By Glenn C. McGovern, Attorney
Metairie, La.
There are many federal whistleblower statues with more enacted each year.
The odds are increasing that you may have a client come to you with a federal or state whistleblower action. The purpose of this article is to make you aware of the immediate action needs to be taken to protect the client who is a federal whistleblower. Whistleblowing law is a very exciting area. It is new and evolving. It offers an opportunity, (or burden depending on your outlook), to make new law in many areas. Since the Enron, WorldCom, the recent Obama administration Health Care Reform Act and financial services industry reforms, there has been an explosion in the number of federal whistleblower statues available.
Louisiana has a whistleblower statue for protection for employees who reports state law violations, La. R.S. 23:697, and one for employees who report environmental violations, La. R.S. 30:2027. They only require a suitbe filed within the Louisiana prescriptive period for torts of one year from date of the incident of retaliation or notice of termination.
However, the time limits for federal causes of action for the plethora of federal whistleblower laws are generally very short. They can be less the 30 days to 180 days depending on the particular law involved and a trap for the unwary. If a written complaint is not filed timely, there will be no federal whistleblower law protection. Unfortunately, often the whistleblower is referred by another attorney well meaning, but not knowledgeable in the whistleblower law area or the whistleblower/client comes in on his own, but after the often short deadlines to file a written complaint already expired.
Here is a partial list of commonly used federal whistleblower statues and the time limits:
1. Safe Drinking Water Act- (only 30 days to file a written complaint)-provides protection for employees who report violations of the Act, which requires that all drinking water systems in public buildings lead-free.
2. Clean Air Act- (only 30 days to file a written complaint)-provides protection for employees who report violations of the Act dealing with enforcement of standards of air quality and air pollution.
3. Clean Water Act or Federal Water Pollution Control Act- (only 30 days to file a written complaint)-provides protection for employees who report violations of hazardous pollution of waters that provide a habitat for living things.
4. Toxic Substances Control Act- (only 30 days to file a written complaint)-provides protection for employees who report violations of regulations involving the manufacture, distribution, and use of specified toxic substances.
5. Solid Waste Disposal Act also known as the Resource Conservation and Recovery Act- (only 30 days to file a written complaint)-provides protection for employees who exercise certain rights under the Act, which Act provides for assistance for the development of facilities for the recovery of energy and other resources from discarded materials and regulates hazardous waste management.
6. Wendell H. Ford Aviation Investment and Reform Act for the 21st Century also known as AIR21- (only 90 days to file a written complaint)- provides for protection for employees of air carriers, contractors, or subcontractors of air carriers who raise safety concerns about air transportation.
7. Pipeline Safety Improvement Act of 2002-(only 180 days to file a written complaint)-Provides protection for employees from discrimination for employees who report violations of federal law on pipeline safety and security or who refuse to violate such provisions.
8. Comprehensive Environmental Response, Compensation and Liability Act- (only 30 days to file a written complaint)-provides protection for employees from discrimination under the act that provides for liability, cleanup, compensation and emergency response for hazardous substances released into the environment and for the cleanup of hazardous waste disposal sites.
9. OSHA-Occupational Safety and Health Act of 1970-(only 30 days to file a written complaint)-Provides for protection for discrimination for acts such as filing a safety and health complaint with OSHA and participating in an inspection.
10.Corporate and Criminal Fraud Accountability Act of 2002-(only 90 days to file a written complaint)-Provides discrimination protection form employees of publicly traded corporations or brokerage firms or their contractors, subcontractors, or agents, who report violations of the Act, which covers mail, wire, bank or securities fraud or violations of laws related to fraud or violations of laws relating to fraud against stockholders.
11.Surface Transportation Assistance Act- (only 180 days to file a written complaint)-provides discrimination protection for truck drivers and other employees in the safety of commercial motor vehicles. Busses for hire and freight trucks with a gross vehicle weight over 10,001 pounds.
12.International Safety Container Act- (60 days to file a written complaint)- provides discrimination protection for employees who report violations of the Act, which regulates shipping containers.
13. Energy Reorganization Act- (180 days to file a written complaint)-Provides protection for employees of operators and subcontractors of nuclear power plants licensed by the Nuclear Regulatory Commission and for employees of contractors working under contract with the Department of Entergy.
14.NCUA-National Credit Union Administration Act- 12 U.S.C. § 1790b(a) (provides 2 years of act of discharge or discrimination to provide a written complaint) Protects a federal credit union employee who report violations of NCUA law who file a written report the NCUA Board at the main office or U.S. Attorney General Office timely.
This is not a complete list of whistleblower acts. That would take a book in itself to list all the available acts.
Filing a complaint-
A written complaint needs to be timely filed within the various legal time limits. For the statues listed above, (except the NCUA federal credit union complaint which goes to the NCUA Board or Attorney General as set out above), a complaint should be filed in writing with proof of receipt kept of course, to OSHA whose Region VI office for Arkansas, Louisiana, New Mexico Oklahoma and Texas is 525 Griffin Street, Room 602, Dallas, Texas 75202. Ph. (972) 850-4145. There is an OSHA Region IV office in Atlanta that handles Mississippi, Alabama, Georgia, North Carolina, South Carolina, and Tennessee at 61 Forsyth Street, SW, Room, and 6T50, Atlanta, GA 30303 Ph. 404-652-2300. OSHA has an office at U.S. Dept. of Labor/OSHA, 9100 Bluebonnet Center Blvd., Ste. 201, Baton Rouge, La. 70809, and fax 225-298-5457. Always check the current address, phone and fax numbers of the agency before your send a complaint off they change. It is highly recommended complaints be filed in writing with proof of service such as certified mail return receipt kept despite any other advice you may be given. The date postmarked, faxed or hand-delivered is considered the date filed. If there is a state plan it should also be filed with the OSHA-approved state plan.
Beware of multiple shorter deadlines in a case-
It may be that a client-whistleblower has multiple causes of action. For example the whistleblower may have aviation complaints and environmental complaints that may be covered under AIR21 for reporting an unsafe aircraft used in air transportation of passengers and also other complaints for which he/she is retaliated against for a Toxic Substances Control Act or Solid Waste Disposal Act violations of the employer. The latter two have only shorter 30 day time limits to file a complaint, while the first AIR21 violation have 90 days time periods to file a written complaint.
What is prohibited discrimination-
- Termination or getting laid off a job.
- Blacklisting.
- Demotion.
- Disciplining or writing up.
- Denying promotion.
- Denying overtime.
- Denying benefits.
- Failure to hire or rehire.
- Intimidation.
- Reassignment affecting promotion prospects.
- Reducing pay or hours.
What happens then-
Under the OSHA administrated acts, an investigation interview is set up by phone usually with the OSHA investigator to determine whether to conduct an investigation. If so, an investigation is then conducted and a finding issued. Reinstatement may be ordered for the client by the agency. This can be appealed as set out in the particular whistleblower act to an Administrative Law Judge and federal district court. Under the NCUA Act a notice is filed timely first with NCUA or Attorney General and then suit is filed in federal district court later within two years of the discharge or discrimination. You have to read each act carefully and the case law. For example under the La. State Whistleblower Act, La. R.S. 23:697, it has been held to only apply to violations of state law yet the La. State Environmental Whistleblower , La. R.S. 30:2027, law only requires a reasonable belief any state or federal environmental law was violated by the whistleblower. Some of these statues require intrinsic reporting and some extrinsic reporting to an outside entity. There is no uniformity in the various statues. It is also wise to document the employee complained to the employer of the violation and of his reporting to an agency of the violation of law.
