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Citation: 54 S. Tex. L. Rev. 139 2012-2013
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Good afternoon. I'm going to present a fairly narrow topic to you
today as sort of a slice of whistleblower law. But I'm also going to try
to put together different aspects from what we've heard over the
course of the day and will try to connect up those aspects, even though
I'm only using a narrow slice in order to show you the patchwork of
whistleblower laws.
Mr. Duffy in the first session talked about the patchwork of
whistleblower laws, and that is truly the case. When you're an
attorney representing a client in practice, and you're trying to work
through a whistleblower issue, you always have to try to figure out
what actual federal statute, state statute, or common law provision
applies. And any type of law you're dealing with might be a little bit
different, for example, from a remedies perspective, or it may be
different from the perspective of coverage. For example, are you
covering private employees or public employees? I will use workplace
safety and health and specifically, scientific laboratory employees as
the lens through which to look at whistleblower law.
In terms of the issue and how it came to light from my
perspective, I have a wonderful colleague at Texas Tech University
School of Law, Dr. Victoria Sutton. Dr. Sutton is over our Law and
Science program. We began working on a whistleblower paper with a
special focus on the whistleblower provisions in the Select Biological
Agent Regulations promulgated by the Department of Health and
Human Services. These regulations were promulgated pursuant to the
Public Health Security and Bioterrorism Preparedness and Response
Act of 2002. I will talk about this specific part of whistleblower law
later in the presentation.
* Associate Dean for Academic Affairs and Professor of Law, Texas Tech University
School of Law; B.B.A., summa cum laude, University of Oklahoma, 1997; J.D., with
highest honors, University of Oklahoma College of Law, 2000.
[Vol. 54: 139
So let's take a look at this area of the law from a broad
perspective. We've got certain categories of employees here. These
research scientists are people working in labs. It's a very dangerous
setting. We want, of course, protections in terms of workplace safety
and health laws that would apply to these individuals. What if
someone is a scientist and they're violating all sorts of protocols with
respect to dealing with toxins or other sorts of safety issues? Yes, we
want laws to regulate that. And shouldn't there be laws stating that if
someone complains to a governmental authority or complains to the
employer about violations of those laws, there's going to be some sort
of protection from an employment law perspective?
I come to this as a former practicing lawyer in the labor and
employment law section. I worked at Thompson & Knight in Dallas
and practiced on the management side of labor and employment law,
so I'm trying to think of these whistleblowing issues from a labor
employment law side, although it's broader than that. So we've
learned over the course of the day about two different basic models,
right? There's the antiretaliation model that will say: "We're going to
build in protections where employees who blow the whistle and
complain to government agencies-or complain internally-are going
to be protected from the employer retaliating against them,
discriminating against them, or taking some adverse employment
action against them." And there's going to be statutory protection or
maybe common law protection that will apply to those workers, and
once the employer retaliates, they can seek remedies.
Professor Rapp and I had a great discussion about what really
incentivizes people to actually blow the whistle. People probably
aren't going to blow the whistle at all if they know there's no possible
statutory protection or common law protection from the employer
being able to terminate their employment. In that context, we've got
the antiretaliation model. Professor Rapp talked about the bounty
model, which is aimed at incentivizing employees monetarily. From
the perspective of laboratory workers, we know there are health and
safety laws out there, but let's look at the whistleblower protection.
This is where we start getting into the complication. The Occupational
Safety and Health Act is the main federal law that protects individuals
in the workplace through maintenance of a (hopefully) safe work
environment. There are two ways that the OSH Act regulates. First,
the OSH Act regulates through what's called the General Duty
Clause-basically a broad clause that requires employers to just
maintain safe workplaces. The Department of Labor can go in and
say, "Well, you, employer, aren't actually maintaining a safe
workplace. There's no specific rule that says why you're not, but we
think you are, and that can be determined."
OSHA also acts through standards. They set certain rules found
in the Code of Federal Regulations that talk about what you can and
can't do in regard to workplace safety and health issues. And they can
be as detailed as well. With certain categories of workers, you must
wear certain personal protective equipment. So the OSH Act would
presumably apply to laboratory workers, but we've gone further than
that. For some categories of research workers, the National Institute
of Health and Center for Disease Control have additional guidelines
and protocols in place with respect to safety. And for entities like
universities, for example, that accept federal funds, there's regulation
on that point. The select biological agent regulations which I'll talk
about-these are very specific regulations dealing with categories of
research scientists who actually work around very dangerous and
sometimes deadly toxins. If people are exposed to these toxins, they
can cause serious injury or even death. And so we have regulations
that deal with that from a safety perspective. The U.S. Chemical
Safety and Hazard Investigation Board, this is a sort of a-I'll say
governmental agency-but they're a board. When some sort of
incident happens at a work site, they'll investigate it and determine
what happened. They can also be used to help with policymaking in
the future in terms of whether new regulations need to come on
board, and OSHA can consider that as well.
So here's where we start to get into the patchwork. If we just
think about workplace safety and health, and we think about the
subset of that being laboratory scientists or research scientists, it
actually becomes quite complicated to think about a particular
research scientist somewhere in America-maybe Lubbock, Texas,
where I am, or maybe Boston, Massachusetts-and what actual
whistleblower laws will protect those categories of workers. It's going
to depend. There's an antiretaliation provision in the Occupational
Safety and Health Act that says that if you complain to the
Department of Labor, for example, about some sort of workplace
safety and health issue, you can't be retaliated against in terms of an
employer coming at you and terminating your employment or taking
some sort of adverse employment action. If you feel like you've been
retaliated against as an employee, then there's a mechanism that
allows you to complain about that as well. If the Department of Labor
then decides you have a good enough case, they'll go ahead and
[Vol. 54:139
actually pursue it on your behalf. There's actually no private right of
action under the OSH Act, so at least from the perspective of some
employees, it may not be the most protective of antiretaliation
whistleblower provisions.
Here's where it gets even more complicated. If you look at the
OSH Act itself and how it regulates-although it applies to most
private employees in the United States-OSHA has delegated to
some states the ability to have their own state plans. Many states have
them. Moreover, some employees in certain states, if they are public
employees, wouldn't actually be covered by OSH Act-style regulation
at the federal level. They'll really be covered more through some sort
of state regulation. So it gets complicated from a regulatory
perspective. That adds in the complication to the whistleblower
protection provisions. Some research scientists might actually be
federal employees. There's an OSH Act whistleblower provision
that's essentially going to provide individuals protection from
retaliation, but there are other federal whistleblower protections as
well. For example, the Whistleblower Protection Act. This act applies
to many federal employees, although there are some exceptions.
Possibly some research scientists that are working for a federal agency
could actually be covered under those whistleblower protection
provisions, which might actually be somewhat different from the OSH
Act provisions. These federal provisions also overlay state workplace
safety and health whistleblower statutes. For example, in certain states
like California, they'll have a state workplace safety statute that
regulates workplace conditions. There is also a whistleblower
protection provision built into that statute that would help workers in
that particular state but wouldn't help workers in others, like Texas.
So the research scientist in Texas is getting different protections from
the research scientist in Massachusetts, who is getting different
protections from research scientists in other states.
Then there are also state whistleblower statutes-for example,
the Texas Whistleblower Act. That's more of a general statute, but
you can see how that type of whistleblower statute could cover some
laboratory workers or workers who complain about workplace safety
and health, if they fit the definitions of the statute. If the worker is a
public employee, meets the good faith requirement, and conveys their
complaint to a law enforcement agency, a person in Texas could fit
within the Texas Whistleblower Act. Some categories of research
workers could actually fit within that if they're public employees.
Private employees wouldn't in Texas; however, other states offer
broader protection. Another state's act wouldn't necessarily say you
have to be a public employee. It might just say that any employee who
reports civil or criminal wrongdoing at all, if it's in good faith and
reported to some agency (or even internally), is protected.
And then the final piece to this is there are still public policy
cases out there in some states where on a case-by-case basis the
judiciary says, "We don't like the fact that this particular individual
made some sort of complaint of wrongdoing, whether it is due to
workplace safety and health issues, or whatever." And then there's
going to be a case in that particular jurisdiction that protects that. In
Texas, our example would be the Sabine Pilot case, but that just
focused on protecting the whistleblower or protecting individuals who
refuse to commit criminal acts. However, other jurisdictions offer
much broader protections under that line of public policy or common
law exception type of case.
So if you take one particular category of worker, like a research
scientist or a laboratory worker, and one regime of workplace safety
and health, then the applicable law will still vary based upon whether
it's a public or private employee and where the employee is located in
the United States. There are different levels of protection, and all
these different regimes have sometimes slight differences and
sometimes very large differences in terms of things like remedies or
the actual procedural way you would bring a claim-whether you go
to federal court with a jury, or you go to a state court with a jury, or
you go through an administrative process. For instance, you may go
initially to the Department of Labor through an Administrative Law
Judge and then appeal that to the Administrative Review Board. We
discussed this earlier when we focused on the Sarbanes-Oxley Act
whistleblower provision where there's (at least initially) an
administrative process, although there's an outlet to go to federal
court at some point if an agency decision isn't made by a certain
amount of time.
When Dr. Sutton and I were working on this, we started getting
into some specifics. There is this patchwork of laws. We know that
depending on what particular researcher it is, there's going to be
different levels of protection. And she said, "Well, you know what?
There's a whistleblower provision in the select agent regulations that
deals with researchers who work around these deadly toxins, and
these regulations are in response to what's called the Public Health
Security and Bioterrorism Preparedness and Response Act of 2002."
When looking at these select agent regulations, there does seem to be
[Vol. 54: 139
an aspect of whistleblowing to them, but it's not quite what you would
think. When analyzing this, we asked why the law is written the way it
is and how can this provide some illustration as to the stated law in
this area and what to do in the future.
So these are individuals who are working in science labs. And the
rules now require researchers to do some self-reporting or peer
reporting on other individuals, maybe scientists that have not followed
the proper protocols. So these are mandatory reporting laws. Now, the
catch here is that you would think regulatory action requiring
reporting would provide a structure. This would then let individuals
know that if there's going to be a regulatory action that requires
reporting, we're going to apply protections for those reporting,
specifically protections from an employer being able to actually
retaliate against you through an adverse employment action if you
make those sort of complaints. But the reality, though, is if you go
through and actually look at these regulations, they don't do that. The
proposals make substantial changes to the burdens for reporting
behaviors of employees on researchers, but they don't provide any
real specific whistleblowing protections in terms of antiretaliation or
liability protection.
Here's what they do: They provide new occupational exposure
standards. They make some requirements in terms of notifying the
FBI of suspicious activity of a criminal nature. There have been
examples in the past where research scientists have used these toxins
in a way that is actually criminal. And of course, you can see how the
government would want to know if that sort of thing is going on in a
laboratory setting. They've got certain new occupational safety and
health programs that have to be implemented in terms of individual's
access to regulated select agents and toxins. There's mandatory
training for those who work where these toxins are handled. And
then, there's the development of peer-reporting programs, but there's
really little else. There's nothing in terms of the antiretaliation
provisions that would typically be associated with such a statutory
I need to back up and explain this is a little bit. I mentioned the
patchwork of different whistleblower protection laws on the federal
side. We've talked about Sarbanes-Oxley. I introduced the
whistleblower provision in the Occupational Safety and Health Act.
But there has been a tendency for Congress, when they're dealing
with certain statutes over time, to add in whistleblower protection
provisions. There's a whole series of different federal statutes; for
example, the Energy Reorganization Act. There's one that deals with
airline employees, the Air 21 Act. We're up to around nineteen
statutes now that involve different types of industries, but what we're
dealing with is typically an administrative process where people in the
industry complain to the Department of Labor. They're then litigated
up to the Administrative Law Judges, and then there's an
Administrative Review Board that reviews them. This shows that
there's definitely a trend to focus on: if there's a narrow industry, and
we're creating some sort of regulatory structure to deal with food
safety, the nuclear industry, or whatever we want to do to provide a
mechanism for making that industry robust, then you'll add in a
whistleblower provision.
This just shows the inherent nature of the patchwork. It's not an
effort to come up with a system that applies across the board. It's
always targeting a fairly narrow slice of workers or a fairly narrow
slice of a different area. And to be a really good attorney in the area
of whistleblower law, you have to know these different types of
statutes and different types of schemes because you're going to be
working on both sides of the bar, trying to figure out which federal or
state statute or common law principle the client actually fits in-if any
at all. You'll find a lot of cases in which people may do very good
things in terms of complaining about what seems like wrongdoing, but
you can't actually fit your client within one of these statutes, and so
there's no protection. And of course, from the perspective of an
attorney advising clients about this, certainly, if someone comes to
you and says, "I'm thinking about blowing the whistle; here's what I'm
thinking about," you would want to know the pros and cons of the
situation. You might tell the person, "Well, in this particular situation,
you're not really going to be covered if you do what you say you want
to do," or maybe, "There is a way for you to be covered, but you need
to know how to do it." There are some statutes that say if you
complain to someone internally in the organization who has the power
to deal with the situation, then you're protected. Other statutes
require you to complain to a particular local, federal, or state agency,
and if you don't that, you're not protected. Other statutes allow you to
go either way, but it's all about the details of that statute.
Initially, it's somewhat surprising that in 2012, it was not on the
radar screen of these select agent regulations to add in what we now
generally think of as standard antiretaliation protections. As a result,
there's no protection from adverse employment actions in these
proposed regulations. Liability protection for reporters is not
[Vol. 54: 139
included. And whistleblower protocols for issues like anonymity in
reporting are not present. So in terms of talking with Dr. Suttonbecause she's much more connected to the research scientists and the
bioscience industry-when these regulations come out they're in the
proposal stage, and they're getting a lot of play and being looked at by
stakeholders and other people that are going to be affected by them.
And here is one of the concerns that people in the industry have:
Scientists generally don't want to report on others. There may be
some incentive, even though there's a mandatory reporting
requirement, to not want to do that. And maybe there's a situation
where you're more likely to report on someone that you're not as
close to as opposed to someone who's a friend; but of course, this law
requires that if it's a peer situation and you know about it, you have to
report it. There's what's called in the industry an SRA status, which
basically means that you have a security clearance. Because of the
mandatory reporting laws, some people ask: "What if I know about
somebody but I'm reluctant to make a complaint that they did
something that seems either illegal in terms of safety protocols or is
otherwise problematic? If I don't make the complaint, I know the
mandatory reporting laws say I should. But if I don't because I'm
worried about getting someone else in trouble, if it's later determined
I didn't make the complaint, is my security clearance going to be
pulled?" Because if your clearance is pulled, then essentially you can't
work in that laboratory anymore, and people are really worried about
that. This is the sense I get from looking at some of the literature and
other things scientists have reported. In the scientific community,
there's a sense of cooperation. And the idea of reporting on someone
else goes against the grain of the culture in many research settings.
So to some degree, these regulations would be a culture shift.
Maybe not as much in other industries where whistleblowing has
become more commonplace, but at least we're getting some sense that
this could be a real issue. People are worried about how not reporting
someone will affect them in various situations, such as when a future
employer says, "Tell me about how this person that you used to work
with dealt with safety issues." If you don't honestly tell the person
information that you have that would be relevant to the question, and
the person you used to work with commits some bad act dealing with
safety issues, will you later be sued for not reporting-especially if
there's a mandatory reporting law? There's possible liability there. In
employment law, oftentimes employers might deal with these issues,
such as talking about other employees that used to work in a
particular organization. They might try to protect themselves in terms
of getting waivers saying that if the former employer provides that
information, then they're not going to be liable. However, people in
many of these research facilities are not comfortable asking for
waivers. That's not something that is commonplace.
The basic employment antiretaliation protections for
whistleblowing haven't been on researchers' radar screen, even
though there has been some concern based on what has oftentimes
happened in this regulatory setting. But at least-even if these
protections are not currently in the regulations-guidance regulating
conduct with respect to whistleblowing could come out later for some
of the agencies that are in charge of these issues. What we see at this
point is whistleblowing as an afterthought. So if there's not any direct
regulation or direct protection for whistleblowers in this narrow field
itself, then what you do is go back to the patchwork for protection.
You just have to work it through. Any particular research scientist or
laboratory worker in a particular job setting would probably start with
the OSH Act in terms of protections. But you would also want to go
through and check state laws that deal with workplace safety and
health, as well as general whistleblower provisions that would apply
across the board to all workers, and then look at common law as well.
So the law in terms of how we've decided to protect individuals from
retaliation when they make complaints is very complicated.
Some people might be interested in these issues involving
research scientists; other people not so much. How is this any different
from any other category of workers that a patchwork of laws may or
may not apply to? Why does it really matter? And that could be a
valid query. I'm not saying there's something that's just inherently
different about lab workers as opposed to other categories of
employees. However, I think that to some degree, it's a little bit
different. Talking about regulations that deal with deadly toxins tends
to get your attention. The stakes are pretty high when there's been an
incident where people have died as a result of safety issues involving
equipment in the lab, either by misuse of lab equipment or by being
exposed to deadly toxins as a result of violations of safety protocol.
That's really important. And yet, even though the stakes are so high,
the understanding of whistleblower laws by workers in these lab areas
is fairly low. The priority given to whistleblowing by stakeholders is
relatively low. We heard comments from our panelists earlier in the
day. Even the term whistleblower-sometimes people just have a
negative reaction to the term itself. And so when you bring up the
[Vol. 54: 139
concept of whistleblowing in the industry, you can't just explain it by
saying, "It's about providing protections for people who would come
forward to complain and making sure they don't lose their jobs
because they do complain." The connotation of blowing the whistle
still seems to resonate in an unfavorable way with certain stakeholders
that are connected to these sorts of issues in the laboratory field.
The bounty model is second-level legislation. Before you go to
the bounty model, you really need basic antiretaliation protections for
individuals so they know what their rights are before you even take
that step. And I think in this industry, at least, it's just not clear you
even have that. The basics of whistleblower protections like these
antiretaliation laws and strong reporting mechanisms really need to be
addressed further through regulation, education, and culture.
Whether or not you think that a particular select agency regulation
needs explicit whistleblower protection or not, you can at least see
some of the issues involved, and how the clarity with which we do or
do not provide protections will alter the actual outcomes of whether
people blow the whistle.
Whenever you're dealing with whistleblower issues or
antiretaliation issues in employment law, I think there are things you
should think about whenever you go to the statute. First, try to figure
out as a practical matter: What is the protected activity the statute or
the law protects, and how does the statute protect it? Does it protect
people who complain internally? Does it protect people who complain
externally to the government? What actual form of complaint does it
require? What is the actual topic? Obviously, if you know someone's
complaining about workplace safety and health issues, the SarbanesOxley Act is not going to cover that because it deals with fraud. So
what's the protected activity? If there is no protection, and the person
complains in that way, they're not going to be protected; or if they
come to you after the fact, if it's not a protected activity, there's no
real claim even though the employer fired them. Then, think about
whether there was a materially adverse employment action. That's
sort of a general concept. Usually, if a person is terminated from their
employment then it's going to be a given, but there are other levels of
adverse employment actions, like demotions, that depending on the
statutes, may or may not be protected. And then finally, what's the
causation requirement in the statute? This will vary across
whistleblower statutes. Sabine Pilot is the "sole reason," or the "high
causation" standard. Other causation standards making it easier for
plaintiffs include the "motivating factor" causation standard, as well
as some that will talk about "contributing factors," which I would
argue is an even lower standard. And so, when you're looking at
advising clients on the front end or advising clients on the back end in
terms of litigation perspective, you're going to be focusing on issues of
protective conduct: Was there a material adverse action, and what's
the causal connection between the protected conduct and the adverse
employment action?