Six major environmental statutes contain similar provisions and language protecting employees from retaliation when they report to the EPA or other environmental agencies that their employers are in noncompliance with the statutes.
wildpixel / iStock / Getty Images Plus / Getty Images
The laws and relevant sections are as follows:
- Clean Air Act ((CAA) 42 USC Section 7622)
- Comprehensive Environmental Response, Compensation, and Liability Act ((CERCLA) 42 USC Section 9610)
- Clean Water Act ((CWA) 33 USC Section 1367)
- Safe Drinking Water Act ((SDWA) 42 USC Section 300j-9(i)
- Resource Conservation and Recovery Act ((RCRA) 42 USC Section 6971)
- Toxic Substances Control Act ((TSCA) 15 USC Section 2622)
Planned Actions Protected
The following typical language, taken from CAA Section 7622, describes what actions by employees are protected:
“No employer may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of the employee)—
(1) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter or a proceeding for the administration or enforcement of any requirement imposed under this chapter or under any applicable implementation plan,
(2) testified or is about to testify in any such proceeding, or
(3) assisted or participated or is about to assist or participate in any manner in such a proceeding or in any other action to carry out the purposes of this chapter.”
Employers are also prohibited from retaliating against employees who refused to perform duties in good faith based on a reasonable belief that the working conditions are unsafe and unhealthful.
OSHA Response Time Varies
The provisions in each of the statutes place pressure on employees who seek to report that an employer is retaliating against them by requiring that they act promptly. Specifically, the provisions indicate that the employee has only 30 days following the alleged reprisal to file a complaint with OSHA. Filing may occur in three ways: (1) online using OSHA’s Whistleblower Complaint Form; (2) by telephoning the OSHA regional or local office; or (3) by faxing the OSHA regional or local office (the completed Whistleblower Complaint Form must be included in the fax). OSHA will accept the complaint in any language.
But there is variation in how quickly OSHA must investigate the retaliation (violation). The CAA, TSCA, and the SDWA require that OSHA complete the investigation within 30 days of receiving the complaint and, if the complaint is found valid, order a remedy in the employee’s favor within 90 days of receiving the complaint unless a settlement is reached first.
The CWA, CERCLA, and RCRA place no time limits on OSHA’s response, stating instead that “the Secretary of Labor shall cause such investigation to be made as he deems appropriate.”
Exceptions
Under the environmental statutes, the whistleblower protections are not afforded to any employee who deliberately violates the law without being told to do so by the employer.
Also, proving that illegal retaliation occurred can be a challenge. Few employers will make a public announcement or circulate a memo stating that anyone who reports a violation to the EPA or a state environmental agency will be fired. OSHA is, of course, aware of this and places value on inferences. For example, any employee who is fired shortly after reporting a violation to the EPA has at least the beginnings of a good argument that reprisal has occurred. Also, an inference of causation can be drawn from an employer’s failure to follow normal procedures, use of false evidence, changing explanations, the manner of discharge (such as using an armed security officer to escort an employee off the premises), or a pattern of adverse actions after employees engage in protected activity.