+(,121/,1( Citation: 54 S. Tex. L. Rev. 139 2012-2013 Content downloaded/printed from HeinOnline (http://heinonline.org) Thu Jun 4 10:51:43 2015 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=1052-343X WHISTLEBLOWER LAWS, WORKPLACE SAFETY AND HEALTH, AND SCIENTIFIC LABORATORY EMPLOYEES JAROD S. GONZALEZ* 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. 139 140 SOUTH TEXAS LAW REVIEW [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 2012] WHISTLEBLOWER LA WS 141 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 142 SOUTH TEXASLAWREVIEW [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 2012] WHISTLEBLOWER LAWS 143 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 144 SOUTH TEXASLAW REVIEW [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 regime. 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 2012] WHISTLEBLOWER LAWS 145 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 146 SOUTH TEXASLAW REVIEW [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 2012] WHISTLEBLOWER LAWS 147 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 148 SOUTH TEXAS LAW REVIEW [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 2012] WHISTLEBLOWER LAWS 149 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?