What federal law protects whistleblowers
in the public transportation industry?
In August 2007, President Bush signed
The Implementing Recommendations of the 9/11 Commission Act of 2007 ("9/11
Act"). The 9/11 Act includes The National Transit Systems Security Act of 2007 (NTSSA), which provides
whistleblower protection to public transportation employees who disclose
information about perceived violations of federal law concerning public
transportation.
What activities are protected?
An employee engages in protected
activity by:
1.
Reporting
a hazardous safety or security condition
2.
Refusing
to work when confronted by a hazardous safety or security condition
3.
Refusing
to authorize the use of any safety or security related equipment, track or
structures under hazardous conditions
4.
Providing
information or assisting an investigation regarding conduct that the employee
reasonably believes constitutes a violation of Federal law relating to public
transportation safety or security, fraud, waste or abuse of federal grants or
other funds intended to be used for public transportation safety or security
5.
Being
perceived by the employer to have engaged in the protected activity
6.
Refusing
to violate a federal law
7.
Refusing
to assist the violation of a federal law
8.
Filing
an employee protection complaint under NTSSA
9.
Cooperating
with a safety or security investigation conducted by the DOT, DHS or NTSB
10.
Furnishing
information to the DOT, DHS, NTSB or any federal, state, or local law
enforcement agency regarding an accident resulting in death or injury to a
person in connection with public transportation.
Does an employee have to disclose an
actual violation of law to engage in protected conduct?
An
employee need not prove that his disclosure is correct. Instead, the NTSSA whistleblower
protection statute applies a "reasonable belief" standard. Under that
standard, a reasonable but mistaken belief that an employer engaged in conduct
that constitutes a violation of the enumerated transportation safety laws is
protected. To determine whether the employee's disclosure is objectively
reasonable, the fact finder considers whether a reasonable person with the
employee's training and experience would reasonably believe that the employer
was violating the relevant law or regulation.
What adverse actions are prohibited?
NTSSA prohibits an employer from
discriminating against employees because of their whistleblowing
activities. This includes:
- intimidation
- blacklisting
- termination
- suspension
- demotion
- reduction
in salary
- failure
to hire
- harassment
What is the burden of proof?
To prevail in an NTSSA case, an employee
must establish that he engaged in a protected activity and that the protected
activity was a contributing factor in the unfavorable personnel action. If the employee successfully establishes that
his protected activity was a contributing factor to the adverse action, he will
win unless an employer can prove by clear and convincing evidence that it would
have taken the same unfavorable personnel action in the absence of the
protected activity.
What remedies are available for a
prevailing employee?
A prevailing employee is entitled to
reinstatement, back pay, and compensatory damages. In addition, a prevailing employee
can recover exemplary or punitive damages up to $250,000.
Procedure for filing a NTSSA
retaliation complaint
Employees who believe they were
subjected to retaliation for reporting alleged violations of the NTSSA may file
a complaint with the Department of Labor within 180 days of the employee
becoming aware of the retaliatory action. OSHA investigates the claim and can
order preliminary relief, including reinstatement. Either party can appeal
OSHA's determination by requesting a de novo hearing before a DOL Administrative
Law Judge. If DOL does not issue a final decision within 210 days of the
employee filing the complaint, the employee can remove the complaint to a
federal district court.
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