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

House Speaker Nancy Pelosi has announced plans to bring the Oil Spill Response Bill to the House floor for passage. The Washington Independent is reporting that the bill will include the Offshore Oil and Gas Worker Whistleblower Protection Act of 2010, which, “provides whistleblower and anti-retaliation protections to workers on the Outer Continental Shelf” and “protects worker safety by improving federal agency coordination.” The text of this bill is available here. From my read, it includes most of what we call the "gold standard" protections for whistleblowers.  It will protect oil and gas workers when the raise concerns about compliance with the Outer Continental Shelf Lands Act, or any concerns about illness, injury or unsafe conditions. It would protect reports made in the course of performing duties, and protect refusals to violate the law. It would provide a right of action through the Department of Labor, a 180-day statute of limitations, a contributing factor standard for proving causation, and a "clear and convincing evidence" burden for employers who claim they would have fired the whistleblower even if protected activity was not considered. If the Department of Labor has not issued a final order within 300 days, whistleblowers could go to U.S. District Court and ask for a trial by jury. One provision that is missing (but was added to SOX in the Dodd-Frank Act) is a provision specifically barring enforcement of pre-dispute arbitration agreements.  It does provide that, "The rights and remedies in this section may not be waived by any agreement, policy, form, or condition of employment," but this might not be enough to keep courts from enforcing arbitration agreements, as they are keen to do. It would be a good day for oil and gas workers, and for everyone who cares about the environment we leave for future generations, if this bill would pass.  It would be an even better day if the House adds the Dodd-Frank anti-arbitration language.

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The Occupational Safety and Health Administration (OSHA) has announced that it will hold a live web chat tomorrow from 3:00 to 4:00 p.m. (Eastern) to discuss OSHA's new safety rules for cranes and derricks used in construction. Interested parties can access the web chat by visiting http://www.dol.gov/dol/chat.htm tomorrow at 3:00 p.m. Cranes and derricks have been a perennial danger on construction sites, and improved safety standards will be a welcome development. The new standards will be even more effective if Congress passes the Protecting America's Workers Act (PAWA), HR 2067, so that workers will own their own retaliation claims if they insist on following the new rule and suffer retaliation as a result. The full OSHA statement announcing the web chat follows in the continuation of this entry.

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I am pleased to announce that today the Sixth Circuit U.S. Court of Appeals has reversed a decision of the U.S. Department of Labor's Administrative Review Board (ARB) and reinstated the whistleblower claim that my client Harry Smith made against the trucking company CRST. In the photo, Harry Smith stands between his wife and fellow truck driver Scooter McNutt. Smith was fired right after he threatened to take the company's defective trailer to the Department of Transportation for inspection. The Department of Labor had dismissed Smith's complaint against CRST after the Occupational Safety and Health Administration (OSHA) sent him a dismissal notice, showing that a copy was sent to me, his lawyer.  However, OSHA did not actually send me the copy of the dismissal notice until after Smith's time to appeal had expired. Smith does not recall receiving the dismissal notice at all. CRST and the Department of Labor (DOL) tried to blame Smith for failing to appeal on time.  The Sixth Circuit says today that, "it appears to us that it falls even more heavily at the feet of OSHA, in failing to send the notice to Renner for some two months after the fact, despite the indication to Smith to the contrary."

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Yesterday, the Seventh Circuit U.S. Court of Appeals affirmed a reinstatement order from the Department of Labor's Administrative Review Board (ARB). The decision keeps truck driver Peter Cefalu on the job driving for Roadway Express. The Seventh Circuit considered a previous appeal by Roadway Express and decided that the company deserved a chance to prove that it would be unsafe for the public to reinstate Cefalu. In that case, called Roadway Exp., Inc. v. United States Dep’t of Labor, 495 F.3d 477 (7th Cir. 2007), or Roadway I, the Seventh Circuit held that the ARB properly barred Roadway from using information about Cefalu's driving record with previous employers.  Since Roadway refused to disclose the source of the information, after a judge ordered it to make this disclosure, the Court held that the limit on its ability to use the information was reasonable. However, the Court also held that an employer should not be compelled to reinstate a driver if the employer would have fired the driver anyway for being a safety risk even if that driver had engaged in no protected activity. On remand, the Department of Labor found that Roadway could not prove that it would have fired Cefalu in the absence of his protected activity.  Roadway fired Cefalu in 2002 after he submitted an affidavit to support another driver in a grievance hearing.  Cefalu's affidavit explained how management had instructed him to falsify his logbook of the hours he drove. Now, the Seventh Circuit makes clear that it wants to respect the automatic reinstatement provision of the Surface Transportation Assistance Act (STAA), 49 U.S.C. § 31105(b)(3)(A). It will recognize an exception only when reinstatement would compel a company to employ an "incompetent or unqualified employee." It also made clear that the employer has the burden of proving this exception to reinstatement. I note that STAA requires the employer to prove its same-decision defense by "clear and convincing evidence."  Congratulations to my friend Paul Taylor on prevailing in this case after eight (8) years of vigorous opposition.

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Public interest groups have scheduled a town hall meeting to discuss legislation designed to protect miners and other workers from injury and disease. It is scheduled for next Tuesday, July 27, 2010, at Unitarian Universalist Church of Arlington, 4444 Arlington Boulevard, Arlington, Virginia, from 7:00 pm to 8:30 pm. A flyer is available here. Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, is scheduled to speak. The purpose of the town hall meeting is to build support for H.R. 5663, the Robert C. Byrd Miner Safety and Health Act. This legislation would expand and improve workplace safety laws by strengthening both the Mine Safety and Health Act (MSHA) and the Occupational Safety and Health Act (OSHA). We posted a previous notice about this bill here.

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Last week, I posted here an amicus brief for the U.S. Department of Labor's Administrative Review Board (ARB) explaining how the Sarbanes-Oxley Act (SOX) protects corporate whistleblowers employed by the subsidiaries of publicly traded companies. What a difference a day makes. With President Obama's signature today on the Dodd-Frank Wall Street Reform Act, SOX is now amended to explicitly protect the employees of subsidiaries. What is more is that Senate Report 111-176 makes clear that the amendment was intended to restore SOX to the broad scope originally intended, and that defenses based on subsidiary status should now be unsuccessful. The National Whistleblowers Center (NWC) has now filed a supplemental letter brief with the ARB in its test case of Carri Johnson v. Siemens Building Technologies, Inc., ARB Case No. 08-032. The letter brief makes clear that the Dodd-Frank Act firmly establishes that SOX has always covered the employees of subsidiaries. NWC Executive Director Stephen M. Kohn led our work on this letter, with myself and NWC intern Margot Weisberg. The ARB, meanwhile, has invited supplement briefs on the effect of the Dodd-Frank Act on subsidiary coverage under SOX. The ARB has allowed an additional ten (10) days for these briefs, but ours is already filed.

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Investigative journalist Myron Levin, writing for FairWarning.org, has found that the Occupational Safety and Health Administration (OSHA) dismisses about 80% of its whistleblowers cases. Levin founded FairWarning.org to be an online nonprofit publication covering workplace safety, health, and employer conduct issues. Of the 279 cases brought to OSHA's whistleblower protection office, Department of Labor attorneys filed a mere 32 lawsuits on behalf of employee whistleblowers. OSHA investigators are sometimes frustrated that despite the outstanding merits of a given case, solicitors will only pursue the “slam dunk” cases that are sure to win.

OSHA's Whistleblower Protection Program is supposed to protect the right of employees to report workplace violations without retaliation. However, in the past 14 years the program has achieved little, as the assurance of whistleblower protection through the program appears to have fallen far short of a guarantee. Workers on the job just have no assurance that they will be protected if they raise a concern about a danger to health or safety.

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President Obama is scheduled to sign the Dodd-Frank Act tomorrow to enact the most significant reforms of our financial system in generations. Lawyers are already assessing some of those reforms, and we are focused on the new provisions for whistleblowers. My colleague, Lindsey Williams (Advocacy Director of the National Whistleblowers Center) already reported here on the substantive provisions of the new law. Yesterday the National Law Journal released an article with legal analysis of the whistleblower provisions. Management lawyers, including Richard Cassin of Singapore, are bemoaning the liability companies will face, and the change in incentives that will encourage insiders to become whistleblowers for the rewards provided by the new law. My friend Jason Zuckerman (pictured) of The Employment Law Group told the National Law Journal, "This new monetary reward program should encourage employees to blow the whistle and put more pressure on the SEC to conduct real investigations that would lead to appropriate accountability." He also expresses appreciation for the closure of loopholes in the Sarbanes-Oxley Act (SOX) and the False Claims Act (FCA). I do too.

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From the Occupational Safety & Health Portal of Kazan, McClain, Lyons, Greenwood & Harley, PLC:

HR 5663 [The Miner Safety & Health Act makes a number of improvements, providing additional tools to ensure that OSHA and MSHA can properly enforce OSH law and keep workers safe.

Specifically, HR 5663 would increase protection for workers covered by the OSH Act by:

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In April, I wrote here about the request of the Department of Labor's Administrative Review Board (ARB) for amicus (friend of the court) briefs on whether the Sarbanes-Oxley Act (SOX) protects employees of subsidiaries.  The National Whistleblowers Center (NWC) joined with the National Employment Lawyers Association and the Government Accountability Project to submit an amicus brief as requested by the ARB.  That brief is now available here. The brief argues that the language Congress originally used, and the legislative history and context (can you spell Enron), make clear that SOX protects all employees of all subsidiaries of publicly traded companies. I want to thank Michael T. Anderson of Murphy Anderson in Boston for his insights and talent in helping with the writing of this brief and the final edits and production (while I was busy with another matter). I also appreciate the contributions of Ann Lugbill, Rebecca Hamburg, Karen Gray and Jason Zuckerman. As noted in yesterday's blog entry, Congress has now amended SOX to make explicit what it had always intended.  Still, many SOX whistleblowers have cases pending that are affected by the ARB's determination of this legal issue. Best wishes to Carri Johnson whose SOX case before the ARB will be the test case to resolve this issue.

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