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

On November 19, 2010, the National Whistleblowers Center (NWC) hosted a visit by Middle Eastern officials as part of the State Department's Transparency in Government project for the Near East. The program offered a view of the role of citizens, media and private non-profit advocacy in fostering transparency and accountability in government. Visitors learned about the uneven patchwork of whistleblower protections here in the United States, and our perspective about which laws work best and why.

Pictured here (not in order) are Dr. Amr Hashem Ahmed Abdel-Megid-Rabee of Egypt's Center for Political and Strategic Studies (Al Ahram Foundation), Mr. Khaled A.A.M. Malek of the Administration of Kuwait Customs - Privatization Project, Mr. Sidi Mohamed Boyde, Mauritania's Deputy Inspector General, Ms. Mariam Ait Alla of Morocco's Central Authority for the Prevention of Corruption (ICPC), Mr. Nassar Fakih Lanjri, Vice President of Morocco's Urban Commune of Tetouan, Mr. Mustapha Labbassi, Tetouan Bureau Chief of Al Ahdath Al Maghrebiya, Mr. Daoud S.M. Darawi, Judge of the Palestinian Authority's Supreme Judicial Council, Mr. Mugren Ibrahim M. Binmugren, Judge of Saudi Arabia's Administrative Court in Riyadh, and Mr. Marwan Ahmed Qasem Dammag, Secretary General of Yemen's Press Syndicate. With them are Mr. Stephen M. Kohn, Executive Director of NWC, Ms. Estelle Kohn, Deputy Director of NWC, and NWC interns Saki, Juliana, Leigh, Nobuya, Breann and Liz.

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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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Local 689 of the Amalgamated Transit Union (ATU) represents employees of the Washington Metropolitan Area Transit Authority (WMATA or Metro). Last month, Lindsey Williams (Advocacy Director of the National Whistleblowers Center) and I spoke to Local 689's Executive Board.  You can follow this link to my report of that meeting.

Now, ATU Local 689 has distributed an article about our meeting to all its members through its newsletter. This is the October/November 2010 issue, pages 10-11. You can download those two pages here (PDF file of 1.3 MB). Or, you can get the full newsletter (12 pages, 10 MB), from ATU Local 689's webpage.

The ATU Local 689 newsletter was particularly interested in my assertion that the National Transit System Security Act (NTSSA) of 2007, 6 USC §1142, protects public transit employees when they speak to the media about safety concerns. I should add here that the protection for media disclosures is not absolute, but requires a balancing of the reasonableness of the employee's actions in light of any foreseeable adverse consequences of such disclosures.  For example, if an employee were to raise a concern about security procedures, and revealed sensitive information that could be used to evade legitimate security protections, a court might find that the disclosure is not protected.  However, if the disclosure is a good faith attempt to apply public pressure or government action to improve safety, then that should be protected.

ATU Local 689's Chief Safety Officer, Anthony Garland, told the newsletter that WMATA management still prohibits employees from speaking to the media about safety, fraud or mismanagement. He adds, "The Authority's policy needs to be addressed by the union. An employee's federally protected right to speak to the media or any entity investigating safety, an accident, fraud, etc. must be respected by the Authority." I agree.

The ATU Local 689 newsletter raises a concern that WMATA management have failed to fully implement the recommendations of the National Transportation Safety Board (NTSB). "WMATA has merely made moderate attempts at implementing measures to appease the Board of Directors and local media." To the extent that WMATA still restricts protected activities by employees, and attempts to channel them through a chain of command, I agree again. Local 689 is calling on WMATA to revise its whistleblower policy so it is consistent with federal law, and then train its supervisors about the workers' rights to raise safety concerns.

It would be good if area media recognized that it was in their interests and in the public interest, if they would join in the call for a clear WMATA policy protecting all manner of disclosures about safety, waste, fraud and mismanagement. The media could help by publicizing the protections of NTSSA so that everyone in the community, including WMATA employees, would be aware of their rights to raise their concerns publicly.

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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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