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

Today the Department of Labor has issued new regulations for whistleblower claims under four new laws. These laws include two laws included in the 2007 law that adopted recommendations of the 9/11 Commission, the National Transit Systems Security Act (NTSSA) and the Federal Railroad Safety Act (FRSA). This law also updated provisions of the Surface Transportation Assistance Act (STAA) which protects truck drivers, and DOL has announced new interim regulations on STAA whistleblower cases. Finally, DOL has issued new regulations for whistleblower claims under the 2008 Consumer Product Safety Improvement Act. The Occupational Safety and Health Administration (OSHA) issued the regulations, and will receive public comments until November 1, 2010. You can access all the rules through the Federal Register.

I have complained before to OSHA about rules that add hurdles for whistleblowers, and can derail a case away from being decided on the merits.  The one that irks me the most is the rule in 29 CFR 24.110 that requires parties appealing an judge's decision to the Administrative Review Board (ARB) to list in the petition for review every issue they will raise on appeal. This listing of issues is not required in appeals from federal court. The time to list all the issues is when the lawyer has finished reviewing the record to write the brief. If the ARB wants to assess from the petition whether the case is worthy of further review, then it is sufficient to require that an appellant list enough issues to justify review.  There is no reason to add that any issue omitted from the petition is waived -- other than to create a hurdle that can justify dismissing some issues or cases on grounds other than the merits.  That is a purpose contrary to the remedial purpose of protecting employees who put the public interest ahead of their own job security. Sadly, the new rules expand the requirement for detailed petitions for review, and the waiver of issues not raised.  See, for example, 29 CFR 1983.110(a) for CPSIA claims. Perhaps more significant, the new rules prevent the ARB from reversing an ALJ's factual findings whenever the ARB finds "substantial evidence" to support the ALJ's position. The Secretary of Labor used to conduct de novo review of the whole record, which provided better assurance that the DOL's final decisions reflected the remedial purpose of protecting whistleblowers.  The only reason for the narrower standard of review is to make the ARB's job easier. I think protecting whistleblowers is more important. I am also sad to see that the new rules require giving the DOL 15 days notice before a whistleblower files a lawsuit in U.S. District Court. The purpose of this rule is to give DOL a chance to issue a final order before the case goes to District Court.  That is contrary to the legislative purpose of giving whistleblowers a fresh bite at the apple if DOL has taken too long to decide a case.  While it is helpful to have rules for the many FRSA, NTSSA, STAA and CPSIA cases in the pipeline, these rules fall short of the change I was hoping for. The full OSHA statement about the interim rules follows in the continuation of this post.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The U.S. Department of Labor's Administrative Review Board (ARB) has issued a letter announcing the appointment of two new judges, and a new policy on briefing schedules. The two new judges are Joanne Royce and Luis Corchado. Royce previously worked for the Government Accountability Project (GAP) and a House committee. Corchado was Assistant Director of the Litigation Section for the City and County of Denver, Colorado. Previously, he was with Davis, Graham & Stubbs, a corporate law firm. The ARB now consists of four judges appointed by Secretary of Labor Hilda Solis (Chair Paul Igasaki, vice Chair E. Cooper Brown, Royce and Corchado) and one judge retained from the prior administration (Wayne Beyer).

The new ARB will have its work cut out for it if it is committed to restoring whistleblower law to the remedial purpose of providing protection to encourage employees to come forward. It also has a task of reducing the backlog that can keep cases pending for up to four years.  During the stakeholders meeting in June, the Board announced a goal of reducing the backlog so that cases would not pend for longer than two years. The appointment of new judges should help in that goal. It has been years since the ARB was fully staffed. At the June stakeholders meeting, the ARB also floated the idea of restricting extensions of time to cases where a party shows "exceptional circumstances." This would be a departure from the past practice of allowing almost all requests for extensions of time. Even with a backlog of two years, it is hard to see how extension of a month or two will delay the ARB in getting to and deciding the present case. Lawyers for whistleblowers and respondents urged the ARB in June to allow extensions for "good cause" to encourage attorneys to provide representation in whistleblower matters. Stephen M. Kohn, Executive Director of the National Whistleblowers Center (NWC), emphasized the difficulty of meeting deadlines as short as 30 days, and urged the ARB to maintain the current practice. Such pleas were to no avail. The ARB's letter announces that effective October 1, 2010, "extensions of time ... will only be granted upon a showing of exceptional circumstances." Time will tell how severe such circumstances must be to qualify as "exceptional" in the eyes of this new ARB. To add to the difficulty lawyers will have in whistleblower cases, the ARB will also require them to file not only their briefs, but also an "appendix" with copies of all the parts of the record cited in the brief. The appendix practice adds to the expense and difficulty of federal court appeals, and now the ARB wants to move in that same direction. The advantage for the ARB is that they will not have to wait for, or wade through, the record sent by the Administrative Law Judge (ALJ). Yet the ARB will still require the ALJ to forward the entire official record of the case. Startin with ALJ decisions issued on or after October 1, 2010, the new rules will require that parties be informed that their initial brief and appendix will be due within 30 days of filing their petition for review. While these new rules will make it more difficult for whistleblower lawyers to present cases to the ARB, and make it more difficult for whistleblowers to get attorneys, hopefully the content of decisions from the new ARB will improve the status of the remedial purpose of whistleblower protection laws and make such cases worth pursuing.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Occupational Safety and Health Administration (OSHA) has announced that it filed a lawsuit in Oklahoma City against Modern Oil Company, the operator of 30 Kwick Stop convenience stores.  The lawsuit alleges that after OSHA investigated a workplace safety complaint at one of its stores in Shawnee, Oklahoma, management grilled the three employees of that store until it determined who called OSHA.  Management then promptly fired the identified whistleblower. The employee was a cashier at the convenience store who complained first to management, and then to OSHA about how the tall stacks of liquor bottles posed a hazard.This case is an example of how whistleblower issues can arise in any type of workplace.

Under Section 11(c) of the OSH Act, whistleblowers do not own any cause of action themselves.  Only the Secretary of Labor can file lawsuits to recover damages for workplace health and safety whistleblowers. OSHA's decision to seek such a lawsuit is equivalent to an OSHA determination that retaliation occurred.   Luckily, the Solicitor of Labor decided to file this lawsuit.  It was filed July 15, 2010.  It is case number 5:10-cv-00748-M in the U.S. District Court for the Western District of Oklahoma. By now, the company would have received the lawsuit. I called the lawyer listed for Modern Oil Company and he told me that he no longer represents them. OSHA is seeking reinstatement, back pay, compensatory damages, and punitive damages on behalf of the whistleblower.

If Congress would pass the Protecting America's Workers Act (PAWA), H.R. 2067, then the Solicitor of Labor would not have to file Section 11(c) lawsuits, and OSHA could just issue orders for these remedies, subject to review by due process administrative hearings.  You can read our previous blog posts about PAWA here, here here and here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

One of the problems of our current patchwork approach to whistleblower protection is that much of the public is unaware of the protections that do exist in the law today. A case in point would be yesterday's story in the Washington Examiner. In a story called, "Metro strengthening protections for 'whistleblowers,'" writer Markham Heid reports on an action by the Board of Directors of our local transit system. "The measures include the implementation of federal laws that provide protection for whistleblowers . . .," the article says. I would say that there is nothing the Metro board needs to do to "implement" the federal protection for whistleblowers.  It already exists. I wrote here, here and here before about 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, the 9/11 Commission Act passed in 2007. See § 1413 (NTSSA) and § 1521 (FRSA). The key points for current Metro employees is that federal law now protects them when they raise safety concerns to anyone -- their supervisors, federal overseers, their members of Congress, or the media. If they experience retaliation, they have 180 days to file a written complaint with OSHA. They will have access to the same procedures that have protected environmental and nuclear whistleblowers for 40 years. Metro employees are welcome to come here to the National Whistleblowers Center if they want legal advice about raising safety issues, or raising claims of retaliation. Heid's article reports that the Metro board is establishing its own Whistleblower Hearing Panel. Myself, I would rather see whistleblowers pursue the Department of Labor process, starting with the OSHA complaint, where they can own a cause of action and receive a due process hearing that is not controlled by Metro management. Is a management panel really going to award compensatory damages and attorney fees against itself? Management may be lauded for its recognition that whistleblowers are their friends in the cause of safety. Metro and the media can both do a better job of informing employees of the actual remedies that already exist.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Department of Labor's Administrative Review Board (ARB) has released eleven (11) decisions issued in July, four (4) of which address substantive law.  That is down from seven (7) substantive decisions issued in July 2009. At this rate, it will be difficult for the ARB to bring its backlog down below two years anytime soon.

In Vinnett v. Mitsubishi Power Systems, ARB No. 08-104, ALJ No. 2006-ERA-29 (ARB July 27, 2010), the ARB made clear that employees are protected when they perform their safety responsibilities too well. The ARB cited long-standing DOL precedent in holding that protected activity is still protected, even if it is part of the employee's normal job duties. William Vinnett began working for Mitsubishi Power Systems (MPS) in 2004 as a field project engineer. MPS assigned him to assess equipment vibrations at the Palisades Nuclear Power Plant in Michigan. Vinnett reported a variety of concerns about technical errors, procedural violations and damage to a pressurized vessel.  He had to pester his supervisor to discuss these concerns. When he finally got his meeting, he received a warning letter about his performance. When he asked for another meeting a month later, he was fired.“The [Secretary’s] ruling simply forbids discrimination based on competent and aggressive inspection work. In other words, contractors regulated by [the ERA] may not discharge quality control inspectors because they do their jobs too well.”

• Email This
• Print
• Comments
• Trackbacks
• Share Link