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

The December 2010 issue of Scientific American, page 12,  features my letter to them about the Protecting America's Workers Act (PAWA), HR 2067 and S 1580.  I appreciate the way that the editors enlarged this quote on their letters page:  "When whistleblowers speak truth to power, they could finally hold employers accountable."

Since I wrote my letter, I learned that the Department of Labor, Bureau of Labor Statistics, has released the number of workplace fatalities for 2009. In that year, only 4,340 Americans died on the job. This is a 17% drop from the prior year, showing the effects of the recession. The recession was particularly hard on the construction industry which which has historically contributed more than its share of fatalities.

Also, although there has been no advancement of the Protecting America's Workers Act (PAWA), HR 2067 and S 1580, Rep. George Miller was successful in getting the Robert C. Byrd Miners Safety and Health Act passed by the House Judiciary Committee. It is H.R. 5663. Section 701 of this bill is equivalent to PAWA's modernization of Section 11(c) of the Occupational Safety and Health Act. It would, if passed, finally give workplace health and safety whistleblowers a meaningful protection from retaliation. The companion bill in the Senate, S. 3671, is still in committee. I imagine that during the lame duck session, Rep. Miller will be looking for a must-pass bill to which he can attach the Robert D. Byrd Miners Safety and Health Act. If the Senate would concur, then our workplaces would become safer through the protection of safety whistleblowers.

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Yesterday, the National Whistleblowers Center (NWC) submitted comments to the Department of Labor (DOL) on three sets of regulations for whistleblower cases. DOL had issued the interim regulations on August 31, 2010. One set of regulations, 29 CFR Part 1982, covers whistleblower cases from both the Federal Rail Safety Act (FRSA), 49 U.S.C. § 20109, and the National Transit System Security Act (NTSSA), 6 U.S.C. § 1142. Another new set, 29 CFR Part 1983, covers claims under the Consumer Product Safety Improvement Act (CPSIA), 15 U.S.C. § 2087. The third set amends the regulations at 29 CFR Part 1978 that apply to truck driver cases under the Surface Transportation Assistance Act (STAA). NWC's comments on these regulations are substantially the same for all three sets. I raised concerns about (1) requiring 15-days notice before filing claims in U.S. District Court when the statutes do not contain any such limitation on going to federal court; (2) lack of specificity in allowing staff to redact information from employer submissions to comply with "other confidentiality laws;" and (3) adding a difficult procedural hurdle for parties by requiring that all issues to be raised to the Administrative Review Board (ARB) be stated in the petition for review that must be filed within 10 days of issuance of the decision of the Administrative Law Judge (ALJ). On this last point, I am concerned that the ARB will use this procedural hurdle to avoid deciding cases on the merits. It will also discourage attorneys from taking whistleblower cases to the DOL and make it harder for us to find attorneys for all the whistleblowers that contact us for help. You can read my comments by following these links: CPSIA, STAA, NTSSA and FRSA. You can explore the public dockets containing other comments by following these links: CPSIA, STAA, NTSSA and FRSA.

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Lawyers for Matt Neumann and Nick Tides are currently finishing their last brief to the U.S. Court of Appeals for the Ninth Circuit in an appeal that will decide if corporate fraud whistleblowers can ever be protected from retaliation when they make disclosures to the media. For the National Whistleblowers Center, David Colapinto and I filed a brief in September that urged the Court to use the same balancing test used in Title VII and other discrimination cases. This test balances “the purpose of the Act to protect persons engaging reasonably in activities opposing . . . discrimination, against Congress’ equally manifest desire not to tie the hands of employers in the objective selection and control of personnel.” Wrighten v. Metropolitan Hosp., Inc., 726 F.2d 1346, 1355 (9th Cir. 1984) (holding a press conference is protected). I explained Tides' and Neumann's case in an earlier blog post.

Now the Boeing Company has filed their brief arguing that media disclosures can never be protected under the Sarbanes-Oxley Act. Boeing's opening paragraph (page 1 of the brief and page 6 of the linked PDF file) essentially concedes that the company fired Neumann and Tides because of their disclosures to a newspaper reporter. Next, Boeing argues that while the law protects giving the disclosures to company officials would be protected, giving the disclosures to the media is not protected.  Boeing makes this argument even though there is no dispute that Boeing officials did get the information -- and they acted on it promptly by firing the whistleblowers.

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