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

Estep's article reports that Billy Brannon worked at Panther Mining's No. 1 mine in Cloverlick Hollow, Harlan County, Kentucky -- a non-union mine.  On March 26, he reported exposed electrical wires to state and federal regulators.  On March 27, the company fired him.  The company claims it did nothing wrong in firing Brannon.  MSHA investigator Stanley Sturgill has concluded that Panther fired Brannon for making the safety complaint.  MSHA has now asked the Federal Mine Safety and Health Review Commission to order that Panther reinstate Brannon.

Under the MSHA Act, the Department of Labor must issue a preliminary order of reinstatement when it determines that the complaint is not frivolous.  Section 105(c) of the Mine Safety and Health Act.

Brannon's attorney, Tony Oppegard, is quoted as saying that MSHA is the only federal law that provides for preliminary orders of reinstatement.  That is not quite right.  There are other federal laws that also provide for preliminary orders of reinstatement for whistleblowers.  They include: 

1. The Energy Reorganization Act, which has provided for preliminary reinstatement orders since the 1992 amendments.
2. The Surface Transportation Assistance Act (STAA), which protects truck drivers and other employees of motor carriers.
3. The Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (called "AIR 21"), which protects airline employees.
4. The Pipeline Safety Improvement Act of 2002 (PSIA)
5. The Sarbanes-Oxley Act of 2002, which protects those who report fraud and other violations of securities laws
6. The Federal Rail Safety Act (FRSA)
7. The National Transit Systems Security Act of 2007
8. The Consumer Product Safety Improvement Act of 2008
9. The American Recovery and Reinvestment Act of 2009

The first eight of these laws are enforced through a complaint to the Occupational Health and Safety Administration (OSHA). (The ARRA is enforced through complaints to agency inspectors general.) Unfortunately, OSHA has rarely enforced these laws on behalf of whistleblowers. Many whistleblowers lose out because they are not aware that they have to file written complaints with OSHA within surprisingly short time limits, ranging from 30 to 180 days. That might explain why attorney Oppegard has never heard of these provisions. Unlike the MSHA Act, the other laws require that the whistleblower prove that the protected activity was a contributing factor in the adverse decision. A recent report of the General Accounting Office (GAO) found widespread failures of training, resources, and standards in OSHA's whistleblower protection program. I hope the new administration will address these concerns promptly, and build a whistleblower protection program that has the effectiveness MSHA is showing in Kentucky.

I also notice that MSHA is looking to hire new mine inspectors in Kentucky.

Minnesota Senator David Tomassoni stated that both former inspectors had similar allegations and received similar treatment when they came forward.  Swanson and Crosby were transferred out of their inspection assignments, relocated to other parts of the state and were eventually forced to quit their jobs last year after filing whistleblower lawsuits in the previous year.

Fortunately, there has recently been some good news in the case.  On Tuesday, the Minnesota Court of Appeals overturned a District Court ruling that dismissed Terry Swanson’s case.   The Appeals Court will hear Doug Crosby’s case on March 23rd.  Hopefully, it will have an equally positive outcome.

The other positive development in the case is that following Swanson and Crosby’s testimony the Minnesota Senate has been pushing OSHA for answers.  Senator Tomassoni, Chair of the Economic Development and Housing Budget Division Committee sent a letter to Michael Connors, Regional Director for the U.S. Department of Labor’s OSHA for clarification on the testimony. 

As acknowledged by Senator Tomassoni, the issues raised by Swanson and Crosby are extremely serious and jeopardize the health and safety of all workers in Minnesota.  Their allegations should be fully investigated and promptly corrected.
 

"Lawsuit claims state Dept. of Labor destroyed files" KSTP TV, March 13, 2009

Audio from Minnesota Senate Testimony on Wednesday Feb. 25th (Economic Development and Housing Budget Division Committee)

"Whistleblowing Former Inspectors testify that MNOSHA alters reports, citations" Labor World, March 4, 2009

"Appeals court supports whistleblower, Sen. Tomassoni asks for feds help" Labor World, March 18, 2009

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.