Federal Whistleblower Laws Overview

INDIVIDUAL

WHISTLEBLOWER

CLAIMS

Behren Law Firm

, 2893 Executive Park Drive-Suite 110, Weston, FL

33331

(954) 636-38802  -scott@behrenlaw.com

Federal WB Causes of

Action



Give summary of Federal WB Causes of Action that

Might be Available, the Remedies Available and

Damages Available



Purpose is to see in each instance what are upsides

or downsides of bringing Federal or State Causes of

action and what remedies might be available to

prospective clients

Clean Air Act (CAA)



Protection to those who commence or participate in

proceedings under the CAA



EE must file complaint with Sec of Labor within 30

days of violation



Within 30 days Sec of Labor Must Notify of Results

of Investigation



Within 90 days of Complaint Sec of Labor shall

issue order affording relief or denying Complaint

Clean Air Act (CAA)



Sec of Labor can order ER to take action to abate the

violation; reinstate the EE to former position along

with back pay, etc.; order compensatory damages;

award of costs and expenses to prevailing party



Aggrieved Party my seek review of Sec of Labor

Order by Circuit Court of Appeals in 60 days



Parties and Sec of Labor may enforce its Order in

U.S. District Court.



42 U.S.C Section 7622

Commercial Motor Vehicle

Safety Act (CMVSA)



Prohibits discharge or termination or adverse

actions based upon participation or complaints

about commercial motor vehicle safety or refuses to

operate vehicle in violation of law or has

apprehension of injury because of unsafe conditions



EE may file complaint with Sec of Labor within 180

days after violation



Within 60 days Secretary will conduct investigation

and notify parties of findings

Commercial Motor Vehicle

Safety Act (CMVSA)



If Secretary believes violation occurred, will issue

order of relief



Within 30 days of Secretary’s findings parties may

object and request a hearing



Within 120 days after hearing, Secretary will issue

final order



Secretary can order relief to abate actions, reinstate

the EE, compensatory damages and back pay,

attorneys fees and costs

Commercial Motor Vehicle

Safety Act (CMVSA)



Within 60 days after Order, party may review with

U.S. Court of Appeals



Secretary may bring civil action in U.S. District

Court to enforce Orders



49 U.S.C. Section 31105

Comprehensive

Environmental Response

Compensation and Liability

Act (CERCLA)



Superfund Act



Prohibits Actions against employees for providing

information to state or federal government  or

instituting proceedings or participating in

proceedings



EE may within 30 days apply to Sec of Labor for

review of termination or discrimination

Comprehensive

Environmental Response

Compensation and

Liability Act (CERCLA)



Secretary will conduct investigation and reach

findings of fact



If Secretary finds violation occurred, order will be

issued requiring violation to be abated and

reinstatement of EE and fees and costs



Order issued by Secretary is subject to judicial

review



42 U.S.C 9610

Department of Defenses

Authorization Act



Prohibits defense contractors from discharging,

demoting or discriminating against employees  for

disclosing violation of law related to contract or

negotiation of contract



EE may submit complaint to Inspector General



IG will issue report with findings of fact



May order to abate violation; order reinstatement of

EE with back pay, benefits, etc. order fees and costs

Department of Defenses

Authorization Act



Orders may be enforced in U.S. District Court



Court may grant injunctive relief, compensatory

and exemplary damages



Within 60 days of Order may review by U.S. Court

of Appeals



10 U.S.C Section 2409

Dodd-Frank Act



Section 748 prohibits ER from discharge or

discriminating against employees relating to

violations of the Commodity Exchange Act;



Section 922 prohibits ER from discharge or

discriminating against EE for providing information

relevant to violation of securities laws to the SEC or

making disclosures required by SOX or any other

law subject to SEC jurisdiction.  Under 21F EE who

prevails gets reinstatement, costs and fees 

and two

times the back pay owed

Dodd-Frank Act



Section 1057 prohibits employers engaged in

providing consumer financial products or services

from terminating or discriminating against

employee because provided information or testified

in matter pertaining to Dodd Frank or the

Consumer Financial Protection Bureau or instituted

any proceeding under consumer financial law etc.



May file Complaint with Sec of Labor in 180 days.

Within 60 days, Sec will commence investigation.

Parties may file objections to Secretary’s findings

and request a hearing within 30 days

Dodd-Frank Act



If hearing conducted, Secretary must issue final

order or deny complaint within 120 days after

hearing.



Secretary may order abatement of action,

reinstatement of EE, back pay, compensatory

damages, fees and costs



May seek review of Sec Order with U.S. Court of

Appeals



If Sec fails to issue timely order, complainant may

seek de novo review in US DC.

Energy Reorganization Act

of 1974 (ERA)



Prohibits discharge or discrimination of employees

for allege violations of ERA or Atomic Energy Act,

etc.



EE may file Complaint the Sec of Labor within 180

days of violation



Sec of Labor will complete investigation within 30

days



Within 90 days of Complaint Secretary will issue

Order

Energy Reorganization Act

of 1974 (ERA)



Secretary may order to abate violation, reinstate the

EE with back pay and benefits, order compensatory

damages, award attorneys fees and costs



Secretary will dismiss a complaint and not conduct

an investigation unless complainant has made a

prima facie showing that the protected action was a

contributing factor in the alleged unfavorable

personnel action

Energy Reorganization Act

of 1974 (ERA)



May seek review of Secretary Order in U.S Court of

Appeals within 60 days of Order



Secretary may enforce Order in U.S. District Court

Fair Labor Standards Act



Prohibits discharge or discrimination because

employee complained or participated in proceeding

alleging violation of statute



EE may file private suit in Federal or State court and

seek, legal and equitable relief, reinstatement, lost

wages, liquidated damages, fees and costs

FDA Food Safety

Modernization Act



Applies to employers involved in manufacture,

processing, packing, transport, distribution and

importation of foods



No actions against EE due to complaints or refusal

to participate in violations of FDA Act



EE may file Complaint with Secretary of Labor

within 180 days after violation



Within 60 days of Complaint Secretary will initiate

investigation

FDA Food Safety

Modernization Act



If Secretary finds reasonable causes, will issue

findings and Order for abatement of violation,

reinstatement and compensatory damages



May file Objections to findings and Order and

request a hearing



Final Order must by issued by Secretary within 120

days after hearing’s conclusion



If Secretary fails to issue timely decision, may seek

de novo review of U.S. District Court



21 U.S.C. Section 1021

Federal Mine Safety and

Health Act (FMSHA)



Protects employees for violations of FMSHA



EE may file complaint with Secretary of Labor

within 60 days of violation



Within 15 days, Secretary will start investigation



If Secretary does not believe Complaint was

frivolous, will order immediate reinstatement of

miner pending final order



Within 90 days of Complaint, Secretary will notify

miner of whether a violation occurred

Federal Mine Safety and

Health Act (FMSHA)



If Secretary believes the miners rights were violated,

miner shall have immediate right to file action

before the Federal Mine Safety and Health Review

Commission



Commission will have hearing and issue order and

granting relief as appropriate including fees and

costs



Order may be reviewed by U.S. Court of Appeals



30 U.S.C. Section 815 and 816

Federal Water Pollution Control

Act of 1972 (FWPCA)



Protects employees from violations of FWPCA



EE may apply with Sec of Labor within 30 days after

violation occurs



Secretary will conduct investigation and make

findings of fact



Secretary can order abatement of violation, rehiring

or reinstatement of employee with compensation

and fees and costs

Federal Water Pollution Control

Act of 1972 (FWPCA)



Orders shall be subject to judicial review



33 U.S.C. Section 1367

Longshore and Harbor Workers

Compensation At (LHWCA)



Protects employees from adverse actions if

employee claims or attempts to claim compensation

from employer



ER liable for violations from $1,000 to $5,000



If penalties not paid, may be recovered in U.S.

District Court



EE shall be resorted to employment and

compensated for loss of wages

Longshore and Harbor Workers

Compensation At (LHWCA)



Employer and insurance carrier shall be jointly

liable for penalties and payments



33 U.S.C. Section 948

Migrant and Seasonal

Agricultural Worker Protection

Act (MSAWPA)



Protects EE from discrimination, coercing,

threatening, blacklisting, discharging for complaints

under the MSAWPA.



EE may file Complaint with Sec of Labor within 180

days of violation



Secretary will investigate if if deems appropriate will

bring action in U.S. District Court



U.S. District Court will be able to enjoin violation,

order reinstatement with back pay and damages



29 U.S.C. Section 1855

Occupational Safety and

Health Act of 1970



No discharge or discrimination against employee

complaining to OSHA



EE may file Complaint with Secretary of Labor

within 30 days



Secretary will conduct investigation and deemed

appropriate



If Secretary deems violation has occurred, will bring

action in U.S. District Court, and Court can restrain

violation, and order relief such as reinstatement and

back pay

Occupational Safety and

Health Act of 1970



29 U.S.C. Section 660

Safe Drinking Water Act

(SDWA)



No firing or discrimination and employee for

violations of SDWA



EE may file with Secretary of Labor for review

within 30 days after violation



Secretary of Labor will conduct investigation as

deemed appropriate



Secretary will will issue order within findings of fact

Safe Drinking Water Act

(SDWA)



Secretary Order may seek abatement of violation,

rehiring or reinstatement of employee,  award of

fees and costs



Order may be reviewed by U.S. Court of Appeals

within 60 days



Secretary may enforce Order in U.S. District Court



42 U.S.C. Section 300

Sarbanes-Oxley Act of 2002

(SOX)



Applies to publicly traded companies and

subsidiaries and affiliates



No actions against employee for complaining of any

violation that employee reasonably believed was

violation of SOX or any SEC rule or regulation



EE may file complaint with Secretary of Labor



IF Secretary has not issued final decision within 180

days, employee may seek de novo review in U.S.

District Court

Sarbanes-Oxley Act of 2002

(SOX)



Action must be commenced within 180 days after

date on which the violation occurs



Prevailing employee may be awarded

reinstatement, back pay, compensation for special

damages, fees and costs



Fees only to prevailing employee



No 

McDonald Douglas 

test



18 U.S.C. Section 1514A

Solid Waste Disposal Act

(SWDA)



Protects Employees for Complaints about violations

of SWDA



EE may apply to Secretary of Labor within 30 days

after violation for review



Secretary will investigate and will issue findings of

fact and may order abatement of conduct, rehiring

or reinstatement, compensation fees and costs

Solid Waste Disposal Act

(SWDA)



Secretary Order subject to judicial review



42 U.S.C. Section 6971

Surface Mining Control and

Reclamation Act (SMCRA)



Protects employees for complaints about violations

of SMCRA



EE may may make complaint with Secretary of

Labor within 30 days of violation



Secretary will make investigation and may order

abatement of action, rehiring or reinstatement with

compensation and fees and costs

Surface Mining Control and

Reclamation Act (SMCRA)



Secretary Orders subject to judicial review



30 U.S.C. 1293

Toxic Substances Control

Act (TSCA)



Protections to employees for violations of TSCA



EE may file Complaint with Sec of Labor within 30

days of violation



Secretary will complete investigation within 30 days



Within 90 days Secretary will issue Order which can

include seeking abatement of action, reinstatement,

compensatory damages, exemplary damages fees

and costs

Toxic Substances Control

Act (TSCA)



May seek review of Order in U.S. Court of Appeals

within 60 days of Order



Secretary can file civil action in U.S. District Court

to enforce its orders



District Courts shall have jurisdiction to grant

injunctive relief, compensatory and exemplary

damages



15 U.S.C. Section 2622

Whistleblower Protection

Act (WPA)



Generally provides protection to federal employees

who make disclosures evidencing illegal or

improper government activities



Need to look at statute since some employees are

not covered by its provisions



Employees may raise protections in an employee

appeal to the Merit Systems Protection Board

(MSPB) or an action instituted by the Office of

Special Counsel (OSC) or through an individual

action

Florida WB Causes of

Action



Florida Private Whistleblower Act (Fla. Stat.

448.101-448.105)



Florida Public Whistleblower Act (Fla. Stat.

112.3187)



Florida Workers Compensation Retaliation Act (Fla.

Stat. 440.205)



Anti-Retaliation Provisions of Florida Civil Rights

Act (Fla. Stat. 760.10(7))

Florida Workers Compensation

Retaliation Act



Fla. Stat. 440.205 provides “No employer shall

discharge, threaten to discharge, intimidate or

coerce any employee by reason of such employee’s

valid claim for compensation under the Workers

Compensation Law.”

Florida Civil Rights Act



Fla. Stat. 760.10(7) “It is an unlawful employment

practice for an employer, an employment agency, a

joint labor management committee, or a labor

organization to discriminate against any person

because that person has opposed any practice which

is an unlawful employment practice under this

section or because that person has made a charge,

testified, assisted or participated in any manner in

an investigation, proceeding, or hearing under this

section.”

Florida Public

Whistleblowers Act



Contained in Fla. Stat. Section 112.3187.

Florida Private

Whistleblowers Act



Contained in Fla. Stat. 448.101 through 448.105.



No condition precedent to filing with any state of

federal agency

Arbitration of WB Claims



Hospicecare of Southeast Florida, Inc. v. Major

,

968 So.2d (Fla. 4

th

 DCA 2007)



Appeal Court Reversed trial court and held that

whistleblower claims were arbitrable where there

was contractual arbitration provision  stating “any

controversy or claim arising out of or related to this

Agreement, or any breach thereof shall be settled by

arbitration”



Cited to 448.105 that the WB Act preserves the

rights of parties to an employment contract

Removal of WB Issues



Paula Bonnafant v. Chico’s Fas Inc.

, Case No: 2:13-

cv-893-FtM-29CM (M.D. Fla. 4/25/14)



EE complained about being forced to make knock

offs in violation of intellectual property laws in

violation of Fla. WB Act



ER claimed that action was removable under federal

question jurisdiction since it arises under federal

patent and trademark laws

Removal of WB Issues



“The mere presence of a federal issue in a state

cause of action does not automatically confer federal

question jurisdiction.”



The federal question is not substantial and

resolution in a federal court would cause significant

disruption to the federal state balance, the claim

does not “arise under” federal law and this Court

does not have jurisdiction

Removal of WB Issues



Isidoro Hernandez v Publix Super Markets, Inc.

, Case

No: 14-20491-CIV-Altonaga



EE complained about food safety violations and Publix

removed based upon federal question jurisdiction



“…to determine whether there is a federal subject matter

jurisdiction, the Court must evaluate whether the state

law claims necessarily raise a stated federal issue,

actually disputed and substantial, which a federal forum

may entertain without disturbing any congressionally

approved balance of federal and state judicial

responsibilities.”

Removal of WB Issues



Cites to 

Aery

 case for proposition that EE must only

establish a “good faith objectively reasonable belief

that his activity was protected by the statute.”

Disapproves of “actual violation of law” standard

previously used by federal courts



Federal court’s applying state law are bound to

adhere to decisions of the state’s intermediate

appellate courts absent some persuasive indication

that the state’s highest court would decide the issue

otherwise

Removal of WB Issues



Federal law is not so implicated that subject matter

jurisdiction exists

Removal of WB Issues



Kanfer v. Wellcare of Florida, Inc

, Case No: 09-

81587-CIV-Zloch (3/6/10)



Remand to state court where the matter involves

primarily construction of state law, not federal law.

Number of Employees for

WB Act Claim



Ashley Seijo v. Casa Salsa, Inc

., Case No: 12-60892-

CIV-SCOLA (S.D. Fla. 11/25/13)



Used WB Act claiming violation of Broward County

Human Rights Act



Issues of Fact as to Number of Employees where

Employer misclassified employees as 1099

Number of Employees For

WB Act Claim



Luis Diaz v. Impex of Doral, Inc.

, 7 So.3d 591 (Fla. 3

rd

DCA 2009)



Attempted to use “single employer” or “joint employer”

doctrine to get around ten employee requirement of WB

Act



Was error for trial court to enter directed verdict and not

let issue of joint employer go to jury



Cited to 

Martinolich v. Golden Leaf Management, Inc

.,

786 So.2d 613 (Fla. 3d DCA 2001) for proposition that

“joint employer” doctrine is applicable to Florida WB

actions

Good Faith v Actual

Violation



John Aery v. Wallace Lincoln Mercury, LLC

, 118 So.3d

904 (Fla. 4

th

 DCA 2013)



To satisfy WB Act employee must only have a good faith

objectively reasonable belief that his activity is protected

by the statute



Allowed recovery of emotional distress damages under

Florida WB Act



Also reversed summary judgment on mitigation of

damages where  emotional distress caused by

termination kept him from finding other employment



Only appellate court in Florida to have ruled on issue

Actions of Fellow Employees

Under the WB Act



Norman v. Bright Horizons Family Solutions, LLC

,

Case No: 8:12-cv-1301-T-17TBM (M.D. Fla. 1/23/14)



Court agrees that 448.102(2) applies to reporting a

fellow employee’s violation of law, rule or

regulation conducted in the course and scope of

employment



Court found sufficient evidence in the record where

a jury could find that ER ratified behavior of fellow

employee through inaction

Actions of Fellow Employees

Under the WB Act



In FN 1, Court refused to apply “but for” analysis of

Nassar to WB Act.  These state statutes such as the

Florida WB Act, are written in a much broader

manner than Title VII.  The Court declined to apply

the “but for” analysis to Florida WB claims.

Actions of Fellow Employees

Under the WB Act



Pinder v Bahamasair Holdings Ltd. Inc.

, 661

F.Supp.2d 1348, 1349 (S.D. Fla. 2009)



Employee’s activity of reporting a fellow employee

could fall within the protected activity under the

WB Act.

Actions of Fellow Employees

Under the WB Act



Nidia Juarez v. New Branch Corp

., 67 So.3d 1159 (Fla.

3

rd

 DCA 2011)



SJ entered in favor of employer



Employee complained of violence by co-worker, she filed

police report and obtained restraining order and that

workplace violence is prohibited by OSHA rules



Appellate Court upheld SJ  because Plaintiff did not

show that workplace violence was policy or practice of

employer and because there was no evidence that battery

was in course and scope of employer’s business

Punies Under WB Act



Kim Dunn v. TZ Insurance Solutions, LLC

, Case No:

3:13-cv-292-FtM-29UAM



Motion to Strike EE Punitive Damages Claim was

Granted because punitive damages are not available

under the WB Act.

Fees Under WB Act



Robert Barnhart v. The Lamar Company, LLC

, Case No:

4:11-cv450 (N.D. Fla. 2012)



EE loses public WB claim on SJ



Fee awards to prevailing parties are discretionary



Notes that 

Christianburg

 standard does not apply to this

statute



An employer is not entitled to an award of fees simply

because it prevailed.  The relative merit of the

employee’s claims is surely a factor in the analysis

Fees Under WB Act



Robert Barnhart v. The Lamar Company, LLC

,

Case No: 4:11-cv450 (N.D. Fla. 2012)



“When an employee complains about an employer’s

illegal  conduct and has good grounds for doing so,

a court should not lightly award fees against the

employee or his attorney, even if the employee’s

whistleblower action ultimately fails.”

Fees Under WB Act



Edwin Hernandez v. Motorola Mobility, Inc.

, Case

No: 12-60930-CIV-Cohen/Seltzer



Awarding fees to ER is discretionary



Declined to award fees since litigation was fairly

extensive and involved.  “…the Court cannot say

that Plaintiff’s claims could have been easily

resolved, that it was frivolous or that it was brought

in bad faith.”

Fees Under WB Act



Melissa Wigfall v. Saint Leo University

, 8:10-CV-

2232-T-24-TGW (9/5/12)



Case brought under the FCRA, WB, and FLSA



Court awarded fees to prevailing ER under WB Act



Fact that claims were brought under FLSA  did not

showing of bad faith under WB Act based upon

Federal Preemption

Fees Under WB Act



Smith v. Psychiatric Solutions, Inc

., 864 F.Supp.

1241 (N.D. Fla. 3/30/12)



Fees awarded to prevailing ER under WB Act



Argued based upon SOX claim brought that under

Supremacy Clause SOX fee provision preempts Fla

WB Act provision and that fees should not be

awarded under federal preemption



Court argued that SOX and WB claims were

different so that there was no preemption

Fees Under WB Act



Although Court used rationale that under WB Act

must show actual violation, possibly this decision

changes under 

Aery



Under WB Act award of fees is discretionary and

factors to be considered include whether case was

frivolous, scope and history of the litigation, parties

wealth disparity, whether an award of fees would

frustrate the WB Act remedial purposes whether the

party acted in good or bad faith