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Pivec Whistleblower Issues08


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Employer Update on DOL Whistleblower Jurisdiction and Enforcement, Particularly OSHA 11(c) Cases and PAWA

Employer Update on DOL Whistleblower Jurisdiction and Enforcement, Particularly OSHA 11(c) Cases and PAWA

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    • 1. The Ever Expanding World of Employee Protected Activity: Retaliation and Whistleblower Law Update Presented by Mary E. Pivec, Esq. Keller and Heckman LLP 1001 G Street N.W., Suite 500W Washington, D.C. 20001 202-434-4212 [email_address] Washington, D.C. ● Brussels ● San Francisco ● Shanghai ABC Attorneys Conference December 3, 2008
    • 2. Agenda Topics
      • EEOC Trends, Supreme Court Cases – Retaliation Claims
      • Consumer Product Safety Improvement Act of 2008 – Whistleblower Provision
      • Introduction to the DOL Administrative Review Board
      • 2007-2008 SOX Whistleblower Case Update
      • STAA Whistleblower Update
      • Protecting America’s Workers Act
    • 3. EEOC Retaliation Charges
    • 4. Supreme Court’s 2006 Ruling In Burlington N. & Santa Fe Ry. Co. V. White Turned Up The Heat
    • 5. New Material Adversity Standard
      • Questions whether the challenged action would dissuade a reasonable worker in plaintiff’s situation from making or supporting a charge of discrimination.
      • Fact question to be decided by the jury based on:
        • Plaintiff’s age, education, experience, position, and tenure
        • Perpetrator’s position and influence
        • Employer’s policies and practices re: retaliation
    • 6. Why Does This Matter?
      • Pre- White – In certain circuits, employers had a shot at summary judgment in retaliation cases where there was no tangible, adverse job action, or where the plaintiff was made whole before the case came to trial. Result – no trial, no risk of jury distain for bad conduct, no attorney’s fees.
      • Post- White – No summary judgment issue where plaintiff proves she engaged in protected conduct and she claims retaliation short of a tangible adverse job action. Employer motive must be determined by jury.
    • 7. Supreme Court Retaliation Decisions 2007-2008 Term and Beyond
      • Crocs West, Inc. v. Humphries – Implied CA for retaliation under §1981 (7-2)
      • Gomez-Perez v. Potter – Implied CA for retaliation under the ADEA (5-4)
      • Crawford v. Metropolitan Government of Nashville – Is participation in internal sexual harassment investigation protected under Title VII?
    • 8. Meanwhile Congress Has Been Busy We must protect the whistleblowers! The Consumer Product Safety Improvements Act of 2008
    • 9. Visions of Things To Come
      • Protecting America’s Workers Act
    • 10. Protecting America’s Workers Act (PAWA)
      • S.B. 1244 (110 th Congress) – Kennedy – principal sponsor. Co-sponsors include Biden , Durbin, Schumer, Dodd, Clinton, Harkin, McCaskill, Obama , Casey, Lautenberg, Murray, Boxer, Menendez, Leahy, Saunders, and Rockefeller
    • 11.
      • No person shall discharge or in any manner discriminate against any employee because the employee has:
        • Filed any workplace safety or health complaint;
        • Caused any workplace safety or health proceeding to be initiated (e.g., OSHA or NIOSH investigation);
        • Testified or is about to testify in any workplace safety or health proceeding (e.g., OSHA investigation, citation contest); or
        • Exercised on his own behalf or on behalf of others any right afforded by the OSH Act.
      Whistleblower Protection Under OSH Act Section 11(c)
    • 12. Work Refusals Under 11(c)
      • General Rule: An employee or contractor is protected against discipline or discharge if forced to choose between
        • Not performing assigned task or
        • Performing assigned task that the associate reasonably believes would subject him to serious injury or death
    • 13. Work Refusals Under 11(c) continued
      • Under current law, an employee or contractor must satisfy four
      • legal requirements to prevail if discriminated against for refusal to
      • perform an assignment :
      • Subjective good faith;
      • Objective reasonableness;
      • Insufficient time to report to OSHA and gain correction;
      • Reported to company without correction.
      • Under PAWA, third bullet point
      • is eliminated.
    • 14. PAWA Complaint Procedures
      • Complaint filing period – within 180 days of adverse action (up from 30 )
      • Respondent due process rights
        • written notice of the complaint, allegations and supporting evidence
        • opportunity to file a written opposition and to meet with a DOL representative to present rebuttal evidence and testimony under oath
      • If the Secretary fails to conclude an investigation w/n 90 days, the Complainant may request a hearing on the record before an ALJ
    • 15. PAWA Burdens of Proof
      • Complainant (Preponderance Standard)
        • Engaged in protected activity
        • Known to Respondent(s)
        • Protected activity was a contributing factor in discriminatory conduct
      • Respondent (Clear and Convincing Standard)
        • Would have taken the same unfavorable action regardless of knowledge of Complainant’s protected activity
    • 16. PAWA – Preliminary Relief Orders
      • If the Secretary (OSHA) finds reasonable cause to believe that 11(c) was violated, the Secretary will order make whole preliminary relief including reinstatement, back pay, and special damages including attorney’s fees [Mirrors STAA, SOX, CPSIA preliminary relief provisions]
      • Reinstatement to prior position is mandatory, subject to enforcement in U.S. district court, even if respondent seeks de novo hearing before an ALJ.
    • 17. PAWA Hearings and Appeals
      • W/n 30 days of issuance of DOL findings, either party may request a hearing before a DOL ALJ
      • OALJ Rules of Practice and Procedure provide for extensive pre-trial discovery and motions practice
        • Federal Rules of Evidence do not apply
        • ALJ issues a recommended decision and order (RD&O) following closing of the record
        • RD&O matures into a final order unless either party files a request for review w/n 30 days before the DOL Administrative Review Board (ARB)
          • De Novo standard applies to ALJ legal determinations
          • Substantial evidence standard applies to ALJ fact findings
          • Abuse of discretion standard applies to ALJ procedural and evidentiary rulings
      • Review of final agency order – Petition for Review must be filed within 60 days with the U.S. Court of Appeals for the circuit in which violation occurs (APA Rules)
    • 18. Whistleblower Cases Received by OSHA in FY 2007
    • 19. ARB Appellate Jurisdiction
      • Whistleblower Statutes
      • AIR 21
      • LHWDA
      • Nuclear & Environmental W/B
      • PSI
      • SOX
      • STAA
      • PAWA (?)
    • 20. Current Members of The Department of Labor Administrative Review Board
      • M. Cynthia Douglas – Chair
      • Wayne S. Beyer
      • Oliver Transue
      • Judith C. Boggs
      • Caution Ahead: New Administration= New Board
    • 21. Surface Transportation Assistance Act Update
      • Makes it unlawful for an employer to discharge, discipline or discriminate against an employee regarding pay, terms or privileges of employment for refusing to operate a commercial vehicle because the operation violates a regulation, standard, or order of the U.S. related to commercial motor vehicle safety, health or security.
    • 22. Significant Recent STAA Case Law Developments
      • Many are called – few are chosen
      • Bettner v. ARB and Crete Carrier
      • Corporation , No. 07-2679 (7 th Cir., Aug.
      • 21, 2008), ARB No. 06-103
      • Driver claimed undesirable transfer was made in retaliation for his complaints about his inability to meet scheduled runs within DOT driver hour rules
      • Carrier successfully rebutted claim based on reasonable belief that Driver exhibited poor planning skills and repeatedly failed meet the tight scheduling requirements of dedicated runs for GM
      • 7 th Cir. aff’d ARB decision – Driver did not dispute grounds for transfer and otherwise failed to prove that the Carrier’s scheduling requirements were so tight that no driver could meet them without violating DOT hours’ restrictions
    • 23. ABC Attorneys Conference December 2008 The Ever Expanding World of Employee Protected Activity: Retaliation and Whistleblower Law Update Presented by Mary E. Pivec, Esq. Keller and Heckman LLP 1001 G Street N.W., Suite 500W Washington, D.C. 20001 202-434-4212 [email_address]