(Seattle, WA) – The U.S. Department of Labor (DOL) has issued a policy in response to a Rulemaking Petition filed by the Government Accountability Project (GAP) that fails to provide relief to whistleblowers who are victimized by future employment ban clauses in settlement agreements.
On February 6, 2007, GAP, filed a Petition for Rulemaking with the DOL seeking to amend its rules to better protect whistleblowers who face reprisal and blacklisting. Congressman John Dingell (D-MI), Chairman of the House Energy and Commerce Committee, announced that his committee was undertaking an investigation of the DOL’s practice of accepting future employment bans in whistleblower settlements. GAP has charged that such a practice is contrary to public policy and effectively blacklists ethical employees at high-hazard work sites, where employees should feel free to voice safety, health and environmental concerns.
The Labor Department issued a directive on July 23, 2007 to Regional Directors in its OSHA division that provides a list of factors to consider when assessing whether future employment bans in settlement agreements violate public policy. The directive was accompanied by a letter to Chairman Dingell and Rep. Bart Stupak (D-MI), Chairman of the Subcommittee on Oversight and Investigations, within the Energy and Commerce Committee.
The directive is available here.
The letter is available here.
“While the directive is at least a step in the right direction, it falls far short of what is needed – both because it presumes that these provisions are acceptable, and because it only applies to OSHA, and not to the Department of Labor’s Administrative Law Judges or the review board. Therefore it is not the policy of the entire Department,” said GAP Nuclear Oversight Director Tom Carpenter. “This is unacceptable.”
Carpenter also took issue with the DOL’s failure to consider the fact that employment ban clauses effectively result in the permanent removal of ethical employees who are willing to raise safety and health concerns. “Employers can simply buy their way out of a safe work environment, by effectively retiring ethical employees. This sends a strong message to other employees that if you raise a concern, you’re history – and so is your career. This creates a ‘chilling environment’ for whistleblowers.”
Carpenter continued, emphasizing the specific societal necessity for DOL employees to feel they can raise issues: “Discouraging the raising of concerns is a recipe for disaster. Our country relies on employees at coal mines, nuclear plants, in the transportation sector and chemical industries to point out health, safety and environmental threats before they result in the loss of life. That is the reasoning behind protecting whistleblowers – this seems to be lost on this Labor Department.”
Congress has enacted 14 different laws that charge the DOL with the task of assuring that workers in certain industries are protected from reprisal when they raise concerns related to environmental compliance, mining, transportation and corporate accountability. GAP is urging Congress to continue its investigation of the plight of whistleblowers and the failure of the systems designed to encourage workers to identify and report safety, environmental and health issues and other matters implicating public policy.
Carpenter added, “Congress needs to overhaul a broken process that fails to encourage the raising of concerns, but instead authorizes the victimization of whistleblowers. Banning the official blacklisting of whistleblowers in settlements is an important first step.”
Instead of addressing the problem, some DOL officials decided to attack GAP. In the DOL letter to Chairmen Dingell and Stupak, Assistant Secretary for OSHA Edwin Foulke, Jr. wrote “Notwithstanding GAP’s petition, it appears to have represented clients who have agreed to these provisions since at least 1985 and as recently as January of this year.” In addition, Assistant Labor Secretary David James was quoted in a USA Today article earlier this week as stating “GAP is complaining about the very practice that they have advised their clients to take for over 23 years, benefiting them in the hundreds of thousands of dollars.”
The Labor spokesmen’s attack on GAP is misleading. “This charge is completely unfair,” stated Carpenter. “GAP typically advises clients not to accept employment bans. Whistleblowers who file complaints with the Department of Labor are usually unemployed and financially desperate. They are faced with a “take-it-or-leave-it” proposition, and are economically coerced. Finally, it is the client’s call, not GAP’s, on whether to accept the terms of a settlement.”
“This is a truly feeble attempt by DOL officials to shift focus away from the real problem, which is the mistreatment of whistleblowers,” ended Carpenter.