Changing Currents in Changing Currents in Employment: Recent Employment: Recent Developments in Developments in Whistleblower LawWhistleblower Law

Jason M. ZuckermanJason M. ZuckermanThe Employment Law GroupThe Employment Law Group®® Law Law Firm Firm Tel: 202.261.2810Tel: 202.261.2810Fax: 202.261.2835Fax: 202.261.2835jzuckerman@employmentlawgroupjzuckerman@employmentlawgroup.com.comwww.employmentlawgroup.comwww.employmentlawgroup.com

New Whistleblower New Whistleblower Protection ProvisionsProtection Provisions

New Whistleblower Protection for New Whistleblower Protection for Transportation EmployeesTransportation Employees

Whistleblower Provision of CPSC Whistleblower Provision of CPSC Reform ActReform Act

Section 1553 of American Recovery Section 1553 of American Recovery and Reinvestment Actand Reinvestment Act

Amendments to the Retaliation Amendments to the Retaliation Provision of the False Claims Act)Provision of the False Claims Act)

9/11 Act Transportation 9/11 Act Transportation Whistleblower Whistleblower ProtectionsProtections Public Transportation EmployeesPublic Transportation Employees

– § 1413 establishes National Transit § 1413 establishes National Transit Systems Security Act of 2007 (“NTSSA”) to Systems Security Act of 2007 (“NTSSA”) to protect public transportation employeesprotect public transportation employees

Railroad EmployeesRailroad Employees– § 1521 amends the Federal Rail Safety Act § 1521 amends the Federal Rail Safety Act

(“FRSA”), 49 U.S.C. § 20109(“FRSA”), 49 U.S.C. § 20109 Commercial Motor Carrier EmployeesCommercial Motor Carrier Employees

– § 1536 amends the Surface Transportation § 1536 amends the Surface Transportation Assistance Act (“STAA”), 49 U.S.C. § 31105 Assistance Act (“STAA”), 49 U.S.C. § 31105

The Implementing The Implementing Recommendations of the 9/11 Recommendations of the 9/11 Commission Act of 2007 Commission Act of 2007

Enacted August 3, 2007Enacted August 3, 2007 Public Law No. 110-053Public Law No. 110-053 New Cause of Action:New Cause of Action:

– Whistleblower coverage for public Whistleblower coverage for public transportation employees (§ 1413)transportation employees (§ 1413)

Significant Enhancement to Existing WB Significant Enhancement to Existing WB Protection Laws:Protection Laws:– Whistleblower coverage for railroad employees Whistleblower coverage for railroad employees

(§ 1521) and commercial motor carrier (§ 1521) and commercial motor carrier employees (§ 1536)employees (§ 1536)

9/11 Act Coverage9/11 Act Coverage

Public Transportation EmployeesPublic Transportation Employees– Section 1413 of the Act protects public Section 1413 of the Act protects public

transportation employeestransportation employees– Applies to a public transportation agency, Applies to a public transportation agency,

a contractor or subcontractor of such a contractor or subcontractor of such agency, or an officer or employee of such agency, or an officer or employee of such agencyagency

– Modeled on employee protection Modeled on employee protection provisions of Federal Rail Safety Act (49 provisions of Federal Rail Safety Act (49 U.S.C. § 20109) and Wendell H. Ford U.S.C. § 20109) and Wendell H. Ford Aviation Investment and Reform Act for Aviation Investment and Reform Act for the 21the 21stst Century (“AIR21”) (49 U.S.C. § Century (“AIR21”) (49 U.S.C. § 42121)42121)

9/11 Act Coverage9/11 Act Coverage

Railroad EmployeesRailroad Employees– Section 1521 amends the Federal Section 1521 amends the Federal

Rail Safety Act (“FRSA”), 49 U.S.C. § Rail Safety Act (“FRSA”), 49 U.S.C. § 20109 20109

– Applies to a railroad carrier engaged Applies to a railroad carrier engaged in interstate or foreign commerce, a in interstate or foreign commerce, a contractor or subcontractor of such contractor or subcontractor of such a railroad carrier, or an officer or a railroad carrier, or an officer or employee of such a railroad carrieremployee of such a railroad carrier

9/11 Act Coverage9/11 Act Coverage

Commercial Motor Vehicle Commercial Motor Vehicle EmployeesEmployees

Section 1536 amends the Surface Transportation Section 1536 amends the Surface Transportation Assistance Act (“STAA”), 49 U.S.C. § 31105 Assistance Act (“STAA”), 49 U.S.C. § 31105

Amendments conform the STAA to the procedure Amendments conform the STAA to the procedure and burden of proof set forth in the NTSSA and and burden of proof set forth in the NTSSA and the amended FRSA (which are essentially derived the amended FRSA (which are essentially derived from AIR21)from AIR21)

STAA protects drivers of commercial motor STAA protects drivers of commercial motor vehicles, mechanics, freight handlers, or any vehicles, mechanics, freight handlers, or any other person employed by a commercial motor other person employed by a commercial motor vehicle carrier who affects safety and security vehicle carrier who affects safety and security during his or her employment. during his or her employment.

Elements of a Elements of a Transportation Retaliation Transportation Retaliation ClaimClaim Protected ConductProtected Conduct Knowledge of Protected ConductKnowledge of Protected Conduct Adverse ActionAdverse Action Protected activity contributing Protected activity contributing

factor in decision to take adverse factor in decision to take adverse actionaction

Public Transportation Public Transportation Employees: Protected Employees: Protected ConductConduct NTSSA covers employees who:NTSSA covers employees who:

– Provide information or assist an investigation regarding Provide information or assist an investigation regarding conduct which the complainant reasonably believes conduct which the complainant reasonably believes constitutes a violation of Federal law relating to public constitutes a violation of Federal law relating to public transportation safety or security, or fraud, waste or transportation safety or security, or fraud, waste or abuse of federal grants or other funds intended to be abuse of federal grants or other funds intended to be used for public transportation safety or securityused for public transportation safety or security

– Refuse to violate or assist in the violation of a federal Refuse to violate or assist in the violation of a federal lawlaw

– File employee protection complaints under NTSSAFile employee protection complaints under NTSSA– Cooperate with a safety or security investigation Cooperate with a safety or security investigation

conducted by the Department of Transportation conducted by the Department of Transportation (“DOT”), Department of Homeland Security (“DHS”) or (“DOT”), Department of Homeland Security (“DHS”) or National Transportation Safety Board (“NTSB”)National Transportation Safety Board (“NTSB”)

Public Transportation Public Transportation Employees: Protected Employees: Protected ConductConduct NTSSA also covers employees who: NTSSA also covers employees who:

– Furnish information to the DOT, DHS, NTSB or any Furnish information to the DOT, DHS, NTSB or any federal, state or local enforcement agency federal, state or local enforcement agency regarding an accident resulting in death or injury to regarding an accident resulting in death or injury to a person in connection with public transportationa person in connection with public transportation

– Refuse to work under certain conditionsRefuse to work under certain conditions– Report hazardous safety or security conditionsReport hazardous safety or security conditions– Refuse to authorize the use of any safety or Refuse to authorize the use of any safety or

security related equipment, track or structuressecurity related equipment, track or structures

Railroad Employees: Railroad Employees: Protected Conduct Protected Conduct The amended FRSA protects employees who:The amended FRSA protects employees who:

– Notify or attempt to notify the railroad carrier or DOT of a Notify or attempt to notify the railroad carrier or DOT of a work related illness or personal injury of an employee work related illness or personal injury of an employee

– Furnish information to the DOT, DHS, NTSB or any federal, Furnish information to the DOT, DHS, NTSB or any federal, state or local enforcement agency regarding an accident state or local enforcement agency regarding an accident resulting in death or injury to a person in connection with resulting in death or injury to a person in connection with railroad transportationrailroad transportation

– Refuse to work under certain conditionsRefuse to work under certain conditions– Report hazardous safety or security conditionsReport hazardous safety or security conditions– Refuse to authorize the use of any safety or security Refuse to authorize the use of any safety or security

related equipment, track or structuresrelated equipment, track or structures Complainant’s actions must be lawful and in good Complainant’s actions must be lawful and in good

faith.faith.

Railroad Employees: Railroad Employees: Protected Conduct Protected Conduct

FRSA protects:FRSA protects:– Providing information or assisting an investigation Providing information or assisting an investigation

regarding conduct which the complainant regarding conduct which the complainant reasonably believes constitutes a violation of Federal reasonably believes constitutes a violation of Federal law relating to railroad safety or security, or fraud, law relating to railroad safety or security, or fraud, waste or abuse of federal grants or other funds waste or abuse of federal grants or other funds intended to be used for railroad safety or securityintended to be used for railroad safety or security

– Refusing to violate or assist in the violation of a Refusing to violate or assist in the violation of a federal lawfederal law

– Filing a complaint under FRSAFiling a complaint under FRSA Complainant’s actions must be lawful and in good Complainant’s actions must be lawful and in good

faith.faith.

Commercial Motor Vehicle Commercial Motor Vehicle Employees: Protected ConductEmployees: Protected Conduct

STAA prohibits an employer from retaliating against an STAA prohibits an employer from retaliating against an employee because the employee:employee because the employee:– filed a complaint or began a proceeding related to a filed a complaint or began a proceeding related to a

violation of a commercial motor vehicle safety or violation of a commercial motor vehicle safety or security regulation, standard, or ordersecurity regulation, standard, or order

– testified or will testify in such a proceedingtestified or will testify in such a proceeding– refused to operate a vehicle because the operation refused to operate a vehicle because the operation

violates a regulation, standard, or order of the United violates a regulation, standard, or order of the United States related to commercial motor vehicle safety, States related to commercial motor vehicle safety, health or securityhealth or security

– cooperated or is about to cooperate, with a safety or cooperated or is about to cooperate, with a safety or security investigation by the DOT, DHS or NTSB about security investigation by the DOT, DHS or NTSB about an accident or incident that resulted in injury or death an accident or incident that resulted in injury or death to an individual or damage to property occurring in to an individual or damage to property occurring in connection with commercial motor vehicle connection with commercial motor vehicle transportationtransportation

Protected ConductProtected Conduct“Reasonable Belief”“Reasonable Belief”

To prove protected conduct, complainant To prove protected conduct, complainant need not report an actual violation of a need not report an actual violation of a transportation safety or security rule. transportation safety or security rule.

““Reasonable belief” standard appliesReasonable belief” standard applies Objective component assesses whether a Objective component assesses whether a

person with the complainant’s knowledge person with the complainant’s knowledge and experience would have believed the and experience would have believed the reported conduct violated the relevant reported conduct violated the relevant statutestatute

Adverse ActionAdverse Action

Prohibits a broad range of Prohibits a broad range of adverse actions:adverse actions:– Termination Termination – Blacklisting Blacklisting – Denying benefits Denying benefits – Failure to hire or rehireFailure to hire or rehire

BurlingtonBurlington applies applies

Knowledge of Protected Knowledge of Protected Conduct Conduct

ALJs will impute knowledge of ALJs will impute knowledge of protected conduct to the protected conduct to the decision-maker where a person decision-maker where a person with knowledge of the protected with knowledge of the protected conduct influenced the decisionconduct influenced the decision

CausationCausation

Burden of proof favorable to Burden of proof favorable to employeesemployees

Contributing factor is “any factor, Contributing factor is “any factor, which alone or in connection with which alone or in connection with other factors, tends to affect in other factors, tends to affect in any way the outcome of the any way the outcome of the decision.”decision.”

ProcedureProcedure Under the three transportation whistleblower Under the three transportation whistleblower

protection laws, a retaliation claim must be protection laws, a retaliation claim must be filed with the Department of Labor (“DOL”) filed with the Department of Labor (“DOL”) within 180 days of the employee first learning within 180 days of the employee first learning of the adverse actionof the adverse action

SOL does not run from the date on which the SOL does not run from the date on which the adverse action is implementedadverse action is implemented

OSHA conducts investigation and can order OSHA conducts investigation and can order preliminary reinstatementpreliminary reinstatement

Either party can request a Either party can request a de novo de novo hearing hearing before an ALJbefore an ALJ

ProcedureProcedure

Formal rules of evidence do not applyFormal rules of evidence do not apply Either party can request ARB review of ALJ Either party can request ARB review of ALJ

decisiondecision If DOL has not issued a final decision within If DOL has not issued a final decision within

210 days after the filing of the complaint, the 210 days after the filing of the complaint, the complainant can file suit in federal district complainant can file suit in federal district court.court.

Either party can request a jury trialEither party can request a jury trial

RemediesRemedies

ReinstatementReinstatement Back payBack pay Attorney FeesAttorney Fees Punitive Damages capped at Punitive Damages capped at

$250,000$250,000

CPSC Reform Act of 2008 CPSC Reform Act of 2008

(H.R. 4040)(H.R. 4040) Protects employees in the manufacturing, Protects employees in the manufacturing,

private label, retail and distribution industries private label, retail and distribution industries (§ 219) (§ 219)

Enacted August 14, 2008Enacted August 14, 2008 Comprehensive CPSC reform prompted by Comprehensive CPSC reform prompted by

concerns about lead-based toys and other concerns about lead-based toys and other hazardous consumer products hazardous consumer products

Elements of a CPSCElements of a CPSCRetaliation ClaimRetaliation Claim

Protected ConductProtected Conduct Knowledge of Protected ConductKnowledge of Protected Conduct Adverse ActionAdverse Action Causation (protected activity Causation (protected activity

contributing factor in decision to contributing factor in decision to take adverse action)take adverse action)

CoverageCoverage

Section 219 of the CPSC Reform Act protects Section 219 of the CPSC Reform Act protects employees in the manufacturing, private labeling, employees in the manufacturing, private labeling, distribution and retail industries who disclose distribution and retail industries who disclose information to an employer, a regulatory agency, or a information to an employer, a regulatory agency, or a State Attorney General about a reasonably perceived State Attorney General about a reasonably perceived violation of the Consumer Product Safety Commission violation of the Consumer Product Safety Commission Act (“CPSCA”) or any act enforced by the Consumer Act (“CPSCA”) or any act enforced by the Consumer Product Safety CommissionProduct Safety Commission

Also protects an employee’s good faith refusal to Also protects an employee’s good faith refusal to violate the CPSCAviolate the CPSCA

Protected ConductProtected Conduct

An employee engages in protected An employee engages in protected activity by:activity by:– Providing information relating to a Providing information relating to a

violation of the CPSC Reform Act or any violation of the CPSC Reform Act or any Act enforced by the Commission, to the Act enforced by the Commission, to the employer, the Federal Government, or employer, the Federal Government, or the attorney general of a statethe attorney general of a state

– Testifying or assisting in a proceeding Testifying or assisting in a proceeding concerning a violation of the CPSC concerning a violation of the CPSC Reform Act or any law enforced by the Reform Act or any law enforced by the Commission Commission

– Refusing to participate in an activity Refusing to participate in an activity that violates the CPSCAthat violates the CPSCA

Protected ConductProtected Conduct

Specific examples of protected Specific examples of protected conduct include: conduct include: – Reporting violations of the standard for the Reporting violations of the standard for the

flammability of children’s sleepwearflammability of children’s sleepwear– Reporting violations of safety Reporting violations of safety

specifications for bicycles specifications for bicycles – Reporting choking incidents involving Reporting choking incidents involving

marbles, small balls, latex balloons and marbles, small balls, latex balloons and other small partsother small parts

Adverse ActionAdverse Action

Prohibits a broad range of Prohibits a broad range of adverse actionsadverse actions– ““discharge an employee or discharge an employee or

otherwise discriminate against an otherwise discriminate against an employee with respect to employee with respect to compensation, terms, conditions, or compensation, terms, conditions, or privileges of employment”privileges of employment”

BurlingtonBurlington standard applies standard applies

CausationCausation

Burden of proof favorable to Burden of proof favorable to employeesemployees

Contributing factor is “any factor, Contributing factor is “any factor, which alone or in connection with which alone or in connection with other factors, tends to affect in other factors, tends to affect in any way the outcome of the any way the outcome of the decision.”decision.”

RemediesRemedies

Reinstatement Reinstatement Back Pay Back Pay Attorney’s FeesAttorney’s Fees Punitive damages not authorizedPunitive damages not authorized

ProcedureProcedure

180-day statute of limitations180-day statute of limitations Applies AIR-21/SOX proceduresApplies AIR-21/SOX procedures OSHA investigatesOSHA investigates ALJ hearingALJ hearing Appeal to ARBAppeal to ARB If DOL does not issue a final decision If DOL does not issue a final decision

within 210 days of the employee filing within 210 days of the employee filing the complaint, employee can remove the complaint, employee can remove the claim to federal court and is entitled the claim to federal court and is entitled to a trial by jury. to a trial by jury.

Key Provisions of Section Key Provisions of Section 1553 1553 of American Recovery and of American Recovery and Reinvestment ActReinvestment Act Broad scope of protected conductBroad scope of protected conduct Broad range of actionable Broad range of actionable

adverse actionsadverse actions Low burden to establish causationLow burden to establish causation Right to a Jury TrialRight to a Jury Trial No “duty speech” defenseNo “duty speech” defense No statute of limitationsNo statute of limitations

Section 1553 CoverageSection 1553 Coverage

Applies to Private Contractors, Applies to Private Contractors, State and Local Governments who State and Local Governments who are recipients of stimulus fundsare recipients of stimulus funds

Section 1553 Protected Section 1553 Protected ConductConduct

Protected conduct includes a disclosure Protected conduct includes a disclosure about information that an employee about information that an employee reasonably believesreasonably believes evidences: evidences: – Gross mismanagement of an agency contract Gross mismanagement of an agency contract

relating to stimulus funds;relating to stimulus funds;– Gross waste of stimulus funds;Gross waste of stimulus funds;– Substantial and specific danger to public health Substantial and specific danger to public health

or safety;or safety;– Abuse of authority related to the implementation Abuse of authority related to the implementation

or use of stimulus funds; oror use of stimulus funds; or– A violation of a law, rule, or regulation that A violation of a law, rule, or regulation that

governs an agency contract or grant related to governs an agency contract or grant related to stimulus funds.stimulus funds.

““Duty Speech”Duty Speech”

Section 1553 specifically protects “duty Section 1553 specifically protects “duty speech” whistleblowing, speech” whistleblowing, i.ei.e., disclosures ., disclosures made by employees in the ordinary course made by employees in the ordinary course of performing their job duties of performing their job duties

Objective Reasonableness Objective Reasonableness

Courts will likely apply a standard of objective Courts will likely apply a standard of objective reasonableness from analogous whistleblower reasonableness from analogous whistleblower protection laws, such as Section 806 of Sarbanes-protection laws, such as Section 806 of Sarbanes-Oxley ActOxley Act

DOL ARB and two Circuit Courts have imposed a DOL ARB and two Circuit Courts have imposed a high standard of “objective reasonableness”high standard of “objective reasonableness”

Allen v. Administrative Review BoardAllen v. Administrative Review Board, No. , No. 06-60849 (506-60849 (5thth Cir. Jan. 22, 2008) Cir. Jan. 22, 2008)

Livingston v. Wyeth, IncLivingston v. Wyeth, Inc., No. 06-1939 (4th ., No. 06-1939 (4th Cir. Mar. 24, 2008)Cir. Mar. 24, 2008)

Welch v. Cardinal Bankshares CorpWelch v. Cardinal Bankshares Corp.,., ARB No. ARB No. 05-064, ALJ No. 2003-SOX-15 (ARB May 31, 05-064, ALJ No. 2003-SOX-15 (ARB May 31, 2007)2007)

Section 1553 Section 1553 ProcedureProcedure 180-day statute of limitations180-day statute of limitations Inspector General investigatesInspector General investigates If an agency head does not issue If an agency head does not issue

a final decision within 210 days of a final decision within 210 days of the employee filing the complaint, the employee filing the complaint, employee can remove the claim employee can remove the claim to federal court and is entitled to to federal court and is entitled to a trial by jury. a trial by jury.

Section 1553 Section 1553 RemediesRemedies Reinstatement Reinstatement Back Pay Back Pay Compensatory Damages Compensatory Damages Attorney’s FeesAttorney’s Fees

False Claims Act False Claims Act AmendmentsAmendments

On May 20, 2009, President Obama On May 20, 2009, President Obama signed into law the Fraud signed into law the Fraud Enforcement Recovery Act, which Enforcement Recovery Act, which amends the FCA’s retaliation amends the FCA’s retaliation provision (31 USC 3730(h) by:provision (31 USC 3730(h) by:– Expanding coverage to any person Expanding coverage to any person

working on a government contractworking on a government contract– Broadening scope of protected Broadening scope of protected

conduct conduct