What is protected activity?

Here is an outline that defines "protected activit

Here is an excerpt from an outline for a lecture about the rights of environmental whistleblowers.
The same concept of "protected activity" applies, although the subject matter of the "protected activity" may differ depending on the law that is doing the protecting.

Let me know if you want the whole outline.

Richard Renner

Dover, Ohio

rrenner@nela.org

I. Protected activity

A.What can employees do to get under the umbrella of protection?

1. The Secretary of Labor, following judicial precedent, has consistently given a broad interpretation to the scope of protected activity under the environmental whistleblower protection acts. See, e.g. Guttman v. Passaic Valley Sewerage Comm., 85-WPC-2, D&O of SOL, pp. 10-13 (March 13, 1992), affirmed, Passaic Valley Sewerage Comm. v. U.S. Department of Labor, 992 F.2d 474, 478-79 (3rd Cir. 1993); Willy v. Coastal Corp., 85-CAA-1, D&O of SOL, p. 13 (June 1, 1994).

2. Protected activity can be found in reporting violations directly to a government agency, including state or local governments. Merely threatening to disclose violations to the government can create protection. Hanna v. School District of Allentown, 79-TSCA-1, D&O of SOL p. 11 (July 28, 1980), rev'd on other grounds, School Dist. of Allentown v. Marshall, 657 F.2d 16 (3rd Cir. 1981); Mandreger v. Detroit Edison Co., 88-ERA-17, D&O of SOL, p. 14 (March 30, 1994); Helmstetter v. Pacific Gas & Electric Co., 91-TSC-1, D&O of Remand by SOL, p. 7 (January 13, 1993)

3. One case has found that a report to a union safety committee created protection. Cotter v. Consolidated Edison Co. of NY (7-7-81), No 81-ERA-6, affirmed, Consolidated Edison Co. of NY v. Donovan (2d Cir. 1982), 673 F.2d 61.

4. Making reports to an environmental activist or the news media may also be considered protected.

5. Authority is split on whether reporting violations to the employer is protected. While the Secretary of Labor has held that such internal complaints are protected, the Fifth Circuit has rejected this position. This writer has found no Sixth Circuit decision on point. Cases holding that an employee's internal complaints, concerning potential environmental violations, are fully protected are: Adams v. Coastal Production Operators, Inc., Case No. 89-ERA-3, Dec. and Order of Remand, Aug. 5, 1992, slip op. at 9 (August 5, 1992); Kansas Gas & Elec. Co. v.
Brock, 780 F.2d 1505 at 1513 (10th Cir. 1985); Dysert v. Westinghouse Electric Corp., Case no. 86-ERA-39, Final Dec. and Order, Oct. 30, 1991, slip op. at 1-3. See also Mackowiak v. University Nuclear Systems, Inc., 735 F. 2d 1159, 1163 (9th Cir. 1984) (employers may not discharge employees engaged in quality control because they do their jobs too well); Bassett v. Niagara Mohawk Power Co., 86- ERA-2 (Sec'y, July 9, 1986); Artayet v. Morrison Knudsen Corp., 97-ERA-34 (ALJ Oct. 28, 1997).

6. The scope of "protected activity" includes refusal to engage in unlawful discrimination or retaliation. EEOC v. Crown Zellerbach Corp., 720 F.2d 1008, 1013 (9th Cir. 1983), arises from a comparable anti-discrimination context. 7. Unlike the False Claims Act, the federal Environmental Employee Protection Provisions do not contain any requirement that the complainant be the first person to report wrongdoing. It is sufficient that the complainant assists with ongoing or potential enforcement activities. Indeed, it does not matter whether any wrongdoing is ever established. The government depends on the employee protection provisions to assure all comers that they can share their reasonable suspicions without fear of retaliation. In construing the comparable language under the ERA, the U.S. Supreme Court held, "Since many retaliatory incidents are a response to safety complaints made to the Federal Government, the Government is already aware of these safety violations even if employees do not invoke 210's remedial provisions." English v. General Elec. Co., 496 U.S. 72, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990), syllabus (b).

B.What can an employee do to leave the umbrella, and lose protection?

8. An employer may terminate an employee who behaves inappropriately, even if that behavior relates to a legitimate safety concern.
i. Dunham v. Brock, 794 F.2d 1037, 1041 (5th Cir. 1986). In Dunham, the employee filed a safety report with the Nuclear Regulatory Commission. The employer suspected as much but also thought, legitimately, that the employee often acted in a disruptive and dominant manner. Id. at 1039. To address this problem, the employer held a counseling session with the employee. The employee swore at his employer and refused to change his behavior. He dared the employer to fire him. Holding for the employer, the court noted that an "otherwise protected 'provoked employee' is not automatically absolved from abusing his status and overstepping the defensible bounds of conduct." Id. at 1041. The employee's cavalier attitude, abusive language, and defiant conduct justified his discharge. Id. at 1040-41.

ii. See also Lockert v. United States Dep't of Labor, 867 F.2d 513, 519 (9th Cir. 1989) (employee's disobedience justified discharge, especially where he failed to establish disparate treatment or that he had made an unusually large or serious number of complaints).

9. The Secretary of Labor has recognized that protected activity may be associated with "impulsive behavior." Employees cannot be disciplined for protected activity so long as it "is lawful and the character of the conduct is not indefensible in its context." A key inquiry is whether the employee has upset the balance that must be maintained between protected activity and ship discipline. Kenneway v. Matlack, Inc., No. 88-STA-20, D&O of SOL, at 6-7 (6-15-89).

posted by Richard Renner  |  Feb 21, 2001 5:19 PM [EST]