Federal Whistleblower Laws Overview
Summary of available Federal Whistleblower Causes of Action, Remedies, and Damages under laws such as the Clean Air Act and Commercial Motor Vehicle Safety Act. Protections, filing requirements, investigation processes, and potential outcomes outlined for individuals considering whistleblower claims.
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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. 4thDCA 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
