The attorneys at The Employment Law Group® law firm have experience representing employees who have been discriminated against for reporting violations of environmental laws.
What laws protect Environmental Whistleblowers?
Six federal environmental laws include provisions protecting whistleblowers:
1. Water Pollution Act;
2. Safe Drinking Water Act;
3. Solid Waste Disposal Act;
4. Toxic Substances Control Act;
5. Clean Air Act; and
6. Comprehensive Environmental, Response Compensation, and Liability Act (CERCLA).
Under these laws a retaliation complaint must be filed with the Occupational Safety and Health Administration (OSHA) within 30 days of the date on which the discriminatory action was made and communicated to the employee.
What activity is protected?
Employees participate in protected activity when they (1) report internally a violation of the environmental statutes; (2) commence or are about to commence a proceeding for violation of federal environmental laws; (3) testify or are about to testify in any such proceeding; or (4) assist or participate in such proceedings that may implicate violations of environmental regulations. Specific examples include:
1. Complaining that a sewerage system was not in compliance with the Clear Water Act’s user charge provisions;
2. Submitting a letter to shipyard commander detailing environmental violations;
3. Raising concerns about the risks posed by the deposit of radioactive waste into a tank waste remediation system;
4. Expressing concerns about improper asbestos removal in a school; and
5. Refusing to work when working conditions are unsafe or unhealthy.
What must a plaintiff prove to prevail?
To prevail under any of the environmental statues for unlawful discrimination, an employee must establish a prima facie case by showing that:
1. The employee engaged in protected activity;
2. The employer knew of the protected activity;
3. The employee was subjected to adverse action by the employer; and
4. The employee has sufficient evidence to raise at least an inference that the protected activity was the likely reason for the employer’s adverse action.
What is the employer’s burden of production?
If an employee successfully establishes a prima facie case that the protected activity was the likely reason for the employer’s adverse action, an employer may rebut the employee’s prima facie case by producing evidence that the adverse action was motivated by a legitimate nondiscriminatory reason.
What retaliatory acts are prohibited under federal environmental laws?
The federal environmental statutes prohibit a wide range of retaliatory actions, including termination, demotion, salary reduction, denial of promotion, denial of benefits, refusal to hire or rehire, blacklisting, harassment, and any act that would dissuade a reasonable person from engaging in further protected activity.
What can a prevailing plaintiff recover?
A prevailing employee will be made whole, i.e., will be returned to the same position he or she would have been in absent the retaliation. In particular, a prevailing employee is entitled to reinstatement, back pay for lost wages, front pay, compensatory damages, and litigation costs, including attorney fees. In addition, some of the environmental whistleblower retaliation statutes authorize exemplary or punitive damages.