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

The U.S. Department of Labor has finally issued its responses to comments submitted in 2007 about its interim regulations for nuclear and environmental whistleblowers. Codified at 29 CFR Part 24, these regulations have been trendsetters for regulations affecting other whistleblower statutes. The Department had issued interim regulations in 2007, and received a variety of comments, including comments made by the National Whistleblowers Center (NWC), and comments that attorney Jason Zuckerman and I made (before I came to work for NWC in 2008).

One of the most significant new changes is that oral complaints to OSHA will now be allowed. This is particularly helpful in environmental cases where the statute of limitations remains terribly short at 30 days. Still, it will be advisable for whistleblowers or their advocates to make out a written complaint and fax it in to OSHA to document how they are meeting the time limit. Where a whistleblower has merely called into OSHA, OSHA is now required to reduce the complaint to writing and document the date of the call. 29 CFR § 24.103(b). If the call was within the 30 day time limit, it can save a case that would otherwise be dismissed. Complaints can also be made in languages other than English.

The final regulations became effective on January 18, 2011, and they are published at 76 FR 2808 (page 2808 of volume 76 of the Federal Register).

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

Today the Department of Labor's Administrative Review Board (ARB) held its first oral argument in a case under the Sarbanes-Oxley Act (SOX). Last November, the ARB gave notice of today's oral argument, and invited interested groups to submit friend-of-the-court (or "amicus") briefs. The ARB asked the parties to address issues of how specific OSHA complaints have to be, whether Administrative Law Judges (ALJs) can grant motions to dismiss on the pleadings, and the nature of protected activity under SOX. A prior blog post covered the amicus briefs, including the briefs of the National Whistleblowers Center and Doug Evans. Pictured here are ARB Board Members Luis Corchado, Paul Igasaki (Chair), E. Cooper Brown (Vice-Chair) and Joanne Royce.

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

Terrence Blocker worked for the Metro-North Commuter Railroad Company in New Haven, Connecticut, since 2003. He was a laborer in Metro-North's maintenance shop (called the MU Shop), and a union member.

On July 27, 2008, Blocker was operating a shuttle wagon. It tipped over and fell into a repair pit. Blocker suffered a small cut on his forehead, and he had stiff muscles starting the following day. On July 30, 2008, Blocker saw a doctor who discovered he had sprained his spine and right shoulder. When Blocker later asked for a copy of the company's report of the accident, he discovered there was none. On August 25, 2008, Blocker's doctor recommended physical therapy. That same day, Metro North management decided to conduct a trial to determine if Blocker was responsible for the accident. Blocker stopped going to his physical therapy because he thought the company would not pay for it. Metro North found Blocker guilty of unsafe operation of the shuttle wagon and imposed a 10-day suspension on him.  Blocker promptly complained to OSHA that this suspension was unlawful retaliation in violation of the Federal Railroad Safety Act (FRSA), 49 U.S.C. § 20109. Management then gave notice that they would conduct another trial against Blocker, accusing him of providing false information to OSHA. Blocker filed an amended complaint with OSHA alleging that the new trial was unlawful retaliation for filing his original OSHA complaint. Management then amended its notice for the hearing to claim that he was guilty of failing to report his injury and submit his medical substantiation. After the trial, management imposed a 30-day suspension on Blocker, for the offense of filing "a false statement in your complaint to [OSHA] claiming violations of the [FRSA]." Management explained to OSHA that this was a typographical error.

OSHA has now ordered Metro North to pay Blocker $75,000 in punitive damages, and to pay Blocker's attorney, Charlie Goetsch. "Taking repeated disciplinary action against an employee who exercised his legal right to report an on-the-job injury and voiced a complaint about retaliatory treatment by his employer is unconscionable," said Marthe Kent, OSHA's New England regional administrator in a press release. "Such treatment instills a culture of silence in which hazardous conditions are masked because employees will be fearful of reporting them."

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

Today, President Obama signed the FDA Food Safety Modernization Act (H.R. 2571), which contains landmark whistleblower protections for food safety employees.

Highlights of the Food Safety Whistleblower Provision:

•   Covers all employers "engaged in the manufacture, processing, packing, transportation, distribution, reception, holding or importation of food;"
• Allows workers have their case heard before a jury in federal court;
• Provides for reinstatement, back pay and compensatory damages.

I issued the following statement in a press release by the National Whistleblowers Center:

The Food Safety Modernization Act (FSMA) will save American lives by protecting the millions of American workers who grow, process, store and deliver our food. Those workers now have modern whistleblower protections when they raise concerns about the safety of our food.

It is important for working people to know that all legal claims have time limits. The time limit under FMSA to file a written complaint with OSHA is 180 days. For raising concerns about toxic chemicals, though, the time limit is still 30 days. Whistleblowers usually get better results when they work with an attorney experienced in employment discrimination law.

The FMSA fills an important loophole left by the Consumer Product Safety Improvement Act (CPSIA) in 2008. CPSIA does not cover food or medical devices. FMSA is the first law to provide whistleblower protections for workers covered by regulations of the Food and Drug Administration (FDA). While tainted food kills about 5,000 Americans a year, medications may kill as many as 100,000 Americans every year. Yet Congress has not extended whistleblower coverage to workers who raise concerns about violations of the FDA's pharmaceutical regulations.

It is time to end the patchwork protection of whistleblowers and pass a law that protects all workers when they raise concerns about health, safety, fraud, illegality, and dangers to the environment.

 Jason Zuckerman has written an excellent guide to the FSMA whistleblower protection. I previously commented on the FSMA and its place in our patchwork in this blog.

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

My colleague, Stephen M. Kohn (Executive Director of the National Whistleblowers Center) and I spent New Year's Eve racing the clock to file two friend-of-the-court "amicus" briefs with the Department of Labor's Administrative Review Board (ARB). Last November, the ARB issued an invitation to file amicus briefs to address a series of questions about the requirements for valid whistleblower complaints. In an amicus brief on behalf of my client, Douglas Evans, we answered the questions about the whether whistleblower complaints to OSHA have to meet the standards for pleading claims in federal court, and what procedure Administrative Law Judges (ALJs) should follow before considering whether to dismiss a claim without a hearing. In a separate amicus brief on behalf of the National Whistleblowers Center (NWC), we answer the questions about the scope of protected activity under the Sarbanes-Oxley Act (SOX). Specifically, we trace the long history of Department of Labor and court decisions that broadly applied a variety of whistleblower protections.  We note how Congress relied on the body of law when it enacted SOX.  We argue that the ARB and Court decisions of the last five years made a mistake, and violated congressional intent, by narrowing the scope of protection. We specifically ask the ARB to reject the requirement that protected activity must "definitively and specifically" relate to a violation of law. We examine the difference between raising concerns outside of established channels, and the "exceptionally broad" protection that activity has when it is pursued through established channels. We also dispute the claim that SOX claims should connect to some "fraud" or meet some standard of "materiality." Finally, we show that the concerns raised by Ms. Kathy Sylvester and Ms. Theresa Neuschafer (breaches of Good Clinical Practices or GCPs) are at the core of Parexel's business as set out in its Form 10-k, and is, therefore, material.

These briefs would be a good reference for any whistleblower or lawyer facing a challenge to any whistleblower claim on grounds of pleading standards, or the scope of protected activity.  Enjoy the new year.

• Email This
• Print
• Comments (3)
• Trackbacks
• Share Link