The Safe Drinking Water Act (SDWA) was created to keep the nation’s drinking water healthy. See 42 U.S.C. § 300f et seq. Among other things, the act sets standards for drinking water, prohibits the use of dangerous materials (such as lead pipes), and regulates pollution discharges onto land or water that could work their way into the public water supply.

SDWA protects employees who tell the government about violations of the law, so long as they properly report the retaliation to the Department of Labor within 30 days of the retaliation. If the SDWA protects you, it is illegal for your employer to retaliate against you for telling the government about a SDWA violation. 42 U.S.C. § 300j-9(i).

Who is Covered?

The SDWA whistleblower provisions apply to all employees, public and private. It does not cover employees fired or demoted for a legitimate reason, unless retaliation was a contributing factor to the employment action, or the legitimate reason was merely a pretense.

What Activity is Protected Against Retaliation?

The SDWA protects employees who file or institute a complaint alleging a violation of the SDWA, who testify or are about to testify in a proceeding under the SDWA, or who complain of a SDWA violation to a supervisor.

What Must a Plaintiff Do to Prevail?

A successful complainant must prove the following by a preponderance of the evidence, meaning that it must be more likely than not that:

1. The employee engaged in protected activity;
2. The employer knew of the employee’s reporting/protected activity;
3. The employer subjected the employee to unfavorable personnel action; and
4. The employee’s protected activity was a “motivating factor” to the employer’s decision to take unfavorable personnel action against the employee.

Complaints are made to the Department of Labor, and must be made within 30 days of the adverse employment action.

What is the Employer’s Burden of Proof?

In order to avoid liability, the employer must demonstrate by a preponderance of evidence that it would have taken the same unfavorable personnel action against the employee in the absence of the employee’s protected activity.

What Retaliatory Acts are Prohibited?

The SDWA prohibits any unfavorable personnel actions taken by an employer in retaliation for protected activity which have a negative effect on the employee’s terms, conditions, or privileges of employment. “Unfavorable personnel actions” can include, but are not limited to:

1. Termination of employment;
2. Demotion;
3. Denial of promotion;
4. Failure to pay overtime;
5. Failure to hire/rehire;
6. Intimidation or other physically or verbally threatening behavior;
7. Unwarranted discipline;
8. Unwarranted negative performance review;
9. Suspension or other forced leave;
10. Reduction in pay or hours;
11. Denial of benefits;
12. Reassignment that negatively impacts promotion prospects, seniority, or other benefits;
13. Blacklisting; or
14. Alteration of job duties (removal or excessive addition).