Who is protected by federal environmental whistleblower laws? Any employee (or, in certain circumstances, an employee’s representative) who believes he or she has been discriminated against in retaliation for “blowing the whistle” on a safety problem or environmental violation, or for engaging in other activity protected under the whistleblower law, may file a complaint. Under certain provisions (the CAA, TSCA, SDWA, and ERA), an employee may have “any person” file a complaint on his or her behalf.
Almost any private sector or state, municipal, or federal employee can be protected.See Anderson v. U.S. Dep’t of Labor, 422 F.3d 1155, 1156–58 (10th Cir. 2005) (whistleblower action against political subdivision); Passaic Valley Sewerage Comm’rs v. U.S. Dep’t of Labor, 992 F.2d 474 (3d Cir. 1993) (same). In addition, under certain environmental laws (CERCLA, SWDA, and FWPCA), “authorized representatives of employees,” which might include union officials, unions, or attorneys authorized to represent employees, may be protected as well. See Anderson, 422 F.3d at 1175–82.
The ERA, SDWA, CAA, and TSCA prohibit discrimination based on the protected activity of an employee “or any person acting pursuant to a request of the employee,” but the discrimination must be directed toward the employee, and under those laws it is the employee who may file a complaint.
What activity is protected? Employees participate in protected activity when they (1) report internally a violation of the environmental statutes, see, e.g., ERA, 42 U.S.C. § 5851(a)(1)(A)&(B); Passaic, 992 F.2d at 478–79; (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 proceedings that may implicate violations of environmental regulations.
Are any employees excluded from federal whistleblower protections? Yes. The federal environmental whistleblower laws do not protect any employee who, acting without direction from his or her employer (or the employer’s agent), deliberately causes a violation of federal environmental law.
What is illegal discrimination? The federal environmental statutes prohibit a wide range of retaliatory actions, including reprimands, termination, threats of discharge or layoff, 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 must a plaintiff prove to prevail? To prevail under any of the environmental statutes for unlawful discrimination, an employee must establish a prima facie case by showing the following:
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.
(Sometimes courts phrase it differently or break the prima facie case into five rather than four elements, but the basic rule is the same. Compare, e.g., Anderson, 422 F.3d at 1178 (five-factor test), with, e.g., Passaic, 992 F.2d at 480–81 (test parsed as four factors).
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, and non-pretextual reason for its action.
Where evidence of a “dual motive” exists, i.e., where reasons other than retaliation may also account for the employee’s termination, the employer has the burden to prove that it would have terminated the employee even if the employee had not engaged in the protected conduct. See, e.g., Passaic, 992 F.2d at 480–81 (CWA);Consol. Edison Co. v. Donovan, 673 F.2d 61, 62–63 (2d Cir. 1982) (ERA). The burden of proof is sometimes said to be a preponderance of the evidence, seePassaic, 992 F.2d at 481 (applying the CWA and general principles from non-environmental cases), and is sometimes clear and convincing evidence, for instance under the ERA, see 42 U.S.C. § 5851(b)(3)(B) & (D).
What can a prevailing plaintiff recover? A prevailing employee will be made whole, i.e., will be returned to the same position in which he or she would have been absent the retaliation. Depending on the federal environmental law at issue, a prevailing employee may be entitled to reinstatement, back pay with interest for lost wages, front pay, compensatory damages (for emotional distress and loss of professional reputation), restoration of seniority, sick leave, and other “privileges of employment,” and litigation costs, which may include attorney fees, expert-witness fees, and costs. In addition, some of the environmental whistleblower-retaliation statutes authorize exemplary or punitive damages “where appropriate” (under the TSCA and the SDWA) and other “affirmative relief” (such as requiring a letter of apology and formal posting of the decision).
Where should a complaint be filed? The federal environmental whistleblower laws are administered by the U.S. Department of Labor (DOL). Complaints must be filed in writing within 30 days of the date on which the discriminatory action was made and communicated to the employee (except for ERA complaints, which have a longer filing period), and should be mailed to:
U.S. Department of Labor
Office of the Assistant Secretary
Occupational Safety and Health Administration – Room S2315
200 Constitution Avenue
Washington, DC 20210
The Secretary of Labor promulgated regulations imposing additional requirements and procedures for handling whistleblower complaints by employees under all seven of the federal environmental statutes named above. See 29 C.F.R. §§ 24.100–24.115.
How soon must a complaint be filed? A complaint under six of the environmental statutes just discussed must be filed with the DOL in writing within 30 days of the time an employee learns that he or she will be, or has been, subjected to discrimination, harassment, or retaliation. For whistleblower actions under the ERA, complaints must be filed within 180 days.
As noted at the outset, many states have also enacted laws to protect whistleblowers. Many of these laws have a longer statute of limitations and other benefits unavailable under federal law.