At a meeting last week, the Chemical Safety Board (CSB) announced that it would reverse its recommendation to institute whistleblower protections to workers on offshore oil rigs. This unfortunate turn will be bad for workers, destructive to the environment, and quite possibly even harmful to the energy industry. Continue Reading Chemical Safety Board Reneges on Recommended Whistleblower Protections
House Speaker Nancy Pelosi has announced plans to bring the Oil Spill Response Bill to the House floor for passage. The Washington Independent is reporting that the bill will include the Offshore Oil and Gas Worker Whistleblower Protection Act of 2010, which, “provides whistleblower and anti-retaliation protections to workers on the Outer Continental Shelf” and “protects worker safety by improving federal agency coordination.” The text of this bill is available here. From my read, it includes most of what we call the "gold standard" protections for whistleblowers. It will protect oil and gas workers when the raise concerns about compliance with the Outer Continental Shelf Lands Act, or any concerns about illness, injury or unsafe conditions. It would protect reports made in the course of performing duties, and protect refusals to violate the law. It would provide a right of action through the Department of Labor, a 180-day statute of limitations, a contributing factor standard for proving causation, and a "clear and convincing evidence" burden for employers who claim they would have fired the whistleblower even if protected activity was not considered. If the Department of Labor has not issued a final order within 300 days, whistleblowers could go to U.S. District Court and ask for a trial by jury. One provision that is missing (but was added to SOX in the Dodd-Frank Act) is a provision specifically barring enforcement of pre-dispute arbitration agreements. It does provide that, "The rights and remedies in this section may not be waived by any agreement, policy, form, or condition of employment," but this might not be enough to keep courts from enforcing arbitration agreements, as they are keen to do. It would be a good day for oil and gas workers, and for everyone who cares about the environment we leave for future generations, if this bill would pass. It would be an even better day if the House adds the Dodd-Frank anti-arbitration language.
FCA Legal Actions Could Result in BP Paying Treble Damages To United States Taxpayers
Last month, we posted here our letter to the U.S. Department of Justice calling on them to exercise their power under the False Claims Act (FCA) to hold oil companies accountable for misleading the government and the American people about their ability to clean up oil spills. Today we received an answer. Assistant Attorney General Tony West has written to us to say, "that the Department of Justice is dedicated to recovering any losses it sustains as a result of the oil spill, and is considering all avenues for redress against the potentially responsible parties." Mr. West’s letter goes on to express the Department’s appreciation of the False Claims Act and the role whistleblowers play in helping the government recover funds fraudulently obtained:
The Deparment appreciates the important contributions of relators in assisting the United States to recover taxpayer funds under the False Claims Act’s qui tam provisions. This public-private partnership has proved a successful tool for the recovery of public funds and for rewarding relators who bring allegations of fraud to the government. Indeed, since January 2009, more than $3.6 bilion was obtained under the Act’s qui tam provisions, and relators were awarded more than $497 million for their efforts in helping the government pursue these recoveries.
Last month, CNN’s Special Investigations Unit released a story about Bobby Maxwell’s experience as an inspector for the U.S. Department of Interior’s Minerals Management Service (MMS). The main point of the story is how MMS was infused with a "culture of corruption," and its slipshod inspections missed opportunities to prevent the Deepwater Horizon explosion. The story also mentions that Maxwell is in the fifth year of a whistleblower lawsuit against Kerr-McGee. In that case, Maxwell won a $7.5 million dollar verdict against Kerr-McGee. After a judge threw out the verdict, he appealed. In 2008, the U.S. Court of Appeals for the Tenth Circuit agreed that Maxwell had a right to pursue his fraud case and reinstated the verdict. No doubt, Maxwell’s status as a wistleblower, especially a whistleblower who has won his case, empowered him to speak out about the dangers of MMS’ alignment with the oil companies instead of with the environment. No doubt, Maxwell raised his concerns years ago, but no one was listening until 11 workers lost their lives and the ecology of the Gulf of Mexico was ruined by this disaster. Maxell’s story makes obvious how we would all benefit from giving our federal employees strong whistleblower protections. To me, this is the reason why our Senators must scrap the poison pills in their current version of the Whistleblower Protection Enhancement Act (WPEA), S. 372, and adopt the strong House version, HR 1507. Follow this link for more information about helping environmental whistleblowers.