BLOWING THE WHISTLE WHILE GASPING FOR AIR.

AuthorWilliams, Elizabeth A.

TABLE OF CONTENTS I. Introduction 220 II. History of Federal Whistleblower Protections 221 III. Brief History of Louisiana Whistleblower Protections 225 V. The Louisiana Environmental Quality Act 229 VI. The Louisiana Whistleblower Statute 232 VII. The Seaman's Protection Act 235 VIII. The Act to Prevent Pollution from Ships 240 IX. Analysis 242 X. Conclusion 244 I. INTRODUCTION

Over the past several decades the federal government has enacted legislation which focuses on the preservation of the environment. Many of these statutes were established to deter the pollution of our natural resources such as water and air. Many states, including Louisiana, have followed suit by enacting their own legislation and regulations to protect the resources within their state. But if a vessel is in motion in navigable waters, who is monitoring them to ensure that they are not violating these environmental laws and regulations? Probably no one will know of the violations except an employee on the vessel who witnessed the violation or was even ordered to commit the violation.

Law makers are aware that in many instances the only witnesses to these environmental violations are the individuals working on the vessel. They have enacted statutes that will to protect employees who report their employer for violating environmental rules and regulations. These statutes termed "whistleblower" statutes are designed to prohibit an employer from taking any retaliatory action against an employee who "blows the whistle" (1) on the employer.

There are many federal and state whistleblower statutes that cover a broad range of topics and industries. This comment will focus on federal and Louisiana state whistleblower statutes that were created to protect employees who report their employer for violating a law or regulation. The elements of the individual statutes will be examined to determine if a seaman or his employer would be more likely to succeed under each particular statute. The differences in likely outcomes between claims brought under the federal statutes and claims brought under the Louisiana state statutes will be analyzed to determine whether these differences cause conflicts in the law or whether they entice parties to forum shop in order to get a desired result.

This comment will analyze the decision in Borcik v. Crosby Tugs, L.L.C. (2) and apply the facts to each statute to highlight how they differ. Even though this suit was brought under Louisiana law, the facts lend themselves to be applied as a hypothetical to each of the statutes that will be examined: The Seamans's Protection Act (3), The Act to Prevent Pollution from Ships (4), The Louisiana Whistle Blower Statute (5), and The Louisiana Environmental Quality Act. (6) Borcik brought his claim against his employer, Crosby Tugs L.L.C, under the Louisiana Environmental Quality Act; however, The United States Court of Appeals for the Fifth Circuit has not yet rendered a final decision on the merits of the case. This comment will briefly explore the history of whistleblowing protection to develop a better understanding of the purpose of such statutes.

  1. HISTORY OF FEDERAL WHISTLEBLOWER PROTECTIONS

    Generally, a whistleblower is a person who reports an activity that violates a law or regulation to the authorities. Presently, there are federal and state laws and regulations that prohibit an employer from taking adverse action against an employee who reports such violations. Under these provisions, employers are not allowed to punish whistleblowers by firing, laying off, blacklisting, demoting, denying overtime, denying promotions, disciplining, denying benefits, intimidating, harassing, threatening, or reassigning if doing so would deter promotions, reduce pay, or reduce hours.'

    While Ralph Nadar is credited with starting the movement which has developed modern U.S. whistleblower statutes (8), protection of whistleblowers has been a concern since the inception of this country. In 1777, months after the Declaration of Independence was signed, ten revolutionary sailors and marines met to discuss their concerns about the commander of the Continental Navy, Commodore Esek Hopkins. (9) They created a petition claiming that Hopkins "participated in the torture of captured British Sailors; 'treating[ing] prisoners in the most inhumane and barbarous manner.'" (10) Marine captain, John Grannis, presented the whistleblowers' petition to the Continental Congress. (11) On March 26, 1777, the Continental Congress voted to suspend Esek Hopkins from his post. (12)

    Hopkins retaliated by filing a criminal libel suit against the whistleblowers. Two of them were arrested. Their petition stated that they were "arrested for doing what they then believed and still believe was nothing but their duty." (13)

    Later that month, without any recorded dissent, Congress enacted America's first whistleblower-protection law: "That it is the duty of all persons in the service of the United States, as well as all other inhabitants thereof, to give the earliest information to Congress or any other proper authority of any misconduct, frauds or misdemeanors committed by any officers or persons in the service of these states, which may come to their knowledge." (14) Congress also voted to cover the legal costs associated with the whistleblowers' defense. The whistleblowers won their case and Congress provided $1,418 for legal expenses. (15)

    The federal government's interest in whistleblowers became even more evident almost 100 years later during the Civil War. During the Civil War the Union Army fell victim to profiteering and fraud due to poor government oversight. The government purchased 411 horses from a contractor, however, all but seventy-six where unable to serve because they were either "blind, undersized, ringboned, or dead upon arrival." (16) "The government also bought artillery shells filled with sawdust rather than gunpowder, flimsy shoes that lasted for only twenty days, 'rotten' blankets, 'worthless' overcoats, and 'muskets not [even] worth shooting.'" (17) Congress responded to these unlawful practices by passing the False Claims Act on March 2, 1863. (18) Under this Act a person may be penalized if he knowingly presents a false or fraudulent claim to the government for payment or approval. (19) Further, the Act allows a suit to be brought by any person on the government's behalf and to receive a portion of anything collected from the false claimant. (20) This Act is still in force today incentivizing whistleblowers to protect the government from fraud, although it is generally applied to suits involving healthcare fraud. (21) Nonetheless, environmental claims can be brought under the False Claims Act if the company violating an environmental regulation has contracted with or receives benefits from the federal government. (22) In addition to the benefit of receiving a portion of any proceeds of the suit, an employee who successfully proves that an employer took retaliatory action may be entitled to reinstatement and restoration of seniority status, double back pay with interest, compensatory damages, and costs and attorney fees. (23)

    Throughout the 1900s Congress passed several statutes in an effort to protect the environment, including The Water Pollution Control Act (1948) (24), The Safe Drinking Water Act (1974) (25), The Toxic Substance Control Act (1976) (26), The Solid Waste Disposal Act (1965) (27), The Clean Air Act (1963) (28), and The Comprehensive Environmental Response, Compensation, and Liability Act (1980) (29) Although these regulations were in place, the federal government has had difficulty enforcing these laws. (30) "[T]he public witnessed a number of horrific environmental catastrophes; notably, the Santa Barbara oil spill, the dramatic increase of rampant air pollution in metropolitan areas, mass death of fish in the Great Lakes due to chemical dumping, and the continuing use of dangerous pesticides on crops." (31) A grassroots movement, composed mostly of young Americans, organized to bring attention to the environmental issues that were going unrecognized. (32) This group protested, conducted studies, and published their view in the media until their message reached Congress. (33) Congress, responding to the movement and realizing that the government needed help from the community to enforce the existing laws, passed six whistleblower provisions. (34) Each of the environmental Acts mentioned above were amended to include a whistleblower statute as well as antiretaliatory protection for employees who reported violations of federal environmental law to authorities. (35)

    There are presently many Federal Acts that protect whistleblower employees in various industries. There is a long history of protecting whistleblowers and government dependence on them to decrease fraud and alert violations of law. The intent or purpose of whistleblower statutes is to enable individuals to help the government discover violations without fear of being retaliated against. History reveals the impossibility of governmental enforcement without community involvement. This begs the question of why whistleblowers are left unprotected and are too often not victorious at trial. Are the statutes poorly written and not broad enough to protect whistleblowers or perhaps the jurisprudence has been interpreted too strictly, thus undermining the purpose of the statute.

  2. BRIEF HISTORY OF LOUISIANA WHISTLEBLOWER

    PROTECTIONS

    The Louisiana Environmental Quality Act was the first state legislation to include whistleblower protection. (36) However, it is very limited because it only protects employees who disclosed a violation of an environmental regulation. (37) Louisiana is an "at-will" jurisdiction, which means that an employer can fire an employee with or without cause as long as doing so does not violate the employee's constitutional or statutory rights. (38) In 1982, The Fourth Circuit Court of Appeal...

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