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Whistleblowers Under the Safe Drinking Water Act

The Safe Drinking Water Act provides protection for whistleblower-employees who file claims under the statute. Section 1450 of the statute provides:

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) has — (A) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this subchapter or a proceeding for the administration or enforcement of drinking water regulations or underground injection control programs of a State, (B) testified or is about to testify in any such proceeding, or (C) 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 subchapter.

OSHA’s role
While the Environmental Protection Agency administers the general provisions of the Safe Drinking Water Act, employee complaints of discrimination are filed with and handled by the Occupational Safety and Health Administration within the Department of Labor. Such complaints must be filed within 30 days after the violation of Section 1450 occurs (although that deadline may be tolled if the discrimination is continuing in nature).

Section 1450 of the Safe Drinking Water Act protects employees who themselves or through others provide information, file complaints, or participate in any manner in a proceeding related to administration or enforcement of the Safe Drinking Water Act. An employee’s complaint to management or refusal to perform work due to conditions that the employee reasonably believes are unsafe or unhealthful may be considered participation in a proceeding under the Act.

Actionable discrimination under the Act is viewed broadly and includes not only termination from employment but also any discrimination in compensation, terms, conditions, or privileges of employment attributable to the employee’s participation in a Safe Drinking Water Act proceeding.

Complaints of discrimination received by OSHA are reviewed by supervisors who in turn will notify EPA of any potential environmental hazards disclosed by the complaint. The complaint letter, with witness names redacted, is sent to the respondent and the local EPA office, and an investigation is conducted by OSHA. A written notice of the results of the investigation and, if appropriate, an order of abatement should be completed within 30 days.

Remedies for the employee may include affirmative action to abate the violation, reinstatement of the complaining employee to the employee’s former position with back pay, compensatory damages, and exemplary or punitive damages. The employee also may be awarded all costs, including attorney fees, incurred in complaining about the discrimination.

Copyright 2011 LexisNexis, a division of Reed Elsevier Inc.