GAO report says whistleblowers and taxpayers deserve better

Posted on March 3, 2009 by Richard Renner

A recent report from the Government Accountability Office (GAO) says what many whistleblower practitioners have long known:  the Department of Labor's whistleblower program needs more resources and better quality.  Investigators do not have the equipment, training, legal counsel or oversight needed to assure quality investigations.

The GAO discovered that OSHA does not have the systems in place to assure the accuracy of case statistics, the agency's processing time, reasons for screening out complaints, and the outcomes of settlements.  GAO found that the Office of Administrative Law Judges (OALJ) did have reliable and verifiable case tracking data, and its average processing time for a whistleblower appeal was nin (9) months.  The Administrative Review Board (ARB) considers appeals from ALJ decisions, and its processing time can range from thirty (30) days to five (5) years.  GAO found that the ARB does not have reliable data of its docket flow and lacks oversight of its data quality.

Overall, the GAO found that whistleblower caseloads are increasing, and the cases themselves are becoming more complex.  GAO recommended that each OSHA Regional Office conduct an independent audit of its whistleblower program to identify program deficiencies and the corrective actions needed.

For outcomes, GAO found that OSHA's report of a 21 percent success rate for whistleblowers could be misleading.  OSHA includes all settled cases in the "successful" category.  As a result, "nearly all" of the successful cases were settlements, rather than OSHA decisions on the merits.  GAO found that even some of the settled cases were not properly recorded, and the actual success rate is more likely 19 percent.  These statistics suggest that OSHA investigators work with employer's lawyers and encourage settlement in cases where OSHA would otherwise find merit.  In cases were OSHA is accepting the employer's word about its motives for an adverse action, most investigators simply issue a determination to dismiss the whistleblower's complaint.  In appeals to OALJ, whistleblowers win less than a third of the contested cases.

GAO found that OSHA has not even established a minimum equipment list saying what investigators should have.  Some, but not all, have laptop computers and portable printers to take written statements in the field.

The GAO report arrives at an opportune moment.  The new Secretary of Labor Hilda Solis has an opportunity to give the whistleblower program new leadership that reflects a commitment to protecting whistleblowers.  
Tags: , , , , , ,

Ohio court of appeals issues extraordinary writ of procedendo due to ARB's delay

Posted on November 7, 2008 by Richard Renner

An Ohio court of appeals has issued an extraordinary writ, requiring a state judge to proceed with a whistleblower's wrongful termination case.  The Court of Appeals for Stark County, Ohio (part of the Fifth Appellate District in Ohio) issued the writ of procedendo on November 3, 2008.

In the case of State ex rel. Carpenter v. Brown, 2008-Ohio-5687, James Carpenter asked for the writ to compel Ohio Common Pleas Judge Charles Brown to lift a stay and proceed with his lawsuit. Judge Brown had stayed the case in September 2007 to wait for a decision in Carpenter's Department of Labor (DOL) case.  The DOL's Administrative Review Board (ARB) has had Carpenter's case pending for over a year. Carpenter has asked the ARB to dismiss his DOL case "without prejudice" so that he can seek a jury trial in the Ohio state court.

James Carpenter had worked for 12 years with Bishop Well Services Corp. when a burst hose permanently injured his back, and released toxins into the environment.  Carpenter called OSHA to complain about safety at the company, and he was fired a week after OSHA conducted a surprise inspection.  In defending the DOL case, the company claimed it did not fire Carpenter because of the OSHA inspection, but rather because his workers compensation case became contentious. Ohio law prohibits retaliation either for calling OSHA or for filing a workers compensation claim.

It is ironic that Judge Brown would stay the case when part of the reason for bringing the case was so we would not have to wait for the ARB.  The Court of Appeals opinion says, "the delay which has been imposed in the case before Respondent, coupled with the potential length of time in reaching a resolution in the ARB case, unjustifiably interferes with Petitioner’s right to have his claim litigated."  The Court added, "Although the claims in both the Common Pleas case and the federal court case may be factually interrelated, state claims can exist independent of those in federal court."

This case demonstrates the hardship for whistleblowers, and for state courts, that arise from the ARB's slow pace in issuing decisions.

Click here for the court's opinion and judgment entry issuing the writ of procedendo.

 

 

Tags: , , , , ,

Administration's Narrow SOX Interpretation Kills Many Whistleblower Suits

Posted on September 22, 2008 by Marshall Chriswell

SarbanesOxley Signing

In 2002, Congress passed a sweeping corporate reform bill known as the Sarbanes-Oxley Act (SOX). This legislation was a direct result of the crimes committed by publicly traded companies such as Enron and Worldcom. In drafting the bill, lawmakers wisely recognized that SOX would be meaningless without the "teeth" of a strong whistleblower protection provision. And when President Bush signed the bill, it was hailed as a great day for corporate reform, and for corporate whistleblowers. 


 

Unfortunately (yet predictably), since 2002, the Administration has refused to protect corporate whistleblowers in a manner consistent with SOX. Law professor Richard Moberly's disheartening research indicates that only 3.6% of  SOX whistleblowers have been able to obtain relief through the administrative (Department of Labor) process. The problem lies, partly, in the Administration's attempts to thwart whistleblowers by creating a loophole in the law.


A recent Wall Street Journal article  details how the Department of Labor has adopted an overly narrow interpretation of the SOX. The DOL has taken the absurd position that if you are employed by a subsidiary of publicly traded company, then you are not protected by the whistleblower provisions of SOX. I believe that this is an untenable position, and so do a couple of prominent members of the Senate Judiciary Committee. 


Senators Grassley and Leahy, who were principal sponsors of SOX and are longtime champions of whistleblowers, have begun to take action on this issue. They have sent a sternly worded letter to Secretary of Labor Elaine Chao demanding answers on the Administration's position, which is highly inconsistent with the broad language found in the SOX legislation.


For further information on this issue, please view this letter, written to Senator Arlen Specter by Pittsburgh attorney Jason Archinaco. This letter details the problems with the DOL's misguided policy, and includes attachments, such as the above referenced letter authored by Senators Grassley and Leahy.


Mr. Archinaco is a member of our Attorney Referral Service who represented UBS whistleblower Timothy Flynn.
Tags: , , , , , , , ,

Department of Labor Whistleblower Cases

Posted on November 14, 2007 by NWLDEF
Tags: , , , ,

Nuclear Whistleblowers FAQ

Posted on November 14, 2007 by NWLDEF

What Federal Laws Protect Nuclear Whistleblowers?

Whistleblowers in the nuclear power and nuclear weapons industries are specifically protected under section 211 of the Energy Reorganization Act.


Who Is Protected?

Private sector employees and federal employees working for the Nuclear Regulatory Commission or the Department of Energy.


Who Can File a Complaint?

Any employee who believes he or she has been discriminated against in retaliation for "blowing the whistle" on a nuclear safety problem.

Nuclear Whistleblowers


What is Illegal Discrimination?

Almost any adverse change to the whistleblower's terms and conditions of employment is prohibited. This includes a wide range of actions from reprimands to terminations and blacklisting.


Where Should Complaints Be Filed?

These laws are administered by the U.S. Department of Labor (DOL). Complaints must be filed in writing and should be filed with the local OSHA Office of the DOL and/or mailed to:

U.S. Department of Labor
Office of the Assistant Secretary
Occupational Safety and Health Administration - Room: S2315
200 Constitution Avenue
Washington, D.C. 20210
(202) 693-2000


What Are the Statutes Of Limitations?

A nuclear industry employee filing a complaint under the Energy Reorganization Act must file within 180 days.


Do Other Laws Protect Whistleblowers?

Many states have enacted laws to protect whistleblowers. Most of these laws have a longer statue of limitations and other benefits unavailable under federal law. If an employee is reporting fraud by a government contractor, these concerns may be covered under the False Claims Act. To report these concerns, please fill out our confidential Attorney Referral / Report Fraud Now form.


Can I file in Federal Court?

The Atomic Energy Act was recently amended to permit employees to file claims in federal court if the DOL fails to issue its final decision within one year.


What remedies are available to employees under the Sarbanes Oxley whistleblower law?

  • Reinstatement
  • Backpay with interest
  • A complete “make whole” remedy (including restoration of seniority/sick leave, etc)
  • Compensatory damages (for emotional distress and loss of professional reputation)
  • Attorneys’ fees and costs
  • “Affirmative Relief” (such as requiring a letter of apology and formal posting of the decision)

Exemplary damages are available under the Safe Drinking Water Act and Toxic Substances Control Act.

To view a major decision on damages in a nuclear case, see Hobby v. Georgia Power Co.

Tags: , , , ,