Whistleblower Law Blog
Topic: Enforcement Bodies
Fourth Circuit Holds that Suit Alleging Racial Discrimination Does Not Bar Later Suit for Unlawful FRSA Retaliation
The U.S. Court of Appeals for the Fourth Circuit, in Lee v. Norfolk Southern Ry. Co., 802 F.3d 626 (4th Cir. 2015), held that a plaintiff who alleged his suspension resulted from racial discrimination was not barred from claiming in another lawsuit that his employer suspended him as retaliation for refusing to ignore safety regulations, in violation of the Federal Railroad Safety Act (FRSA).
In Lee, the defendant, Norfolk Southern Railway, suspended the plaintiff, Charles Lee, for six months in 2011 for allegedly consuming beer on the job. Lee’s duties for Norfolk Southern included inspecting rail cars for possible safety hazards. Lee sued Norfolk Southern under 42 U.S.C. § 1981, alleging that his suspension resulted from racial discrimination. According to Lee, his white supervisor consumed alcohol on the job and did not face adverse consequences. Lee also alleged that his white co-workers received promotions under a collective bargaining agreement while his African-American co-workers did not, and he claimed that he faced harassment because of his race. Lee eventually lost that lawsuit on summary judgment.
In In the Matter of the Tax Liabilities Of: John Does, the United States District Court for the Southern District of Florida authorized the Internal Revenue Service to use “John Doe” summonses to identify U.S. taxpayers with undisclosed bank accounts in Belize. The IRS uses “John Doe” summonses to assist in investigations where the identities of individuals are unknown. This marks at least the third time the IRS has used this investigatory tool, which makes it easier for the IRS to pursue tax fraud cases.
The IRS sought records from Bank of America, N.A. and Citibank, N.A. identifying U.S. taxpayers with accounts at Belize Bank International Limited, Belize Bank Limited, or Belize Corporate Services. According to a Justice Department statement, these entities are subsidiaries of BCB Holdings Limited.
In recent testimony before the Senate Committee on Homeland Security and Governmental Affairs, Carolyn Lerner, head of the U.S. Office of Special Counsel, said that her office expects that 35 percent of the prohibited personnel practices complaints it receives in 2015 will come from aggrieved employees at the Department of Veterans Affairs. Lerner also told the Committee that, in 2014, “the VA surpassed the Department of Defense in the total number of cases filed with OSC, even though the Defense Department has twice the number of civilian employees as the VA.” Lerner’s testimony came on the heels of a September 17, 2015 letter to President Obama from her office that detailed numerous OSC findings of the VA’s failures to hold accountable employees responsible for wrongdoing, including unlawful retaliation. It also came shortly after the OSC announced that it found that the VA unlawfully retaliated against a former employee of its Baltimore Regional Office. These developments demonstrate the ongoing challenges in protecting the valuable role played by whistleblowers in exposing wrongdoing.
On August 18, 2015, the Occupational Safety and Health Administration released a directive to its regional offices to adopt “early resolution” alternative dispute resolution in whistleblower cases. The directive follows a successful pilot program by OSHA in its Chicago and San Francisco regions.
From October 1, 2012, to September 30, 2013, OSHA ran a pilot ADR program in regions V (Chicago) and IX (San Francisco). The program provided two options for settling disputes: (1) an “early resolution” process offering parties the assistance of a “neutral, non-decision-making OSHA whistleblower expert;” and (2) a one-day, in-person mediation with a “professional third-party mediator.”
OSHA found the early resolution process a “very effective and viable alternative” to the normal OSHA investigative process. As a result, OSHA is expanding the pilot program to all of its regional offices, though OSHA did leave regional offices the choice to offer parties additional ADR options.
The Department of Labor’s Occupational Safety and Health Administration is known for its role in implementing and enforcing safety standards in workplaces across the United States. But another main role played by OSHA is its enforcement of the whistleblower anti-retaliation provisions of a number of statutes, including but not limited to: The Occupational Safety and Health Act, the Sarbanes-Oxley Act, the Clean Air Act, the Surface Transportation Safety Act, and the Federal Railroad Safety Act. Several recent actions by OSHA demonstrate the seriousness with which OSHA enforces these statutes.
On August 4, 2015, OSHA announced that it filed suit against Continental Alloys and Services, Inc., a Houston-based company which provides steel for oil and gas companies, for violations of the Occupational Safety and Health Act’s whistleblower provision. In this case, a former employee filed a complaint for wrongful termination after Continental fired her, allegedly because she complained that the company failed to log workplace injuries in violation of OSHA regulations. The whistleblower reported several instances when the company failed to log injuries, and even recorded a meeting with the company official who failed to record the injuries in order to gather evidence for an internal investigation. Continental fired her as a result of her actions. In its suit, OSHA seeks an injunction barring further retaliation, and reinstatement, back pay, and any other damages suffered by the whistleblower.
On March 20, 2015, the Department of Labor Administrative Review Board (ARB) reversed and remanded a decision by the DOL’s Office of Administrative Law Judges (OALJ) that held a railroad employee had not proved that his report of a workplace injury was a contributing factor to management’s decision to terminate his employment.
Robert Powers reported to his employer, Union Pacific Railroad Company, that he injured his hand while operating a rail saw at work in May 2007. Over slightly more than a year, Powers saw several doctors who prescribed various treatments. His doctors also imposed a series of work restrictions, including limits on lifting and repetitive motions.
Union Pacific became suspicious about Powers’ reported injuries and resultant work restrictions. The company hired a private investigator who filmed Powers performing tasks around his property, including using a sledgehammer and carrying boxes of ammunition. After an internal administrative procedure that determined that Powers had violated the company’s dishonesty policy and had failed to stay within his medical restrictions, the company terminated Powers’ employment.
On April 22, 2015, the U.S. Securities and Exchange Commission announced its second-ever whistleblower award to a compliance professional. The SEC’s award demonstrates that compliance professionals and other fiduciaries can be whistleblowers when the employer fails to take action to address misconduct reported by a fiduciary.
The complainant, in his role as a fiduciary, was statutorily required to disclose the suspected misconduct internally and then wait 120 days for the employer to investigate and take corrective measures before initiating an action under the SEC’s whistleblower award program. Here, the complainant did as required, and the SEC found that the employer did not take meaningful corrective action. The SEC held the financial award to the whistleblower was appropriate given the employer’s failure to remediate.
The SEC’s first ever award to a whistleblower was in 2014. The SEC releases limited information about whistleblower case as it is bound by the law to protect the confidentiality of whistleblowers.
In Willbanks v. Atlas Air Worldwide Holdings, Inc. et al., the Administrative Review Board for the U.S. Department of Labor ruled that airline workers are transportation workers and thus exempt from the arbitration requirements of the Federal Arbitration Act. The ARB ruling reversed an Administrative Law Judge’s grant of a motion to stay proceedings pending arbitration,.
The FAA provides that arbitration agreements are valid unless grounds exist for revoking the agreement. But the FAA specifically exempts contracts for the employment of “seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” In its ruling, the ARB acknowledged that the FAA should be interpreted liberally to favor arbitration, and that any exceptions should be viewed narrowly.
Although the Department of Labor’s Administrative Review Board affirmed the dismissal of James Speegle’s whistleblower retaliation complaint, his case cemented a new standard for employees to meet when they invoke the “same decision” defense. In previous posts on May 15, 2014, September 3, 2014, and January 13, 2015, we discussed the Speegle standard and the burden it places on employers. Under Speegle, when an employer uses the “same decision” defense (arguing that it would have taken the same adverse action against an employee in the absence of his protected activity), the administrative judge must examine the defense by excising both the protected activity and the entangled facts from consideration.
In Speegle, the complainant and other supervisors had expressed concerns about Stone & Webster’s use of apprentices to apply paint coatings in a nuclear plant. Stone & Webster fired Speegle, ostensibly for insubordination after his obscene outburst at a meeting. The case then moved back and forth between DOL’s Office of Administrative Law Judges (the ALJ), the ARB, and the Eleventh Circuit, eventually establishing the present standard.
On March 20, 2015, the U.S. Department of Labor’s Administrative Review Board affirmed an Administrative Law Judge’s holding in Jackson v. Union Pacific Railroad Co., finding that an adverse action extends to an employee sent home to obtain a medical release.
On August 29, 2011, Union Pacific Railroad switchman/brakeman Michael A. Jackson reported to his manager a foul smoky odor in Union’s freight yard outside Avondale, Louisiana. When Jackson, because of health and safety concerns, requested assignment to an area free from smoke, his supervisor told Jackson to go home and return to work only after obtaining a medical release.
On December 1, 2011, Jackson filed a complaint with the DOL’s Occupational Safety and Health Administration, seeking damages because he had been temporarily suspended from work after raising health and safety concerns.
Concluding that Union violated the Federal Railroad Safety Act’s whistleblower protection provision, an ALJ awarded Jackson compensatory damages. The ARB, affirming OSHA’s decision, determined that Jackson engaged in protected activity when he reported safety concerns concerning foul smoky air to his manager.
The ARB’s finding—that Jackson was constructively discharged because he did not ask to go home—likely has broad implications for employees who face adverse actions for reporting health and safety concerns. The ARB’s decision affirms that the health and safety of our nation’s workforce is a top priority.