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E-M:/ FW: Rachel #715: A Textbook for Whistle-Blowers (fwd)



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Enviro-Mich message from Terry Link <link@MAIL.LIB.MSU.EDU>
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This seems pertinent to ENVIRO-MICH from my polluted perspective.


Terry Link
Director, Office of Campus Sustainability
Environmental Studies/Urban Planning Librarian
Adjunct Faculty, Bailey Scholars Program
525 S. Kedzie
MSU
East Lansing, MI 48824
1-517-355-1751
1-517-432-9555(fax)
link@mail.lib.msu.edu

True charity is not a measure of how much one gives, but rather how much one
has left..........Anonymous

Be the change you want to see in life...............M. Gandhi


-----Original Message-----

Sent:	Wednesday, January 17, 2001 10:11 PM
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Subject:	TFOE FYI: Rachel #715: A Textbook for Whistle-Blowers  (fwd)

=======================Electronic Edition=======================
.                                                               .
.           RACHEL'S ENVIRONMENT & HEALTH NEWS #715             .
.                     ---January 4, 2001---                     .
.                          HEADLINES:                           .
.                A TEXTBOOK FOR WHISTLE-BLOWERS                 .
.                          ==========                           .
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A TEXTBOOK FOR WHISTLE-BLOWERS
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/drug-news/v00/n1236/a06.html?119.
[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.

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