NAECP Investigation HIRD Final 9 2011 COMBINED · 2018. 4. 14. · 9/13/2011 5 Elements of A...

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Clifford & Garde, LLP 11

Investigating HIRD

Advanced Curriculum

September 2011

Annapolis, Maryland

Presented By:

Billie Pirner Garde, Esq.

Clifford & Garde, LLP

1707 L Street, N.W., 500

Washington, D.C. 20036

What is HIRD?


• Harassment

• Intimidation

• Retaliation

• Discrimination

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Why is it a bad thing?

HIRD behaviors have an impact, whether

intended or not, of drying up sources of

information about safety concerns or actions

that impact safety. This phenomena is

referred to as a “chilling effect” and

unacceptable in high-risk industries where

the consequences of silence can be

catastrophic.


Deep Water Horizon Incident


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Issues For Discussion

• Updated legal guidance and court rulings

on HIRD relevant to ECP investigations

• New DOL – OSHA Rules and Organization

for handling whistleblower cases

• New NRC/DOE expectations about HIRD

• New Challenges for Safety Conscious

Work Environment - Social Media HIRD


Getting Management’s Attention!

Negative Reinforcements –– Lawsuits

– Congressional inquiry

– Bad press

– Enforcement action

– Litigation

Positive Reinforcements –– Improved safety culture

– Reduction in safety incidents and accidents

– Improved productivity and efficiency

– Better morale


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Refresher on the Elements

of a Retaliation Case


Federal Anti-Retaliation Statutes

• Section II(c) of the Occupational Safety and

Health Act, 29 U.S.C. §660(c)

• Asbestos Hazard Emergency Response Act

(AHERA), 15 U.S.C. §2651

• International Safe Container Act (ISCA), 46 U.S.C.

§80507

• Surface Transportation Assistance Act (STAA), 49

U.S.C. §31105

• Clean Air Act (CAA), 42 U.S.C. §7622

• Comprehensive Environmental Response,

Compensation, and Liability Act (CERCLA), 42

U.S.C. §9610

• Federal Water Pollution Control Act (FWPCA), 33

U.S.C. §1367

• Safe Drinking Water Act (SDWA), 42 U.S.C. §300j-

9(i)

• Solid Waste Disposal Act (SWDA), 42 U.S.C. §6971

• Toxic Substances Control Act (TSCA), 15 U.S.C.

§2622

• Energy Reorganization Act (ERA), 42 U.S.C. §5851

• Wendell H. Ford Aviation Investment and Reform

Act for the 21st Century (AIR21), 49 U.S.C. §42121

• Corporate and Criminal Fraud Accountability

Act, Title VIII of the Sarbanes-Oxley Act (SOX),

18 U.S.C. §1514A (SOX)

• Pipeline Safety Improvement Act (PSIA), 49

U.S.C. §60129

• Federal Railroad Safety Act (FRSA), 49 U.S.C.

§20109

• National Transit Systems Security Act (NTSSA),

6 U.S.C. §1142

• Consumer Product Safety Improvement Act

(CPSIA), 15 U.S.C. §2087

• Affordable Care Act (ACA), 29 U.S.C. §218C

• Consumer Financial Protection Act of 2010

(CFPA), Section 1057 of the Dodd-Frank Wall

Street Reform and Consumer Protection Act of

2010, 12 U.S.C. §5567

• Seaman’s Protection Act, 46 U.S.C. §2114 (SPA),

as amended by Section 610 of the Coast Guard

Authorization Act of 2010, P.L. 111-281

• FDA Food Safety Modernization Act (FSMA), 21

U.S.C. §399d


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Elements of A Retaliation Case

1. The employee engaged in legally protected activity.

2. The employee suffered an adverse action. (This is not limited to financial loss – would it influence others not to raise concerns?)

3. The employer/decision maker had knowledge of the employee’s protected activity.

4. There must be some cause and effect connection between the protected activity and the adverse action.


In order for an employee to establish a prima facie case

of retaliation, the employee must be able to prove each

of the following:

Employer Provides Its Legitimate

Business Reason

• The employer must be able to demonstrate

that it would have taken the same adverse

action against the employee, regardless of

the employee’s engagement in legally

protected activity.

– In most cases the burden of proof for employers

is “clear and convincing evidence” that it has

done the same thing before, holds all employees

equally accountable, and the actions were in

accordance with company policy and practice.


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The presence or absence of retaliatory motive is a legal conclusion and is provable by circumstantial evidence even if there is testimony to the contrary by witnesses who perceived lack of such improper motive.

Mackowiak v. University Nuclear System, Inc.,

735 F.2d 1159, 1162 (9th Cir. 1984)


Once an Employee establishes a prima facie

case, the employee does not have to

produce any direct testimony or evidence of

retaliatory motive.

Updated Legal Guidance and

Court Rulings Relevant to ECP

Investigations


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NEW Supreme Court Opinions

• Staub v. Proctor Hospital, 131 S.Ct. 1186

(2011)

– “Cat’s paw theory” of liability upheld

– Independent investigation may not shield

employer from liability

Discussion on implications for ECP

investigations into retaliation complaints.


NEW Supreme Court Opinions (cont’d)

• Thompson v. North American Stainless,

LLP, 131 S.Ct. 863 (2011)

– Third party retaliation claim upheld, because

firing the whistleblower’s fiance “well might

have dissuaded a reasonable worker from

making of reporting a charge of

discrimination.”

Discussion about the “zone of interest”

analysisClifford & Garde, LLP 14

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New DOL Guidance

• Hindsman v. Delta Airlines, Inc. ARB No. 09-023 (June 30, 2010)

– Once allegation not substantiated, employee no longer had reasonable belief that violation impacted safety – and her concern lost protected status.

Discussion about “reasonable belief” vs. motive analysis


New DOL Guidance (cont’d)


• Williams v. American Airlines, Inc. ARB No. 09-018 (December 29, 2010)- Rejects Simpson v. UPS, “warnings and threatening

counseling about performance issues are manifestly more serious employment actions than the trivial actions the Court listed in Burlington Northern. Such warnings are usually the first concrete step in most progressive discipline employment policies, regardless of how the employer might characterize them.”

Discussion about progressive discipline as adverse action

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New Challenges for

Maintaining Safety Conscious

Work Environment:

Blogs, Tweets, Tubes and

Faces


Social Media Explosion

• Facebook

–500 million active Facebook users

–50% access Facebook daily

–Average Facebook account has 130

“friends”

• You Tube

• Twitter

• Blogs, Blogs, everywhere………


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Social Media: New Reality

• Social networking sites are the new reality for creating

a social environment – the entries can and do create a

Hostile Work Environment for employees at work,

provide a forum for bullies, and are used and abused to

humiliate and embarrass people;

• Employee discipline can, does, and must be upheld for

abuse of these sites in connection with workplace

sexual harassment, gender harassment, use of business

confidential information, harming business reputation,

or bullying others in the workplace.


Social Media

• Companies should have a social media

policy, but must ensure that it is not so

overly broad that it interferes with

employee’s protected activity

• NLRB guidance document

– Stale hot dogs and scumbags

– Some things go to far…..

– “opprobrious” conduct not protected


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Company Social Media Policy


Company Should Have A Social

Media Policy

Reiterate that existing policies regarding behavior, speech and conduct still apply to all communications when employee is using social media, including:

– Anti-harassment policies

– Electronic information policies

– Code of Ethics/Business Conduct policy

– Confidentiality Requirements

– Proprietary Information protections


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Company Should Have A

Social Media Policy (cont’d)

• Prohibition on sharing business

confidential or proprietary information

• Prohibition on discussion of any clients,

customers, or partners of the company

• Eliminate any expectation of privacy by

making clear that employer reserves the

right to monitor employee use of social

media at work or at home


Social Media Can Be

Protected Speech• NLRB case recognizes that employees can use social media as a form of concerted activity to discuss the “terms and conditions” of employment, and not be terminated;

– Domino’s pizza

– Virgin Atlantic

• First Amendment protections do apply to government employer, but limits to the extent of free speech in the work place, i.e., insubordination or harassing language still grounds for discipline.


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Litigation Landscape:

From E-mails to Facebook

Courts have held that social media site

history is legitimate and discoverable for

anything that goes to litigants’ emotions,

feelings or mental state…..

In other words, there are no secret

conversations, anywhere……….


The Challenge: Identifying

Protected Activity

• What is the subject of the statements or concerns?

• Who was the intended audience of the statements?

• Was the discipline appropriate for the offense? Was it consistent with policies and practices?

• Would it “chill” others from raising issues or concerns?


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New NRC Expectations on

Safety Culture/SCWE


•Environment for Raising Concerns –

A safety-conscious work environment

is maintained where personnel feel

free to raise safety concerns without

fear of retaliation, intimidation,

harassment, or discrimination.

•Respectful Work Environment –

Trust and respect permeate the

organization.

NRC Safety Culture Policy

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Importance of ECP Program

Performance and Credibility

In the Matter of: Entergy Operations, Inc.

and Entergy Nuclear Operations, Inc.

EA-11-096

Confirmatory Order Modifying Licenses

(Effective Immediately)

Issued: August 24, 2011


CAL Provisions on HIRD/ECP

• (3) “lessons learned” from the underlying facts, to be included in training of all new supervisors;

• (4) fleet-wide communication re: SCWE and protecting workers’ rights and obligations to raise concerns without fear of retaliation;

• (5) SRB effectiveness review of ECP procedural enhancements and training, including a sampling of ECP investigations and reports, to be provided to NRC;


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CAL Provisions on HIRD/ECP

Self-Initiated Actions 1,7,12. Remedial 10 CFR 50.7 training to key managers at River Bend, Pallisades and Grand Gulf;

3. Conducting fleet-wide training for ECP personnel;

4. Completing an apparent cause evaluation relating to ECP investigation;

6. Reviewing all closed ECP retaliation-type concerns from 2008 and 2009;

9. Completing benchmarking evaluation of ECP practices and procedures;

13. Develop procedure for ECP Coordinator qualifications and instructions.


New DOL–OSHA Rules and

Organization for Handling

Whistleblower Cases


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DOL OSHA Issues

• OSHA’s Whistleblower Protection Program

Review: Findings and Recommendations

– December 2010 Report

• DOL Rule Changes

• Impact on whistleblower litigation• Mediation

• ADR


OSHA’s Whistleblower Protection Program

Review: Findings and Recommendations

• Secretary directed top to bottom review of the whistleblower program and recommendations

• Bottom Line:

Section 2.5 “OSHA does not have a dedicated budget for the whistleblower program on the national, regional, and area office levels, with few exceptions. Currently, funding the whistleblower operations, training, and equipment is integrated into the enforcement programs budget.”

Recommendation: Create a specific line item budget for the whistleblower program on all organizational levels within OSHA. The budget would designate specific funds for personnel, training, equipment, etc.

http:\\www.whistleblowers.gov/top_bottom_report.pdf Clifford & Garde, LLP 34

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DOL Restructuring

• Based on the Top to Bottom Review, OSHA is announcing these “significant” changes:– WB Program will now report directly to the Assistant Secretary;

– Separate Budget line item for WB program, seeking 6.1 million for 45 new investigators

– Training initiatives for whistleblower investigators

– Issuance of new Whistleblower Investigations Manual that updates laws, procedures and case decisions since 2003

– Internal systems, decreasing backlogs, revised databases, improve audits and Management Accountability Program.


DOL Rule Changes

• Final Rule published January 18, 2011

• Impacts all six environmental statutes

and Section 211 of the ERA

– Implements 2005 Energy Policy Act

– Makes the regulations consistent


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DOL Rule Changes (cont’d)

• Revised definition of “employer” now includes:– Licensees of the NRC, applicants for such licensees, and

their contractors and subcontractors;

– Contractors and subcontractors of the Department of Energy (except those in nuclear naval propulsion work under Executive Order 12344);

– Licensees of an agreement state, applicants for such licensees and their contractors and subcontractors;

– Employees of contractors and subcontractors of the Commission, the Commission, and the Department of Energy.

• De novo review in Federal District Court in the event the Secretary has not issued a final decision within one year of filing, and no showing of bad faith by complainant contributing to the delay.


The Checklist Manifesto:

How To Get Things Right

… ‘The Philosophy is that you push the power of decision

making out the periphery and away from the center. You

give people the room to adapt based on their experience

and expertise. All you ask is that they talk to one another

and take responsibility. That is what works.’


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Questions


Fall 2011NAECPF Training Session

Clifford & Garde, LLP40

NAECP 2011 Fall Conference

The Role of Line Management in Employee Concerns

September 13 - 15, 2011Loews Annapolis HotelAnnapolis, Maryland

Confidentiality

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Confidentiality

The Initial Meeting:

Confidentiality

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Confidentiality

1.Explain confidentiality policy of the ECP;

2.Answer any questions employee may have about confidentiality;

3.Explain the obligation to provide information on regulatory, compliance or safety concerns, or to take action in the event of retaliation;

4.Document understanding and agreement of witness about the confidential status of the interviewee’s identity, the information provided, and what will happen to the investigation.



Confidentiality Considerations

The Interviewer should be careful to NOT guarantee or make a promise of confidentiality unless he/she is certain that such a promise can be kept….WHICH IS IMPOSSSIBLE!

• Regulatory process

• Legal processes, criminal, civil, or administrative

• Congressional investigations



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Confidentiality Considerations (cont’d)

Access to any documents that are

involved in the investigation should be

limited only to those persons having a

legitimate business need to know – such

as “decision makers,” persons conducting

the investigation, or those who need to

take action as a result of the

investigation.




Individuals have a right to privacy;

however, employers have the right to

properly investigate and correct

concerns.

Therefore, these “rights” will need to be

carefully balanced to be able to

determine what, and how much,

information needs to be shared.



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Imminent Safety Concerns

TRUMP

Confidentiality




If investigations are done by lawyers, the question of whether there is an attorney-client privilege or work product issue must be resolved before an investigation begins.

If the investigation is done under the umbrella of some other privilege, that needs to be decided at the beginning of the investigation.



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Witnesses should be advised in what capacity and on whose behalf an investigator is seeking information, what the work product will be, and to what potential use the information will be put.



Final Advice

• Don’t promise that you can “keep their

secret” under any and all

circumstances, it is a promise you

can’t keep – and your own credibility

depends on being honest with the

employee.

• Promise to “find a way” to protect

them, and have their concerns or

evidence addressed, and keep that

promise – no matter what.Fall 2011NAECPF Training Session


NAECP Investigation HIRD Final 9 2011 COMBINED · 2018. 4. 14. · 9/13/2011 5 Elements of A...

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