Home > Know Your Rights > Environmental and Transportation Whistleblowers

Environmental and Transportation Whistleblowers

I. General Whistleblower Protections
II. Railroad and Public Transportation Employees
III.Whistleblowers in the Aviation Industry
IV. Whistleblowers and the Environment

 

I. General Whistleblower Protections

    A. What are Whistleblower Laws?

         Whistleblower laws are federal and state laws designed to encourage employees to report the improper, unsafe, or potentially illegal practices of their employers. Various whistleblower laws apply to specific activities, businesses or agencies. For example, some whistleblower laws deal with unsafe railroad conditions, and others deal with the improper disposal of hazardous materials. This article addresses federal laws that provide protection for employees who work in industries subject to environmental regulations and in the transportation industry. There may be additional applicable whistleblower laws in your state. Many of these are similar to the federal whistleblower laws in their scope, requirements, and remedies.

    B. What Is the Purpose of Whistleblower Laws?

         The primary purpose of whistleblower laws is to protect employees who do the right thing by speaking up when they believe their employer has done something wrong.  Some whistleblower laws, such as the Sarbanes-Oxley Act, were enacted in response to specific events, in that case the accounting scandals at Enron and WorldCom. Others evolved over time to deal with ongoing concerns over such issues as environmental pollution and transportation safety.

         Whistleblower laws typically protect employees in a range of scenarios to encourage them to report improper or illegal activity. Specifically, an employee may be protected against retaliation for reporting to a supervisor or some other company official a potential violation of applicable laws. An employee may also be protected for reporting such a violation to Congress or a government agency.  Additionally, employers may not be permitted to punish employees who participate in an investigation of the potential violation or who testify in any hearing or formal proceeding on the matter. These protections allow employees to report the improper activity through appropriate channels.

    C. How do Whistleblower Laws Work?

         Most statutes enacted to protect whistleblowers in various employment settings from retaliation by their employers are similar in key ways. First, nearly every statute has the same four general requirements:

• The employer must be covered by the relevant statute;
• The employee must have engaged in some protected activity ¹ by reporting a violation of health, safety, environmental, transportation or finance laws by her/his employer;
• The employer must know of the employee’s reporting/protected activity; and
• The employee must suffer some unfavorable personnel action ² or harassment, motivated at least in part by her or his protected activity.

         Second, each whistleblower statute establishes a time limit ³ for an employee to file a written complaint about the retaliation he or she has suffered. When filing with the Occupational Safety and Health Administration (OSHA), which investigates claims under the federal environmental and transportation whistleblower laws, the limitations period varies from as few as 30 days to as many as 180 days, depending on the relevant statute, so it is important to act quickly to determine whether you have a claim and to preserve it. The most current information on these and related federal whistleblower laws can be found at www.osha.gov , but this link will provide you with relevant information as of June 27, 2008. Note that while you may file your health or safety complaint with any OSHA officer or employee, OSHA recommends filing at the office geographically closest to your location. ⁴

         Finally, nearly every whistleblower statute provides for the following remedies if OSHA determines the complaint is valid and supported by the evidence:

• Reinstatement (if fired, demoted, or otherwise displaced)
• Back pay for lost wages
• Restoration of benefits (e.g. health or seniority)
• Other remedies to make the employee whole, including attorneys’ fees and in some cases including compensatory and punitive damages.

 

II. Railroad and Public Transportation Employees

    A. Who Is Covered?

         The Federal Rail Safety Act (FRSA) covers railroad carriers that are part of the general railroad system, including freight, short-haul, passenger, and other rail services. It does not cover employees of metropolitan transit systems that are not part of the general rail system, such as subways, buses, and trolleys. These metropolitan transit systems are covered instead by the National Transit Systems Security Act (NTSSA). Both acts protect not only employees, but also contractors and subcontractors of rail carriers. A successful FRSA or NTSSA complaint must satisfy the standard whistleblower requirements.

    B. What Activity Is Protected against Retaliation?

         Your employer may not retaliate against you for providing information to or assisting in an investigation by a federal regulatory or law enforcement agency, a member or committee of Congress, or your company about a potential violation of any laws pertaining to: (1) railroad or public transportation safety and security or (2) gross fraud, waste, or abuse of funds intended for safety and security. Additionally, your employer may not retaliate against you for reporting hazardous safety and security conditions, refusing to work under such conditions, or refusing to authorize the use of any safety- or security-related equipment, track, or railroad structures. Note that under both the NTSSA and the FRSA you must file a complaint of retaliation with OSHA within 180 days of retaliatory actions by your employer.

    C. What Remedies Are Available to a Successful Claimant?

         If the evidence supports your whistleblower claim under the FRSA or the NTSSA, you may be entitled to remedies that include:

• Reinstatement with previous seniority and benefits
• Back pay with interest
• Compensatory damages, including compensation for special damages, expert witness fees, and reasonable attorney’s fees
• Punitive damages in certain cases, not to exceed $250,000.

 

III. Whistleblowers in the Aviation Industry

    A. Who Is Covered?

         The Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21) covers “air carriers,” which are defined as citizens of the United States who directly or indirectly provide air transportation. The Act protects not only employees of air carriers, but their contractors and subcontractors as well. For purposes of the Act, a “contractor” is defined as a company that performs a safety-sensitive function by contract for an air carrier. A successful AIR21 complaint must satisfy the standard whistleblower requirements.

    B. What Activity Is Protected against Retaliation?

         Your employer may not retaliate against you for providing information to or assisting in an investigation by the government or your employer regarding a potential violation of the laws of the Federal Aviation Administration (FAA) or any other federal law or regulation related to air carrier safety. The applicable FAA regulations are available at www.faa.gov. 

         Unlike ground transportation-related whistleblower statutes that expressly protect employees who refuse to work when conditions violate applicable laws, AIR21 contains no such provision. The Secretary of Labor, however, interprets the statute to provide some limited protection to employees who refuse to work. Namely, an employee is protected if he or she has a reasonable belief that his or her working conditions are unsafe, and he or she does not receive an adequate explanation from a responsible official that the conditions are safe and the employer is not violating any applicable laws or regulations.

         Note that under AIR21 you must file a complaint of retaliation with OSHA within 90 days of retaliatory actions by your employer.

    C. What Remedies Are Available to a Successful Claimant?

         If OSHA finds that the evidence supports your whistleblower claim under AIR21, you may be entitled to remedies that include:

• Reinstatement with previous seniority and benefits
• Back pay with interest
• Other possible relief to make you whole, including attorneys’ fees.

 

IV. Whistleblowers and the Environment

    A. Who Is Covered?

         The following federal statutes provide whistleblower protection to employees who report potential violations of environmental standards. These include:

• Asbestos Hazard Emergency Response Act, which concerns asbestos in elementary and secondary schools
• Clean Air Act
• Comprehensive Environmental Response, Compensation, and Liability Act
• Federal Water Pollution Control Act
• Safe Drinking Water Act, which concerns both above-ground and underground potential sources of water designed for drinking use
• Solid Waste Disposal Act
• Toxic Substances Control Act, which concerns industrial chemicals produced or imported into the United States

         The specific scope of these laws is described in greater detail below. Note that for each statute, a successful complaint must satisfy the standard whistleblower requirements.

1.   Asbestos Hazard Emergency Response Act (AHERA)

         AHERA was passed in 1986 in response to findings by Congress that some primary and secondary schools contained friable asbestos that could harm schoolchildren. It was designed primarily to compel the EPA to address the problem of asbestos in schools and to coordinate inspections of U.S. educational facilities by establishing accreditation standards for private contractors.

         The Act also provides employee protection against retaliation for reporting violations of environmental laws relating to asbestos in elementary and secondary school systems, whether public or non-profit private.

2.   Clean Air Act

         The Clean Air Act is a comprehensive statute establishing standards for air quality, acceptable pollutants, and related reporting and inspection procedures. The act was passed to protect people, animals, plants, habitats, and the atmosphere from the harmful effects of airborne pollution.

         The specific provisions of the statute are exhaustive, but whistleblower cases are most often brought when a company misrepresents its emissions levels or fails to comply with reporting and cleanup standards. An employer may not retaliate against an employee who reports any misreporting or noncompliance by the employer.

3.   Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)

         Congress passed CERCLA in response to concerns over the release of hazardous waste into the environment. Also known as the Superfund legislation, CERCLA established a tax on the chemical and petroleum industries to establish a trust fund to subsidize the cleanup of abandoned or uncontrolled hazardous waste sites. CERCLA provides for liability, compensation, and emergency response for hazardous substances that have been released or are threatening to be released into the environment.

         Employees are protected if they have provided information to the local or federal government, have filed a complaint about their employer under the Act, or have participated in any CERCLA proceeding – for example by testifying or aiding in an investigation – against her or his employer.

4.   Federal Water Pollution Act

         The Federal Water Pollution Control Act or “Clean Water Act” is analogous to the Clean Air Act described above. It prohibits the release of hazardous levels of pollution into any waters that constitute a natural habitat for living things. As with the Clean Air Act, an employee who reports any misrepresentations or noncompliance by the employer is protected.

5.   Safe Drinking Water Act (SDWA)

         The Safe Drinking Water Act (SDWA) concerns lead levels in drinking water from both above-ground and underground sources. Under the SDWA, any public building – whether constructed before or after the passage of the SDWA – must have lead-free drinking water. Additionally, any new construction – public or private – must have lead-free drinking water. Employees are protected from retaliation for reporting potential violations of the law.

6.   Solid Waste Disposal Act

         The Solid Waste Disposal Act regulates the management of hazardous waste. It also provides funds for and assists in the development of technology and facilities to recover energy and other commodities from waste. An employee is protected for reporting abuses of funding and assistance, violation of waste management requirements, or other potential violations of the Act.

7.   Toxic Substances Control Act

         The Toxic Substances Control Act (TSCA) regulates the thousands of industrial chemicals produced or imported into the United States to protect the health and safety of humans and the environment.  It sets guidelines for the EPA’s testing, inspection, and tracking of industrial chemicals. TSCA also allows the EPA to ban the manufacture of chemicals it considers to pose an unreasonably high risk. An employee who reports potential violations of TSCA or in any way assists in proceedings or investigations of such violations is protected from employment retaliation.

    B. What Activity Is Protected against Retaliation?

         Your employer may not retaliate against you for reporting potential violations of environmental laws and regulations to your employer or to the government. Unlike transportation-related whistleblower statutes that expressly protect employees who refuse to work when conditions violate applicable laws, the environmental regulations contain no such provision. The Secretary of Labor, however, interprets the statutes to provide some limited protection to employees who refuse to work. Namely, an employee is protected if he or she has a reasonable belief that his or her working conditions are unhealthful or unsafe, and he or she does not receive an adequate explanation from a responsible official that the conditions are safe and that the employer is not violating any applicable environmental laws or regulations.

         Note that an environmental whistleblower whose activity is protected by one of the above statutes has only 30 days to file a complaint with OSHA. If, however, the claim falls under the Asbestos Hazard Emergency Response Act, a claimant has 90 days to file. The complaint explaining the potential violation, your protected activity, and the unfavorable personnel action your employer took must be delivered to OSHA within the applicable time frame.

    C. What Remedies Are Available to a Successful Claimant?

         If OSHA finds that the evidence supports your whistleblower claim under an environmental whistleblower statute, you may be entitled to remedies that include:

• Reinstatement with previous seniority and benefits
• Back pay with interest
• Other possible relief to make you whole, including attorneys’ fees, and in some cases including compensatory and punitive damages.

 

Whether to report transportation or environmental safety concerns- and, if so, when, how and to whom - can be a very difficult decision for an employee, as blowing the whistle on an employer's unlawful practices can be a career-ending move. However, the whistleblower laws mentioned about provide strong legal protections, and employees who raise these concerns can look to a number of resources for assistance. If you are thinking about reporting such concerns, or if you already have and are facing retaliation, contact the experienced whistleblower lawyers at Katz, Marshall & Banks for an evaluation of your whistleblower case with no further obligation. You can also look at our useful links page for a list of organizations that assist whistleblowers in raising their concerns.  

---