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

I can hardly believe I am writing this. The Department of Labor's Administrative Review Board (ARB) has just issued a decision applying Aschroft v. Iqbal to whistleblower complaints filed with the Occupational Safety and Health Administration (OSHA). As it happened to one of my clients, Douglas Evans, it has fallen to me to file a Motion for Reconsideration with the ARB. I filed that motion on May 10, 2010. The 2-1 decision also holds that the federal government is immune from whistleblower complaints under the Energy Reorganization Act (ERA, governing nuclear safety), and the Toxic Substances Control Act (TSCA). It acknowledges that the federal government has waived sovereign immunity under CAA, SWDA and CERCLA, the Clear Air, Solid Waste Disposal and Superfund Acts.

I am most distressed, though, with the application of Iqbal. In Aschroft v. Iqbal, the Supreme Court was faced with a claim that senior officials of the Bush Administration had authorized racial profiling against Americans of Middle Eastern descent in the wake of the 9/11 terrorist attacks. Stretching the requirements of pleading a constitutional violation to new limits, the 5-4 majority of the Supreme Court allowed a lower judge to dismiss the complaint on grounds that it was not “plausible” that former Attorney General John Ashcroft purposefully discriminated on the basis of national origin. The Supreme Court relied on prior cases holding that when plaintiffs allege a violation of the First or Fifth Amendments to the Constitution, then the complaint must allege sufficient facts from which the court can infer that the named individuals acted purposefully to violation those amendments. Still, the Supreme Court was working from Rule 8(a)(2) of the Federal Rules of Civil Procedure (FRCP) which normally require only a “short and plain statement of the claim.”

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One of the outcomes of the 9/11 Commission was that Congress passed two whistleblower protection laws for railroad and public transit employees in 2008. These are the Federal Rail Safety Act (FRSA), 49 U.S.C. § 20109, and the National Transit System Security Act (NTSSA). Both are part of Public Law 110-53, see § 1413 (NTSSA) and § 1521 (FRSA). Together, these laws assure the traveling public that if any of the carrier's employees see a safety or security concern, they can raise that concern knowing that they have legal protection against retaliation, . . . unless they are traveling by ferry.

This week, the Occupational Safety and Health Administration (OSHA) issued a determination of an FRSA violation.  OSHA's New York office did so in the most common of circumstances.  It has expunged a suspension for an employee of the Port Authority Trans-Hudson Corp. (the so-called PATH trains between New Jersey and Manhattan). According to OSHA's press release, the employee, under a doctor's order, was absent from work while recovering from an injury. PATH management accused the employee of absenteeism, and issued a suspension. The worker filed a whistleblower complaint with OSHA and OSHA has now concluded that this simple act of following a doctor's orders is a protected safety-related act.

"Railroad employees have the statutory right to report work-related injuries and to follow the orders or treatment plan of a treating physician," said Robert Kulick, OSHA's regional administrator in New York. "Railroads who retaliate against employees for exercising their rights will be held accountable."

OSHA has ordered PATH to take corrective action, including expunging disciplinary actions and references to them from various records as well as compensating the worker for lost wages resulting from the suspension. The railroad also must post and provide its employees with information on their FRSA whistleblower rights. Either or both parties can object and request a hearing before an Administrative Law Judge.

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Dr. David Michaels, the Assistant Secretary of Labor for Occupational Safety and Health, made his first public remarks today about his plans for OSHA's whistleblower program. The occasion was a meeting of Professionals for the Public Interest. Dr. Michaels opened by stating that

Dr. David Michaels (left) (of OSHA) and Paul Almeida (right) (of the AFL-CIO Department of Professional Employees) speak at the American Academy for the Advancement of Science (AAAS)

"whistleblowers serve an essential role in protecting the public." He decried how whistleblowers have to risk their jobs, and sometimes their lives. He said that without robust whistleblower protections, voices may be silenced. He recognized that the whistleblower program at the Occupational Safety and Health Administration (OSHA) are "not nearly effective enough." He decried the patchwork of laws that protect only some of the people, and in uneven ways. Although OSHA has issued some notable reinstatement and compensatory orders for whistleblowers (recounted earlier on this blog), OSHA is still ruling in favor of whistleblowers in only about 3% of all the whistleblower cases it investigates.  Twenty percent (20%) are settled, 14% withdrawn, and 63% dismissed. Dr. Michaels said he did not believe that two-thirds of the cases were filed by whistleblowers who had no legitimate claim. Instead, "institutional barriers stand between whistleblowers and justice."

Dr. Michaels listed some things OSHA is already doing to improve its whistleblower program:

• It is making uniform policy that complainants will be entitled to a copy of information submitted by employers so that they can respond during the investigation.
• OSHA is hiring 25 new whistleblower investigators (adding to the 87 it already has). Still, Dr. Michaels says, this is not enough, especially with the new laws that add more whistleblower cases.
• Dr. Michaels declared his support for the Protecting America's Workers Act (PAWA), HR 2067. He wants powers provided to the Mine Safety and Health Administration (MSHA) to impose civil penalties and issue preliminary orders of reinstatement while investigations continue. He wants the thirty (30) statute of limitations extended. He wants to strengthen all the whistleblower laws.
• He is ordering a "top to bottom review" of the whistleblower program that will include an examination of any institutional barriers, discrepancies in investigatory practices, and an examination of policies.  Dr. Michaels mentioned that he could not believe that OSHA was dismissing SOX complaints filed by employees of subsidiaries, and said that policy would be reviewed.
• He stated that employer policies that reward employees for not reporting accidents create a peer pressure that deters workers from speaking up about safety issues.  For example, if an employer promises a pizza party every Friday when there are no accidents reported in a week, he would find that this policy is a violation of OSHA Act Section 11(c) because it disfavors making reports.
• Last year, the General Accounting Office (GAO) issued a report about weaknesses in the whistleblower program.  Dr. Michaels said that OSHA is working to address the weaknesses GAO identified.

By my count, Dr. Michaels was saying all the right things. OSHA is a big organization, and it takes time to make changes. Accepting that, we can feel gratified that the charging are finally pointing in the right direction. Dr. Michaels concluded his remarks by recognizing that whistleblowers are an essential part of strong enforcement. He invited stakeholders to share their ideas for improving the whistleblower program. "Our nation will be better for it."

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The Occupational Safety and Health Administration (OSHA) announced on Friday that it has found that New Jersey based air carrier Worldwide Jet Charter LLC retaliated against one of its pilots. OSHA has issued a reinstatement order, and this order has immediate effect even if Worldwide chooses to appeal. OSHA made its determination under the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, which is also called AIR 21. "Pilots and other workers of air carriers have the legal right to report violations of federal aviation regulations," said Robert Kulick, OSHA’s regional administrator in New York. "Air carriers that retaliate against employees for exercising their rights under AIR21 will be held accountable." OSHA did not release the name of the pilot, but it did announce that its determination provided for back pay, compensatory damages, attorney fees, expungement and an order to post a notice to employees about their rights under AIR 21. This announcement follows another OSHA determination in March for a SOX whistleblower, indicating new hope for whistleblowers about the pace and success of OSHA whistleblower cases.

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Professionals for the Public Interest will host the event “Whistleblowers and OSHA: Strengthening Professional Integrity” on May 11th from 11:45 a.m. to 2:00 p.m. at the American Association for the Advancement of Sciences (AAAS). The event is free and open to the public with advance registration. The presentation will feature the Assistant Secretary of Labor for Occupational Safety and Health David Michaels, PhD, MPH. Dr. Michaels is nationally recognized for protecting the scientific integrity on which the health and environmental policies are based. Participants will also discuss the Whistleblower Protection Program in the Office of Safety and Health Administration. The event invitation gives some interesting prompts, such as “How is the Whistleblower Protection Program working now?” “How do its challenges relate to its responsibilities across so many statutes and industries?” In order to register for this thought-provoking seminar, click here.

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