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Whistleblower Protection Laws (view source)

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During fiscal year 2018, the IRS awarded $312M to tax fraud whistleblowers, and whistleblowers enabled the IRS to recover $1,441,255,859.
During fiscal year 2018, the IRS awarded $312M to tax fraud whistleblowers, and whistleblowers enabled the IRS to recover $1,441,255,859.
=='''Taxpayer First Act Whistleblower Protection Law'''==
26 U.S.C. § 7623(d)
CIVIL ACTION TO PROTECT AGAINST RETALIATION CASES
(1) ANTI-RETALIATION WHISTLEBLOWER PROTECTION FOR EMPLOYEES. No employer, or any officer, employee, contractor, subcontractor, or agent of such employer, may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment (including through an act in the ordinary course of such employee’s duties) in reprisal for any lawful act done by the employee—
(A) to provide information, cause information to be provided, or otherwise assist in an investigation regarding underpayment of tax or any conduct which the employee reasonably believes constitutes a violation of the internal revenue laws or any provision of Federal law relating to tax fraud, when the information or assistance is provided to the Internal Revenue Service, the Secretary of the Treasury, the Treasury Inspector General for Tax Administration, the Comptroller General of the United States, the Department of Justice, the United States Congress, a person with supervisory authority over the employee, or any other person working for the employer who has the authority to investigate, discover, or terminate misconduct, or
(B) to testify, participate in, or otherwise assist in any administrative or judicial action taken by the Internal Revenue Service relating to an alleged underpayment of tax or any violation of the internal revenue laws or any provision of Federal law relating to tax fraud.
(2) ENFORCEMENT ACTION.
(A) IN GENERAL. A person who alleges discharge or other reprisal by any person in violation of paragraph (1) may seek relief under paragraph (3) by
(i) filing a complaint with the Secretary of Labor, or
(ii) if the Secretary of Labor has not issued a final decision within 180 days of the filing of the complaint and there is no showing that such delay is due to the bad faith of the claimant, bringing an action at law or equity for de novo review in the appropriate district court of the United States, which shall have jurisdiction over such an action without regard to the amount in controversy.
(B) PROCEDURE. —
(i) IN GENERAL. An action under subparagraph (A)(i) shall be governed under the rules and procedures set forth in section 42121(b) of title 49, United States Code.
(ii) EXCEPTION. Notification made under section 42121(b)(1) of title 49, United States Code, shall be made to the person named in the complaint and to the employer.
(iii) BURDENS OF PROOF. An action brought under subparagraph (A)(ii) shall be governed by the legal burdens of proof set forth in section 42121(b) of title 49, United States Code, except that in applying such section—
(I) ‘behavior described in paragraph (1)’ shall be substituted for ‘behavior described in paragraphs (1) through (4) of subsection (a)’ each place it appears in paragraph (2)(B) thereof, and ”(II) ‘a violation of paragraph (1)’ shall be substituted for ‘a violation of subsection (a)’ each place it appears.
(iv) STATUTE OF LIMITATIONS. A complaint under subparagraph (A)(i) hall be filed not later than 180 days after the date on which the violation occurs.
(v) JURY TRIAL. A party to an action brought under subparagraph (A)(ii) shall be entitled to trial by jury.
(3) REMEDIES.—
(A) IN GENERAL. An employee prevailing in any action under paragraph (2)(A) shall be entitled to all relief necessary to make the employee whole.
(B)COMPENSATORY DAMAGES.—Relief for any action under subparagraph (A) shall include—
(i) reinstatement with the same seniority status that the employee would have had, but for the reprisal,
(ii) the sum of 200 percent of the amount of back pay and 100 percent of all lost benefits, with interest, and
(iii) compensation for any special damages sustained as a result of the reprisal, including litigation costs, expert witness fees, and reasonable attorney fees.
(4) RIGHTS RETAINED BY EMPLOYEE. Nothing in this section shall be deemed to diminish the rights, privileges, or remedies of any employee under any Federal or State law, or under any collective bargaining agreement.
(5) NONENFORCEABILITY OF CERTAIN PROVISIONS WAIVING RIGHTS AND REMEDIES OR REQUIRING ARBITRATION OF DISPUTES.
(A) WAIVER OF RIGHTS AND REMEDIES. The rights and remedies provided for in this subsection may not be waived by any agreement, policy form, or condition of employment, including by a predispute arbitration agreement.
(B) PREDISPUTE ARBITRATION AGREEMENTS. No predispute arbitration agreement shall be valid or enforceable, if the agreement requires arbitration of a dispute arising under this subsection.
=='''Whistleblower Protection Act'''==
The Whistleblower Protection Act protects federal employees, including Veterans Affairs whistleblowers, against retaliation for making any disclosure that a federal employee reasonably believes evidences:
*a violation of any law, rule, or regulation;
*gross mismanagement;
*a gross waste of funds;
*an abuse of authority;
*a substantial and specific danger to public health or safety; or
*censorship related to research, analysis, or technical information that cause, or will cause, gross government waste or mismanagement, an abuse of authority, a substantial and specific danger to public health or safety, or any violation of law.
The Whistleblower Protection Enhancement Act of 2012 clarifies that a disclosure does not lose protection where:
*the disclosure was made to a person, including a supervisor, who participated in the wrongdoing disclosed;
*the disclosure revealed information that had previously been disclosed;
*of the employee or applicant’s motive for making the disclosure;
*the disclosure was made while the employee was off duty;
*of the amount of time which has passed since the occurrence of the events described in the disclosure; or
*the disclosure was made during the employee’s normal course of duties, providing the employee is able to show that the personnel action was taken in reprisal for the disclosure.
=='''Prohibited Forms of Whistleblower Retaliation (Personnel Actions)'''==
The WPA prohibits the taking of a broad range of personnel actions in retaliation for whistleblowing, including removals, demotions, reassignments, pay decisions, as well as significant changes in duties, responsibilities, or working conditions. In addition, the Whistleblower Protection Enhancement Act prohibits an agency from implementing or enforcing any nondisclosure policy, form, or agreement that fails to notify an employee that the agreement does not supersede, conflict with, or otherwise alter whistleblower rights and protections.
=='''Proving Whistleblower Retaliation Under the Whistleblower Protection Act'''==
The burden of proof under the Whistleblower Protection Act is very favorable to whistleblowers. An employee can prevail by showing that protected whistleblowing was a contributing factor in the personnel action. The agency can avoid liability only if proves by clear and convincing evidence that it would have taken the same personnel action in the absence of the employee’s protected whistleblowing.
To determine whether an agency has met its burden via clear and convincing evidence, judges evaluate:
*the strength of the agency’s evidence in support of its personnel action;
*the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision; and
*any evidence that the agency takes similar actions against similarly situated employees who are not whistleblowers.
=='''Damages or Relief for Federal Employee Whistleblowers'''==
A prevailing whistleblower can recover lost wages, attorney’s fees, equitable relief (e.g., reinstatement, rescinding a suspension, modifying a performance evaluation, etc.) and uncapped compensatory damages (emotional distress damages). In addition, a whistleblower can recover fees, costs, or damages reasonably incurred due to a retaliatory investigation. Retaliatory investigations can take many forms, such as unwarranted referrals for criminal or civil investigations or extraordinary reviews of time and attendance records.
=='''Filing a Whistleblower Protection Act Complaint'''==
Whistleblower retaliation is a prohibited personnel practice under the Civil Service Reform Act. A complaint alleging a prohibited personnel practice can be filed at the U.S. Office of Special Counsel. If you have suffered retaliation for protected whistleblowing that is also appealable to the Merit System Protection Board, you may elect to pursue a remedy through one of three remedial processes:
*an appeal to the Board under 5 U.S.C. § 7701;
*a grievance under a collective bargaining agreement; or
*a complaint filed with OSC, which can be followed by an Individual Right of Action appeal filed with the Board.
This election of remedies does not affect the right to pursue an EEO complaint, i.e., an employee can pursue both an EEO complaint and an OSC complaint simultaneously.
=='''Energy Reorganization Act'''==
Section 211 of the Energy Reorganization Act (ERA) protects employees who disclose concerns about nuclear safety or a violation a Nuclear Regulatory Commission (NRC) rule or regulation.
=='''Protected Nuclear Safety Whistleblowing'''==
The ERA whistleblower anti-retaliation provision protects employees in the nuclear industry for engaging in protected whistleblowing, including:
*Raising concerns about nuclear safety;
*Refusing to engage in activities prohibited under either the ERA or AEA provided the employee has identified the alleged illegality;
*Testifying before Congress or at any Federal or State proceeding regarding any provision of the ERA or the AEA;
*Commencing or causing to be commenced a proceeding under or the enforcement of the ERA or AEA, or testifying in any such proceeding; or
*Assisting or participating in any other action to promote nuclear safety.
The ERA protects disclosures to an employer and disclosures to the NRC. Click here to report a safety or security concern directly to the NRC.
=='''Prohibited Retaliation Against Nuclear Safety Whistleblowers'''==
Section 211 of the ERA prohibits a broad range of retaliatory actions, including termination, harassment, suspension, demotion, blacklisting/refusal to hire, and any act that would dissuade a reasonable person from engaging further protected activity.
Recently, OSHA awarded $260,000 to a nuclear whistleblower who was wrongfully terminated after reporting safety concerns concerning a construction project at the Wolf Creek Generating Station, including breaches of minimum soil coverage requirements for emergency service water piping.
=='''Proving ERA Whistleblower Retaliation'''==
To prevail on an ERA whistleblower complaint, a complainant must prove by a preponderance of the evidence that the complainant’s protected whistleblowing was a contributing factor in the adverse action. A common source of indirect evidence of retaliation is “temporal proximity” between the protected whistleblowing and the adverse action. The closer the temporal proximity, the greater the causal connection there is to the alleged retaliation.
If the complainant’s protected activity was a contributing factor in the adverse action, the employer may avoid liability only if it demonstrates by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of the protected whistleblowing. This is known as the “same decision defense.” To assess whether an employer has proven that defense by clear and convincing evidence, DOL evaluates the following factors:
*whether the employer’s evidence meets the plain meaning of “clear” and “convincing”;
*whether the employer’s evidence indicates subjectively that the employer “would have” taken the same adverse action; and
*whether facts that the employer relies on would change in the “absence of” the protected activity.”
=='''Remedies for Prevailing Nuclear Safety Whistleblowers'''==
A prevailing nuclear whistleblower can obtain:
*Reinstatement,
*Lost wages,
*Damages for emotional distress and anguish, humiliation, harm to reputation, and other non-economic harms, and
*Attorney’s fees.
In Hobby v. Georgia Power Co., the Administrative Review Board affirmed an award of $250,000 in compensatory damages for emotional distress, humiliation, and loss of reputation.
=='''Filing an ERA Whistleblower Retaliation Complaint'''==
An ERA whistleblowing complaint must be filed initially with the Occupational Safety and Health Administration (OSHA) within 180 days of when the whistleblower knew or should have known of the retaliatory adverse action.
=='''Licensee Duty to Maintain Safety Conscious Work Environment'''==
The NRC has published guidance for licensees emphasizing the importance of maintaining safety-conscious environments in which employees feel free to raise safety concerns, both to their management and to the NRC, without fear of retaliation. In particular, the NRC has articulated the following expectations:
*Employers licensed by the NRC must have processes in place for employees to report safety concerns;
*Subcontractors have the same responsibilities as licensed entities;
*Senior management must involve themselves to the extent necessary to ensure all safety concerns are addressed; and
*Employees have a responsibility to raise safety concerns with their employer, and a right to bring concerns to the NRC if the employer fails to address them.
=='''Wendell H. Ford Aviation Investment and Reform Act for the 21st Century'''==
The AIR21 whistleblower law protects employees in the airline industry against retaliation for raising a concern about air carrier safety. '''==Proving a Violation of AIR21 Whistleblower Protection Law=='''
To prevail under AIR21, the whistleblower must prove:
*the employee engaged in protected whistleblowing;
*the employer was aware of the protected whistleblowing;
*the employer took an adverse action; and
*the protected whistleblowing was a contributing factor in the employer’s decision to take the adverse action.
A contributing factor is any factor which, alone or in combination with other factors, tends to affect in any way the outcome of the decision. Circumstantial evidence may include a wide variety of evidence, such as motive, bias, work pressures, past and current relationships of the involved parties, animus, temporal proximity, pretext, shifting explanations, and material changes in employer practices, among other types of evidence.
Once the complainant has proven these four elements, the employer may avoid liability only if it demonstrates by clear and convincing evidence that it would have taken the same adverse personnel action in the absence of the whistleblowing.
AIR21 protects an employee of a section 44704 or 44705 FAA certificate holder or a contractor, subcontractor, or supplier of such holder.
=='''Protected Air Safety Whistleblowing'''==
As amended by the Aircraft Certification, Safety, and Accountability Act, AIR21 protects whistleblowers against retaliation for:
*Disclosing a potential violation of any FAA order, regulation, or standard to an employer or the federal government;
*Commencing a proceeding related to a potential violation of an airline safety regulation; or
*Testifying, assisting, or participating in a proceeding related to a potential violation of an airline safety regulation.
Examples of protected disclosures include:
*reporting a violation of the airline’s flight operations manual;
*disclosing that an aircraft is not in airworthy condition;
*identifying falsified FAI documentation (a violation of 14 C.F.R. §21.2(a));
*opposing a violation of 14 C.F.R. § 135.267(c), which limits pilots that conduct Part 135 operations from working more than 14 hours of duty time;
*reporting conduct that would result in “operating an aircraft in a careless or reckless manner so as to endanger the life or property of another”;
*reporting the use of an unsuitable part (a violation of 14 C.F.R. §3.5(c)(2)); and
*reporting that a pilot failed a line check, i.e., which triggers a requirement upon the carrier not to utilize the pilot until the pilot passes the line check.
FAA regulations on airplane safety can be found [https://www.faa.gov/regulations_policies/faa_regulations/ here.]
“As a matter law, an employee engages in protected activity any time [h]e provides or attempts to provide information related to a violation or alleged violation of an FAA requirement or any federal law related to air carrier safety, where the employee’s belief of a violation is subjectively and objectively reasonable.” Sewade v. Halo- Flight, Inc., ARB No. 13-098, slip op. at 7-8 (Feb. 13, 2015). The “complainant must prove that he reasonably believed in the existence of a violation,” which entails both a subjective and an objective component. Burdette v. ExpressJet Airlines, Inc., ARB No. 14-059, slip op. at 5 (Jan. 21, 2016).
The complainant need not prove an actual violation of a regulation, order, or standard relating to air carrier safety, as long as the complainant’s belief in a violation is reasonable. Furland v. Am. Airlines, Inc., ARB No. 90-102, ALJ No. 2008-AIR-011, slip op. at 5 (ARB July 27, 2011). Also, the complainant need not convey his reasonable belief in order for it to be protected. See Newell v. Airgas, Inc., ARB No. 16-007, ALJ No. 2015-STA-6, slip op. at 11 (ARB Jan. 10, 2018).
=='''Prohibited Whistleblower Retaliation Under AIR21 Whistleblower Law'''==
AIR21 prohibits a broad range of retaliatory acts that have a negative effect on the employee’s terms, conditions, or privileges of employment. This includes intimidating, threatening, restraining, coercing, blacklisting, or discharging a whistleblower.
An adverse employment action is one that would dissuade a reasonable worker from engaging in protected whistleblowing.
*Suspension without pay is a way to dissuade employees from engaging in AIR21 protected conduct, and is therefore an adverse employment action.
*Subjecting an employee to a 15D psychological evaluation can be an actionable adverse action where it is selectively implemented or utilized in a retaliatory fashion.
The DOL ARB has held “that the intended protection of AIR 21 extends beyond any limitations in Title VII and can extend beyond tangibility and ultimate employment actions.” Williams v. American Airlines, ARB No. 09- 018, slip op. at 10-11 n.51 (Dec. 29, 2010)). The ARB views “the list of prohibited activities in Section 1979.102(b) as quite broad and intended to include, as a matter law, reprimands (written or verbal), as well as counseling sessions by an air carrier, contractor or subcontractor, which are coupled with a reference of potential discipline.” Williams, ARB No. 09-018 at 10-11. For example, “even paid administrative leave may be considered an adverse action under certain circumstances.” Id. at 14 (emphasis in original) (citing Van Der Meer v. Western Ky. Univ., ARB No. 97-078, slip op. at 4-5 (Apr. 20, 1998) (holding that “although an associate professor was paid throughout his involuntary leave of absence, he was subjected to adverse employment action by his removal from campus)).
=='''Remedies for Airline Industry Workers in AIR21 Whistleblower Protection Cases'''==
Under AIR-21, a prevailing whistleblower can recover:
*Reinstatement;
*Lost wages and benefits;
*Compensatory damages for emotional distress and reputational harm; and
*Attorney fees and litigation costs.
A mechanic who was fired for reporting insufficient maintenance on ambulance helicopters was awarded $485,000 in damages, plus attorney’s fees.
An airline that filed a retaliatory defamation lawsuit against nine whistleblowers was ordered to withdraw its lawsuit and pay $7.9 million in damages to the employees.
In a decision finding that Delta violated the anti-retaliation provision of the AIR21 whistleblower protection law, Judge Morris awarded pilot Karlene Petit $500,000 in compensatory damages for emotional distress, humiliation, and reputational harm.
In Vieques Air Link, Inc. v. USDOL, No. 05-01278 (1st Cir. Feb. 2, 2006), the First Circuit affirmed a compensatory damages award of $50,000 for mental anguish where the complainant testified that he depleted his savings and struggled to support his wife and two infant children while he looked for a new full-time job following his termination.
=='''How to File an AIR21 Aviation Safety Whistleblower Retaliation Claim'''==
An AIR-21 whistleblowing retaliation complaint must be filed initially with the Occupational Safety and Health Administration (OSHA) within 90 days of when the whistleblower knew or should have known of the retaliatory adverse action.
In 2015, the FAA and OSHA entered into a Memorandum of Understanding to facilitate cooperation concerning enforcement of the whistleblower protection provisions in AIR21. The DOL and FAA both play a critical role in enforcing the whistleblower protection provision of AIR21. The FAA investigates complaints related to air carrier safety and enforces air safety regulations and issue sanctions to airmen and air carriers for noncompliance with these regulations.
=='''Surface Transportation Assistance Act'''==
The whistleblower protection provision of the Surface Transportation Assistance Act (“STAA”) protects truck drivers from retaliation where they engage in protected whistleblowing, which includes:
*Refusing to operate a vehicle because: (i) The operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety, health, or security; or (ii) He or she has a reasonable apprehension of serious injury to himself or herself or the public because of the vehicle’s hazardous safety or security condition;
*Accurately reporting hours on duty; or
*Cooperating with a safety or security investigation by the Secretary of Transportation, the Secretary of Homeland Security, or the National Transportation Safety Board; or
*Furnishing information to the Secretary of Transportation, the Secretary of Homeland Security, the National Transportation Safety Board, or any Federal, State, or local regulatory or law enforcement agency as to the facts relating to any accident or incident resulting in injury or death to an individual or damage to property occurring in connection with commercial motor vehicle transportation.
In two recent cases, truck drivers prevailed where they were terminated for refusing to drive a damaged truck and refusing to drive while on prescription medication.
=='''Proving a Trucking Safety Whistleblower Protection Claim'''==
A trucking whistleblower must prove the following to prevail in a STAA whistleblower retaliation claim:
*The employee engaged in protected conduct;
*The employer was aware of the protected whistleblowing;
*The employer took an adverse action; and
*The protected whistleblower was a contributing factor in the employer’s decision to take the adverse action.
=='''Prohibited STAA Whistleblower Retaliation'''==
STAA proscribes a wide range of retaliatory adverse actions, including discharging, disciplining or discriminating against a whistleblowing employee regarding pay, terms or privileges of employment. Examples include blacklisting, termination, suspension, demotion, reduction in salary, failure to hire, or any act that would deter a reasonable person from engaging in protected activity.
=='''Remedies Available to Prevailing Trucking Industry Whistleblowers'''==
A prevailing trucking industry whistleblower can recover:
*Reinstatement,
*Lost wages and benefits,
*Damages for emotional distress and anguish, humiliation, harm to reputation, and other *non-economic harms,
*Attorney fees and litigation costs, and
*Punitive damages up to $250,000.
Recently, a truck driver was awarded $150,000 after he was fired for refusing to drive in unsafe weather conditions.
In Fink v. R&L Transfer, Inc., the ARB affirmed an award of compensatory damages in the amount of $100,000.00, and punitive damages in the amount of $50,000 to a truck driver who was terminated for refusing to drive in unsafe winter weather conditions.
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