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Protections for Whistleblowers in the Public Transportation Industry

Posted by attorney Jason Zuckerman

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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