Whistleblower Provisions in More Than 20 Laws
The Department of Labor (DOL) administers whistleblower provisions in over 20 different statutes relevant to the environment, workplace safety, food safety, financial regulation, health care, nuclear power, transportation, pipelines, and other topics.
These laws are principally directed at private sector employees but in limited circumstances may be invoked by federal employees. State employees are constitutionally barred from bringing these federal whistleblower claims against state agencies.
Here is a chart listing all of these laws, who is covered under them, the statute of limitations for filing a complaint, available remedies and other information. Note the usually VERY SHORT deadlines for filing complaints.
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. More detail about their provisions can be found here and you can see an example of how these statutes work.
Click to See the List of Adverse Actions
- Firing or laying off
- Blacklisting Demoting
- Denying Overtime or Promotion
- Denial of Benefits
- Failure to hire or rehire
- Making threats
- Reassignment affecting prospects for promotion
- Reducing pay or hours
Procedures for Whistleblower Claims at DOL
Information about how to file complaints under the whistleblower provisions of these environmental statutes is displayed here. The arm of DOL responsible for administering these laws is the Occupational Safety and Health Administration (OSHA). Given its huge jurisdiction, the whistleblower program administered by OSHA is vastly under-staffed. As a result, OSHA investigations usually take far longer than the statutory timelines and the quality of the work is uneven. An overview of the entire complaint adjudication process can be seen below.
Click to see and Overview of the DOL Complaint Adjudication Process
- OSHA complaint: First file a written complaint at your regional OSHA office. OSHA will investigate your complaint, possibly attempt to settle it, and if not, file a written decision either dismissing the complaintor granting relief, which can include reinstatement, back pay, and other relief.
- ALJ Hearing: Under all the environmental statutes except the Asbestos Hazard Emergency Response Act, any party who is dissatisfied with OSHA’s ruling may ask for a trial-type hearing before an Administrative Law Judge (ALJ). This hearing is de novo, meaning that the OSHA finding carries no weight and there is full consideration of all evidence. You can get materials from OSHA’s investigation under FOIA for use at the hearing stage.
- Settlement Judge: The Office of Administrative Law Judges has a voluntary settlement judge program (i.e. both sides must agree to participate) where a judge who is not hearing the case works with the parties to attempt settlement.
- Relief available from ALJ: Relief includes reinstatement, back pay, and compensatory damages for pain and suffering, damage to reputation, etc. Damage awards are generally modest and less than jury awards. Relief can also include attorneys’ fees, and actions such as removing derogatory information from personnel files.
- Of the environmental statutes, only Safe Drinking Water Act and Toxic Substances Control Act allow punitive damages.
- Appeal to ARB: The ALJ’s decision may be appealed by either side to the DOL’s Administrative Review Board (ARB).
- Appeal to Court: The decision of the ARB may be appealed to the U.S. Court of Appeals for the regional circuit in which the claim arose (the place of employment). From there a case could go to the Supreme Court of the U.S.
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 (see below). It is also possible to bring cases both at DOL and at the MSPB.
Advantages & Disadvantages of 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.
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 that DOL has ruled that federal employees cannot claim under this Act);
- 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”).