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).

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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.

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