1. New Whistleblower Protection Laws and Cross-Cutting Issues in Whistleblower Retaliation Litigation
Jason M. Zuckerman
The Employment Law Group® Law Firm
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2. New Whistleblower Protection Provisions
9/11 Act for Transportation Employees
CPSC Reform Act for Manufacturing, Private Labeler, Retail and Distribution Employees
Whistleblower Protections for DoD Contractor Employees
DoD Directive

3. 9/11 Act Transportation Whistleblower Protections
Public Transportation Employees
§ 1413 establishes National Transit Systems Security Act of 2007 (“NTSSA”) to protect public transportation employees
Railroad Employees
§ 1521 amends the Federal Rail Safety Act (“FRSA”), 49 U.S.C. § 20109
Commercial Motor Carrier Employees
§ 1536 amends the Surface Transportation Assistance Act (“STAA”), 49 U.S.C. § 31105

4. The Implementing Recommendations of the 9/11 Commission Act of 2007
Enacted August 3, 2007
Public Law No
New Cause of Action:
Whistleblower coverage for public transportation employees (§ 1413)
Significant Enhancement to Existing WB Protection Laws:
Whistleblower coverage for railroad employees (§ 1521) and commercial motor carrier employees (§ 1536)

5. 9/11 Act Coverage Public Transportation Employees
Section 1413 of the Act protects public transportation employees
Applies to a public transportation agency, a contractor or subcontractor of such agency, or an officer or employee of such agency
Modeled on employee protection provisions of Federal Rail Safety Act (49 U.S.C. § 20109) and Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (“AIR21”) (49 U.S.C. § 42121)

6. 9/11 Act Coverage Railroad Employees
Section 1521 amends the Federal Rail Safety Act (“FRSA”), 49 U.S.C. § 20109
Applies to a railroad carrier engaged in interstate or foreign commerce, a contractor or subcontractor of such a railroad carrier, or an officer or employee of such a railroad carrier

7. 9/11 Act Coverage Commercial Motor Vehicle Employees
Section 1536 amends the Surface Transportation Assistance Act (“STAA”), 49 U.S.C. § 31105
Amendments conform the STAA to the procedure and burden of proof set forth in the NTSSA and the amended FRSA (which are essentially derived from AIR21)
STAA protects drivers of commercial motor vehicles, mechanics, freight handlers, or any other person employed by a commercial motor vehicle carrier who affects safety and security during his or her employment.

8. Elements of a Transportation Retaliation Claim
Protected Conduct
Knowledge of Protected Conduct
Adverse Action
Protected activity contributing factor in decision to take adverse action

9. Public Transportation Employees: Protected Conduct
NTSSA covers employees who:
Provide information or assist an investigation regarding conduct which the complainant reasonably believes constitutes a violation of Federal law relating to public transportation safety or security, or fraud, waste or abuse of federal grants or other funds intended to be used for public transportation safety or security
Refuse to violate or assist in the violation of a federal law
File employee protection complaints under NTSSA
Cooperate with a safety or security investigation conducted by the Department of Transportation (“DOT”), Department of Homeland Security (“DHS”) or National Transportation Safety Board (“NTSB”)

10. Public Transportation Employees: Protected Conduct
NTSSA also covers employees who:
Furnish information to the DOT, DHS, NTSB or any federal, state or local enforcement agency regarding an accident resulting in death or injury to a person in connection with public transportation
Refuse to work under certain conditions
Report hazardous safety or security conditions
Refuse to authorize the use of any safety or security related equipment, track or structures

11. Railroad Employees: Protected Conduct
The amended FRSA protects employees who:
Notify or attempt to notify the railroad carrier or DOT of a work related illness or personal injury of an employee
Furnish information to the DOT, DHS, NTSB or any federal, state or local enforcement agency regarding an accident resulting in death or injury to a person in connection with railroad transportation
Refuse to work under certain conditions
Report hazardous safety or security conditions
Refuse to authorize the use of any safety or security related equipment, track or structures
Complainant’s actions must be lawful and in good faith.

12. Railroad Employees: Protected Conduct
FRSA protects:
Providing information or assisting an investigation regarding conduct which the complainant reasonably believes constitutes a violation of Federal law relating to railroad safety or security, or fraud, waste or abuse of federal grants or other funds intended to be used for railroad safety or security
Refusing to violate or assist in the violation of a federal law
Filing a complaint under FRSA
Complainant’s actions must be lawful and in good faith.

13. Commercial Motor Vehicle Employees: Protected Conduct
STAA prohibits an employer from retaliating against an employee because the employee:
filed a complaint or began a proceeding related to a violation of a commercial motor vehicle safety or security regulation, standard, or order
testified or will testify in such a proceeding
refused to operate a vehicle because the operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety, health or security
cooperated or is about to cooperate, with a safety or security investigation by the DOT, DHS or NTSB about an accident or incident that resulted in injury or death to an individual or damage to property occurring in connection with commercial motor vehicle transportation

14. Protected Conduct “Reasonable Belief”
To prove protected conduct, complainant need not report an actual violation of a transportation safety or security rule.
“Reasonable belief” standard applies
Objective component assesses whether a person with the complainant’s knowledge and experience would have believed the reported conduct violated the relevant statute

15. Adverse Action Prohibits a broad range of adverse actions:
Termination
Blacklisting
Denying benefits
Failure to hire or rehire
Burlington applies

16. Knowledge of Protected Conduct
ALJs will impute knowledge of protected conduct to the decision-maker where a person with knowledge of the protected conduct influenced the decision

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

18. Procedure
Under the three transportation whistleblower protection laws, a retaliation claim must be filed with the Department of Labor (“DOL”) within 180 days of the employee first learning of the adverse action
SOL does not run from the date on which the adverse action is implemented
OSHA conducts investigation and can order preliminary reinstatement
Either party can request a de novo hearing before an ALJ

19. Procedure Formal rules of evidence do not apply
Either party can request ARB review of ALJ decision
If DOL has not issued a final decision within 210 days after the filing of the complaint, the complainant can file suit in federal district court.
Either party can request a jury trial

20. Remedies Reinstatement Back pay Attorney Fees
Punitive Damages capped at $250,000

21. CPSC Reform Act of (H.R. 4040)
Protects employees in the manufacturing, private label, retail and distribution industries (§ 219)
Enacted August 14, 2008
Comprehensive CPSC reform prompted by concerns about lead-based toys and other hazardous consumer products

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

23. Elements of CPSC Retaliation Claim
Protected Conduct
Knowledge of Protected Conduct
Adverse Action
Causation

24. Protected Conduct An employee engages in protected activity by:
Providing information relating to a violation of the CPSC Reform Act or any Act enforced by the Commission, to the employer, the Federal Government, or the attorney general of a state
Testifying or assisting in a proceeding concerning a violation of the CPSC Reform Act or any law enforced by the Commission
Refusing to participate in an activity that violates the CPSCA

25. Protected Conduct Specific examples of protected conduct include:
Reporting violations of the standard for the flammability of children’s sleepwear
Reporting violations of safety specifications for bicycles
Reporting choking incidents involving marbles, small balls, latex balloons and other small parts

26. Adverse Action Prohibits a broad range of adverse actions
“discharge an employee or otherwise discriminate against an employee with respect to compensation, terms, conditions, or privileges of employment”
Burlington standard applies

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

28. Remedies Reinstatement Back Pay Attorney’s Fees
Punitive damages not authorized

29. Procedure 180-day statute of limitations Applies AIR-21/SOX procedures
OSHA investigates
ALJ hearing
Appeal to ARB
If DOL does not issue a final decision within 210 days of the employee filing the complaint, employee can remove the claim to federal court and is entitled to a trial by jury.

30. Whistleblower Protections for DOD Contractor Employees
Section 846 of National Defense Authorization Act for Fiscal Year 2008 (H.R. 4986) amends 10 U.S.C. § 2409
Protects disclosures to Congress, an Inspector General, the Government Accountability Office, or a Department of Defense contractor oversight employee concerning information that the employee reasonably believes evidences
gross mismanagement of DOD contract or grant
gross waste of DOD funds
substantial and specific danger to public health or safety, or
violation of law related to a Department of Defense contract

31. Whistleblower Protections for DOD Contractor Employees
Complaint filed with the IG
IG can order reinstatement, back pay, compensatory damages, and attorney fees and costs.
210 days after filing, plaintiff can remove complaint to federal court and can elect a jury trial
Plaintiff can also pursue FCA retaliation claim

32. Updates policy and responsibilities for NAFI whistleblower protection
DoD Directive : Further Protection for Employees of DoD Contractors
Provides Reprisal Protection for Nonappropriated Fund Instrumentality (NAFI) Employees/Applicants
Updates policy and responsibilities for NAFI whistleblower protection
Encourages NAFI employees to engage in whistleblowing activity without fear of reprisal
Clarifies corrective and disciplinary actions regarding allegations of reprisal against a NAFI employee who engages in whistleblowing activity

33. Coverage Office of the Secretary of Defense Military Departments
Office of the Chairman
Combatant Commands
Officer of Inspector General of DoD
Defense Agencies
Any other organization of the DoD

34. Other Remedies for Employees of DoD Contractors
Employees of DoD Contractors can pursue a claim for retaliation under the following statutes:
IG Statute
False Claims Act
Common Law Wrongful Discharge

35. Cross-Cutting Issues in Whistleblower Litigation
Cross-Cutting Issues in Whistleblower Protection
Objective Reasonableness of Plaintiff’s Disclosure
Specificity of Disclosure
Duty Speech
Choice of Forum
Preemption
Counterclaims and After-Acquired Evidence

36. Objective Reasonableness
DOL ARB and two Circuit Courts have imposed a high standard of “objective reasonableness”
Allen v. Administrative Review Board, No (5th Cir. Jan. 22, 2008)
Livingston v. Wyeth, Inc., No (4th Cir. Mar. 24, 2008)
Welch v. Cardinal Bankshares Corp., ARB No , ALJ No SOX-15 (ARB May 31, 2007)
Objective reasonableness may be decided as a matter of law
Underscores importance of expert witness testimony

37. Specificity of Disclosure
DOL ARB has amended whistleblower protection laws to require that complainant’s disclosure implicate the substantive law “definitively and specifically.”
Under ERA, disclosure must implicate nuclear safety definitively and specifically
Platone v. FLYi, Inc., ARB , 2003-SOX-27 (ARB Sept. 29, 2006)
To constitute protected conduct, a complainant's protected communications "must relate 'definitively and specifically' to the subject matter of the particular statute under which protection is afforded (mail fraud, wire, radio and TV fraud, bank fraud, securities fraud, or any rule or regulation of the SEC)
FCA retaliation cases requiring very specific disclosure about presentment of false claim

38. Duty Speech
Defense bar has sought to apply Garcetti v. Ceballos, 126 S. Ct (2006) “duty speech” doctrine to staturoy whistleblower protection claims
SOX does not exclude duty speech claims.
Deremer v. Gulf Coast, 2006-SOX-2 (ALJ June 29, 2007)
The Act contains no language excluding one’s job duties from protected activity. . . one’s job duties may broadly encompass reporting of illegal conduct, for which retaliation results. Therefore, restricting protected activity to place one’s job duties beyond the reach of the Act would be contrary to Congressional intent.
Leznik v. Nektar Therapeutics, Inc., 2006-SOX-93 (ALJ Nov. 16, 2007)

39. Duty Speech Plead how complainant’s disclosure went beyond job duties
ERA
Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984) – QC control inspectors vital to the regulatory scheme for nuclear plants and therefore cannot be discharged when “they do their jobs too well.”
False Claims Act
Employee tasked with the internal investigation of fraud against the government must clearly put the employer on notice that a qui tam suit is a reasonable possibility. Eberhardt v. Integrated Design & Constr., Inc., 167 F.3d 861 (4th Cir. 1999)
Plead how complainant’s disclosure went beyond job duties

40. Choice of Forum
Nineteen states have adopted statutes protecting whistleblowers in the private sector.
Many state whistleblower statutes limit protection to external disclosures
43 states recognize public-policy exception to employment at will
Punitive damages available in state common law wrongful discharge actions

41. Choice of Forum DOL formal rules of evidence do not apply
broad scope of discovery
Protective orders disfavored
Counterclaims cannot be brought in DOL
Federal court
whistleblower retaliation claim can be combined with tort claims
Jury trial
Broader discovery
Subpoena power

42. Preemption
DOL Whistleblower Protection Statutes do not preempt state actions
English v. General Electric Co., 496 U.S. 72 (1990).
18 U.S.C. § 1514A(d) (“Nothing in this section shall be deemed to diminish the rights, privileges, or remedies of any employee under any Federal or State law ”)
Common law wrongful discharge action generally unavailable where there is a remedy under federal law.

43. Counterclaims and After-Acquired Evidence
Counterclaims more common
Misappropriation or disclosure of trade secret information
Breach of fiduciary duty
Breach of contract/confidentiality policy
After Acquired Evidence
McKennon v Nashville Banner Publishing Co, 513 U.S. 352 (1995)

44. Future Developments Amending the Whistleblower Protection Act of 1989
H.R. 985 and S. 274
Private Sector Whistleblower Protection Streamlining Act of 2007 (H.R. 4047)
False Claims Act Correction Act
S and H.R. 4854