety concern was protected by AIR21,
but the ‘belligerent and unprofessional’
manner in which Svendsen documented
the issue with [his boss] was not.”
Svendsen v. Air Methods, Inc.,
ARB No. 03-074, 2002-AIR-16
(Aug. 26, 2004)
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Style Matters
(Cont’d)
“All things considered, in my view of
the evidence presented,
Complainant’s confrontational
behavior, not his safety concerns,
propelled the turning point in the
relationship. In other words, … it
was never Complainant’s message
that caused him problems with
management, the union and his
fellow workers, it was his style.”
Alaska Bar Association
Svendsen
v. Air Methods, Inc., Id.
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Style Matters
(Cont’d)
“As far as Complainant is concerned, I
trust I will always fly with pilots of his ilk.
I find him sincerely concerned about
airline safety, but…Complainant has a
history of communication problems and
confrontation with others, and I find from
the evidence his discipline was a result
thereof and not protected activity.”
Svendsen v. Air Methods, Inc., Id.
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Mind Your Manners!
Deliberate and calculating
insubordination may cause
[protected] speech to lose it’s
protection.
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Sayre v. VECO Alaska, Inc.,
ARB No. 03-069, ALJ No. 2000-CAA-7 (ARB
May 31, 2005)
The employee’s conduct was “more
deliberate and reasoned than impulsive
and uncalculated,” which does not qualify
for application of the “leeway principle.”
Insubordination towards supervisors and
co-workers, even when engaged in
protected activity, is justification for
termination. The employee had been
previously, and properly, disciplined for
her discourteous and insubordinate
manner.
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When is Enough,
Enough Already?
The ARB has weighed in on the
issue, deciding that once an
employer provides an answer to that
employee about the concern and
takes action to address it, the
protected speech may lose its
protection.
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Williams v. DOL,
No. 03-1749 (4th Cir., November, 18, 2005)
(per curiam) (unpublished) case below ARB
01-021, ALJ No. 2000-CAA-15.
Employee, a teacher, was discharged
for the manner in which she had
aired her concerns about lead in the
schools. The issues were legitimate.
The employer took important steps
to ensure the safety of the students
and employees, but the employee
kept raising the issues.
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The Federal Court of Appeals,
Agreeing With The ARB, Wrote:
“…once her concerns were
addressed…[i]t was no longer
reasonable for her to continue
claiming that these schools were
unsafe and her activities lost their
character as protected activity.”
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But see, Pierce v. USEC
(ALJ RD&O, January 27, 2006)
“As discussed above, on January 3, 2003,
Mr. Pierce became angry at a meeting and
used foul language. When he was
terminated, Mr. Pierce was informed that
his actions at this meeting were a reason
for his termination. At this time, Mr.
Pierce had already been placed on
administrative leave, decision-making
leave and a new, stricter PIPC. As such,
Mr. Pierce was placed under a tremendous
amount of stress…”
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Pierce v. USEC
(Cont’d)
“The record does not contain any evidence
that Mr. Pierce had temper problems prior
to being transferred to NS&Q. Mr. Pierce
testified that he thought any small issue
would cause his termination. USEC did
not terminate other employees for
arguments during meetings. Thus, Mr.
Pierce’s arguments cannot be separated
from his protected activity. As such I find
that USEC did not establish that Mr.
Pierce’s arguments are a legitimate, nondiscriminatory reason for terminating his
employment.”
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Pierce v. USEC
(Cont’d)
Conclusion:
“After listening to the testimony and
observing the demeanor of Mr. Pierce, I
find that Mr. Pierce was dedicated to the
safety of the Plant. USEC did not establish
by clear and convincing evidence that it
would have taken the same actions
against Mr. Pierce absent his protected
activity. Mr. Pierce has therefore
established, by a preponderance of the
evidence, that his protected activity
contributed to his termination.”
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Raising the Bar
It appears that the Department of
Labor and the Courts are raising the
bar on standards of behavior and
conduct for whistleblowers in the
workplace.
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