Whistleblower Protection Blog : Whistleblower Lawyer & Attorney : National Whistleblower Legal Defense and Education Fund : Whistleblower Protection, Fraud Claims : Washington DC

George Fort has won over $2 million in damages and an order of reinstatement to his position as Chief Financial Officer (CFO) of Tennessee Commerce Bank. Under the Sarbanes-Oxley Act (SOX), the reinstatement order has immediate effect and will not be stayed while the bank appeals. 18 USC § 1514A(b)(2)(A) and 49 USC § 42121(b)(2)(A). The Occupational Safety and Health Administration (OSHA) issued the order on Wednesday. Congratulations to Tennessee attorney Bruce Shine who represents George Fort.

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Federal Administrative Law Judge Daniel Leland issued an order yesterday reinstating truck driver Cynthia Ferguson to her job with New Prime, Inc. He also awarded her $26,601 in back pay, $2,269 in compensation for her personal property, $50,000 in compensatory damages, and $75,000 in punitive damages for conduct that "was both reprehensible and inimical to the purpose of the Act." That Act is the Surface Transportation Assistance Act (STAA) that protects truck drivers when they blow the whistle on safety violations.

Ferguson refused to driver her truck over the Donner Pass near Reno, Nevada, on December 25, 2008. Ferguson saw the weather and the hazardous driving conditions as she drove. After consulting other drivers, listening to radio weather reports and receiving reports from the State authorities advising against travel, Ferguson said that she was not going to drive through Donner Pass until weather and driving conditions improved. Her dispatcher got upset with her and recommended that New Prime, Inc., fire her.  Prime then dispatched Ferguson to Springfield, Missouri, where a Prime management official, Jack Ewing, fired her.
 

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Today's Washington Post (Metro page B-1) reports on "a blunt assessment" of Washington DC's Metro transit administration.  Retired Metro manager David L. Gunn wrote the report.  Among other problems, it finds a "shoot the messenger" phenomenon "that discourages employees from raising safety concerns." The report is particularly sobering in light of last year's collision that killed nine people.  Metro has had other fatal accidents since then.

I know a fix for the "shoot the messenger" phenomenon. Any Metro manager, union official, or journalist could help.  One change could assure that safety issues are raised and addressed in the warm glow of pubic attention.  Every Metro train operator, bus driver, maintenance worker and manager needs to know that a recent federal law now protects them from retaliation when they raise safety concerns. 

Last October, I wrote here about how the Washington Post could report on the National Transit Systems Security Act of 2007 (NTSSA). NTSSA has given every transit system employee the right to put safety first, to bypass the chain of command, and to disobey unsafe or illegal orders. Under NTSSA, every Metro employee has legal protection if they choose to speak to a newspaper about safety concerns. They would be protected if they follow safety rules and run "late" as a result. Victims of retaliation need to know that they have only 180 days to file a complaint (some laws allow only 30 days).

I would be happy to speak to any group of Metro employees about their rights under NTSSA and how to enforce them.   Just call me, 202-342-6980, Ext. 112.

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Public health researcher Celeste Montorton (of George Washington University's School of Public Health) has posted an extensive commentary on the whistleblower issues raised during last week's OSHA Listens public hearing.  Through her The Pump Handle blog, she appreciates the criticism of OSHA's whistleblower program. She quotes from Jason Zuckerman's comment about how OSHA regional directors too often rubber stamp whatever the employer says. She quotes from my remarks about how OSHA has failed to address the management and oversight concerns raised in a report by the General Accounting Office.  She concludes, "Defending [whistleblowers] is OSHA’s core mission. There’s no reason this program this program should be treated like an orphan; it should be OSHA’s jewel—a treasured program at the heart of an effective worker health and safety protection system." Jason and I had some concrete suggestions for improving OSHA's whistleblower program, and Celeste offers some of her own. The floor is wide open now for policy makers at the Department of Labor to make some bold improvements in the whistleblower program.

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The Occupational Health and Safety Administration (OSHA) is conducting its public hearing all day today.  The "OSHA Listens" event is also available by webcast. Assistant Secretary Dr. David Michaels opened the event by decrying the 5,000 fatalities American workers suffer every year.  He said OSHA is looking for ways to bring that number down because, "No one should have to be injured or killed for a paycheck."  The sixty (60) people who asked to submit comments are divided into 13 panels. The first panel included family members of workers killed on the job.  They belong to United Support and Memorial for Workplace Fatalities (USMWF). Employer groups were on the second panel. They generally called for OSHA to spend more money on compliance programs (like asking employers to be safer), and less on enforcement (that could result in fines against employers). I was struck by an answer from Stephen Sandherr of the Association of General Contractors.  When Dr. Michaels asked what metrics OSHA should use to improve safety, Mr. Sandherr said employers should strive for a "culture of safety." Such a culture improves morale because workers know that management cares about them going home after every shift.  It reminds me of the Nuclear Regulatory Commission's requirement for a "safety conscious work environment."  Both require that workers have the freedom to raise concerns without fear of retaliation.  OSHA may hear more about that when Panel 13 starts. Myself and Mr. Jason Zuckerman of The Employment Law Group are scheduled for this last panel.  It was originally scheduled for 5:30 pm, but was set for 5:10 pm on this morning's program.  It might start even sooner than that. My comments are posted in a prior blog entry.

Luzdary Giraldo of the New York COSH, and Tom O'Connor of National COSH both called for improving OSHA's whistleblower protections.  Mr. O'Connor explained that enforcement programs do no good where workers are too afraid of retaliation to make a complaint.  Here! Here!

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