April 5, 2006 Anchorage, Alaska

1. Alaska Bar AssociationFederal Whistleblower Protection Statutes:An Alternative Remedy April 5, 2006 Anchorage, Alaska

2. Presented by: Billie Pirner Garde Clifford & Garde Washington, D.C.

3. Whistleblowing…. • The changing role of employees in protecting the public; • The federal laws that protect them. Alaska Bar Association April 5, 2006

4. Alaska Bar Association April 5, 2006

5. “Obviously A Major Malfunction” Alaska Bar Association April 5, 2006

6. Unacceptable Consequences “No fundamental decision was made at NASA to do evil; rather, a series of seemingly harmless decisions were made that incrementally moved the space agency toward a catastrophic outcome.… No rules were violated; there was no intent to do harm. Yet harm was done. Astronauts died.” Diane Vaughan, The Challenger Launch Decision 409-410 (1996) Alaska Bar Association April 5, 2006

7. Alaska Bar Association April 5, 2006

8. Fatal Blind Spot “The [Shuttle] program’s structure was a source of problems, not just because of the way it impeded the flow of information, but because it has had effects on the culture that contradict safety goals. NASA’s blind spot is it believes it has a strong safety culture…” Columbia Accident Investigation Board (CAIB), Chapter 8, page 203. Alaska Bar Association April 5, 2006

9. Alaska Bar Association April 5, 2006

10. Lessons Not Learned In neither [the Challenger or Columbia] impending crisis did management recognize how [organization] structure and hierarchy can silence employees, and take appropriate mitigating actions, such as polling participants, soliciting dissenting opinions, or bringing in outsiders who might have a different perspective or useful information, to overcome the organizational constraints. CAIB, page 202. Alaska Bar Association April 5, 2006

11. Alaska Bar Association April 5, 2006

12. Chernobyl - 1986 The Chernobyl disaster resulted in international acknowledgment of importance of establishing a strong safety culture and encouraging dissenting opinions. Alaska Bar Association April 5, 2006

13. NRC Expectations The NRC expects that licensees will establish and maintain a safety conscious work environment in which employees feel free to raise concerns both to their own management and the NRC without fear ofretaliation. May 1996 SCWE Policy Statement October 2004 SCWE Policy Update Alaska Bar Association April 5, 2006

14. Protecting the Public From Unacceptable Consequences Alaska Bar Association April 5, 2006

15. Preventing Unacceptable Consequences “If employees are coerced and intimidated into remaining silent when they should speak out, the results can be catastrophic. Recent events here and around the world underscore the realization that such complicated and dangerous technology can never be safe without constant human vigilance. The employee protection provision involved in this case thus serves the dual function of protecting both employees and the public from dangerous radioactive substances.” Rose v. Secretary of Labor, 800 F.2d 563, 565 (6th Cir. 1986). Alaska Bar Association April 5, 2006

16. Exxon Valdez Incident Alaska Bar Association April 5, 2006

17. Davis-Besse 2002 Incident Davis-Besse incident was the result of a lack of safety culture. Alaska Bar Association April 5, 2006

18. New Protections Against Financial Fraud and Misconduct Sarbanes-Oxley Act: Any person committing intentional retaliation for providing truthful information to law enforcement officers relating to the commission or possible commission of any Federal offense shall be fined or imprisoned not more than 10 years or both. SOX Sec. 1107 Alaska Bar Association April 5, 2006

19. New Protections for Employees in the Pipeline and Oil Industry Olympic Pipeline Disaster Bellingham, Washington June 10, 1999 Alaska Bar Association April 5, 2006

20. New Protections for Employees in the Airline Industry Alaska Bar Association April 5, 2006

21. BP’s Texas City Refinery – March 2005 Alaska Bar Association April 5, 2006

22. Tallmansville, West Virginia Sago Coal Mine – January, 2006 Alaska Bar Association April 5, 2006

23. Protections For Employees Responsible for Environmental Compliance Bhopal 1984 Exxon Valdez 1989 Alaska Bar Association April 5, 2006

24. The Alaska Whistleblower Cases

25. Dan Lawn v. State of Alaska • Dan Lawn v. State of Alaska • Grievance and Arbitration; • DOL case. Alaska Bar Association April 5, 2006

26. Alaska Bar Association April 5, 2006

27. Green, et. al. v. Alyeska (I) Alaska Bar Association April 5, 2006

28. Green, et.al. v. Alyeska and ASIS (II) The Blacklisting Cases Alaska Bar Association April 5, 2006

29. The Wackenhut Caper Alaska Bar Association April 5, 2006

30. The Doyon Drilling Case Alaska Bar Association April 5, 2006

31. BP Compliance AgreementOctober 2000 – January 2005 “BPXA commits…that there will be no reprisal or retaliation by BPXA [officers, managers or employees]…against any employee [contractor and consultant] who report[s] actual or potential violation(s) of environmental law to any regulatory authority,…BPXA’s managers or general counsel.” “BPXA understands that retaliation against employee(s) for the reporting of instances of non-compliance with environmental laws and regulations or with the terms of this agreement at any time (whether before or after BPXA is notified by the reporting employee) may be considered…as a material breach of this agreement…” (Paragraph 37) Alaska Bar Association April 5, 2006

32. Law and Practice

33. The Federal Employee Protection Statutory Protections • What is different than state laws; • What is better than state law protections; • What is worse than state law protections. Alaska Bar Association April 5, 2006

34. Objective Elements of Reprisal and Retaliation The employee establishes a prima facie case by proving, by a preponderance of the evidence, the following elements: • The employee engaged in legally protected activity. • The employee suffered an adverse action. • The employer/decision-maker had knowledge of the employee’s protected activity. • There is some cause and effect connection between the protected activity and the adverse action. Alaska Bar Association April 5, 2006

35. Who is Protected? All workers who engage in work covered by the state or federal environmental protection laws and/or the Energy Reorganization Act, and raise safety concerns, are protected from retaliation: • No longer protects state employees under some of the environmental laws; • Union/non-union employees protected; • All Contractors and Subcontractors. Alaska Bar Association April 5, 2006

36. What Conduct is Protected? • Raising an environmental protection, public health and safety, financial fraud, or other statutory concerns internally or externally; • Refusing to engage in any practice that is unlawful, if the employee has identified the illegality to the employer; • Providing information to or cooperating with the government about violations or possible violations of the law, rule or regulation. Alaska Bar Association April 5, 2006

37. What Actions Are Prohibited? • Termination for cause or “lay-off”; • Demotion in pay or responsibilities; • Transfer of duties or responsibilities; • Poor performance reviews; • Hostile work environment; • Blacklisting or Failure to Hire; • Other actions that are unique to the circumstances of each case. Any employment-related action that affects the terms and conditions of employment and has a tangible consequence, and is done because the employee engaged in protected activity is prohibited: Alaska Bar Association April 5, 2006

38. Was There Knowledge by the Decision-Maker of the Protected Activity? The employee must be able to prove that the decision-maker (usually the supervisor) knew that the employee had engaged in legally protected activities, before the adverse action occurred. Alaska Bar Association April 5, 2006

39. Cause and Effect The employee must be able to prove that there is a “cause and effect” relationship between the employee’s protected activity and management’s decision to take an adverse employment action. Alaska Bar Association April 5, 2006

40. Once the employee is able to establish a prima faciecase of retaliatory discrimination, the burden of coming forward with a legitimate business reason shifts to the employer. “Wait till the judge hears my “legitimate business reason.” • The employee engaged in legally protected activity; • 2. The employee suffered an adverse action; • 3. The employer/decision-maker had knowledge of the employee’s activity; • There is some cause and effect connection between the protected activity and the adverse action. Alaska Bar Association April 5, 2006

41. The Next Step… The Employer must be able to prove at least one of the following by “clear and convincing” evidence: • The person was not treated any differently than other employees in similar job situations; • The action taken against the individual was consistent with all policies and practices; • There were legitimate business reasons for taking the action complained of; • Management would have taken the same action even if the employee had not raised safety issues. Alaska Bar Association April 5, 2006

42. Burden of Proof Under some federal employee protection laws, employers have the highest possible burden of proof in civil law: Clear and convincing evidence Preponderance of the evidence Alaska Bar Association April 5, 2006

43. Consistent WithPolicy and Practice Alaska Bar Association April 5, 2006

44. When Does Protected Activity Lose Its Protection? Summary of Legal Developments

45. When Does Protected Activity Lose its Protection? The ARB directly addressed the behaviors of employees who are engaged in legally protected activities, but do so in a manner that disrupts the workplace discipline, is inappropriate, and otherwise unacceptable behavior in the work place. Alaska Bar Association April 5, 2006

46. Dunham v. Brock, 794 F.2d 1037 (5th Cir. 1986) The court upheld the SOL decision that the employee’s conduct in telling his boss to, in effect, “take this job and shove it,” lost its protection because it was insubordinate, calculated to disrupt the department discipline, and beyond the bounds of what any employer should have to put up with. Alaska Bar Association April 5, 2006

47. “Take this job….” • The “take this job and shove it” test: • Does the conduct disrupt discipline? • Was it in front of customers or other employees? • Has the company tolerated similar or worse behavior? Alaska Bar Association April 5, 2006

48. Speegle v. Stone & Webster, No. 2005-ERA-6 (ALJ RD&O, January 9, 2006) The ALJ found that the company had justification for disciplining Speegle … in the interest of maintaining order. Speegle made comments in the presence of a room full of subordinates, in a manner that was clearly vulgar and disrespectful. Alaska Bar Association April 5, 2006

49. Kenniway v. Matlack, Inc., 88-STA-20 (Sec’y June 15, 1989) The “leeway doctrine” allows some leeway for an employee’s impulsive behavior when engaged in statutorily protected activity; however, this leeway is balanced against the employer’s right to maintain order in its business by correcting insubordinate acts. Alaska Bar Association April 5, 2006

50. The “Leeway Doctrine” • The “Leeway Doctrine”: • Is the employee’s objectionable behavior an emotional outburst? • Is it incidental to the protected activity? • Is it temporary and uncalculated? Alaska Bar Association April 5, 2006