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#715 - A Textbook for Whistle-blowers, 03-Jan-2001

As corporate power grows without limit, governments at all levels
are abandoning their responsibility to enforce laws. Instead,
they are relying on "voluntary compliance" by corporations. Under
these circumstances, the role of whistle-blowers assumes
increased importance; often they are the public's only protection
against dangerous violations of law. Whistle-blowers are
"insiders" in private firms and government agencies who dare to
speak out against waste, fraud, abuse and threats to public
health, often at great personal risk.[1]

Here are a few recent examples of whistle-blowers:

** In August, 2000, 40 members of the Los Angeles Police
Department sued in court alleging that their superiors enforced a
"code of silence" among police officers by punishing
whistle-blowers who reported police misconduct.[2]

** In October, 1994, a 20-year career federal safety inspector,
Steve Jones, was fired for reporting more than 500 safety
violations at a chemical weapons incinerator operated by a
private contractor at Utah's Tooele Army Depot. Taylor said the
contractor (his employer) had ignored and covered up releases of
toxic nerve gas that put workers in immediate danger.[3]

** In November, 1998, employees of private health care firms blew
the whistle on a scheme by over 200 hospitals to bilk the federal
Medicare program out of billions of dollars by filing false
expense reports over a 14-year period.[4]

** In 1996, EPA (U.S. Environmental Protection Agency) biologist
Dr. David Lewis was silenced by his EPA supervisors when he
warned that sewage sludge approved by EPA for use on farm land is
a threat to human health because it is contaminated with
dangerous pathogens including E. coli, salmonella, and the
hepatitis virus.[5]

These are only a few examples of whistle-blowers protecting the
public interest.

This week we have whistle-blower William Sanjour a long-time
employee of U.S. Environmental Protection Agency (see REHN #350,
#392, #484, and #612) reviewing a new book written for
whistle-blowers and their lawyers by Steven Kohn[6], founder of
the National Whistleblower Center in Washington, D.C.[7]

--Peter Montague

A Textbook for Whistle-blowers

by William Sanjour [8]

Anyone who has blown the whistle on corporate or government waste
fraud or abuse, or is contemplating blowing the whistle or any
activist or union organization which encourages or advises
whistle-blowers needs to know the laws governing the protection
of whistle-blowers. And there are plenty of laws; good laws,
strong laws, enforceable laws. But there are also plenty of flaws
and pitfalls to undo the unprepared.

Steve Kohn is the nation's outstanding whistle-blower lawyer and
he's written a first-rate book on the state and federal
whistle-blower protection laws. His book is written mainly for
attorneys but it offers guidelines for laymen to avoid the flaws
and pitfalls and take advantage of the protection afforded by the
laws.

In my own experience there are several misconceptions of the law
which prevent would-be environmental whistle-blowers from taking
action, or from choosing the best action, or which prevent
whistle-blowers from seeking legal protection from retaliation.

The first misconception is the fear that they would not be able
to prove that an adverse action taken against them by their
employer was indeed retaliation for blowing the whistle. Short of
firing, retaliation against a whistle-blower usually takes the
form of harassment such as transfer to a dead-end position or
reassignment to a hostile work environment. Management usually
gives a rational-sounding explanation for these actions (e.g.,
the worker's performance has fallen below par or the needs of the
organization require the whistleblower's transfer), so
whistle-blowers often think that the burden of proof is on them
to show that the action is harassment in retaliation for the
whistle-blowing activity. Often whistleblowers are cowed by the
enormity of the burden. In fact, under most circumstances, that
burden hardly exists. Kohn cites, for example, a decision from
the U.S. Court of Appeals for the Seventh Circuit (pg. 82):

"[T]he plaintiff, on the one hand, can make out a prima facie
case of retaliation, and shift the burden of persuasion to the
defendant, with circumstantial evidence that her disclosure was a
contributing (not necessarily a substantial or motivating) factor
in the adverse personnel action taken against her; and the
defendant, once the burden has shifted, must prove not merely by
a preponderance but by clear and convincing evidence that it
would have taken the same action against the plaintiff even in
the absence of her protected disclosure."

By keeping good records an employee can establish evidence of
discriminatory motives on the part of the employer and thereby
shift the burden. Kohn cites 32 examples (pgs. 268-270) of
factors, which have been successfully used. A few of these are:

** high work performance rating prior to engaging in protected
activity, and low rating or "problems" thereafter;

** discipline, transfer, or termination shortly after the
employee engaged in protected activity;

** change in attitude of management before and after employee
engaged in protected activity, and attitude of supervisors toward
whistle-blowers;

** absence of previous complaints against employee;

** differences between the way the complainant and other
employees were treated;

** absence of warning before termination or transfer;

** willingness to deviate from established procedure;

** contradictions in an employer's explanation of the purported
reasons for the adverse action.

This misconception about the burden of proof is often shared by
the employer as well. Frequently employers arrogantly believe
they can do anything they want to punish or silence a
whistle-blower just by inventing reasonable-sounding excuses for
doing so. This can work to the advantage of the whistle-blower if
he or she understands the law.

The whistle-blower can even get the employer to incriminate
himself if he knows the law and the employer does not. For
example, when I was transferred to a meaningless position shortly
after blowing the whistle on EPA's decimation of the hazardous
waste regulations, my boss called me into his office to explain
his rationalization for my transfer. I recognized that the
reasons he gave me were contrary to EPA rules but I kept quiet
and let him talk. After the meeting I sent him a memorandum
politely summarizing his comments and he returned it with a few
minor corrections. This document later became the basis of my
successful challenge to the transfer. In all but 7 states it is
also legal to tape record conversations with your boss without
your boss knowing it.

The second misconception is the uncertainty of a whistleblower or
would be whistle-blower that the act that he is concerned about
may not actually be illegal. After all, environmental law is a
very convoluted and tricky business, perhaps intentionally so.
For example an employee may be witness to the fact that his
company is dumping toxic waste into a municipal landfill. His
efforts to get the company to stop the practice are futile. His
management assures him that the waste is not "technically" a
hazardous waste because of loopholes in the EPA regulations. He
doesn't know if that's true, but regardless, he believes that the
practice is dangerous. He would like to blow the whistle on the
dumping but he doesn't know if he'd be legally protected against
retaliation if the dumping is lawful or if the company can
convince the authorities that the dumping is harmless. Kohn
points out he needn't be concerned (pg. 264):

"Under most whistleblower protection laws, an employee is under
no obligation to demonstrate the validity of his or her
substantive allegations. Although the safety or legal concern
that resulted in the initial whistleblower disclosure need only
be based on a good faith belief that an actual violation
occurred, this 'good faith' belief must be based on 'reasonably
perceived violations' of the applicable law or regulations.
Employees are under no duty to demonstrate the underlying
veracity or accuracy of their safety allegations."

A third misconception, perhaps brought about by movies such as
SILKWOOD, is that retaliation has to be overt and severe before
the whistle-blower can hope for any protection under the law. In
fact the courts have recognized many lesser forms of retaliatory
action (pg. 243):

"Under the nuclear, trucking, and environmental whistleblower
laws, the DOL [Department of Labor] has 'broadly construed' the
definition of adverse action to 'prevent the intimidation of
workers through retaliation.' Various employer practices have
been held to be illegal discrimination, including the elimination
of a position, causing embarrassment and humiliation, transfers,
and demotions; 'constructive discharge' (or making working
conditions so difficult as to force a resignation); blacklisting;
issuance of a disciplinary letter; a reassignment to a less
desirable position (even with no loss of salary or grade);
negative comments in an evaluation; a retaliatory order to
undergo a psychological 'fitness for duty' examination; ....
denial of promotion; threats; .... transfer to a position where
employee could not perform supervisory duties; circulation of
'bad paper' comments and other forms of 'bad mouthing;' moving an
office and denying parking and access privileges;..." and many,
many other negative actions by employers (see pgs. 241-247).

However, none of this should lead to complacency. There are many
pitfalls. If the courts are generous to whistle-blowers in
applying the rules of evidence, they are very fussy about
procedures. The U.S. Supreme Court is not the only court where
deadlines are more important than justice. Kohn explains (pg. 5):

"One major weakness in many statutory whistleblower protection
laws is the short statute of limitations..... Failure to comply
with the statute of limitations is a common defense [by
employers] in whistleblower cases, and the statute is generally
held to start running at the time that an employee learns that he
or she will be retaliated against, not on the last day of
employment."

In most cases the statute of limitations is only 30 days. In
other words, if a whistle-blower feels an adverse action has been
taken against him, he must file a complaint with the appropriate
authority within 30 days. Very often if the adverse action is
something as amorphous as an unjust criticism or a change in work
pattern it may take a while for the whistleblower to even
recognize that it was an adverse action and an even longer time
to seek counsel and file the correct papers with the appropriate
authority.

Federal employees are protected by many laws, the strongest of
which are seven environmental and nuclear laws. However another
pitfall for the unwary civil servant is to seek redress instead
under the mislabeled federal Whistleblower Protection Act. In the
experience of many whistle-blowers, including myself, this act
and the Merit System Protection Board it created exist more for
the protection of the government. Thus a whistle-blower must
carefully choose the law under which to file a complaint.

My personal advice to any whistle-blower is to make sure his or
her lawyer has a copy of Kohn's book and has read it.

=====

[1] The U.S. Department of Labor maintains a "whistle-blower
collection" online at http://www.oalj.dol.gov/libwhist.htm where
you can learn about recent whistle-blower cases.

[2] LOS ANGELES TIMES Aug. 25, 2000, pg. unknown. See
http://www.mapinc.org/drugnews/v00/n1236/a06.html.

[3] See http://www.hcn.org/servlets/hcn.Article?article_id=578

[4] See http://www.usnews.com/usnews/issue/981102/2wstl.htm.

[5] See http://www.hcn.org/servlets/hcn.Article?article_id=578
and see http://www.whistleblowers.org/Browner7-13-00.htm.

[6] Stephen M. Kohn, CONCEPTS AND PROCEDURES IN WHISTLEBLOWER LAW
(Westport, Conn., Quorum Books, 2001). ISBN 1-56720-354-X.

[7] The National Whistleblower Center web site can be found at
http://www.whistleblowers.org/index.html.

[8] The Collected Papers of William Sanjour can be found at
http://pwp.lincs.net/sanjour.