Congress Enacts New Whistleblower Protections for Transportation Workers

Congress recently enacted robust whistleblower protections for employees in the transportation industry. These new statutes protect workers who (1) refuse to violate or assist in the violation of Federal law, rule or regulation relating to public transportation safety or security; (2) file an employee protection complaint under the National Transit Systems Security Act of 2007; (3) cooperate with a safety or security investigation by the Department of Transportation, Department of Homeland Security or National Transportation Safety Board; or (4) furnish information to the DOT, DHS, NTSB or any Federal, State, or local regulatory or law enforcement agency relating to “any accident or incident resulting in injury or death to an individual or damage to property occurring in connection with public transportation.” In addition, this law protects employees who provide information to a person with supervisory authority, a federal or state regulatory or law enforcement agency or a Member of Congress “regarding any conduct which the employee reasonably believes constitutes a violation of any Federal law, rule, or regulation relating to public transportation safety or security, or fraud, waste, or abuse of Federal grants or other public funds intended to be used for public transportation safety or security.” Remedies include reinstatement, back pay, compensatory damages, and punitive damages up to $250,000.The burden-shifting framework is very favorable to employees. A complainant must demonstrate that protected activity was a “contributing factor” (not a “motivating factor”) in the unfavorable personnel action and once the complainant meets that burden, the employer must demonstrate by “clear and convincing evidence” that it would have taken the same unfavorable personnel action in the absence of the protected activity. The procedures governing these new whistleblower provisions are similar to the procedures governing a SOX whistleblower claim, i.e., the claim is initially filed with the Occupational Safety and Health Administration (“OSHA”), OSHA investigates, either party can request a hearing de novo before a Department of Labor Administrative Law Judge (“ALJ”), and either party can appeal the ALJ’s decision to the DOL’s Administrative Review Board. Similar to the removal provision in SOX, a claim can be removed to federal court if DOL does not issue a final decision within 210 days of the filing of a complaint. In light of the express authorization of punitive damages, removing these claims to federal court (to get a jury trial rather than a hearing before an ALJ) will probably be very common. More information on these whistleblower protections is available on the DOL’s Website.