Law Protects Whistleblowers

You may recently have seen the movie Erin Brockovich. If you haven’t it is on my recommended “must see” list. It is generally about what resulted when a corporation carelessly disposed of its industrial waste, affecting the water and human life in the surrounding area. Although we never imagine this happening in our own back yard, what if it did and you, the employee was aware of such an occurrence.

There are numerous federal laws protecting employees from wrongful discharge if they attempt to correct a potential hazard in the workforce. Such laws include the Employee Protection (Whistleblower) Provisions — Clean Air Act (42 USC §7622), Comprehensive Environmental Response, Compensation and Liability Act (42 USC §9610), Energy Reorganization Act of 1974, (42 USC §5851), Safe Drinking Water Act (42 USC §300j-9(I)), Solid Waste Disposal Act, (42 USC §6971), Toxic Substance Control Act, (15 USC §2622), Federal Water Pollution Control Act, (33 USC §1367); 29 CFR 24; and others.

Who is Covered
These environmental Acts provide protection from discharge or other discriminatory actions by employers in retaliation for employees’ good faith complaints about safety and health hazards in the workplace and the environment.

Basic Provisions/Requirements
The employee protection provisions of these Acts prohibit employers from discharging or otherwise discriminating against employees in retaliation for their disclosure of safety and health hazards to the employer or to the appropriate federal agency They also protect employee participation in formal government proceedings in connection with safety and health hazards. The Acts specifically exclude from protection the disclosure of hazards deliberately caused by an employee. Additionally, the statutes do not protect “frivolous” complaints. Employees have the right under the Acts to refuse to work in hazardous or unsafe situations.

Employees who believe they have been discriminated against in violation of these protective provisions may file a complaint, within 30 days of the alleged violation, with the Occupational Safety and Health Administration (OSHA).

Assistance Available
More detailed information, including copies of regulatory and interpretative materials, may be obtained by contacting OSHA.

Penalties
Upon receipt of a complaint, the Occupational Safety and Health Administration conducts an investigation to determine whether a violation has occurred. When a violation has occurred, the employer is notified of the violation determination and efforts are made to conciliate the situation. The employer may appeal a violation determination to an administrative law judge, if done within 5 calendar days of the notification of the determination. The administrative law judge’s decision is referred to the Secretary of Labor for a final order. The Secretary may affirm or set aside the administrative law judge’s decision. Where the Secretary concludes that a violation has occurred, his or her final order may instruct the employer to take affirmative action to abate the violation and provide for appropriate relief, which may include restoration of back pay, employment status and benefits. The Secretary may also order the employer to provide compensatory damages to the employee. If dissatisfied with the Secretary’s decision, the employer may appeal in federal court. Final determinations on violations are enforceable through the courts. The employee is entitled to similar appeal rights under the Acts.

Although employers generally are not fond of OSHA and its numerous requirements, the ultimate intent is to make the workforce atmosphere a safer environment and maintain public safety. As such, it can be successfully argued that the benefits obtained through OSHA requirements albeit cumbersome and even burdensome outweigh any additional cost and inconvenience to the employer. Typically, this is not fully appreciated and understood until a violation of such OSHA requirements results in an industrial accident which can affect many.