This Tuesday, the Occupational Safety and Health Administration (OSHA) hosted a public meeting on whistleblower protections in the transportation industry at the Department of Labor headquarters. The meeting was organized by OSHA to obtain feedback from stakeholders about how it could better promote, enforce, and operationalize its Whistleblower Protection Program. The meeting featured unions, industry representatives, former whistleblowers, and whistleblower attorneys.
Picture this: while at work you become aware of conduct that you believe is unethical, illegal, or qualifies as government waste, fraud, or abuse. You decide you want to blow the whistle. But before you act, be careful! Most corporate and government networks log traffic. Your work computer and phone are not private. When you use a company or department computer, assume everything you do is monitored. These computers are an easy way for your employer to determine you are the whistleblower.
My friends at the Truck Safety Coalition are reporting a victory for truck safety advocates in yesterday’s deal between the House and Senate for transportation reauthorization. The Senate bill, called MAP-21, included a number of truck safety initiatives, and those have survived in the final deal. A number of the new provisions will have implications for truck driver whistleblowers. Most famously, the bill requires that commercial trucks start carrying Electronic On-board Recorders (EOBRs). Employer and other economic pressures to cheat on the log books should become a thing of the past as each trucker’s actual hours of driving will be recorded automatically with GPS devices. One can imagine ways in which cheating might still occur, but with the higher standards, safety whistleblowers should have more evidence on their side. Disputes over hours of operation have been a bane for truck drivers for too long. Tired drivers have killed too many. Thankfully, today is a day on which safety has prevailed.
The bill also increases the standards for truck driver medical qualifications, training and drug and alcohol testing. I am pleased with the heightened standards for broker financial responsibility and insurance. Hopefully, we will not see so many shady operators who fold up shop at any sign of trouble and then reopen under a new name. This should make it easier for whistleblowers to collect when they win their cases. Trucker drivers should know that the time limit to file a whistleblower retaliation complaint under the Surface Transportation Assistance Act (STAA) is 180 days from the date of each adverse action. The Truck Safety Coalition’s announcement is in the continuation of this blog post.
Yesterday, the Occupational Safety and Health Administration (OSHA) office in Atlanta, Georgia, issued an order reinstating truck driver William Beecher. As soon as he recovers from an unrelated temporary disability, he can return to work for United Auto Delivery and Recovery and the Memphis Auto Auction. OSHA found that the owners of these two companies operate them as one business, and that both businesses, and their managers, are liable for firing Beecher in 2009. Beecher had repeatedly complained that the “rollback” truck he drove was leaking coolant. He wrote up the truck when it had a blown head gasket, and continued to note the coolant leak when he did his pretrip inspections. He was carrying extra coolant with him to refill the coolant as needed. Finally, on February 5, 2009, he refused to drive the truck on grounds that it was not safe. The boss asked him to drive another truck, and Beecher refused because he did not have a commercial drivers license (CDL), which was required for that other truck. On February 6, 2009, the companies fired him for walking off the job.
The Department of Labor’s Administrative Review Board (ARB) issued a ruling last month finding in favor of whistleblower Lavan Williams against his former employer, Domino’s Pizza on claims of retaliatory firing. The ARB’s decision affirms an order by the Administrative Law Judge (ALJ) in favor of Williams. It has now been over three years since Williams filed his claim for back pay and other damages from Domino’s. Williams, of Ypsilanti, Michigan, filed his complaint under the the Surface Transportation Assistance Act (STAA). The ARB held that Williams was entitled to protection even after he refused to rat out his co-workers. The ARB also held that it was proper for the ALJ to accept into evidence a transcript of Williams’ unemployment hearing.
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.
Barrett Riess worked for Nucor Corporation as Traffic Department Manager from August 4, 2002, until Nucor discharged him on January 15, 2007. He worked in Grapeland, Texas. He had no discipline until he was fired. James Landrum, Grapeland Division Vice President and General Manager, was Riess’s supervisor and made the decision to fire Riess. On January 9, 2007, Riess raised a concern with Landrum about one of the supervisors working under him, Joey Word. Specifically, he reported that Word allowed drivers to use two trucks that did not have annual safety inspection stickers. He reported that Word quit because Riess had been too pushy about following safety rules. Landrum testified that he never before thought of firing Riess, but on January 15, 2007, he decided to fire Riess because Riess had an abrasive management style and could not get along with others. Riess filed a complaint with OSHA under the Surface Transportation Assistance Act (STAA). An Administrative Law Judge (ALJ) found Landrum was credible and ruled against Riess.
On November 30, 2010, the Department of Labor’s Administrative Review Board (ARB) found that the ALJ had not made enough findings of fact about Riess’s claim of pretext. It remanded the case to the ALJ to reconsider the finding about whether Riess’s protected activity caused his discharge. In doing so, the ARB held that ALJ’s should apply the current version of the STAA, even to cases that arose before the August 2007 amendments. Those amendments made it easier to prove retaliation by requiring complainants to show that protected activity was a “contributing factor” in the adverse action. If the complainant succeeds, then the employer must show, by clear and convincing evidence, that it would have made the same decision even if there was no protected activity. “[W]e should apply the law in effect at the time of our decision,” the ARB says on page 4.
Today the Department of Labor has issued new regulations for whistleblower claims under four new laws. These laws include two laws included in the 2007 law that adopted recommendations of the 9/11 Commission, the National Transit Systems Security Act (NTSSA) and the Federal Railroad Safety Act (FRSA). This law also updated provisions of the Surface Transportation Assistance Act (STAA) which protects truck drivers, and DOL has announced new interim regulations on STAA whistleblower cases. Finally, DOL has issued new regulations for whistleblower claims under the 2008 Consumer Product Safety Improvement Act. The Occupational Safety and Health Administration (OSHA) issued the regulations, and will receive public comments until November 1, 2010. You can access all the rules through the Federal Register.
I have complained before to OSHA about rules that add hurdles for whistleblowers, and can derail a case away from being decided on the merits. The one that irks me the most is the rule in 29 CFR 24.110 that requires parties appealing an judge’s decision to the Administrative Review Board (ARB) to list in the petition for review every issue they will raise on appeal. This listing of issues is not required in appeals from federal court. The time to list all the issues is when the lawyer has finished reviewing the record to write the brief. If the ARB wants to assess from the petition whether the case is worthy of further review, then it is sufficient to require that an appellant list enough issues to justify review. There is no reason to add that any issue omitted from the petition is waived — other than to create a hurdle that can justify dismissing some issues or cases on grounds other than the merits. That is a purpose contrary to the remedial purpose of protecting employees who put the public interest ahead of their own job security. Sadly, the new rules expand the requirement for detailed petitions for review, and the waiver of issues not raised. See, for example, 29 CFR 1983.110(a) for CPSIA claims. Perhaps more significant, the new rules prevent the ARB from reversing an ALJ’s factual findings whenever the ARB finds “substantial evidence” to support the ALJ’s position. The Secretary of Labor used to conduct de novo review of the whole record, which provided better assurance that the DOL’s final decisions reflected the remedial purpose of protecting whistleblowers. The only reason for the narrower standard of review is to make the ARB’s job easier. I think protecting whistleblowers is more important. I am also sad to see that the new rules require giving the DOL 15 days notice before a whistleblower files a lawsuit in U.S. District Court. The purpose of this rule is to give DOL a chance to issue a final order before the case goes to District Court. That is contrary to the legislative purpose of giving whistleblowers a fresh bite at the apple if DOL has taken too long to decide a case. While it is helpful to have rules for the many FRSA, NTSSA, STAA and CPSIA cases in the pipeline, these rules fall short of the change I was hoping for. The full OSHA statement about the interim rules follows in the continuation of this post.
I am pleased to announce that today the Sixth Circuit U.S. Court of Appeals has reversed a decision of the U.S. Department of Labor’s Administrative Review Board (ARB) and reinstated the whistleblower claim that my client Harry Smith made against the trucking company CRST. In the photo, Harry Smith stands between his wife and fellow truck driver Scooter McNutt. Smith was fired right after he threatened to take the company’s defective trailer to the Department of Transportation for inspection. The Department of Labor had dismissed Smith’s complaint against CRST after the Occupational Safety and Health Administration (OSHA) sent him a dismissal notice, showing that a copy was sent to me, his lawyer. However, OSHA did not actually send me the copy of the dismissal notice until after Smith’s time to appeal had expired. Smith does not recall receiving the dismissal notice at all. CRST and the Department of Labor (DOL) tried to blame Smith for failing to appeal on time. The Sixth Circuit says today that, “it appears to us that it falls even more heavily at the feet of OSHA, in failing to send the notice to Renner for some two months after the fact, despite the indication to Smith to the contrary.”
Yesterday, the Seventh Circuit U.S. Court of Appeals affirmed a reinstatement order from the Department of Labor’s Administrative Review Board (ARB). The decision keeps truck driver Peter Cefalu on the job driving for Roadway Express. The Seventh Circuit considered a previous appeal by Roadway Express and decided that the company deserved a chance to prove that it would be unsafe for the public to reinstate Cefalu. In that case, called Roadway Exp., Inc. v. United States Dep’t of Labor, 495 F.3d 477 (7th Cir. 2007), or Roadway I, the Seventh Circuit held that the ARB properly barred Roadway from using information about Cefalu’s driving record with previous employers. Since Roadway refused to disclose the source of the information, after a judge ordered it to make this disclosure, the Court held that the limit on its ability to use the information was reasonable. However, the Court also held that an employer should not be compelled to reinstate a driver if the employer would have fired the driver anyway for being a safety risk even if that driver had engaged in no protected activity. On remand, the Department of Labor found that Roadway could not prove that it would have fired Cefalu in the absence of his protected activity. Roadway fired Cefalu in 2002 after he submitted an affidavit to support another driver in a grievance hearing. Cefalu’s affidavit explained how management had instructed him to falsify his logbook of the hours he drove. Now, the Seventh Circuit makes clear that it wants to respect the automatic reinstatement provision of the Surface Transportation Assistance Act (STAA), 49 U.S.C. § 31105(b)(3)(A). It will recognize an exception only when reinstatement would compel a company to employ an “incompetent or unqualified employee.” It also made clear that the employer has the burden of proving this exception to reinstatement. I note that STAA requires the employer to prove its same-decision defense by “clear and convincing evidence.” Congratulations to my friend Paul Taylor on prevailing in this case after eight (8) years of vigorous opposition.