Docket Number: 
Case No. 15-1713
United States Court of Appeals for the Fourth Circuit
MWELA Amicus by Richard Renner
Filing Date: 
November 16, 2015

The ARB held that employers may lawfully fire whistleblowers for violating a company policy requiring disclosures of safety violations to be Appeal: 15-1713 Doc: 41 Filed: 11/16/2015 Pg: 16 of 51 made immediately. This holding will discourage employees from raising safety concerns as it allows employers to impose discipline based on the
time or manner of making the disclosure. As employee tips are a key source of detecting frauds and other misconduct, the ARB’s holding will increase the risk that safety issues will fester into catastrophes.

William Smith discovered that his colleague, Chris Borders, had signed a log showing that she had performed inspections before those inspections were actually performed. Consistent with company practice, he disclosed the violation to a co-worker, Pence, and directed Pence to correct it, to no avail. A week later, Duke officials interviewed Smith about why Borders had made a false complaint of sexual harassment against him. Smith disclosed his concern about Border’s falsification of the log. Smith elevated his concerns to Duke managers. Duke suspended his access to the facility and DZA thereafter fired him for taking too long to elevate that disclosure.

The ARB’s holding failed to apply properly the statutory requirement for an employer’s “same-decision” defense. It missed the crucial fact that Border’s sexual harassment accusation was a consequence of Smith’s protected activity of telling Pence to correct the log. Moreover, Smith would Appeal: 15-1713 Doc: 41 Filed: 11/16/2015 Pg: 17 of 51 not have been fired had he chosen to stay quiet about his concern. Coworkers seeing Smith get fired would reasonably conclude that they could also be fired if they raise a safety concern. That is the chilling effect the ERA’s employee protection was enacted to prevent.

The ARB holding also goes against its long-established precedents that bar enforcement of employer limits on the time and manner of protected disclosures. Whistleblowers must be protected in making their disclosures when they are ready, and through the channels they believe will be effective, as long as they are not so disruptive as to damage “shop discipline.”

The majority decision below impermissibly modifies the exception Congress set for protecting safety disclosures. Through 42 U.S.C. § 5851(g), Congress required a finding that the employee intentionally caused the violation to deny whistleblower protection. There is no dispute that Smith did not falsify the log. His actions consistently sought its correction.

If the ARB determines that a delay in reporting can result in a denial of protection, it must recognize its prior holdings, explain its reasons for changing its policy, and adopt its new policy with an explanation of how it will comport with the remedial purpose of encouraging employees to make Appeal: 15-1713 Doc: 41 Filed: 11/16/2015 Pg: 18 of 51 protected disclosures. Amici offer a set of factors that would be appropriate to consider in distinguishing (1) an irresponsible breach of duty to report an imminent danger from (2) genuine protected activity.

Is amicus brief

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