Case Demonstrates the Limits of Whistleblower Protection

|||Case Demonstrates the Limits of Whistleblower Protection

Case Demonstrates the Limits of Whistleblower Protection

December 2014

The efforts to encourage and protect whistleblowers have been wide-reaching. However there are differences between the rewards and the protections based on the agency and laws involved. A recent case entitled Gary Vander Boegh v. EnergySolutions, Inc. demonstrated that not all protections are equal.

The U.S. Department of Energy (“DOE”) hired Mr. Vander Boegh in 1992 to work as a landfill manager. During his employment, Mr. Vander Boegh engaged in a range of protected activities as landfill manager, including reporting environmental violations and violations of the False Claims Act.

The waste management services were transitioned to EnergySolutions in 2006. Mr. Vander Boegh applied to be the new landfill manager, but EnergySolutions hired another candidate and Mr. Vander Boegh’s employment was terminated. Mr. Vander Boegh filed an employment discrimination complaint with the Department of Labor and removed the action to federal district court, alleging retaliation for prior protected conduct, which he claimed violated six federal statutes:

  1. The Energy Reorganization Act (“ERA”),
  2. The False Claims Act (“FCA”),
  3. The Safe Drinking Water Act (“SDWA”),
  4. The Clean Water Act (“CWA”),
  5. The Toxic Substances Control Act (“TSCA”), and
  6. The Solid Waste Disposal Act (“SWDA”)

The language of the above statutes describes protection for an employee. Yet they fail to provide a definition for the term “employee”, leaving the Court to apply the plain language definition. For the plain language definition, the Appeals Court looked to Black’s Law Dictionary 639 (10th ed. 2014), which stated an employee is:

“[s]omeone who works in the service of another person (the employer) under an express or implied contract of hire, under which the employer has the right to control the details of work performance.”

And Random House Webster’s Unabridged Dictionary 638 (2001), which provided:

An “employee” is also commonly defined as “[a] person working for another person or a business firm for pay.”

The Sixth Circuit Court of Appeals ultimately held that based upon the plain language in the protections, namely the omission of reference to applicants for employment, that a potential employer may chose not to hire an applicant who is a prior whistleblower. As a result, the Court granted summary judgment in favor of the defendants based on the plaintiff’s lack of standing as an applicant, not an employee.

Fulcrum Inquiry provides turnkey whistleblower reporting systems.  For more guidance on what should be part of a company’s hotline and whistleblower process, see Best Practices in Whistleblower Systems.

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