Public law principles and applications

PUBLIC LAW: WHISTLEBLOWER COMPLIANCE in Business Management

The Whistleblower Protection Act of 1989 was designed to protect individuals employed by government agencies from retaliation in any form arising as a consequence of bringing to light circumstances within the employing agencies that violate fundamental rights. It is also intended to protect those individuals from continued exposure to medically harmful and dangerous working conditions by enabling the reporting of those conditions to the appropriate authorities for rectification without the fear of adverse consequences that could otherwise discourage reporting and thereby perpetuate those conditions (USLC, 2007).

Generally, Whistleblower Protection Act issues are automatically subject to federal jurisdiction instead of state courts, and provide for hearings by administrative law judges. The primary federal agency for entertaining whistleblower protection cases are the Occupational Safety & Health Administration (OSHA) and the Equal Employment

Opportunity Commission (EEOC) components of the U.S. Department of Labor (DOL).

The Application of Whistleblower Protection Law in the Workplace:

Environmental Concerns - Environmental issues in the workplace include exposure to dangerous, noxious, or unpleasant chemicals, substances, including those in gaseous form.

SEC Fraud - Securities Fraud issues in the workplace include all forms of actual or suspected illegal activities relating to violations of laws administrated by the Securities Exchange Commission.

Transportation - All laws and rules applicable to commercial motor carriers are covered by whistleblower protection, to ensure the safety and maintenance standards of vehicles and facilities licensed to provide public transportation services.

FAA Regulations - the Federal Aviation Administration is responsible for ensuring the safety of the airline industry and all related facilities and procedures pertaining to aircraft safety and aircraft maintenance.

NRC Regulations - the Nuclear Regulatory Commission (NRC) monitors all nuclear reactors and power plants for safe administration and compliance with laws and regulations intended to guarantee the safety and security of those facilities. (OSHA, 2003)

Formal/Direct Failure to Comply with the Whistleblower Protection Act of 1989:

Failure to comply with the lawful requirement of the Whistleblower Protection

Act includes numerous actions relating to deterring and discouraging the reporting of circumstances and conditions covered by the Act, as well as a full range of formal punishments and informal acts of reprisal or retaliation by the employer against the employee.

Employers may not assign less desirable shifts or operational responsibilities as a consequence of an employee's reporting any concern subject to whistleblower protection.

This would include assigning nighttime shifts to employees who previously held daytime positions and similar changes. Employers may not reduce pay or salary levels, either directly, or indirectly, by reducing working hours as a result of reporting concerns subject to protection, nor may they deny overtime work if overtime is already a component of the position involved (USLC, 2007).

The most direct forms of failure to comply with whistleblower protection include outright firing or laying off of employees who report conditions subject to protection under the Act, but formal/direct compliance failure also includes any use of established disciplinary mechanism or procedures established for routine business administration when they are used in retaliation or punishment for reporting conditions or circumstances covered by the Act. Employers may not withhold benefits to which the employee would otherwise be entitled by virtue of employment, position, tenure, or specific performance standards. Finally, employers may not refuse to rehire eligible employees already laid off previously under unrelated circumstances (OSHA, 2003).

Formal/Direct Failure to Comply with the Whistleblower Protection Act of 1989:

While there is a degree of crossover between formal/direct and informal/indirect types of retaliation and punishment prohibited in connection with reports covered by the Act, the latter generally includes "disciplining" which can be administered in myriad different ways. Employees may not be evicted from company housing facilities or deprived of other privileges to which they were entitled in conjunction with their position or responsibilities. They may not be reassigned to perform work that is substantially different from their normal occupational responsibilities (OSHA, 2003).

Employers may not submit information about the employee that is intended to have damaging consequences on the employee's financial credit history, and employers may not engage in conduct or communications designed to "blackball" the employee from other employment, either within government or in connection with any private sector employment opportunities. Finally, employers may not engage in conduct intended (or reasonably perceived) as "intimidation." Intimidation is one of the most difficult types of non-compliance with activities protected under the Act, because it is subject to interpretation and because it is capable of being perpetrated without any written record. Likewise, many forms of conduct that are generally benign under ordinary (i.e. non-adversarial) circumstances at work only rise to the level of intimidation" in specific context (USLC, 2007).

Refusal to Work:

Under certain (limited) circumstances, employees also have the right to refuse to work until employers correct dangerous working conditions. The specific criteria that must be met before an employee may walk off the job without surrendering employment/reemployment rights are fairly strict. Employees must satisfy all of the following criteria (OSHA, 2003):

1) the employee must have a reasonable belief that he or she faces death or serious injury, and that specific belief must be so obviously dangerous and potentially deadly that it meets the objective "reasonable person" standard;

2) the condition or situation must be of an immediately urgent nature that is not capable of redress through ordinary regulatory or administrative procedures; and 3) the employee must have first brought the condition or circumstance to the attention of the employer and failed to achieve a remedy through that process.

Remedies:

Under the Whistleblower Protection Act of 1989, employees whose claims against their employers are sustained pursuant to hearings before administrative law judges are entitled to a full range of compensation intended both to make them whole as well as to punish and deter future failures to comply on the part of the employer.