WHISTLEBLOWERS CAN PREVENT TOXIC NIGHTMARES

by Stuart Lieberman
THE ENVIRONMENT

Do you have what it takes to be a “whistle blower”? This is the term used to describe often brave employees who report illegal and/or dangerous conduct by their employers to appropriate officials. State and national laws are designed to protect whistle blowers, but the process can be long, agonizing, with an uncertain result. Still, whistle blowers have uncovered many dangerous situations in this country, and often they involve harmful environmental conditions. Whether the cases involve toxins being released into drinking water supplies, or baddies being released from an incinerator, these cases often affect entire communities.

There have been numerous well known whistleblower cases involving pollutants and the environment. In one recent case, a military worker made public some very serious charges against his boss, the federal government. Specifically, he alleged that the feds were not being up-front with Oregon environmental regulators regarding the safety of a military incinerator located in Utah.

The military was proposing a similar incinerator in Oregon, and this employee asserted that the feds lied about the safety of the Utah facility so as to convince Oregon officials to allow the proposed incinerator in their state.

While access to the truth is a key to whistle blowing, this does not mean that whistle blowers always come from senior level management. To the contrary, lab technicians who are ordered to routinely falsify reporting information sent to the EPA can be whistle blowers. So can hospital nurses who become aware that hospitals are not following proper medical waste procedures. Access to the truth is what counts, not necessarily rank within the organization.

Whistle blowing certainly seems to be on the increase, and one must question how it is that so many people are willing to risk their professional reputations and their careers? It would appear that at least a significant reason is that many states and the federal government have adopted a variety of whistle blowing laws. These laws are intended to provide some protection to insiders against retaliation from employers in the event they go public.

Whistle blower statutes differ in terms of the level of protection they offer. Often, they provide covered employees with money damages and their job back (if they want their job back). Some provide reimbursement of attorneys fees in the event litigation is required.

There are many different whistle blower laws that are out there and they function differently. Some require government agency investigation before a whistle blowing lawsuit can be filed. Many apply to specific kinds of whistle blowing — for example, whistle blowing in the environmental field or whistle blowing concerning air traffic safety.

Whistleblower laws are particularly helpful in environmental cases. This is so because many environmental violations and crimes are difficult to detect absent help from knowledgeable insiders. For example, if a company elects to lie about levels of pollutants being emitted into the air from a plant’s smoke stack, often the only way that kind of lie may be detected is with the help of someone with inside information: a whistle blower.

For example, recently, a Utah employee of a company retained to destroy aging ammunition sued the company after he was fired when he went public with safety concerns relating to plant operations. An appeals court has concluded that the employee should get his job back and should receive monetary compensation for his wrongful termination.

And in a high profile case, an EPA official was fired after making known his view that fluoride should not be added to public drinking water supplies, a view not shared by the EPA. He filed a whistleblower lawsuit and won – regaining his job.

Before you do anything, you may wish to consult with an attorney to discuss the law and how to be best protected. You should know that on March 21, 2001, the U.S. Supreme Court issued a decision in the case of Circuit City v. Adams which many feel will make it more difficult for whistle blowers to be protected. The Court upheld an arbitration provision in an employment contract that required all job related claims to be arbitrated, thus depriving the employees access to the court system. Many question whether sensitive and confidential whistleblower claims can be adequately handled in arbitration, where court rules and judicial discretion may not apply.

Being a whistleblower may turn your life upside down for a while; but it may be an important, noble act that can save lives. Sometimes, you just can’t remain quiet. But, its always a good idea to understand the law and your rights before you go public with your concerns.