BLOWING THE WHISTLE WHILE GASPING FOR AIR.
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
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.
II. 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.
III. BRIEF HISTORY OF LOUISIANA WHISTLEBLOWER
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 of Louisiana decided Gil v. Metal Service Corp., which involved an employee who was fired for refusing to remove identification marks from foreign steel delivered to customers who had specifically ordered domestic steel. (39) The court, for the first time, had to decide whether refusal to comply with an order to do an illegal act states a cause of action; the court found that under Louisiana law it did not. (40) The court held that refusal to perform an illegal act was not constitutionally or statutorily protected and an employer has the right to fire an employee for refusing to do so at his discretion. (41) The court also found that refusal to remove foreign identification marks from foreign steel delivered to customers who specifically ordered domestic steel is not a protected activity for which he could not be fired and that he was not a "whistleblower" protected under constitutional provisions of free speech. (42) The court did acknowledge the public policy concerns associated with not protecting an employee who is terminated for refusing to participate in an illegal activity stating that many courts have held that an employee cannot be fired on these grounds. However, the court ultimately found that there was no statute in place preventing the employer from doing so, "because of Louisiana's traditional and unique deference to legislative authority, these decisions cannot act as precedent." (43)
It wasn't until 1997 when the Louisiana Legislature passed La. R.S. 23:967 that employees could no longer fire an employee for 'blowing the whistle. This statute, however, does not protect all whistleblowers because the provisions, discussed infra, mandate that the employee take certain steps in order to be protected from employer retaliation. For example, the employee must prove that he notified the employer of the illegal activity before the employee reported it to authorities. (44) But, as seen in Gil, even a somewhat limited whistleblower statute is better than not having one at all.
IV. BORCIK V. CROSBY TUGS, L.L.C.
Eric Borcik was employed by Crosby Tugs, L.L.C. (Crosby) as a deckhand. (40) He claimed that his lead captain "ordered him to dump waste oil into navigable waters and otherwise violate environmental laws over a period of three years" and that he obeyed these orders. (46) Mr. Borcik emailed Crosby's Chief Administrative Officer because he was concerned that he would be victim of some form of retaliation in response to the environmental concerns that he had expressed. (47) He eventually personally met with the Chief Administrative Officer; however, the parties dispute whether Mr. Borcik actually addressed his safety and environmental concerns at this meeting or if he was "just complaining" while "vaguely mentioning" his concerns. (48) Following the meeting, Mr. Borcik was transferred to another vessel and then was fired. Mr. Borcik claims that Crosby took retaliatory action against him by changing his shift from 12 hours to 20 hours and the eventual termination of employment which he claims was based solely on the expression of his concerns. But Crosby claims that Mr. Borcik was fired for insubordination. (49)
Mr. Borcik brought suit against Crosby claiming "retaliatory termination in violation of the Louisiana Environmental Quality Act (LEQA), R.S. 30:2001. Specifically, Mr Borcik claimed that Crosby violated the Louisiana Environmental Whistleblower Act R.S. 30:2027." (50) Section A of the Act provides:
A. No firm, business, private or public corporation, partnership, individual employer, or federal, state, or local governmental agency shall act in a retaliatory manner against an employee, acting in good faith, who does any of the following: (1) Discloses, or threatens to disclose, to a supervisor or to a public body an activity, policy, (2) practice of the employer, or another employer with whom there is a business relationship, that the employee reasonably believes is in violation of an environmental law, rule, or regulation. (2) Provides information to, or testifies before any public body conducting an investigation, hearing, or inquiry into any environmental violation by the employer, or another employer with whom there is a business relationship, of an environmental law, rule, or regulation. (51)
The requirement that the whistleblower be in "good faith" was problematic during Mr. Borcik's trial because the statute failed to define "good faith." In addition, there was no jurisprudence to guide the court in interpreting it. Crosby claimed that "good faith means that Plaintiff
had no intent to seek an unfair advantage or harm another party in making his report of an environmental violation." (52) The plaintiff did not agree with Crosby's definition of good faith and offered his own definition which stated that "[a] finding of good faith means that the plaintiff had an honest belief that an environmental violation occurred." (53) When the court delivered the jury instructions it incorporated language from both parties' definitions: "[g]ood faith means that the plaintiff had an honest belief that an environmental violation occurred and that he did not report it either to seek an unfair advantage or to try to harm his employer or another employee." (54) Following these instructions, the jury ultimately found that Mr. Borcik did believe that he reported a violation of environmental law, but that he did not report it in good faith and judgment was rendered in favor of Crosby. (55)
Mr. Borcik appealed to the United States Court of Appeals for the Fifth Circuit, but even that court was not sure how to define the good faith element presented in the whistleblower statute. (56) The Fifth Circuit certified the question (57) of the meaning of good faith under the Louisiana Environmental Quality Act (58) to the Louisiana Supreme Court. To determine the meaning of good faith within the statute the Louisiana Supreme Court relied on the legislative intent in enacting the Louisiana Environmental Quality
Act. (59) The court found that Louisiana had an interest in maintaining a healthy and safe environment in the state and that these statutes were passed to preserve, protect, and enhance the state's environment. (60) Further, the Louisiana Supreme Court found that the whistleblower statute in this Act was created to protect employees who reported such environmental violations from retaliation or other adverse actions from their employer. (61) To further the purpose of the statute, protecting the environment, the court adopted a broad definition of good faith that would promote whistleblowing when employers are violating an environmental regulation, but would also protect employers from whistleblowers acting in bad faith. The court held that "the term 'good faith' as used in R.S. 30:2027, means an employee is acting with an honest belief that a violation of an environmental law, rule, or regulation occurred." (62) Having the legal question answered by the Louisiana Supreme Court, the Fifth Circuit Court of Appeals remanded the case finding that the trial court's jury instructions were in error.
The definition of "good faith" adopted by the Louisiana Supreme Court under the Louisiana Environmental Quality Act establishes precedent case law. The Louisiana Supreme Court decision establishes that protection of the environment is the true goal of the statute and that whistleblowers are necessary to ensure that violations do not occur. The court did not believe that the definition of good faith suggested by Crosby would further this goal because "harm to an employer would result from nearly every conceivable instance of reporting, and an employee would therefore be seen as having an 'intent to harm' in every case." (63) The act is also designed to protect employers from bad faith employees by not protecting an employee who, without direction from his employer, violates an environmental rule or regulation (64) and by requiring that the employee who makes a claim under the statute has a reasonable belief that their employer has violated an environmental law or regulation. (65)
V. THE LOUISIANA ENVIRONMENTAL QUALITY ACT
The purpose of the Louisiana Environmental Quality Act (LEQA) is stated in La. R.S. 30:2003:
A. The maintenance of a healthful and safe environment in Louisiana requires governmental regulation and control over the areas of water quality, air quality, solid and hazardous waste, scenic rivers and streams, and radiation. B. In order to accomplish these goals most efficiently, it is necessary to provide for comprehensive policies on a statewide basis to unify, coordinate, and implement programs to provide for the most advantageous use of the resources of the state and to preserve, protect, and enhance the quality of the environment in Louisiana. (66)
The purpose of the LEQA is consistent with Louisiana's goal of protecting the environment and its natural resources. Section 30:3027 of the LEQA is titled "Environmental violations reported by employees; reprisals prohibited" and is the section created to protect an employee who blows the whistle on an employer who violates an environmental rule or regulation.
If an employee wishes to bring suit against an employer because he believes that he has been fired or in some way punished for disclosing an employer's environmental violation the employee must show: 1) he acted in good faith; 2) he reported, or threatened to report, a violation; 3) he reasonably believed the activity, policy, or practice undertaken by his employer, or another employer with whom there is a business relationship with his employer, is in violation of an environmental law; 4) he reported, or threatens to report, the violation to a supervisor or to a public body of the employer; and 5) the employer acted in a retaliatory manner because the employee reported, or threatened to report, a violation. (67) If the employee fails to show any of these five elements then his employer is likely to succeed on a motion to dismiss for no cause of action. The plaintiff/employee bears the burden of proving a causal connection between his good faith disclosure or threat of disclosure of an environmental violation and the alleged retaliatory or adverse action undertaken by his employer in response to such report or complaint. (68) These are high standards for an employee to meet considering the state's goal is protection of the environment, and that employees may be in the best position to alert that such violations are occurring, especially when the violations are occurring in navigable waters where it is impractical to have administrative agents on site to witness these violations first hand.
Mr. Borcik was not successful at the trial level, primarily because good faith under the LEQA was not defined. One must question the outcome on remand since the good faith definition has been furnished by Louisiana's highest court.
First, Mr. Borcik must prove he acted in good faith, which the Supreme Court of Louisiana defined as an employee is acting with an honest belief that a violation of an environmental law, rule, or regulation occurred. (69) By applying the Supreme Court's definition, a reasonable jury or trier of fact would likely believe that he was in good faith because he honestly believed that pouring oil waste into navigable waters was a violation of an environmental law.
Second, Mr. Borcik must prove that he reported, or threatened to report, a violation. Mr. Borcik should be successful in proving this element because he expressed his concerns to high-ranking officers within the company including the Chief Administrative Officer. Even though Crosby claims that Mr. Borcik may or may not have mentioned his concerns at the meeting, Mr. Borcik should be able to present his emails as evidence that he did report the violation to the company.
Third, he must establish that he reasonably believed the activity, policy, or practice undertaken by his employer is a violation of an environmental law. This element differs from the good faith element as it is an objective test rather than the subjective standard of the good faith element. Under this objective standard, the trier of fact considers whether a reasonably prudent employee in similar circumstances would have believed that the facts as reported were a violation of law.7 (0) Mr. Borcik will likely be able to prove that any reasonable employee would know that dumping oil waste into the water is a violation of environmental law.
Fourth, he must prove he reported, or threatens to report, the violation to a supervisor or to a public body of the employer. Mr. Borcik will likely be able to prove this element because he expressed his concerns on various occasions. Although Mr. Borcik will likely be able to prove that he reported the violation to his company, incidents may occur where an employee complains of the violation to a supervisor, but the grievance goes unrecorded leaving the employee unable to prove this element.
Fifth, Mr. Borcik must prove his employer acted in a retaliatory manner because he reported, or threatened to report, a violation. This element is of the utmost importance for the employee to prove, and it is also the hardest because he must prove that disclosing the environmental violation was the cause of retaliation by the employer. If the employer can demonstrate the employee was fired or punished for any other reason (such as arriving late for work) then the employee may not prevail. Crosby claimed that Mr. Borcik was fired for insubordination. But Mr. Borcik claimed that he was terminated because he expressed his concerns. The court will have to determine why he was fired. The statute protects the employee from any kind of retaliation. Mr. Borcik should be able to prove this element because his shifts were changed from twelve hours to twenty after he expressed his concerns.
This statute was passed to protect employees and ultimately to protect the environment, but some of these elements are more favorable to the employer and not so favorable for protecting the environment and the state's natural resources.
VI. THE LOUISIANA WHISTLEBLOWER STATUTE
La. R.S. 23:967 states:
A. An employer shall not take reprisal against an employee who in good faith, and after advising the employer of the violation of law:
(1) Discloses or threatens to disclose a workplace act or practice that is in violation of state law.
(2) Provides information to or testifies before any public body conducting an investigation, hearing, or inquiry into any violation of law.
(3) Objects to or refuses to participate in an employment act or practice that is in violation of law.
B. An employee may commence a civil action in a district court where the violation occurred against any employer who engages in a practice prohibited by Subsection A of this Section. If the court finds the provisions of Subsection A of this Section have been violated, the plaintiff may recover from the employer damages, reasonable attorney fees, and court costs. (71)
This statute protects employees who disclose any kind of violation of law or regulation made by their employer and is broader in scope than the LEQA, which only protects employees who report environmental violations. But this Louisiana Whistleblower statute is more restrictive than the LEQA in several ways. First, the Whistleblower statute only protects employees who disclose that his employer violated a Louisiana State law. (72) The statute also requires that an employee "know" that a state law has been violated, "a good faith belief that a violation occurred is insufficient." (73) The statute only protects employees who have informed their employer of the violation and will not protect an employee who has reported the violation to an outside agency if they did not first express their concern to their employer. (74) This statute also states that an employee may commence a civil action in a district court where the violation occurred. This provision may be problematic for employees, especially seaman, if they work for a Louisiana company but are not inside of the state limits when the violation occurred.
In 2013, the First Circuit Court of Appeal of Louisiana held that 30:2027 of the LEQA supersedes La. R.S. 23:967, "where there is a general statute and a specific statute addressing the same subject matter, such as La. R.S. 30:2027 and La. R.S. 23:967, the more specific statute should govern." (75)
A claim under Louisiana's Whistleblower Act has five elements: (1) a workplace act or practice violates state law; (2) the employee informed the employer of the violation of state law; (3) the employee disclosed or threatened to disclose the violation; (4) the employee suffered an adverse employment action; and (5) the adverse employment action was suffered as a result of his whistleblowing activity. (76) The plaintiff-employee has the burden of proving these elements to succeed in a retaliatory action against his employer. (77)
Applying the facts from Borcik to this statute, except changing the disclosure to fraudulent billing practices of the captain, demonstrates that this statute is even more demanding on the employee than the LEQA.
First, the employee will have to prove that fraudulent billing practices violate Louisiana state laws, but jurisprudence on this subject requires that the employee must know that the employer is violating a state law and cannot just believe that the employer is doing so. It may be difficult for a deckhand to obtain the appropriate documentation that he will need to "know" that this practicing is happening.
Second, he must prove that he informed his employer of the state law violation. This provision contradicts the objective of the statute which is to promote employees notifying the authorities when an employer is violating a law. If an employee has to first disclose the violation to the employer, he may be more inclined to just turn his head. Additionally, since this is an element that must be proved by the employee, casually bringing it to the attention of the employer may not suffice. Documentation in writing would be better evidence, but having to submit a complaint in writing may deter a whistleblower leaving the employer free to continue violating a state law.
Third, the employee must prove that he either disclosed or threatened to disclose the violation to the appropriate authority.
This provision is more restrictive than the LEQA because under this statute reporting the violation only to a superior officer within the company is not enough to receive protection (although reporting it to the employer is an additional requirement). Under the facts of Borcik, the violation was reported to a superior officer of Crosby; however, the facts of the case do not state that Mr. Borcik reported or even threatened to report the violation to any outside agency. Under these facts, Mr. Borcik would not receive protection under the Louisiana Whistleblower Act.
Next, the employee must prove that he suffered an adverse employment action. Adverse actions include, but are not limited to, termination. Under the facts of Borcik, this element should be met, even if the trier of fact believes that Crosby fired him for insubordination because Crosby did defend changing Mr. Borcik's shifts from twelve to twenty hours.
Last, the employee must prove the adverse action was suffered as a result of the whistleblowing activity. This is a vital element and the hardest to prove. The whistleblowing activity must be THE reason for the adverse action, and the cause of action will be lost if the employer can show that the adverse action was the result of anything else.
The Louisiana whistleblower statutes fall short of capturing the spirit of the Continental Congress or Abraham Lincoln who both realized that government is not big enough to act alone. They realized that a law is useless if there is no one to enforce it. Today, there are a plethora of agencies, but they cannot monitor or discover most violations without the help of the community. The Louisiana statutes were written with an intent to protect people, who the government continues to rely on, from retaliatory action. Unfortunately, it appears that the Louisiana courts, like in Gil' (8), continue to keep "at-will" employment on a pedestal. The courts have interpreted the statutes in a way that makes fighting a retaliatory action extremely difficult, while allowing the right of an employer to fire an employee without cause to go unhindered.
VII. THE SEAMAN'S PROTECTION ACT
The Seaman's Protection Act (SPA) was enacted to protect seaman who report their employer to the Coast Guard for violating maritime laws and regulations, "from the debilitating threat of employment reprisals." (79) If a seaman is discharged in violation of the statute, he may bring an action seeking backpay and any other appropriate relief. (80) Prior to the enactment of this statute, the Fifth Circuit Court of Appeals decided Donovan v. United States Dep't of Labor (81) in 1983. This case involved a Coast Guard-licensed engineering officer, Donald Jensenius, who was employed by Texaco Inc., the defendant. (82) Jensenius reported the condition of certain generating equipment on the vessel to the Coast Guard without first reporting the condition to his superior. (83) The Coast Guard inspected the equipment, but did not find any deficiencies. (84) After Jensenius admitted that he had alerted the Coast Guard, he was demoted. (85) He refused to accept the demotion and was discharged. (86) Jensenius made a retaliation complaint with OSHA. (87) However, OSHA does not apply to seamen working on vessels. (88) Plaintiff argued that a retaliatory action was not a "working condition" and further argued that the vessel was docked at a Texas port when he made the complaint and that he was on shore when he was demoted and discharged. (89) The court found that under 29 U.S.C.A. [section] 653(b)(1) the Coast Guard has statutory authority over the working conditions of seamen. (90)
And that "[t]he geographic reach of OSHA is confined to "employment performed in a workplace in a State, the District of Columbia, the Commonwealth of Puerto Rico,... [various listed United States' possessions and territories, and] Outer Continental Shelf Lands defined in the Outer
Continental Shelf Lands Act . A vessel on the high seas is not such a "workplace." (91)
The court also reasoned that allowing OSHA protections to seamen in port and denying the same protections to seaman who were offshore would lead to disastrous consequences. (92) The court held "we derive the principle that a single, uniform set of rules should govern the maritime workplace. Because of OSHA's geographic limitations noted above, this cannot be those of OSHA. For this additional reason, we conclude that it must be those of the Coast Guard." (93)
In response to the Fifth Circuit's opinion in Donovan v. Texaco Inc., (94) Congress passed the Seamans Protection Act. (90) Section 2114 of this act, entitled "Protection of seaman against discrimination, states:
(a)(1) A person may not discharge or in any manner discriminate against a seaman because-- (A) the seaman in good faith has reported or is about to report to the Coast Guard or other appropriate Federal agency or department that the seaman believes that a violation of a maritime safety law or regulation prescribed under that law or regulation has occurred; (B) the seaman has refused to perform duties ordered by the seaman's employer because the seaman has a reasonable apprehension or expectation that performing such duties would result in serious injury to the seaman, other seamen, or the public; [...] (2) The circumstances causing a seaman's apprehension of serious injury under paragraph (1)(B) must be of such a nature that a reasonable person, under similar circumstances, would conclude that there is a real danger of an injury or serious impairment of health resulting from the performance of duties as ordered by the seaman's employer. (3) To qualify for protection against the seaman's employer under paragraph (1)(B), the employee must have sought from the employer, and been unable to obtain, correction of the unsafe condition.
The original Seaman's Protection Act, enacted in 1984, only included section 2114(a)(1)(A) providing limited protection only to seaman who reported or was going to report violations of the Coast Guard Authorization Act of 1984 to the Coast Guard. (96) However, following amendments made to this Act in 2002 and 2010, the Act provides a broader range of protections, including protection to seaman who report a violation of an environmental law or regulation. (97)
Reflecting on the congressional intent and the jurisprudential history, which ultimately led to the creation of the Seaman's Protection Act, coupled with the amendments that broadened the scope of the Act, one may believe that this Act is a safe haven for a seaman who expresses his concerns about an actual or potential environmental concern. However, the Seaman Protection Act would not provide protection to a seaman under the facts of Borcik. (98)
Under Section 2114(a)(1)(A) an employer may not discharge or discriminate against a seaman who, acting in good faith, has reported or is about to report to the Coast Guard or other appropriate federal agency that a seaman believes that a violation of maritime safety law or regulation has occurred. This particular provision is less burdensome on a whistleblower than the Louisiana Whistleblower Statute because it does not require that the employee "know" that a violation has occurred, but allows only a "belief that one has occurred. However, this particular provision only protects seaman who disclose a maritime safety violation. Mr. Borcik would not be protected by this provision for two reasons. First, according to the facts of the case he did not report the violation to an agency nor was he about to report the violation prior to his termination. Second, dumping oil waste into navigable waters does not constitute a maritime safety violation.
Under Section 2114(a)(1)(B) an employer may not discharge or discriminate against a seaman who has refused to perform duties ordered by his employer if the seaman has a reasonable apprehension or expectation that performing the duties will result in injury to the seaman, other seaman, or the public. The apprehension or expectation of harm caused by performing the duties must be one that a reasonable seaman, under similar circumstances, would conclude poses a real danger of an injury or a serious impairment of health." To qualify for protection under this provision, a seaman must have first sought correction of the unsafe condition from his employer. (100)
Mr. Borcik almost qualifies for protection under this provision. Dumping oil waste into navigable waters would result in injury to the public and a reasonable seaman would conclude this to be true. Mr. Borcik did seek correction of this unsafe condition by expressing his concerns to his employer through email and allegedly at a meeting. (101) However, Mr. Borcik may not be successful in bringing a claim under this provision because it is intended to protect a seaman who refuses to perform a duty that he believes will cause harm, but Mr. Borcik stated that he did perform the duties over a period of three years and never indicated that he refused to perform the duties at any time. (102)
While the Seaman's Protection Act potentially could provide protection to seaman who disclose violations relating to a broad range of laws and regulations, the language in the statute is not broad enough to actually give full protection to many whistleblowers. Section 2114(a)(1)(A) is a provision that could be broad enough to protect many seamen because it only requires a good faith belief that a violation has occurred and it does not require that the employee first notify the employer of the violation. As mentioned previously, requiring an employee in an employment at will state to first disclose the violation to the employer gives the employer an incentive to find any reason, other than the disclosure of the violation, to terminate the employee. This requirement leaves employees vulnerable to being terminated at the employer's discretion, as the employee has no prima facie case if the employer can prove that the disclosure was not the sole cause of the termination. Additionally, this requirement will lead to an employee choosing not to disclose a violation because having to first go to the employer could be awkward and uncomfortable; and a reasonable person would believe that doing so would incentivize the employer to find a reason to terminate him. However, Section 2114(a)(1)(A) only applies to disclosures of maritime safety violations. If the Act could be amended to allow this provision to govern the burden put on the seaman regardless of what kind of violation he is reporting, then the Seaman's Protection Act would likely be able to protect more seamen who have concerns about their employer's violations. This change would be especially beneficial to seamen who are employed in an at will state, such as Louisiana.
VIII. THE ACT TO PREVENT POLLUTION FROM SHIPS
Many sources contribute to the pollution of the marine environment with ocean shipping "accounting for approximately half of all marine pollution, primarily oil pollution." (103) Marine pollution can have detrimental effects on marine life, human life, and the environment. In an effort to combat marine pollution, which is an international concern, customary and conventional international laws have been developed to conquer this serious problem. (104) The central international agreement that focuses on preventing ship pollution is the International Convention for the Prevention of Pollution from Ships (MARPOL) which regulates all forms of pollution caused by the operation of a ship. (105) The Convention was adopted in London on November 2, 1973 and ratified by the United States on July 2, 1980. (106) The United States domestically implemented these regulations when Congress enacted The Act to Prevent Pollution from Ships (APPS) 33 U.S.C.A. [section][section] 1901 et seq. (107)
The master of the ship has a duty to report to the Secretary of Transportation any actual or probable discharge of any harmful substance into the sea. (108) This report must be made through the fastest means possible, typically by radio, and must contain a detailed description of the circumstances including: the name of the ship, the time of the incident, the location of the ship at the time of the incident, and the wind and sea conditions. (109) If the ship must be abandoned, then the duty to make the report is assumed by the owner, charterer, manager, operator, or an agent. (110)
Under APPS, the Coast Guard may board any vessel in U.S. waters or docked at a U.S. port and inspect the vessel for MARPOL/APPS compliance. (111) During this examination the Coast Guard may inspect the vessel's Oil Record Book, which is required and is intended to monitor discharges into the sea. (112) The Oil Record Book must be kept for three years and must accurately reflect any discharge of oily mixtures, accidental or otherwise. (113) Additionally, vessels are required to have oil discharge monitoring equipment. (114) A person who knowingly fails to maintain an accurate Oil Record Book or violates any other MARPOL/APPS regulation can face civil penalties or may be prosecuted for a class D felony. (115)
Similar to the False Claims Act, the Act to Prevent Pollution from Ships gives a financial incentive to whistleblowers who disclose environmental violations. The court has discretion to give a whistleblower up to one half of the damages awarded in a successful prosecution of a MARPOL/APPS violation which leads to a conviction. (116) Since the enactment of this amendment in 1987 allowing whistleblowers to be compensated for disclosing violations, there has been a rise in MARPOL/APPS prosecutions. (117)
There is no statutory guidance on how much a whistleblower should receive for disclosing violations leaving the decision entirely to the discretion of the court. Courts may give the whistleblower up to half of the amount of the award, but there have been cases where a court has awarded the whistleblower substantially less or even nothing because the whistleblower was acting in self-interest. For instance, in cases involving whistleblowers who knew of a violation, but purposely did not report the violation until the vessel was within the United States because doing so would be of greater financial benefit to himself, courts have given the whistleblower an amount substantially lower than one half. (118) Courts have also refrained from giving any award to a whistleblower when he disobeyed company policies requiring reporting to the company of any discovered violations; and instead disclosed the violation to the Coast Guard presumably in an effort to capitalize from the employer's violation. (119) These decisions by the court should make employers less fearful that employees will intentionally withhold information from employers in order to disclose violations for self-profit or that employees will bring frivolous claims against the company causing unnecessary expenses.
Mr. Borcik could have brought a claim against Crosby under the Act to Prevent Pollution by Ships. Not only is it likely that he would be able to demonstrate that oil waste was being dumped into navigable waters, but presumably the Coast Guard would likely find that the dumping of oil waste into the water was not accurately reported in the Oil Record Book. If Mr. Borcik's claim that this occurred frequently over three years is found to be true, then Crosby could potentially be fined for each day that the record book was inaccurate over this period of time. (120) There is no indication that Mr. Borcik was acting in his own self-interest, since he did first alert his employer of the violation, allowing him to potentially be awarded up to one half of the damages for violations that have occurred over a three year period of time.
Presently, there are many federal and state whistleblower statutes enacted to provide protection to people who disclose violations of laws and regulations. While this comment has only explored a few statutes that provide such protections, it serves to demonstrates the diversity in this area of law. Receiving protection under most whistleblower statutes is dependent upon the facts of each case and due to the diversity of the statutes, protection under one statute does not ensure protection under another whistleblower statute. Likewise, two whistleblowers could work for the same company, disclose the same violation, and bring an action under the same whistleblower statute, yet one may be successful and the other not simply because there is a single fact that is different in the two cases, such as one whistleblower first disclosed the violation to his employer and the other whistleblower failed to do so.
The Louisiana Whistleblower statutes discussed in this comment will not serve to give full protection to an employee. Requiring an employee to first disclose his concerns to his employer before reporting it to the appropriate agency can be detrimental to a whistleblower's opportunity to bring a retaliatory action against his employer. Employers are aware of the employment laws in Louisiana and at the moment that the employee discloses his concerns to the employer, the employer will suspect that the employee intends to report the company and will actively look for another reason to terminate the employee. The employee will receive no protection if the employer can prove that the employee was fired for any reason other than the disclosure of the violation. Louisiana is an employment at will state which means that employers can fire an employee with or without cause, which can ultimately give the employer an unfair advantage in retaliatory cases. If Louisiana truly wants to protect whistleblowers from being fired or discriminated against, then this requirement should be removed from the statutes because the only purpose that it really serves is to notify an employer that they need to pay special attention to this employee and find a reason to fire him before he makes a disclosure to an agency.
Federal Whistleblower statutes are more diverse and employees have many options to choose from in deciding which Act to bring a claim under. While this comment could not cover all or even most of the federal whistleblower protections available, most of the federal environmental protection acts have very similar whistleblower provisions as the Seaman's Protection Act. The Seaman's Protection Act is not limited to environmental issues and therefore many seaman whistleblowers can bring a retaliatory suit against their employer under a plethora of issues. While the broad scope of the Act is favorable to seaman in many aspects, it is less favorable to a seaman employed in Louisiana because it too requires that an employee first report his concerns to his employer before making a complaint to the appropriate agency. Likewise, many of the other federal environmental acts have the same requirement.
However, the Acts that contain qui tarn provisions, such as the False Claims Act and the Act to Prevent Pollution by Ships, appear to be a more favorable choice for employees, especially for those who are employed in Louisiana. Under these provisions, the employee does not have to prove that he told anyone of the violation and generally will be successful if he can prove that the employer knowingly violated a law or regulation. These actions do not contain provisions that mandate an employee to take certain actions in order to be successful because the action is not applicable solely to employees, but rather can be brought by any citizen. Many whistleblowers who are able to prove that a violation is occurring will be able to successfully bring this type of claim, and as long as they were not acting in self-interest or intentionally misleading their employer about the issue, they will receive monetary compensation for their disclosure.
Laws that have been created to protect the environment must be enforced in order to preserve life on this planet. Pollution of the air and waters will have devastating consequences in the future. It is not financially feasible or even physically possible for the government to have agents constantly stationed upon the seas stopping vessels to check for environmental violations. The most practical solution is for whistleblowers to alert the appropriate agency when a violation is occurring. Seamen are on the vessel and are first-hand witnesses to the violations that occur.
What is not practical is allowing the government to depend on these whistleblowers to discover and report violations; rather, it should write laws that are broad enough to protect the person reporting this information. This comment argues that statutes which require an employee to disclose a complaint to an employer does little to protect an employee who is employed in an at will state. These provisions should be revised to include broader language that would protect all whistleblowers who have not created the issue themselves in order to file a claim against their employer.
The Acts that contain qui tarn provisions appear to be the most useful because they can be brought by anyone who discovers a violation occurring. They allow for a whistleblower to be compensated for alerting to the violation and it does not cost the government a penny because the whistleblower is paid from the damages/fines paid by the defendant. Since the whistleblower is only paid if the defendant is convicted of the charge and because courts have self-implemented standards that will not pay a whistleblower acting only in his own self-interest, innocent employers should not fear that an employee will bring frivolous claims in hopes of monetary gain.
Hopefully, whistleblower statutes will be revisited by law makers and they will be revised to offer actual protection to whistleblowers instead of just offering the appearance of protection as many of the present statutes do. The government has been relying on whistleblowers since the signing of the Declaration of Independence and that reliance has only increased over time, however, the protections afforded to whistleblowers have not increased and is very dependent upon the whistleblower fulfilling varying requirements and being careful to not get fired for another cause. Whistleblowers disclosing environmental violations should be afforded the utmost protection because, quite literally, the future of this world may depend on them.
Elizabeth A. Williams (*)
(*) J.D. Candidate 2019, Loyola University New Orleans College of Law; B.A. 2015,
University of New Orleans.
(1) "Blowing the Whistle" refers to reporting a violation or a perceived violation to the appropriate authorities.
(2) Borcik v. Crosby Tugs, L.L.C, 222 So. 3d 672 (La. 2017).
(3) 46U.S.C.A. [section]2114.
(4) 33 U.S.C.A. [section] 1901.
(5) La. R.S. 23:967.
(6) La. R.S. 30:2027.
(7) U.S. Dep't of Labor, Know Your Rights, THE WHISTLEBLOWER PROTECTION PROGRAMS, https://www.whistleblowers.gov/know_your_rights (last visited Mar. 9, 2018).
(8) Nancy M. Modesitt, The Garcetti Virus, 80 U. CIN. L. REV. 137, 154-55 (2011).
(9) See Stephen M. Kohn, The Whistle-Blowers of 1777, N.Y. TIMES (June 13, 2011), http://www.nytimes.com/2011/06/13/opinion/13kohn.html?_r (Stephen M. Kohn is the executive director of the National Whistleblowers Center and the author of "The Whistleblower's Handbook: A Step-by-Step Guide to Doing What's Right and Protecting Yourself").
(14) Stephen M. Kohn, The Whistle-Blowers of 1777, N.Y. TIMES (June 13, 2011), http://www.nytimes.com/2011/06/13/opinion/13kohn.html7_r (citing Journal of the Continental Congress 1774-1789, Volume IX 1778 (May 2- Sept. 1). See also https://www.whistleblowers.org/storage/documents/WPEA/continental%20congress%20journal%20july%201778.pdf.
(15) See Stephen M. Kohn, The Whistle-Blowers of 1777, N.Y. TIMES (June 13, 2011), http://www.nytimes.com/2011/06/13/opinion/13kohn.html7_r.
(16) Christopher J. Dellana, Higher Education: An Appropriate Realm to Impose False Claims Act Liability Under the Post-Formation Implied False Certification Theory, 78 U. PlTT. L. REV. 217, 217-18 (2016).
(17) Mat 218.
(19) Patricia Meador, The False Claims Act: A Civil War Relic Evolves into a Modern Weapon, 65 TENN. L. REV. 455, 459 (1998).
(21) Id. at 455-56.
(22) Allan Kanner, Environmental Whistleblowers' Rights, 26 ENVT'L LIT. COM. NWSLTR. 2 (2015).
(23) 33 U.S.C.A. [section] 3730(h)(2)
(24) 33U.S.C. [section][section] 1251etseq.
(25) 42U.S.C. [section][section]300fetscq.
(26) 15 U.S.C. [section] 2622.
(27) 42 U.S.C. [section] 6901.
(28) 33 U.S.C. [section] 1251.
(29) 42 U.S.C. [section] 9601.
(30) Joel D. Hesch, Whistleblower Rights and Protections: Critiquing Federal Wliistleblower Laws and Recommending Filling in Missing Pieces to Form a Beautiful Patchwork Quilt, 6 LIBERTY U. L. REV. 51. 81 (2011).
(32) Id. at 82.
(35) Joel D. Hesch, Whistleblower Rights and Protections: Critiquing Federal Whistleblower Laws and Recommending Filling in Missing Pieces to Form a Beautiful Patchwork Quilt. 6 LIBERTY U. L. REV. 51, 83 (2011).
(36) La. R.S. 30:2027.
(37) La. R.S. 30:2027.
(38) Gerald J. Huffman, Jr., The New Louisiana Employment Statutes: What Hath the Legislature Wrought, 58 LA. L. REV. 1033, 1059-60 (1998).
(39) 412 So. 2d 706 (La. App. 4 Cir. 1982).
(40) Id. at 707, 708.
(41) Id. at 708.
(44) La. R.S. 23:967.
(45) Borcik v. Crosby Tugs, L.L.C, 222 So. 3d 672, 673 (La. 2017).
(47) Id. at 674.
(50) Borcik, 222 So. 3d at 674.
(51) La. R.S. 30:2027.
(52) Borcik, 222 So. 3d at 674.
(55) Id. at 674-75.
(56) See id. at 675.
(57) See La. Sup. Ct. R. XII (Louisiana Supreme Court Rule XII allows any circuit court who has a question or proposition of Louisiana state law, which are determinative of the case in question, and there is not a clear controlling precedent established by the Louisiana Supreme Court, to certify such questions to the Supreme Court of Louisiana for rendition of a judgment or opinion concerning such questions or propositions of Louisiana law).
(58) See Borcik, 222 So. 3d at 673.
(59) La. R.S. 30:2027
(60) Id. at 676, See also La. R.S. 30:2003 (stating the purpose of this statute).
(61) See Borcik, 222 So. 3d at 676.
(62) See id. at 677.
(63) Id. at 679
(64) See La. R.S. 30:2027(c).
(65) See La. R.S. 30:2021(A)(1).
(66) La. R.S. 30:2003.
(67) Collins v. Louisiana, 118 So. 3d 43, 49 (La. Ct. App. 2013).
(68) See Brown v. Catalyst Recovery of Louisiana, Inc., 813 So. 2d 1156, 1166 (La. App. 3d Cir. 2002).
(69) Borcik, 222 So. 3d at 676.
(70) Borcik, 222 So. 3d at 678 (explaining the reasonable belief standard).
(71) La. R.S. 23:967
(72) See Odeh v. City of Baton Rouge, 191 F. Supp. 3d 623, 628 (M.D. La. 2016).
(73) Id. (citing Hale v. Touro Infirmary, 886 So. 2d 1210, 1214 (La. Ct. App. 2004).
(74) See Herster v. Bd. of Supervisors of La. State Univ., 72 P. Supp. 3d 627, 647 (M.D. La. 2014).
(75) See Collins v. State, 118 So. 3d 43, 52 (La. App. 1st Cir. 2013).
(78) Gil v. Metal Service Corp., 412 So. 2d 706 (La. Ct. App. 1982).
(79) Baetge-Hall v. American Overseas Marine Corp., 624 F. Supp. 2d 148, 158 (D. Mass. 2009).
(80) Id. at 157.
(81) Donovan v. Dep't of Labor, 720 F.2d 825 (oth Cir. 1983).
(82) Id. at 825.
(86) Donovan, 720 F.2d at 826.
(88) Id. at 827.
(89) Id. at 829.
(90) Id. at 826.
(91) Donovan, 720 F.2d at 829.
(95) Baetge-Hall v. American Overseas Marine Corp., 624 F. Supp. 2d 148, 158 (D. Mass. 2009).
(96) See Goebel v. Guilbeau Marine, Inc., No. 11-1335. 2012 WL 777483, at *5 (E.D. La. Mar. 8, 2012).
(97) See id.
(98) Borcik v. Crosby Tugs, L.L.C., 222 So. 3d 672 (La. 2017).
(99) 46 U.S.C.A. [section]2114(a)(2).
(100) 46 U.S.C.A. [section] 2114(a)(3).
(101) Borcik, 222 So. 3d at 674.
(102) Id. at 673.
(103) Marjorie A. Shields, Construction and Application of Act to Prevent Pollution from Ships (APPPS), 33 U.S.C.A. [section][section] 1901 et seq, 38 A.L.R. Fed.2d 565 (2009).
(108) Marjorie A. Shields, Construction and Application of Act to Prevent Pollution from Ships (APPPS), 33 U.S.C.A. [section][section] 1901 et seq, 38 A.L.R. Fed.2d 565 (2009).
(111) Katriel Statman, "To Comply or Not to Comply?" An Argument in Favor of Increasing Investigation and Enforcement of MARPOL Annex I Violations, 5 WASH. & LEE J. ENERGY, CLIMATE, & ENV'T 251, 257-58 (2013).
(114) Marjorie A. Shields, Construction and Application of Act to Prevent Pollution from Ships (APPPS), 33 U.S.C.A. [section][section] 1901 et seq, 38 A.L.R. Fed.2d 565 (2009).
(115) Id. See also United States v. Jho, 534 F.3d 398 (5th Cir. 2008) (finding that Jho, the chief engineer who manipulated the Oil Record Book, could be criminally charged for conspiracy, making false statements to Coast Guard officials, and eight counts of failure to maintain an accurate Oil Record Book).
(116) 33 U.S.C.A. [section] 1908.
(117) Katriel Statman, "To Comply or Not to Comply?" An Argument in Favor of Increasing Investigation and Enforcement of MARPOL Annex I Violations, 5 WASH. & LEE J. ENERGY, CLIMATE, & ENV'T 251, 270 (2013).
(118) Gregory F. Linsin & Ariel S. Glasner, Judicial Aids to Navigation: Charting the Boundaries of Environmental Criminal Enforcement in the Maritime Sector, 27 U.S.F. MAR. L.J. 153, 194 (2015).
(120) See United States v. Jho, 534 F.3d 398, 401 (5th Cir. 2008) (Defendant, Jho, who was dispersing pollutants into the water without logging it in the Oilf Record Book was charged with eight counts of knowing failure to maintain an Oil Record Book. These eight counts charged corresponded to the eight different times that the vessel entered a United States port with a knowingly inaccurate Oil Record Book).
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|Author:||Williams, Elizabeth A.|
|Publication:||Loyola Maritime Law Journal|
|Date:||Jan 1, 2019|
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