In August 2007, President Bush signed The Implementing Recommendations of the 9/11 Commission Act of 2007 (“9/11 Act”). The 9/11 Act includes The National Transit Systems Security Act of 2007(“NTSSA”), which provides whistleblower protections to public transportation employees.
A. Who Is Covered?
The NTSSA is specifically designed to protect public transportation whistleblowers. Covered employers include public transportation agencies, or contractors or subcontractors of these agencies. A public transportation agency provides “regular and continuing general or special transportation to the public” and generally includes Metropolitan transit systems that are not part of the general rail system, such as subways, buses, and trolleys. Employees of general railroads or providers of school buses, charters, and sightseeing transportation are not covered by the NTSSA; however, they may be able to seek whistleblower protection under the Federal Rail Safety Act or the Surface Transportation Assistance Act of 1982, respectively.
B. What Activity Is Protected Against Retaliation?
Your employer may not retaliate against you for providing information to or assisting in an investigation by a federal regulatory or law enforcement agency, a member or committee of Congress, or your company about a potential violation of any federal laws and regulations pertaining to: (1) Public transportation safety and security or (2) gross fraud, waste, or abuse of funds intended for safety and security.
Additionally, your employer may not retaliate against you for reporting hazardous safety and security conditions, refusing to work under such conditions, or refusing to authorize the use of any safety- or security-related equipment, track, or railroad structures. Note that under the NTSSA you must file a complaint of retaliation with any Occupational Safety & Health Administration (OSHA) office within 180 days of retaliatory actions by your employer.
C. What Retaliation Is Prohibited?
Under NTSSA, a covered employer may not “discharge, demote, suspend, reprimand, or in any other way discriminate against” an employee for engaging in the protected activity listed above. These unfavorable personnel actions taken in retaliation for protected activity can include, but are not limited to:
- Termination of employment;
- Demotion;
- Denial of promotion;
- Failure to pay overtime;
- Failure to hire/rehire;
- Intimidation or other physically or verbally threatening behavior;
- Unwarranted discipline;
- Unwarranted negative performance review;
- Suspension or other forced leave;
- Reduction in pay or hours;
- Denial of benefits;
- Reassignment that negatively impacts promotion prospects, seniority, or other benefits;
- Blacklisting; or
- Alteration of job duties (removal or excessive addition).
D. How Does A Potential Whistleblower Prove Retaliation?
To prevail in an NTSSA case, an employee must establish that s/he engaged in a protected activity and that the protected activity was a contributing factor in the unfavorable personnel action.
E. What Is The Employer’s Burden Of Proof?
If a plaintiff successfully establishes that his protected activity was a contributing factor to the unfavorable personnel action, an employer may avoid liability by demonstrating by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of the employee’s protected activity.
F. What Remedies Are Available To A Successful Claimant?
If the evidence supports your whistleblower claim under the NTSSA, you may be entitled to remedies that include:
- Reinstatement with previous seniority and benefits
- Back pay with interest
- Compensatory damages, including compensation for special damages, expert witness fees, and reasonable attorney’s fees
- Punitive damages in certain cases, not to exceed $250,000.
G. How Do I Decide Whether And How To Report Unlawful Conduct?
Whether to public transportation safety or fraud concerns- and, if so, when, how and to whom — can be a very difficult decision for an employee, as blowing the whistle on an employer’s unlawful practices can be a career-ending move. However, the NTSSA provides strong legal protections, and employees who raise these concerns can look to a number of resources for assistance. If you are thinking about reporting such concerns, or if you already have and are facing retaliation, post_link id=67 title="contact"] the experienced whistleblower lawyers at Katz Banks Kumin for an evaluation of your whistleblower case.
