Do You Need an Environmental Whistleblower Lawyer?
What laws protect environmental whistleblowers?
Six federal laws include provisions protecting environmental whistleblowers:
- The Clean Air Act;
- The Comprehensive Environmental, Response Compensation, and Liability Act
- The Federal Water Pollution Control Act;
- The Safe Drinking Water Act;
- The Solid Waste Disposal Act; and
- The Toxic Substances Control Act.
Under these laws employees must file retaliation complaints with 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 have included:
- Complaining that a sewage system was not in compliance with the Clear Water Act;
- Submitting a letter to shipyard commander detailing environmental violations;
- Raising concerns about the risks posed by practices for disposing of radioactive waste;
- Expressing concerns about improper asbestos removal in a school; and
- Refusing to work when working conditions are unsafe or unhealthy.
What must an employee prove?
To prevail under an environmental statute for unlawful discrimination, an employee generally must show that:
- He or she engaged in protected activity;
- The employer knew of this protected activity;
- The employee suffered an adverse action by the employer; and
- The employee can show evidence from which it’s possible to conclude that the adverse action was a result of the the protected activity.
What can the employer argue?
If an employee successfully makes this “prima facie” showing of retaliation, the employer may rebut the case by providing clear and convincing evidence that it would have taken the same action regardless of the protected activity.
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?
Prevailing employees will be made whole — returned to the same state they’d have enjoyed without any retaliation, in other words. 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 statutes allow exemplary or punitive damages, which are extra awards in egregious cases.