Whistleblower Protections for Oil and Gas Workers Employed on the Outer Continental Shelf.

• Author: Badesha, Ajeet

1. Introduction II. Brief History of Whistleblower Protections III. H.R.2984 - Offshore Oil and Gas Worker Whistleblower Protection Act of 2019 a. Language of the Bill: What and Who are Protected b. Reasons for Introduction of the Offshore Oil and Gas Worker Whistleblower Protection Act and its Legislative History c. Public Policy Behind the Act and Similar Whistleblower Statutes IV. Analysis of Similar Whistleblower Clauses That May Be Used to Further Understand and Develop the Act a. Clarification of Bill and Ambiguous Language Through Analysis of SOX and Other Whistleblower Laws b. Framework for Successfully Proving or Defeating a Claim under H.R. 2984 Based on Analysis of Similar Whistleblower Statutes and Clauses V. Conclusion I. Introduction

   For nearly a decade, since the Deepwater Horizon accident which tragically took the lives of eleven people, lawmakers have attempted to pass the Offshore Oil and Gas Worker Whistleblower Protection Act. (2) The Bill was first proposed in 2010, and then again in 2011, 2013, 2015, 2017, and 2019. The Bill was recently reintroduced into Congress on May 23, 2019 after failing to pass on December 31, 2018. (3) The proposed legislation prohibits employers from discriminating against or discharging employees working in the Outer Continental Shelf who report or testify about violations of the Outer Continental Shelf Lands Act (OCSLA). (4)

   While every state has its own whistleblower laws and several federal whistleblower laws currently exist for various industries, there are no federal whistleblowing protections for people employed in facilities on the Outer Continental Shelf. (5) These employees include workers engaged in oil transportation and production, oil spill cleanup, and other oil spill activities related to occupational safety and health. (6) They are governed pursuant to OCSLA which states "[a]ll law applicable to the outer Continental Shelf is federal law," and all cases "involving events occurring on the Shelf [are] governed by federal law...." (7) Therefore, state whistleblowing laws do not apply to these employees either. However, state law will apply as surrogate federal law in the absence of any federal law. (8)

   There is no logical or moral reason for these employees who work on the Outer Continental Shelf (OCS) not to be protected under the same basic rights that protect nearly every other employee in the country. Corporations have placed staggering costs on society, ranging from America's largest oil spill (9), which also took several lives, to one of the largest government bailouts of Wall Street which financially ruined countless families. (10) Employees are in the best position to catch these corporate wrongdoings and mishaps before significant harm occurs, and employees that do attempt to prevent corporate wrongdoings from occurring should not be negatively disciplined or terminated.

   The proposed legislation lays out protections for employees in addition to the procedure a complainant must follow to receive relief for a violation of the statute. Any ambiguity within the statute can be remedied by edits from the drafters or through guidance provided by other whistleblower laws with similar provisions. This paper will further delve into the language of the Bill and the policy behind the it, in addition to explaining how other whistleblower laws can be used to interpret this proposed Act.

2. Brief History of Whistleblower Protections

   Protection for whistleblowers did not develop until the late 1950's and 1960's. In 1959, when a California District Court of Appeal decided Peterman v. International Brotherhood of Teamsters, California became the first state to recognize a cause of action for wrongful discharge based on whistleblowing. (11) About a decade later, the United States Supreme Court decided Pickering v. Board of Education which was a case of first impression in which the justices asked whether the First Amendment protected a government employee's right to blow the whistle on his or her employer. (12) In Pickering, the Court held that the First Amendment provided limited protection to a public school teacher who was discharged after publicly criticizing the fiscal policies of the school board. (13) The Court reasoned that the teacher's statements were protected only to the extent that they were directed at issues of legitimate public concern and did not affect the teacher's daily duties or interfere with the regular operations of the school. (14)

   Pickering was later interpreted as establishing a qualified constitutional protection for whistleblowers, but only for those who complain of matters of public concern in a manner that does not disrupt public employment. (15) However, more recently in 2006 in Garcetti v Ceballos, the law further evolved when Justice Kennedy held that "when public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." (16) This placed a limit on employee's rights but not if appropriate whistleblower laws are in place.

   Following Pickering, Congress enacted the first federal whistleblower law in the 1972 Water Pollution Control Act (WPCA) (17) in an attempt to encourage workers to help enforce the country's environmental laws. (18) Protection against retaliation from employers for whistleblowing further expanded in the 1970's and 1980's. The federal government passed the Civil Service Reform Act (CSRA) (19) which was later amended by the Whistleblower Protection Act of 1989 (WPA). (20) One of the reasons for enacting the CSRA was based on the principle that federal civil service employees should be free from reprisals resulting from whistleblowing activities. (21) The CSRA helped create the basic structure for federal whistleblower protection. (22) Shortly after passage of the CSRA, state governments began to follow suit (beginning with California) and started enacting state whistleblower protection statutes. (23)

   Congress continued to improve and expand the statutory whistleblower protection laws for federal government employees and correct deficiencies that became known throughout the years. As previously mentioned, Congress passed the Whistleblower Protection Act of 1989 and has continued to improve on it throughout the years with the most recent amendment coming in the Whistleblower Protection Enhancement Act of 2012 (WPEA). (24) Federal statutes were also enacted to protect private employees who engage in whistleblowing activities. In the 1980's, Congress passed the False Claims Act (FCA), (25) which protects employees who engage in whistleblowing activities against companies for defrauding the federal government. (26) Not only did the FCA protect whistleblowing employees, but it also provided financial incentives, such as a percentage of the recovery, for individuals who process successful suits in the name of the government. (27)

   Protection for private sector workers was further expanded by other federal statutes such as the National Labor Relations Act (NLRA) (28) which protects employees from union-related activities, including whistleblowing activities. (29) Federal laws have continued to grow over time and have become more inclusive by adding protections for employees in various industries, such as miners through the passage of the Federal Mine Health and Safety Act. (30) Although several federal whistleblower statutes and clauses within statutes have been passed, no whistleblower protections currently exist for individuals who work on the Outer Continental Shelf. (31)

   Congress passed the Seaman's Protection Act (SPA) (32) which provides whistleblower protection to seaman on a vessel including a Mobile Offshore Drilling Unit (MODU). (33) It also passed the Occupational Safety and Health Act of 1970 (OSHA) (34) which provides protection to other employees. However, neither of these federal laws extends protection to offshore oil employees working on fixed platforms on the Outer Continental Shelf. (35) Rather, legal rights of offshore workers on platforms (36) are determined by the Outer Continental Shelf Lands Act (OCSLA) which does not contain any anti-retaliatory provisions for whistleblowing. (37) In fact, the court in English v. Wood Group PSN, Inc. explicitly noted OCSLA's ineffectiveness in providing a remedy for certain employees working on the Outer Continental Shelf which "illustrates the need for legislative action." (38)

   In English, the plaintiff worked on an offshore oil platform. (39) During his employment he discovered a defective valve that was not fully functional and reported the issue to his employer. (40) Thereafter, the plaintiff's employer terminated him and informed him that he was no longer welcome on any platforms. (41) The plaintiff in turn filed suit; however, because OCSLA does not contain a whistleblowing provision, the Louisiana Whistleblower Act (LWA) had to be used as surrogate law for the purposes of the plaintiff's wrongful termination claim. (42) Based on the facts of the case, the court held that the plaintiff failed to state a claim because it is almost impossible to prove "violations of Louisiana state law that occurred beyond Louisiana's territorial jurisdiction on the outer continental shelf." (43) As previously mentioned, this is when the court stated the need for legislative reform in this area. (44)

   States began granting more whistleblower protections to employees over time. Currently, every state, as well as the District of Columbia, has enacted some type of whistleblower protection statute. (45) However, while each state's laws contain an anti-retaliatory provision for whistleblowing, they vary in other aspects such as which person is protected, (46) the recipient of the report of wrongdoing, (47) the subject protected, (48) the motive, the evidence required, (49) and remedies provided. (50) Similar to the...