Yesterday, the National Whistleblowers Center (NWC) submitted comments to the Department of Labor (DOL) on three sets of regulations for whistleblower cases. DOL had issued the interim regulations on August 31, 2010. One set of regulations, 29 CFR Part 1982, covers whistleblower cases from both the Federal Rail Safety Act (FRSA), 49 U.S.C. § 20109, and the National Transit System Security Act (NTSSA), 6 U.S.C. § 1142. Another new set, 29 CFR Part 1983, covers claims under the Consumer Product Safety Improvement Act (CPSIA), 15 U.S.C. § 2087. The third set amends the regulations at 29 CFR Part 1978 that apply to truck driver cases under the Surface Transportation Assistance Act (STAA). NWC’s comments on these regulations are substantially the same for all three sets. I raised concerns about (1) requiring 15-days notice before filing claims in U.S. District Court when the statutes do not contain any such limitation on going to federal court; (2) lack of specificity in allowing staff to redact information from employer submissions to comply with "other confidentiality laws;" and (3) adding a difficult procedural hurdle for parties by requiring that all issues to be raised to the Administrative Review Board (ARB) be stated in the petition for review that must be filed within 10 days of issuance of the decision of the Administrative Law Judge (ALJ). On this last point, I am concerned that the ARB will use this procedural hurdle to avoid deciding cases on the merits. It will also discourage attorneys from taking whistleblower cases to the DOL and make it harder for us to find attorneys for all the whistleblowers that contact us for help. You can read my comments by following these links: CPSIA, STAA, NTSSA and FRSA. You can explore the public dockets containing other comments by following these links: CPSIA, STAA, NTSSA and FRSA.
In June 2009, a Metrorail accident near Ft. Totten in Washington, DC, killed nine people. The National Transportation Safety Board (NTSB) issued a report this summer that found Metro lacked a "safety culture." Now an internal Metro report finds the same problem. Katherine Shaver wrote about the report for the Washington Post. While 60 percent of Metro employees witnessed a safety concern, 30 percent of them did not report it. Shaver says that fear of retaliation is cited as a reason. Her article fails to mention the two federal laws that grant public transit employees legal protection when they raise safety concerns. These laws are the Federal Rail Safety Act (FRSA), 49 U.S.C. § 20109, and the National Transit System Security Act (NTSSA). Both are part of Public Law 110-53, the 9/11 Commission Act passed in 2007. See § 1413 (NTSSA) and § 1521 (FRSA). I have written about these laws before here, here, here and here. Later this month, I have an appointment to speak to officers of Local 689 of the Amalgamated Transit Union (ATU) about these legal protections. I feel like Glinda, the Good Witch of the North (from the Wizard of Oz), telling transit workers that they have had these legal protections for years. They just need someone to tell them about these protections so they can feel more confident that they are protected from retaliation. If it won’t be the Metro Board, Metro management, or the Washington Post, then it will be me.
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.
One of the problems of our current patchwork approach to whistleblower protection is that much of the public is unaware of the protections that do exist in the law today. A case in point would be yesterday’s story in the Washington Examiner. In a story called, "Metro strengthening protections for ‘whistleblowers,‘" writer Markham Heid reports on an action by the Board of Directors of our local transit system. "The measures include the implementation of federal laws that provide protection for whistleblowers . . .," the article says. I would say that there is nothing the Metro board needs to do to "implement" the federal protection for whistleblowers. It already exists. I wrote here, here and here before about the Federal Rail Safety Act (FRSA), 49 U.S.C. § 20109, and the National Transit System Security Act (NTSSA). Both are part of Public Law 110-53, the 9/11 Commission Act passed in 2007. See § 1413 (NTSSA) and § 1521 (FRSA). The key points for current Metro employees is that federal law now protects them when they raise safety concerns to anyone — their supervisors, federal overseers, their members of Congress, or the media. If they experience retaliation, they have 180 days to file a written complaint with OSHA. They will have access to the same procedures that have protected environmental and nuclear whistleblowers for 40 years. Metro employees are welcome to come here to the National Whistleblowers Center if they want legal advice about raising safety issues, or raising claims of retaliation. Heid’s article reports that the Metro board is establishing its own Whistleblower Hearing Panel. Myself, I would rather see whistleblowers pursue the Department of Labor process, starting with the OSHA complaint, where they can own a cause of action and receive a due process hearing that is not controlled by Metro management. Is a management panel really going to award compensatory damages and attorney fees against itself? Management may be lauded for its recognition that whistleblowers are their friends in the cause of safety. Metro and the media can both do a better job of informing employees of the actual remedies that already exist.
Today’s Washington Post (Metro page B-1) reports on "a blunt assessment" of Washington DC’s Metro transit administration. Retired Metro manager David L. Gunn wrote the report. Among other problems, it finds a "shoot the messenger" phenomenon "that discourages employees from raising safety concerns." The report is particularly sobering in light of last year’s collision that killed nine people. Metro has had other fatal accidents since then.
I know a fix for the "shoot the messenger" phenomenon. Any Metro manager, union official, or journalist could help. One change could assure that safety issues are raised and addressed in the warm glow of pubic attention. Every Metro train operator, bus driver, maintenance worker and manager needs to know that a recent federal law now protects them from retaliation when they raise safety concerns.
Last October, I wrote here about how the Washington Post could report on the National Transit Systems Security Act of 2007 (NTSSA). NTSSA has given every transit system employee the right to put safety first, to bypass the chain of command, and to disobey unsafe or illegal orders. Under NTSSA, every Metro employee has legal protection if they choose to speak to a newspaper about safety concerns. They would be protected if they follow safety rules and run "late" as a result. Victims of retaliation need to know that they have only 180 days to file a complaint (some laws allow only 30 days).
I would be happy to speak to any group of Metro employees about their rights under NTSSA and how to enforce them. Just call me, 202-342-6980, Ext. 112.
On October 14, the Washington Post ran a story on Metro drivers going “Strictly by the Book” (p. B-1). The story highlights safety issues that reach beyond Metro. That the Post’s writer would be concerned about the disruption reveals a prevalent but dangerous attitude that speed is more important than safety.
As an advocate for whistleblowers, I am particularly concerned that the bus drivers speaking to the reporter were afraid of retaliation. The National Transit Systems Security Act of 2007 (NTSSA) has given every transit system employee the right to put safety first, to bypass the chain of command, and to disobey unsafe or illegal orders. Under NTSSA, every Metro employee has legal protection if they choose to speak to a newspaper about safety concerns. They would be protected if they follow safety rules and run “late” as a result. Continue Reading Comment on Metro safety, the STAA and the Washington Post