Environmental Whistleblowers — Occupational Safety and Health Act
There are many federal environmental laws regulating the activity of public and private companies for the protection of the environment. These laws are far more effective when employees report the violations of their employers, so the laws have provisions to protect those employees from retaliation. If you have information about environmental law violations in your workplace, the whistleblower protections of these laws may protect you from retaliation for reporting the violations, or for objecting to the illegal activity. Read the information below to learn about what laws protect environmental whistleblowers, and what qualifies as retaliation under environmental laws.
Seven major federal environmental laws (Clean Air, Toxic Substances, Clean Water, Atomic Energy, Solid Waste, Safe Drinking Water and Superfund) have special provisions protecting employee whistleblowers. The basic idea behind the employee protections of the federal environmental laws is that people who help enforce the laws should not suffer retaliation as a result. Congress passed the first employee protection, the Water Pollution Control Act, in 1972, because the best source of information about what a company is actually doing or not doing is often its own employees, and this amendment would ensure that an employee could provide such information without losing his job or otherwise suffering economically from retribution from the polluter.
The laws protect not only calling the Environmental Protection Agency (EPA) or other enforcement authorities, but also refusing to follow illegal orders, objecting to supervisors about violations, and associating with those who blow the whistle. When used, these laws have been effective in protecting employees who expose public health and safety violations.
Congress has used similar procedures to protect truck drivers, airline workers, and corporate fraud whistleblowers. Any of them who take a stand for the law and suffer retaliation should consider whether to file a complaint with the Occupational Safety and Health Administration (OSHA).
The seven environmental laws are the Water Pollution Control Act (WPCA), commonly called the Clean Water Act ; Safe Drinking Water Act (SDWA) ; Toxic Substances Control Act (TSCA) ; Solid Waste Disposal Act (SWDA, also called RCRA) ; Clean Air Act ; Energy Reorganization Act of 1974 (ERA, which includes atomic energy) ; and the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA or “Superfund Law”). The Code of Federal Regulations (CFR) contains a concise description of the federal procedure.
The Surface Transportation Act (STA) provides a simplified and effective remedy for truck drivers who are fired for insisting on following safety regulations. It is enforced through separate regulations.
The Sarbanes-Oxley Act of 2002 protects employees of publicly traded companies, and their subcontractors, from retaliation for reporting fraud.
The definition of “employee” is broad. The Department of Labor will provide protection to hourly workers, supervisors, managers, executives, partners, officers and even independent contractors. Both public and private employers are covered. However, before an employee can win a case, that employee must be able to convince the judge that there was
The Department of Labor and the courts interpret “protected activity” broadly. “Protected activity” describes the actions an employee can take, and be protected by the law from retaliation.
For example, calling the EPA is protected activity. So, if the boss gets mad and fires you for calling the EPA, you can make a complaint against that unlawful retaliation.
The law goes further, however, in protecting any activity that identifies who would be a witness against the employer in enforcement proceedings. So, if you object to the boss that management has caused an environmental violation, you are still protected even though you have not yet called the EPA about the violation. Your objection disclosed to the boss that you would be a witness for the government in legal action to enforce the environmental laws. That is enough to provide legal protection from retaliation.
The federal environmental laws protect workers who have commenced, or are about to commence, a proceeding for enforcement of any requirement imposed under the law, or under an applicable implementation plan. To achieve these ends, the law mandates that “employees must feel secure that any action they may take” furthering “Congressional policy and purpose, especially in the area of public health and safety, will not jeopardize either their current employment or future employment opportunities.”
Protection can begin as soon as the evidence suggests that management thought the worker might be a witness in a future enforcement proceeding. Similarly, filing a grievance, contacting the media, refusing to perform illegal assignments, and other forms of standing up against violations of the law are all protected. Even complaints that are indirect or misdirected may result in protection if they reveal to management the intention to enforce the law. For employees assigned to safety, quality control or enforcement work, doing that work too well is also protected.
Yes. If you get into an argument with a supervisor about what is or is not legal on the job, and you punch the supervisor, you are not protected from being fired for punching the supervisor.
The Secretary of Labor has recognized that protected activity may be associated with “impulsive behavior.” Employees cannot be disciplined for protected activity so long as it “is lawful and the character of the conduct is not indefensible in its context.” A key inquiry is whether the employee has upset the balance that must be maintained between protected activity and discipline. If the employee’s behavior oversteps the defensible bounds of conduct, the employee can lose the protections of the law. For example, one employee lost after swearing at a supervisor, refusing to change conduct, and daring employer to fire employee.
6. What if the employer makes a mistake and retaliates against someone who engaged in no protected activity?
The victim of mistaken identification as a whistleblower has just as much right to a remedy as the real whistleblower. Otherwise, an employer can chill employee reporting by firing every tenth employee whenever a thought of whistleblowing appears. A complainant only needs to show that the employer thought the employee engaged in protected activity when respondent decided on the retaliation.
Any action that materially affects the value of your job is an adverse employment action. A discharge is clearly adverse. A demotion, cut in pay, denial of promotion (if someone else gets that promotion), or denial of benefits would also be considered adverse. The Department of Labor will also recognize a claim against a “hostile work environment,” although courts still disagree about what employer actions would make the workplace sufficiently “hostile.” Also, a hostile work environment is generally not held to be developed a work environment is not considered hostile until after an attempt by the employee has been made the employee has attempted to address the matter in the workplace. Other employer actions that have been held to be adverse and therefore against the law, include a refusal to hire or rehire, blacklisting, reduction in work hours, reassigning work, transfer, denial of overtime, assignment to undesirable shifts, reprimands, threats to discharge or blacklist, providing unfavorable reference, damaging financial credit, close supervision, unpleasant assignments, evicting from company housing, and a sudden drop in evaluation scores after the protected activity.
Causation can be proved either by direct evidence or by an inference.
Direct evidence is evidence that the employer was mad at the protected activity. If you or another witness saw a supervisor spout off about someone reporting a violation, that is direct evidence of the employer’s “animus” against protected activity. Similarly, if the employer announces that whoever calls the EPA will be fired, or warns employees against reporting violations, that is direct evidence of retaliation.
However, the Department of Labor recognizes that more employers are smart enough to suppress direct admissions of their motives. So, the Department can find causation based on inferences. For example, if the worker calls the EPA, and you can prove that the employer had an idea about who called, and that worker is fired shortly thereafter, the timing can support an inference that the protected activity caused the discharge. The timing can support an inference of retaliation when it is as long as six months or a year from the employer’s discovery of the protected activity.
An inference of causation can also be drawn from an employer’s failure to follow normal procedures, use of false evidence, changing explanations, or a pattern of adverse actions after employees engage in protected activity.
The complaint may be filed in writing by fax or mail to the administrator’s office (address below), by telephone at 1-800-321-OSHA (6742) or by OSHA’s online submission form. Because of the tight 30- day time limitation, it is recommended the complaint is be filed as soon as possible. The complaint may be called in within the 30- day time period and can be made in languages other than English. OSHA will convert the called in phone complaint into writing
In drafting the complaint, you need to identify the responsible employer or employers, and the names of individuals who have participated in the retaliation.
An attorney or union representative may file the complaint on behalf of the employee, so long as it is with the employee’s permission .
The complaint may be filed with any office of the Occupational Safety and Health Administration of the U.S. Department of Labor. OSHA prefers to receive complaints at the local office. You can find the address and fax number for the local OSHA office at http://www.osha.gov/html/RAmap.html.
The Administrator’s office is at:
Occupational Safety & Health Administration
200 Constitution Ave NW, Rm N3647
Washington, DC 20210
Compliance Programs Fax: 202-219-9187
The time limit to get your environmental whistleblower complaint to OSHA is thirty (30) calendar days from the date you first learned about management’s final decision to impose the adverse action. Nuclear whistleblowers (with complaints against licensees of the Nuclear Regulatory Commission or their subcontractors) and truck drivers (or anyone with a complaint under the Surface Transportation Assistance Act) have 180 days to file their complaints. Whistleblowers about airline safety and corporate fraud have 180 days to file their complaints.
For example, say the employer gives the employee a letter saying that the employee will be laid-off for economic reasons 60 days in the future. The employee believes the real reason is retaliation for reporting violations. That employee’s complaint must be filed within 30 days of the notice, while the employee is still employed. If the employee waits until the discharge is completed, the employer can move to dismiss on grounds of untimeliness . If the employer’s notice is equivocal, the employee may wait for a final decision from the employer. However, pursuing internal or union grievance proceedings does not make the decision equivocal.
The 30 day time limit may be met by the postmark of the complaint, or by fax transmission. In counting the 30 day limit, if the 30th day falls on a Sunday, the complaint must be postmarked or filed by that Sunday. A complaint filed on Monday will be dismissed as untimely. Especially if you are close to the deadline, it is important to send the complaint using a method that allows you to prove that you made the complaint, such as sending the complaint via certified mail or with proof of mailing, or keeping a copy of the fax transmission report. While the OSHA website says that you may file a complaint by telephone, this is not advised, since the complaint would not be made in writing.
The legal doctrine of “equitable tolling” may also apply to extend the deadline. For example, if you were planning to file the complaint, but you were in the hospital on the 30th day, OSHA can accept your complaint if you file it promptly after getting out of the hospital. Also, if you made a good faith attempt to file on time, but you filed in the wrong place, you may be able to file in the right place if you do so with reasonable diligence. Equitable tolling does not benefit the worker who simply did not know what the law provided or required until after the time limit was passed.
OSHA makes the initial investigation and decision. They interview witnesses on both sides and may prompt the parties to discuss settlement. This procedure makes it difficult to prevail in cases involving credibility disputes. The initial decision is usually made in a few months, but can stretch to the better part of a year or more. A regulation requires a decision in 30 days. If OSHA takes more than about six months, you could pretend they ruled against you and file the request for a hearing.
Once OSHA issues a decision, either or both sides may file a request for a hearing within five (5) days of receiving the decision . Only four methods of delivery are allowed: facsimile, telegram, hand delivery or next-day delivery. Copies must be telegrammed or faxed to the Chief Administrative Law Judge and the Administrator, and to the respondent. Upon filing the request for a hearing, discovery (the process of sharing relevant information in the hands of each party) begins and the OSHA decision carries no weight.
Complainants have a right to a speedy hearing, meaning ninety (90) days from filing the complaint. They can waive this right, for example to complete discovery. The respondent does not have standing to object to or insist upon a continuance. Holub v. H. Nash Babcock, Babcock & King, Inc. On December 29, 2000, the Administrative Review Board reversed its prior holding and ruled that ALJs have inherent power to issue subpoenas in whistleblower cases. Childers v. Carolina Power & Light. Co.
After the hearing, parties may appeal to an Administrative Review Board (ARB), a three member panel appointed by the Secretary of Labor (SOL). This panel replaced the SOL’s role under the regulations. Either party may appeal to the U.S. Court of Appeals from the final administrative decision.
Successful whistleblower claimants can recover remedies to include:
back pay and benefits (including lost overtime)hiringpromotionreinstatementfront paycompensatory damages (emotional pain and suffering)punitive damages (damages to punish the employer)other equitable remedies (abatement and injunctions)
Remedies also may include payment of:
attorneys’ feesexpert witness feescourt coststax consequencesinterest.
Compensatory damages are available for mental anguish, pain and suffering, harassment, and lost future earnings. English v. Whitfield (compensation for harassment). Exemplary (punitive) damages are available under the Safe Drinking Water Act (SDWA) , and the Toxic Substances Control Act (TSCA) . However, until Congress amends the laws to provide remedies enforceable in trial courts, with juries, compensation for emotional distress, anxiety, upset and loss of reputation will remain a fraction of those available to other civil claimants.
“Front pay” may be negotiated in place of reinstatement, but reinstatement must be ordered upon a finding of wrongful discharge. Complainants have a duty to “mitigate” (reduce the potential amount of) damages, for example, by looking for substitute employment.
It is difficult for most lay people to collect all the useful evidence, organize it into a persuasive story, and comply with all the procedural rules to win a whistleblower case. Some lawyers with experience in whistleblower cases will accept cases even when the client cannot afford to pay regular fees. If the lawyer has enough confidence in the client and in winning the case, the lawyer may accept the case on a contingent basis. The lawyer will be trusting the judge to award fair attorney fees after the client has won a favorable decision. Clients will benefit from shopping around for a lawyer as soon as possible after the employer’s first adverse action. Then the lawyer can help make sure the complaint gets filed on time and at the right place. The lawyer can also help make sure that the most important facts are disclosed in the first statement to the OSHA investigator.
When you shop around for an attorney, look for attorneys who have experience in employment matters. For more information, see our site’s attorney resources page.
The Government Accountability Project (GAP) is a national, public-interest organization that provides advocacy and legal support to whistleblowers, and may be contacted as follows:
Still, having a lawyer is not required. You can be represented by a union official, a paralegal, or anyone else of your choosing. Some whistleblowers have won cases representing themselves. Until you have a written agreement with a lawyer for representation, it is your responsibility to make sure the time limits are met in your case.
A comprehensive source of information is:
Stephen M. Kohn, Concepts and Procedures in Whistleblower Law
Researchers can access OALJ decisions in an excellent database at http://188.8.131.52/library.htm.
The content on this page was provided by Richard Renner.
© 2017 Workplace Fairness