April 5, 2006 Anchorage, Alaska Alaska Bar Association Federal Whistleblower Protection Statutes: An Alternative Remedy.

April 5, 2006April 5, 2006

Anchorage, AlaskaAnchorage, Alaska

Alaska Bar AssociationAlaska Bar Association

Federal Whistleblower Federal Whistleblower Protection Statutes:Protection Statutes:

An Alternative RemedyAn Alternative Remedy

Billie Pirner GardeBillie Pirner Garde

Clifford & GardeClifford & Garde

Washington, D.C.Washington, D.C.

Presented by:Presented by:

Alaska Bar Association Alaska Bar Association April 5, 2006 April 5, 2006

33

Whistleblowing….Whistleblowing….

The changing role of employees in The changing role of employees in protecting the public;protecting the public;

The federal laws that protect them.The federal laws that protect them.


44


55

““Obviously A Major Malfunction”Obviously A Major Malfunction”


66

Unacceptable ConsequencesUnacceptable Consequences

““No fundamental decision was made at No fundamental decision was made at NASA to do evil; rather, a series of NASA to do evil; rather, a series of seemingly harmless decisions were made seemingly harmless decisions were made that incrementally moved the space that incrementally moved the space agency toward a catastrophic outcome.… agency toward a catastrophic outcome.… No rules were violated; there was no intent No rules were violated; there was no intent to do harm. Yet harm was done. to do harm. Yet harm was done. Astronauts died.” Astronauts died.”

Diane Vaughan, Diane Vaughan, The Challenger The Challenger Launch Launch Decision Decision 409-410 409-410

(1996)(1996)


77


88

Fatal Blind SpotFatal Blind Spot

“ “The [Shuttle] program’s structure was a The [Shuttle] program’s structure was a source of problems, not just because of source of problems, not just because of the way it impeded the flow of the way it impeded the flow of information, but because it has had effects information, but because it has had effects on the culture that contradict safety goals. on the culture that contradict safety goals. NASA’s blind spot is it believes it has a NASA’s blind spot is it believes it has a strong safety culture…”strong safety culture…”

Columbia Accident Columbia Accident Investigation Investigation Board (CAIB), Chapter Board (CAIB), Chapter 8, page 8, page 203.203.


99


1010

Lessons Not LearnedLessons Not Learned

In neither [the Challenger or Columbia] impending In neither [the Challenger or Columbia] impending crisis did management recognize how [organization] crisis did management recognize how [organization] structure and hierarchy can silence employees, and structure and hierarchy can silence employees, and take appropriate mitigating actions, such as polling take appropriate mitigating actions, such as polling participants, soliciting dissenting opinions, or participants, soliciting dissenting opinions, or bringing in outsiders who might have a different bringing in outsiders who might have a different perspective or useful information, to overcome the perspective or useful information, to overcome the organizational constraints.organizational constraints.

CAIB, page 202.CAIB, page 202.


1111


1212

Chernobyl - 1986Chernobyl - 1986

The Chernobyl disaster resulted in The Chernobyl disaster resulted in international acknowledgment of international acknowledgment of importance of establishing a strong importance of establishing a strong safety culture and encouraging safety culture and encouraging dissenting opinions. dissenting opinions.


1313

NRC ExpectationsNRC Expectations

The NRC expects that licensees will The NRC expects that licensees will establish and maintain a safety establish and maintain a safety conscious work environment in which conscious work environment in which employees feel free to raise concerns employees feel free to raise concerns both to their own management and both to their own management and the NRC the NRC without fear ofwithout fear of retaliation. retaliation. May 1996 SCWE Policy Statement

October 2004 SCWE Policy Update


1414

Protecting the Public From Protecting the Public From Unacceptable ConsequencesUnacceptable Consequences


1515

Preventing Unacceptable Preventing Unacceptable ConsequencesConsequences

““If employees are coerced and intimidated into If employees are coerced and intimidated into remaining silent when they should speak out, the remaining silent when they should speak out, the results can be catastrophic. Recent events here and results can be catastrophic. Recent events here and around the world underscore the realization that around the world underscore the realization that such complicated and dangerous technology can such complicated and dangerous technology can never be safe without constant human vigilance. never be safe without constant human vigilance. The employee protection provision involved in this The employee protection provision involved in this case thus serves the dual function of protecting both case thus serves the dual function of protecting both employees and the public from dangerous employees and the public from dangerous radioactive substances.”radioactive substances.”

Rose v. Secretary of LaborRose v. Secretary of Labor, , 800 F.2d 563, 565 (6800 F.2d 563, 565 (6thth Cir. 1986). Cir. 1986).


1616

Exxon Valdez IncidentExxon Valdez Incident


1717

Davis-Besse 2002 Incident Davis-Besse 2002 Incident

Davis-Besse incident was the result of a Davis-Besse incident was the result of a lack of safety culture. lack of safety culture.


1818

New Protections Against New Protections Against Financial Fraud and MisconductFinancial Fraud and Misconduct

Sarbanes-Oxley Act:Any person committing intentional retaliation for providing truthful information to law enforcement officers relating to the commission or possible commission of any Federal offense shall be fined or imprisoned not more than 10 years or both. SOX Sec. 1107


1919

New Protections for Employees New Protections for Employees in the Pipeline and Oil Industryin the Pipeline and Oil Industry

Bellingham, Bellingham, WashingtonWashington

June 10, 1999June 10, 1999

Olympic Pipeline Disaster


2020

New Protections for Employees New Protections for Employees in the Airline Industryin the Airline Industry


2121

BP’s Texas City Refinery – BP’s Texas City Refinery – March 2005March 2005


2222

Tallmansville, West Virginia Sago Coal Mine – January, 2006


2323

Protections For Employees Protections For Employees Responsible for Responsible for

Environmental ComplianceEnvironmental Compliance

Exxon Valdez 1989Bhopal 1984

The Alaska The Alaska Whistleblower CasesWhistleblower Cases


2525

Dan Lawn v. State of AlaskaDan Lawn v. State of Alaska

Dan Lawn v. State of AlaskaDan Lawn v. State of Alaska– Grievance and Arbitration;Grievance and Arbitration;– DOL case.DOL case.


2626


2727

Green, et. al. v. Alyeska (I)Green, et. al. v. Alyeska (I)


2828

Green, et.al. v. Alyeska and ASISGreen, et.al. v. Alyeska and ASIS (II) (II)

The Blacklisting Cases


2929

The Wackenhut CaperThe Wackenhut Caper


3030

The Doyon Drilling CaseThe Doyon Drilling Case


3131

BP Compliance AgreementBP Compliance AgreementOctober 2000 – January 2005October 2000 – January 2005

“BPXA commits…that there will be no reprisal or retaliation byBPXA [officers, managers or employees]…against anyemployee [contractor and consultant] who report[s] actual orpotential violation(s) of environmental law to any regulatory authority,…BPXA’s managers or general counsel.”

“BPXA understands that retaliation against employee(s) for thereporting of instances of non-compliance with environmentallaws and regulations or with the terms of this agreement at any time (whether before or after BPXA is notified by the reporting employee) may be considered…as a material breach of this agreement…” (Paragraph 37)

Law and PracticeLaw and Practice


3333

The Federal Employee The Federal Employee Protection Statutory Protections Protection Statutory Protections

What is different than state What is different than state laws;laws;

What is better than state law What is better than state law protections;protections;

What is worse than state law What is worse than state law protections.protections.


3434

Objective Elements of Objective Elements of Reprisal and RetaliationReprisal and Retaliation

1.1. The employee engaged in legally protected The employee engaged in legally protected activity.activity.

2.2. The employee suffered an adverse action. The employee suffered an adverse action. 3.3. The employer/decision-maker had knowledge The employer/decision-maker had knowledge

of the employee’s protected activity.of the employee’s protected activity.4.4. There is some cause and effect connection There is some cause and effect connection

between the protected activity and the between the protected activity and the adverse action.adverse action.

The employee establishes a prima facie case by proving, by a preponderance of the evidence, the following elements:


3535

Who is Protected? Who is Protected?

All workers who engage in work All workers who engage in work covered by the state or federal covered by the state or federal environmental protection laws and/or environmental protection laws and/or the Energy Reorganization Act, and the Energy Reorganization Act, and raise safety concerns, are protected raise safety concerns, are protected from retaliation:from retaliation:– No longer protects state employees No longer protects state employees

under some of the environmental laws;under some of the environmental laws;– Union/non-union employees protected;Union/non-union employees protected;– All Contractors and Subcontractors.All Contractors and Subcontractors.


3636

What Conduct is Protected?What Conduct is Protected?

Raising an environmental protection, Raising an environmental protection, public health and safety, financial fraud, or public health and safety, financial fraud, or other statutory concerns internally or other statutory concerns internally or externally;externally;

Refusing to engage in any practice that is Refusing to engage in any practice that is unlawful, if the employee has identified unlawful, if the employee has identified the illegality to the employer;the illegality to the employer;

Providing information to or cooperating Providing information to or cooperating with the government about violations or with the government about violations or possible violations of the law, rule or possible violations of the law, rule or regulation.regulation.


3737

What Actions Are Prohibited? What Actions Are Prohibited?

Termination for cause or “lay-off”;Termination for cause or “lay-off”; Demotion in pay or responsibilities;Demotion in pay or responsibilities; Transfer of duties or responsibilities;Transfer of duties or responsibilities; Poor performance reviews;Poor performance reviews; Hostile work environment; Hostile work environment; Blacklisting or Failure to Hire;Blacklisting or Failure to Hire; Other actions that are unique to the Other actions that are unique to the

circumstances of each case.circumstances of each case.

Any employment-related action that affects the terms and conditions of employment and has a tangible consequence, and is done because the employee engaged in protected activity is prohibited:


3838

Was There Knowledge by the Was There Knowledge by the Decision-Maker of the Decision-Maker of the

Protected Activity?Protected Activity?

The employee must be able to prove that the decision-maker (usually the supervisor) knew that the employee had engaged in legally protected activities, before the adverse action occurred.


3939

Cause and EffectCause and Effect

The employee must be able to prove that there is a “cause and effect” relationship between the employee’s protected activity and management’s decision to take an adverse employment action.


4040

Once the employee is able to establish a prima facie case of retaliatory discrimination, the burden of coming forward with alegitimate business reason shifts to the employer.

“Wait till the judge hears

my “legitimate business reason.”

1. The employee engaged in legally protected activity;

2. The employee suffered an adverse action; 3. The employer/decision-maker had

knowledge of the employee’s activity;4. There is some cause and effect

connection between the protected activity and the adverse action.


4141

The Next Step…The Next Step…The Employer must be able to prove at least one of the following by “clear and convincing” evidence:

The person was not treated any differently than The person was not treated any differently than other employees in similar job situations; other employees in similar job situations;

The action taken against the individual was The action taken against the individual was consistent with all policies and practices; consistent with all policies and practices;

There were legitimate business reasons for There were legitimate business reasons for taking the action complained of; taking the action complained of;

Management would have taken the same action Management would have taken the same action even if the employee had not raised safety even if the employee had not raised safety issues.issues.


4242

Burden of ProofBurden of Proof

Under some federal employee protection laws, employers have the highest possible burden of proof in civil law:

Preponderance of the evidence Clear and convincing evidence


4343

Consistent WithConsistent WithPolicy and PracticePolicy and Practice

When Does Protected When Does Protected Activity Lose Its Activity Lose Its

Protection?Protection?

Summary of Legal Summary of Legal DevelopmentsDevelopments


4545

When Does Protected Activity When Does Protected Activity Lose its Protection? Lose its Protection?

The ARB directly addressed the The ARB directly addressed the behaviors of employees who are behaviors of employees who are engaged in legally protected engaged in legally protected activities, but do so in a manner that activities, but do so in a manner that disrupts the workplace discipline, is disrupts the workplace discipline, is inappropriate, and otherwise inappropriate, and otherwise unacceptable behavior in the work unacceptable behavior in the work place.place.


4646

Dunham v. Brock, Dunham v. Brock, 794 F.2d 1037 (5794 F.2d 1037 (5thth Cir. 1986) Cir. 1986)

The court upheld the SOL decision that The court upheld the SOL decision that the employee’s conduct in telling his the employee’s conduct in telling his boss to, in effect, “take this job and boss to, in effect, “take this job and shove it,” lost its protection because it shove it,” lost its protection because it was insubordinate, calculated to was insubordinate, calculated to disrupt the department discipline, and disrupt the department discipline, and beyond the bounds of what any beyond the bounds of what any employer should have to put up with. employer should have to put up with.


4747

““Take this job….”Take this job….”

The “take this job and shove it” The “take this job and shove it” test:test:– Does the conduct disrupt Does the conduct disrupt

discipline?discipline?– Was it in front of customers or Was it in front of customers or

other employees?other employees?– Has the company tolerated Has the company tolerated

similar or worse behavior?similar or worse behavior?


4848

Speegle v. Stone & WebsterSpeegle v. Stone & Webster, , No. 2005-ERA-6 No. 2005-ERA-6

(ALJ RD&O, January 9, 2006)(ALJ RD&O, January 9, 2006)

The ALJ found that the company had The ALJ found that the company had justification for disciplining Speegle justification for disciplining Speegle … in the interest of maintaining … in the interest of maintaining order. Speegle made comments in order. Speegle made comments in the presence of a room full of the presence of a room full of subordinates, in a manner that was subordinates, in a manner that was clearly vulgar and disrespectful. clearly vulgar and disrespectful.


4949

Kenniway v. Matlack, IncKenniway v. Matlack, Inc., ., 88-STA-20 88-STA-20

(Sec’y June 15, 1989)(Sec’y June 15, 1989)

The “leeway doctrine” allows some The “leeway doctrine” allows some leeway for an employee’s impulsive leeway for an employee’s impulsive behavior when engaged in statutorily behavior when engaged in statutorily protected activity; however, this protected activity; however, this leeway is balanced against the leeway is balanced against the employer’s right to maintain order in employer’s right to maintain order in its business by correcting its business by correcting insubordinate acts. insubordinate acts.


5050

The “Leeway Doctrine”The “Leeway Doctrine”

The “Leeway Doctrine”:The “Leeway Doctrine”:– Is the employee’s objectionable Is the employee’s objectionable

behavior an emotional outburst?behavior an emotional outburst?– Is it incidental to the protected Is it incidental to the protected

activity?activity?– Is it temporary and uncalculated?Is it temporary and uncalculated?


5151

Sprague v. American Nuclear Sprague v. American Nuclear Resources, IncResources, Inc., .,

92-ERA-37 92-ERA-37 (Sec’y December 1, 1994)(Sec’y December 1, 1994)

The Secretary held that “it is normal for The Secretary held that “it is normal for employees engaging in protected employees engaging in protected activities to exhibit impulsive behavior; activities to exhibit impulsive behavior; such employees may not be disciplined such employees may not be disciplined for insubordination so long as their for insubordination so long as their behavior is lawful and their conduct is behavior is lawful and their conduct is not indefensible in its context.”not indefensible in its context.”


5252

No Adverse ActionNo Adverse ActionMcNeill v. Crane Nuclear Inc. ARB No. 02-002, ALJ No. 2001-ERA-3, (ARB July 29, 2005)

Placing a temporary “administrative hold” on the unrestricted access of two Workers was not adverse employment action where such action did not sever the employment relationship or change the workers’ clearance status…

The Respondent did not engage in adverse employment action where the Complainant suffered, at most, only temporary unhappiness. The record established that a manager immediately and thoroughly aborted any adverse consequences when he recognized that the matter had not been properly handled by the Complainant’s immediate supervisor.


5353


5454

Harrison v. Roadway Express, IncHarrison v. Roadway Express, Inc., ., ARB No. 00-048, ALJ No. 1999-STA-37, (slip op. ARB No. 00-048, ALJ No. 1999-STA-37, (slip op. at 15) (ARB December 31, 2002) aff’d on other at 15) (ARB December 31, 2002) aff’d on other grounds, grounds, Harrison v. ARBHarrison v. ARB, 390 F3d 752, 759 , 390 F3d 752, 759

(2(2ndnd Cir. 2004) Cir. 2004)

The ARB noted that the “leeway” for The ARB noted that the “leeway” for impulsive behavior standard applies impulsive behavior standard applies to situations where the employee is to situations where the employee is emotionally motivated and the emotionally motivated and the conduct is temporary and conduct is temporary and uncalculated. uncalculated.


5555

Svendsen v. Air Methods, Inc.,Svendsen v. Air Methods, Inc., ARB 03-074, ALJ 2002-AIR-16 ARB 03-074, ALJ 2002-AIR-16

(August 26, 2004)(August 26, 2004)

The ALJ found, and ARB upheld, that The ALJ found, and ARB upheld, that employee was disciplined for his employee was disciplined for his belligerent and unprofessional belligerent and unprofessional manner, as supported by history of manner, as supported by history of communication problems and communication problems and confrontations with others, not for confrontations with others, not for Svendsen’s sincere commitment to Svendsen’s sincere commitment to airline safety and his safety airline safety and his safety concerns.concerns. OrderOrder, at p. 30 , at p. 30


5656

““In view of the testimony…[we agree] that In view of the testimony…[we agree] that the employe was acting on the concern the employe was acting on the concern about Svendsen’s conduct…and not on about Svendsen’s conduct…and not on [his] report of the visibility hazard. The ALJ [his] report of the visibility hazard. The ALJ properly determined that Svendsen’s properly determined that Svendsen’s safety concern was protected by AIR21, safety concern was protected by AIR21, but the ‘belligerent and unprofessional’ but the ‘belligerent and unprofessional’ manner in which Svendsen documented manner in which Svendsen documented the issue with [his boss] was not.”the issue with [his boss] was not.”

Svendsen v. Air Methods, Inc.,Svendsen v. Air Methods, Inc.,ARB No. 03-074, 2002-AIR-16 ARB No. 03-074, 2002-AIR-16 (Aug. 26, 2004)(Aug. 26, 2004)

Style MattersStyle Matters


5757

Style Matters Style Matters (Cont’d)(Cont’d)

““All things considered, in my view of All things considered, in my view of the evidence presented, the evidence presented, Complainant’s confrontational Complainant’s confrontational behavior, not his safety concerns, behavior, not his safety concerns, propelled the turning point in the propelled the turning point in the relationship. In other words, … it relationship. In other words, … it was never Complainant’s message was never Complainant’s message that caused him problems with that caused him problems with management, the union and his management, the union and his fellow workers, it was his style.”fellow workers, it was his style.”

Svendsen v. Air Methods, IncSvendsen v. Air Methods, Inc., Id. ., Id.


5858

Style Matters Style Matters (Cont’d)(Cont’d)

““As far as Complainant is concerned, I As far as Complainant is concerned, I trust I will always fly with pilots of his ilk. I trust I will always fly with pilots of his ilk. I find him sincerely concerned about airline find him sincerely concerned about airline safety, but…Complainant has a history of safety, but…Complainant has a history of communication problems and communication problems and confrontation with others, and I find from confrontation with others, and I find from the evidence his discipline was a result the evidence his discipline was a result thereof and not protected activity.”thereof and not protected activity.”

Svendsen v. Air Methods, IncSvendsen v. Air Methods, Inc., Id. ., Id.


5959

Mind Your Manners!Mind Your Manners!

Deliberate and calculating Deliberate and calculating insubordination may cause insubordination may cause [protected] speech to lose it’s [protected] speech to lose it’s protection.protection.


6060

Sayre v. VECO Alaska, Inc.,Sayre v. VECO Alaska, Inc., ARB No. 03-069, ALJ No. 2000-CAA-7 ARB No. 03-069, ALJ No. 2000-CAA-7

(ARB May 31, 2005)(ARB May 31, 2005) The employee’s conduct was “more The employee’s conduct was “more deliberate and reasoned than impulsive deliberate and reasoned than impulsive and uncalculated,” which does not qualify and uncalculated,” which does not qualify for application of the “leeway principle.” for application of the “leeway principle.” Insubordination towards supervisors and Insubordination towards supervisors and co-workers, even when engaged in co-workers, even when engaged in protected activity, is justification for protected activity, is justification for termination. The employee had been termination. The employee had been previously, and properly, disciplined for previously, and properly, disciplined for her discourteous and insubordinate her discourteous and insubordinate manner. manner.


6161

When is Enough, When is Enough, Enough Already?Enough Already?

The ARB has weighed in on the issue, The ARB has weighed in on the issue, deciding that once an employer deciding that once an employer provides an answer to that employee provides an answer to that employee about the concern and takes action about the concern and takes action to address it, the protected speech to address it, the protected speech may lose its protection.may lose its protection.


6262

Williams v. DOLWilliams v. DOL, , No. 03-1749 (4No. 03-1749 (4thth Cir., November, 18, 2005) Cir., November, 18, 2005) (per curiam) (unpublished) case below ARB (per curiam) (unpublished) case below ARB

01-021, ALJ No. 2000-CAA-15.01-021, ALJ No. 2000-CAA-15.

Employee, a teacher, was discharged Employee, a teacher, was discharged for the manner in which she had for the manner in which she had aired her concerns about lead in the aired her concerns about lead in the schools. The issues were legitimate. schools. The issues were legitimate. The employer took important steps The employer took important steps to ensure the safety of the students to ensure the safety of the students and employees, but the employee and employees, but the employee kept raising the issues. kept raising the issues.


6363

The Federal Court of Appeals, The Federal Court of Appeals, Agreeing With The ARB, Wrote: Agreeing With The ARB, Wrote:

“…“…once her concerns were once her concerns were addressed…[i]t was no longer addressed…[i]t was no longer reasonable for her to continue reasonable for her to continue claiming that these schools were claiming that these schools were unsafe and her activities lost their unsafe and her activities lost their character as protected activity.”character as protected activity.”


6464

But see,But see, Pierce v. USEC Pierce v. USEC(ALJ RD&O, January 27, 2006)(ALJ RD&O, January 27, 2006)

““As discussed above, on January 3, 2003, As discussed above, on January 3, 2003, Mr. Pierce became angry at a meeting and Mr. Pierce became angry at a meeting and used foul language. When he was used foul language. When he was terminated, Mr. Pierce was informed that terminated, Mr. Pierce was informed that his actions at this meeting were a reason his actions at this meeting were a reason for his termination. At this time, Mr. Pierce for his termination. At this time, Mr. Pierce had already been placed on administrative had already been placed on administrative leave, decision-making leave and a new, leave, decision-making leave and a new, stricter PIPC. As such, Mr. Pierce was stricter PIPC. As such, Mr. Pierce was placed under a tremendous amount of placed under a tremendous amount of stress…” stress…”


6565

Pierce v. USEC Pierce v. USEC (Cont’d)(Cont’d)

““The record does not contain any evidence The record does not contain any evidence that Mr. Pierce had temper problems prior that Mr. Pierce had temper problems prior to being transferred to NS&Q. Mr. Pierce to being transferred to NS&Q. Mr. Pierce testified that he thought any small issue testified that he thought any small issue would cause his termination. would cause his termination. USEC did not USEC did not terminate other employees for arguments terminate other employees for arguments during meetings.during meetings. Thus, Mr. Pierce’s Thus, Mr. Pierce’s arguments cannot be separated from his arguments cannot be separated from his protected activity. As such I find that protected activity. As such I find that USEC did not establish that Mr. Pierce’s USEC did not establish that Mr. Pierce’s arguments are a legitimate, non-arguments are a legitimate, non-discriminatory reason for terminating his discriminatory reason for terminating his employment.”employment.”


6666

Pierce v. USEC Pierce v. USEC (Cont’d)(Cont’d)

Conclusion:Conclusion:““After listening to the testimony and After listening to the testimony and observing the demeanor of Mr. Pierce, I observing the demeanor of Mr. Pierce, I find that Mr. Pierce was dedicated to the find that Mr. Pierce was dedicated to the safety of the Plant. USEC did not establish safety of the Plant. USEC did not establish by clear and convincing evidence that it by clear and convincing evidence that it would have taken the same actions would have taken the same actions against Mr. Pierce absent his protected against Mr. Pierce absent his protected activity. Mr. Pierce has therefore activity. Mr. Pierce has therefore established, by a preponderance of the established, by a preponderance of the evidence, that his protected activity evidence, that his protected activity contributed to his termination.”contributed to his termination.”


6767

Raising the BarRaising the Bar

It appears that the Department of It appears that the Department of Labor and the Courts are raising the Labor and the Courts are raising the bar on standards of behavior and bar on standards of behavior and conduct for whistleblowers in the conduct for whistleblowers in the workplace.workplace.

April 5, 2006 Anchorage, Alaska Alaska Bar Association Federal Whistleblower Protection Statutes: An Alternative Remedy.

Documents

lack of safety culture

safety goals

changing role of employees

incident davisbesse

nrc expectations

dissenting opinions

scwe policy statementoctober

fatal blind spot