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

Today Lindsey Williams and I spoke with the Executive Board of Local 689, Amalgamated Transit Union (ATU).Local 689 represents employees of Washington DC's Metro system. Lindsey is the Advocacy Director of the National Whistleblowers Center (NWC). We spoke about the National Transit System Security Act (NTSSA) of 2007, 6 USC §1142.

I have been looking forward to this opportunity for a long time. For too long, I have read local media stories about how Metro employees were too afraid of retaliation to raise concerns about safety. This can't be right, I thought.  There is a new law designed specifically to protect transit workers from retaliation.  It was a law that came out of a concern for the role that safe public transit plays in our national security.  Congress passed it as part of enacting the recommendations of the 9/11 Commission.

You can read the FAQ I prepared on NTSSA, together with my collection of web links, newspaper stories and blog posts. Everyone on the Board signed up for the NWC's Action Alerts. In our discussion, we noticed that NTSSA could be the sole remedy for transit workers who are fired during their probationary period for refusing to drive in unsafe conditions. Also, union grievances can be faster than the Department of Labor process. Still, it was obvious to all of us that workers' advocates need to know about all the tools in the belt to decide which ones might be best for any particular case. We agreed to continue talking about steward training to make sure that all Metro employees learn about their NTSSA rights when they face retaliation. I thank Jackie Jeter, President of Local 689, for the invitation to speak.

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Last July, the National Whistleblowers Center (NWC) joined with Public Employees for Environmental Responsibility (PEER) and the Government Accountability Project (GAP) in submitting a letter to Secretary of Labor Hilda Solis. The letter raised concerns about whether the Department of Labor (DOL) was doing enough to improve DOL's Whistleblower Protection Program. Today we received Secretary Solis' response. In the letter, Secretary Solis points to the "top to bottom" review of the Whistleblower Protection Program, and she promises that her Deputy Secretary, Seth Harris, will meet with representatives of NWC, PEER and GAP.

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In an editorial yesterday, the Charleston Gazette of West Virginia called on Congress to pass a law to modernize the legal protections for workplace health and safety whistleblowers. "Whistleblowers protect the health and safety of working Americans by exposing unsafe conditions," the editorial begins. It then recounts how the Government Accountability Office (GAO) report found that the Department of Labor's whistleblower protection program could do a better job of protecting whistleblowers. One could also add the DOL's Inspector General's report. Recalling the Upper Big Branch mine disaster, and the Deepwater Horizon explosion, the editorial suggests, "If whistleblowers had been protected, those tragedies might have been prevented." It then quotes Rep. George Miller, D-Calif., as saying, "I will continue to work with my colleagues and the Secretary of Labor to modernize anti-retaliation protections as part of the Robert C. Byrd Miners Safety and Health Act." I remember attending a hearing on the Protecting America's Workers Act (PAWA) that would modernize Section 11(c) of the Occupational Safety and Health Act (OSH Act).  If including PAWA in the Robert C. Byrd Miners Safety and Health Act will get it passed, I can be all for that. Rep. Miller introduced H.R.5663, the Robert C. Byrd Miners Safety and Health Act, last July. The House Judiciary Committee reported it out on July 29, 2010. As reported out, Section 701 of the bill contains a gold-standard of whistleblower protection to replace Section 11(c) of the old OSH Act.  Sen. Jay Rockefeller of West Virginia has introduced a companion bill, S. 3671.  It is still waiting for action by the Senate committee. "Passing stronger whistleblower protections would be a tribute to West Virginia's late senator," the Charleston Gazette says.  I agree.

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Last week the U.S. Department of Labor's Inspector General's office issued a report finding that most of the Department's whistleblower investigations are flawed. The IG's office reviewed investigative files of the Occupational Safety and Health Administration (OSHA) which has responsibility to enforce the employee protections of 17 federal statutes. It found that OSHA dismissed 77% of the whistleblower complaints. In 21% of cases, the complainant withdrew the complaint, either with or without a settlement. That left 2% of cases in which OSHA found the complaint had merit. This is not a rate that would encourage employees to come forward with concerns that might provoke retaliation.

The study examined a sample of the files for compliance with eight essential components of an investigation. These components are things like interviewing the complainant, documenting that interview, asking for witnesses, interviewing the witnesses, visiting the site, allowing the complainant to respond to the employer's claims, and conducting a closing conference. “These elements are essential to the investigative process to ensure that complainants receive appropriate investigations,” the report states at page 3. Compliance with these standards ranges from 54% (conducting face-to-face visits, or a site visit) to 85% (holding a closing conference). The IG concluded that 80% of the investigations failed to meet one or more of the eight essential elements. 

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In June 2009, a Metrorail accident near Ft. Totten in Washington, DC, killed nine people. The National Transportation Safety Board (NTSB) issued a report this summer that found Metro lacked a "safety culture." Now an internal Metro report finds the same problem. Katherine Shaver wrote about the report for the Washington Post. While 60 percent of Metro employees witnessed a safety concern, 30 percent of them did not report it. Shaver says that fear of retaliation is cited as a reason.  Her article fails to mention the two federal laws that grant public transit employees legal protection when they raise safety concerns. These laws 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, the 9/11 Commission Act passed in 2007. See § 1413 (NTSSA) and § 1521 (FRSA). I have written about these laws before here, here, here and here. Later this month, I have an appointment to speak to officers of Local 689 of the Amalgamated Transit Union (ATU) about these legal protections. I feel like Glinda, the Good Witch of the North (from the Wizard of Oz), telling transit workers that they have had these legal protections for years.  They just need someone to tell them about these protections so they can feel more confident that they are protected from retaliation. If it won't be the Metro Board, Metro management, or the Washington Post, then it will be me.

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