Whistleblower Protections in Environmental Statutes

The Department of Labor (DOL) administers whistleblower provisions in over 20 different statutes relevant to the environment, workplace safety, airlines, commercial motor carriers, consumer products, financial reform, food safety, health insurance reform, motor vehicle safety, nuclear, pipelines, public transportation, railroads, maritime, and securities laws.  Some of these laws are available to public employees at the local, state and/or federal level, while some are only available to private sector employees.

These laws forbid employers from taking “adverse actions” against employees in retaliation for reporting violations or for taking actions in furtherance of the purposes of these laws. See a chart of these laws, who is covered under them, the statute of limitations for filing a complaint, available remedies and other information. The arm of DOL responsible for administering these laws is the Occupational Safety and Health Administration (OSHA).

List of Adverse Actions

  • Firing or laying off
  • Blacklisting Demoting
  • Denying Overtime or Promotion
  • Disciplining
  • Denial of Benefits
  • Failure to hire or rehire
  • Intimidation
  • Making threats
  • Reassignment affecting prospects for promotion
  • Reducing pay or hours

 

Environmental Laws with Whistleblower Provisions

    • Asbestos Hazard Emergency Response Act (concerning asbestos in elementary and secondary schools);
    • Safe Drinking Water Act;
    • Federal Water Pollution Control Act also known as the Clean Water Act (Note: DOL has ruled that federal employees cannot claim under this Act, although state, municipal and tribal employees can)
    • Toxic Substances Control Act (TSCA) (not available to federal employees)
    • Solid Waste Disposal Act (also known as the Resource Conservation and Recovery Act or RCRA);
    • Clean Air Act;
    • Comprehensive Environmental Response, Compensation and Liability Act (also known as “Superfund”).

More detail about their provisions can be found here and you can see an example of how these statutes work

How to File a Whistleblower Complaint Through Department of Labor

The Department of Labor hosts a useful web center on whistleblowers and how to file a complaint. Including:

    • Time Limits for Filing a Complaint
    • Ways to File a Complaint
    • Helpful Information to Have When You File a Complaint
    • Procedures

Go to Whistleblowers.Gov to learn more

 

Comparison with Whistleblower Protection Act

For federal employees who might have a choice of whether to bring a claim under one of the DOL statutes or the Whistleblower Protection Act, there are several advantages (and a few disadvantages) of the DOL process over the MSPB process.  It is also possible to bring cases both at DOL and at the MSPB.

DOL vs. MSPB Processes

  • Broad definition of protected activities under DOL laws: generally broader than under the WPA and include any disclosures or actions that further the purposes of the Act, as well as participating in any proceedings under the Act.
  • DOL ALJs better trained and more independent: Hearings are conducted by Administrative Law Judges, (ALJs) as opposed to the Administrative Judges (AJs) (really hearing officers) at the MSPB. ALJs have more independence, better training, and are generally regarded as more fair to whistleblowers.
  • DOL allows time for discovery and hearing preparation: The proceedings are not mandated to conclude in a very short period as at MSPB, and generally afford ample time for discovery, although the disadvantage is that resolution can take a long time – possibly years.
  • Agency’s Burden of Proof is Lower at DOL: Under the environmental whistleblower provisions, the agency does not have the WPA’s “clear and convincing” burden of proof that it would have taken the same action if the whistleblowing had not occurred, but only the lesser burden of proof by a preponderance of the evidence. Some non-environmental DOL laws do have the clear and convincing burden. Even when they do not, the generally more fair proceeding at DOL usually makes up for this lack.
  • Short –30 Day –Time to File: Like the WPA, most of the DOL laws have very short statutes of limitations – 30 days from when the employee learned of the adverse action (a few are longer). Be aware that it is not 30 days from the effective date of the action like at MSPB, but from when the employee received notice that the action would occur, so sometimes even shorter than MSPB.