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LAWS PROTECTING WHISTLE-BLOWERS
FEDERAL LAWS:
There is no comprehensive federal law that prohibits employers from retaliating against employees who disclose potential corporate or governmental violations of law. Hence, one must look at a the particular situation and a plethora of federal laws to determine if one or more of the laws will provide protection to an employee in any given situation. Some of the provisions, which cover many areas in the environmental protection arena, include the following:
Toxic Substances Control Act -- Title 15, United States Code, Section 2622
The Superfund -- Title 42, United States Code, Section, 9610
Water Pollution Control Act -- Title 33, United States Code, Section 1367
Solid Waste Disposal Act – Title 42, United States Code, Section 6971
Clean Air Act – Title 42, United States Code, Section 7622
Atomic Energy and Energy Reorganization Acts – Title 42, United States Code, Section 5851
Safe Drinking Water Act -- Title 42, United States Code, Section 300j-9
The above seven laws are substantially identical and provide for an administrative investigation and hearing within the U. S. Department of Labor. Relief includes reinstatement, back pay, compensatory damages, and attorney’s fees. All of the laws require that a complaint be file with the U. S. Department of Labor (primarily OSHA) within thirty (30) days of the alleged discriminatory reprisal. For more information, go to www.dol.gov/dol/asp/public/programs/handbook/whistle.htm
The newest federal protection was created in 1986 with amendments to the False Claim Act – Title 31, United States Code, Section 3729. The act provides for civil liability against persons or corporations who defraud the government. The whistle-blower protection provision is extremely liberal and protects an employee who is discharged or discriminated against on the basis of assisting in the preparation of litigation or in filing a False Claims Act lawsuit.
The Surface Transportation Assistance Act – Title 49, United States Code, Section 2305 (Appendix 13) -- protects employee whistle-blowers who file a complaint, testify in or bring about legal proceedings to enforce a commercial motor vehicle safety, rule, regulation, or standard.
The Occupational Safety and Health Act ("OSHA") – Title 29, United States Code, Section 669c -- protects employees from any form of retaliation for raising complaints concerning workplace health and safety that are enforced by OSHA.
The Federal Mine Health and Safety Act – Title 30, United States Code, Section 815c -- provides employment protection for any miner, miner’s representative, or applicant for employment in a mine, who files or makes a complaint regarding a potential violation of the law.
The National Labor Relations Act – Title 30, United States Code, Section 158(a)(4) and Title 29, Code of Federal Regulations, Section 102.10 – protects employees from retaliation for having testified or filed charges in a NLRB proceeding.
There are other federal statutes protecting employees from exercising their rights under the law and for participating in judicial and administrative proceedings. These laws are too numerous to discuss here. If you believe that you have been retaliated against for having complied with the law or for having refused to disobey the law or for having testified truthfully in a proceeding, etc., you should consult an attorney to fully explore your rights.
Go to www.osha.gov for more information. Many of the Whistle-blower laws enforced by OSHA require a claim of retaliation to be filed WITHIN 30 DAYS!
FLORIDA LAWS:
There are two main laws protecting employee "whistle-blowers" in Florida. The purpose of both laws is to protect employees from retaliatory personnel action against them because of their compliance with laws and regulations and / or because they refused to participate in illegal conduct, or because they reported illegal conduct or non-compliance.
The Florida Private Whistle-blowers Act is found at Florida Statutes, Section 448.100 and following. Section 448.102 declares that an employer (defined as any private individual, firm, partnership, institution, corporation, or association that employs ten or more persons) may not take any retaliatory personnel action against an employee because the employee has:
Disclosed , or threatened to disclose, to any appropriate governmental agency, under oath, in writing, an activity, policy, or practice of the employer that is in violation of a law, rule, or regulation. However, this subsection does not apply unless the employee has, in writing, brought the activity, policy, or practice to the attention of a supervisor or the employer and has afforded the employer a reasonable opportunity to correct the activity, policy, or practice, provided information to, or testified before, any appropriate governmental agency, person, or entity conducting an investigation, hearing, or inquiry into an alleged violation of a law rule, or regulation by the employer, OR
Objected to, or refused to participate in, any activity, policy , or practice of the employer which is in violation of a law, rule, or regulation.
An employee who has been the object of a retaliatory personnel action in violation of the above law may file a lawsuit in the appropriate court within two years after discovering that the alleged retaliatory personnel action was taken, or within 4 years after the personnel action was taken, whichever is earlier.
The Florida Whistle-blower Act of 1986 [Florida Statutes, Sections 112.3187 and following] has the purpose of protecting virtually all public employees, and employees of independent contractors who have contracts with governmental agencies, who are fired or otherwise punished for reporting certain specified activities or refusing to participate in such activities (usually illegal activity or actions not in compliance with laws, rules or regulations). Before an employee can file a lawsuit under this law, he or she must first exhaust all available contractual and administrative remedies, and then, if unsatisfied, file a lawsuit within 180 days of the final administrative determination or the employers’ alleged violation of the act, whichever is later.
Akers & Boswell, PA
1601 Belvedere Road Suite 106-E
West Palm Beach, Florida 33406
(561) 547 6300 - (561) 828 9212 FAX
