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Alaska Bar Association Federal Whistleblower Protection Statutes: An Alternative Remedy. April 5, 2006 Anchorage, Alaska. Presented by:. Billie Pirner Garde Clifford & Garde Washington, D.C. Whistleblowing…. The changing role of employees in protecting the public;

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april 5 2006 anchorage alaska

Alaska Bar AssociationFederal Whistleblower Protection Statutes:An Alternative Remedy

April 5, 2006

Anchorage, Alaska

presented by

Presented by:

Billie Pirner Garde

Clifford & Garde

Washington, D.C.

whistleblowing
Whistleblowing….
  • The changing role of employees in protecting the public;
  • The federal laws that protect them.

Alaska Bar Association April 5, 2006

slide5

“Obviously A Major Malfunction”

Alaska Bar Association April 5, 2006

unacceptable consequences
Unacceptable Consequences

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

Diane Vaughan, The Challenger Launch Decision 409-410 (1996)

Alaska Bar Association April 5, 2006

fatal blind spot
Fatal Blind Spot

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

Columbia Accident Investigation Board (CAIB), Chapter 8, page 203.

Alaska Bar Association April 5, 2006

lessons not learned
Lessons Not Learned

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

CAIB, page 202.

Alaska Bar Association April 5, 2006

chernobyl 1986
Chernobyl - 1986

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

Alaska Bar Association April 5, 2006

nrc expectations
NRC Expectations

The NRC expects that licensees will establish and maintain a safety conscious work environment in which employees feel free to raise concerns both to their own management and the NRC without fear ofretaliation.

May 1996 SCWE Policy Statement

October 2004 SCWE Policy Update

Alaska Bar Association April 5, 2006

protecting the public from unacceptable consequences
Protecting the Public From Unacceptable Consequences

Alaska Bar Association April 5, 2006

preventing unacceptable consequences
Preventing Unacceptable Consequences

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

Rose v. Secretary of Labor,

800 F.2d 563, 565 (6th Cir. 1986).

Alaska Bar Association April 5, 2006

exxon valdez incident
Exxon Valdez Incident

Alaska Bar Association April 5, 2006

davis besse 2002 incident
Davis-Besse 2002 Incident

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

Alaska Bar Association April 5, 2006

new protections against financial fraud and misconduct
New Protections Against Financial 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

Alaska Bar Association April 5, 2006

new protections for employees in the pipeline and oil industry
New Protections for Employees in the Pipeline and Oil Industry

Olympic Pipeline

Disaster

Bellingham, Washington

June 10, 1999

Alaska Bar Association April 5, 2006

new protections for employees in the airline industry
New Protections for Employees in the Airline Industry

Alaska Bar Association April 5, 2006

bp s texas city refinery march 2005
BP’s Texas City Refinery – March 2005

Alaska Bar Association April 5, 2006

slide22

Tallmansville, West Virginia

Sago Coal Mine – January, 2006

Alaska Bar Association April 5, 2006

protections for employees responsible for environmental compliance
Protections For Employees Responsible for Environmental Compliance

Bhopal 1984

Exxon Valdez 1989

Alaska Bar Association April 5, 2006

dan lawn v state of alaska
Dan Lawn v. State of Alaska
  • Dan Lawn v. State of Alaska
    • Grievance and Arbitration;
    • DOL case.

Alaska Bar Association April 5, 2006

green et al v alyeska i
Green, et. al. v. Alyeska (I)

Alaska Bar Association April 5, 2006

green et al v alyeska and asis ii
Green, et.al. v. Alyeska and ASIS (II)

The Blacklisting Cases

Alaska Bar Association April 5, 2006

the wackenhut caper
The Wackenhut Caper

Alaska Bar Association April 5, 2006

slide30

The Doyon Drilling Case

Alaska Bar Association April 5, 2006

bp compliance agreement october 2000 january 2005
BP Compliance AgreementOctober 2000 – January 2005

“BPXA commits…that there will be no reprisal or retaliation by

BPXA [officers, managers or employees]…against any

employee [contractor and consultant] who report[s] actual or

potential violation(s) of environmental law to any regulatory

authority,…BPXA’s managers or general counsel.”

“BPXA understands that retaliation against employee(s) for the

reporting of instances of non-compliance with environmental

laws 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)

Alaska Bar Association April 5, 2006

the federal employee protection statutory protections
The Federal Employee Protection Statutory Protections
  • What is different than state laws;
  • What is better than state law protections;
  • What is worse than state law protections.

Alaska Bar Association April 5, 2006

objective elements of reprisal and retaliation
Objective Elements of Reprisal and Retaliation

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

  • The employee engaged in legally protected activity.
  • The employee suffered an adverse action.
  • The employer/decision-maker had knowledge of the employee’s protected activity.
  • There is some cause and effect connection between the protected activity and the adverse action.

Alaska Bar Association April 5, 2006

who is protected
Who is Protected?

All workers who engage in work covered by the state or federal environmental protection laws and/or the Energy Reorganization Act, and raise safety concerns, are protected from retaliation:

  • No longer protects state employees under some of the environmental laws;
  • Union/non-union employees protected;
  • All Contractors and Subcontractors.

Alaska Bar Association April 5, 2006

what conduct is protected
What Conduct is Protected?
  • Raising an environmental protection, public health and safety, financial fraud, or other statutory concerns internally or externally;
  • Refusing to engage in any practice that is unlawful, if the employee has identified the illegality to the employer;
  • Providing information to or cooperating with the government about violations or possible violations of the law, rule or regulation.

Alaska Bar Association April 5, 2006

what actions are prohibited
What Actions Are Prohibited?
  • Termination for cause or “lay-off”;
  • Demotion in pay or responsibilities;
  • Transfer of duties or responsibilities;
  • Poor performance reviews;
  • Hostile work environment;
  • Blacklisting or Failure to Hire;
  • Other actions that are unique to the 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:

Alaska Bar Association April 5, 2006

was there knowledge by the decision maker of the protected activity
Was There Knowledge by the Decision-Maker of the 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.

Alaska Bar Association April 5, 2006

cause and effect
Cause 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.

Alaska Bar Association April 5, 2006

slide40

Once the employee is able to establish a prima faciecase of

retaliatory discrimination, the burden of coming forward with a

legitimate business reason shifts to the employer.

“Wait till the judge hears my “legitimate business reason.”

  • 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;
  • There is some cause and effect connection between the protected activity and the adverse action.

Alaska Bar Association April 5, 2006

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 other employees in similar job situations;
  • The action taken against the individual was consistent with all policies and practices;
  • There were legitimate business reasons for taking the action complained of;
  • Management would have taken the same action even if the employee had not raised safety issues.

Alaska Bar Association April 5, 2006

burden of proof
Burden of Proof

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

Clear and convincing evidence

Preponderance of the evidence

Alaska Bar Association April 5, 2006

consistent with policy and practice
Consistent WithPolicy and Practice

Alaska Bar Association April 5, 2006

when does protected activity lose its protection45
When Does Protected Activity Lose its Protection?

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

Alaska Bar Association April 5, 2006

dunham v brock 794 f 2d 1037 5 th cir 1986
Dunham v. Brock, 794 F.2d 1037 (5th Cir. 1986)

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

Alaska Bar Association April 5, 2006

take this job
“Take this job….”
  • The “take this job and shove it” test:
    • Does the conduct disrupt discipline?
    • Was it in front of customers or other employees?
    • Has the company tolerated similar or worse behavior?

Alaska Bar Association April 5, 2006

speegle v stone webster no 2005 era 6 alj rd o january 9 2006
Speegle v. Stone & Webster, No. 2005-ERA-6 (ALJ RD&O, January 9, 2006)

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

Alaska Bar Association April 5, 2006

kenniway v matlack inc 88 sta 20 sec y june 15 1989
Kenniway v. Matlack, Inc., 88-STA-20 (Sec’y June 15, 1989)

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

Alaska Bar Association April 5, 2006

the leeway doctrine
The “Leeway Doctrine”
  • The “Leeway Doctrine”:
    • Is the employee’s objectionable behavior an emotional outburst?
    • Is it incidental to the protected activity?
    • Is it temporary and uncalculated?

Alaska Bar Association April 5, 2006

sprague v american nuclear resources inc 92 era 37 sec y december 1 1994
Sprague v. American Nuclear Resources, Inc., 92-ERA-37 (Sec’y December 1, 1994)

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

Alaska Bar Association April 5, 2006

no adverse action
No Adverse Action

McNeill 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.

Alaska Bar Association April 5, 2006

slide54

Harrison v. Roadway Express, Inc., ARB No. 00-048, ALJ No. 1999-STA-37, (slip op. at 15) (ARB December 31, 2002) aff’d on other grounds, Harrison v. ARB, 390 F3d 752, 759 (2nd Cir. 2004)

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

Alaska Bar Association April 5, 2006

svendsen v air methods inc arb 03 074 alj 2002 air 16 august 26 2004
Svendsen v. Air Methods, Inc.,ARB 03-074, ALJ 2002-AIR-16 (August 26, 2004)

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

Alaska Bar Association April 5, 2006

style matters
Style Matters

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

Svendsen v. Air Methods, Inc.,

ARB No. 03-074, 2002-AIR-16

(Aug. 26, 2004)

Alaska Bar Association April 5, 2006

style matters cont d
Style Matters (Cont’d)

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

Svendsen v. Air Methods, Inc., Id.

Alaska Bar Association April 5, 2006

style matters cont d58
Style Matters (Cont’d)

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

Svendsen v. Air Methods, Inc., Id.

Alaska Bar Association April 5, 2006

mind your manners
Mind Your Manners!

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

Alaska Bar Association April 5, 2006

sayre v veco alaska inc arb no 03 069 alj no 2000 caa 7 arb may 31 2005
Sayre v. VECO Alaska, Inc.,ARB No. 03-069, ALJ No. 2000-CAA-7 (ARB May 31, 2005)

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

Alaska Bar Association April 5, 2006

when is enough enough already
When is Enough, Enough Already?

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

Alaska Bar Association April 5, 2006

slide62
Williams v. DOL, No. 03-1749 (4th Cir., November, 18, 2005) (per curiam) (unpublished) case below ARB 01-021, ALJ No. 2000-CAA-15.

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

Alaska Bar Association April 5, 2006

the federal court of appeals agreeing with the arb wrote
The Federal Court of Appeals, Agreeing With The ARB, Wrote:

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

Alaska Bar Association April 5, 2006

but see pierce v usec alj rd o january 27 2006
But see, Pierce v. USEC(ALJ RD&O, January 27, 2006)

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

Alaska Bar Association April 5, 2006

pierce v usec cont d
Pierce v. USEC (Cont’d)

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

Alaska Bar Association April 5, 2006

pierce v usec cont d66
Pierce v. USEC (Cont’d)

Conclusion:

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

Alaska Bar Association April 5, 2006

raising the bar
Raising the Bar

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

Alaska Bar Association April 5, 2006