LEGAL PUBLISHING PREVIEW
EMPLOYMENT LAW

The Whistleblower Litigation
Handbook: Environmental,
Health & Safety Claims.
Kohn, Stephen, August 1991,
Publishing, 468 pgs.
ISBN: 1-55957-107-1

This book is a comprehensive second edition to Protecting Environmental & Nuclear Whistleblowers: A Litigation Manual, published in 1985. A valuable practical resource for attorneys and students of employment law, Stephen. Kohn's new book is also intended to aid pro se litigants and nonattorney union or citizen representatives of employees who file complaints with the Department of Labor for Whistleblowers relief and protection. A litigator in this area of law, Kohn has produced a succinct guide, which also provides the litigator (or researcher) a wealth of case law and other authority on the subject.

The primary focus of the manual is civil action through the Department of Labor to secure relief for employees under seven federal environmental and nuclear Whistleblowers protection laws, i.e. 'The Safe Drinking Water Act, the Cleat Air Act, the Energy Reorganization Act, the Comprehensive Environmental Response and Liability Act (or superfund), the 'toxic Substance Control Act. Congress enacted these laws to protect employees who report violations of environmental or nuclear safety regulations to public authorities from termination, harassment blacklisting or other discriminatory acts by retaliatory employers.

Essentially identical in whistleblowing provisions, these seven statutes are implemented by two sets of regulations promulgated and administered by the Department of Labor, In practice, these regulations must be integrated with provisions of the Administrative Procedure Act and the Federal Rules of Civil procedure, as well as rules of evidence as applied by the Department of Labor Practice Rules and Procedures, this is not an easy process for the uninitiated.

Through a complaint timely filed with the Department of Labor, the aggrieved employee may seek job reinstatement, back pay with interest, compensatory damages, damages for pain and suffering and loss of reputation, and any other relief to abate the employer's violation. Moreover, if the employee wins the suit, the Secretary of Labor must order the employer to pay costs and expert witness fees.

Where so much relief is potentially available, the usefulness of this book is highlighted by the extremely short statute of limitations. The Whistleblower must file the claim within 30 days of the employer's act of discrimination. This does not give the claimant much time to solve the puzzle of filing an administrative action and perfecting her claim.

Unlike many would-be litigation manuals which heavily rely upon unsupported generalizations and practice points, this book takes an organized approach to every aspect of this area of litigation, including the appeal process, Kohn cuts through the maze Of federal administrative law procedure with the use of overviews, checklists, and summaries. These are argumented with a discussion of the spectrum of relevant legal and practical concerns, incorporating legal theory, legislative history, case analysis and application, and step-by step procedures which include such hands-on details as how to request a subpoena from the correct Department of Labor address, and how to obtain and use evidence through the Freedom of Information Act.

Nearly half the manual consists of Appendices which provide relevant reference information to supplement the text. These include model discovery forms, copies of the Department of Labor regulations and the seven federal whistleblower statutes, a statutory comparison of employees protection provisions, a sample subpoena, and list of national and regional addresses of federal agencies and public interest organizations where further information may be obtained. Additional research aids include a table of cases and subject index.

Anyone who has dealt with application of comprehensive federal statutes and corresponding regulations will appreciate Kohn's well organized collection of legal authority. This book effectively reduces the litigator's research task to one volume. For example, the book cites the major Department of Labor unpublished decisions, valuable in litigating whistleblower discriminations cases, and explains how to obtain copies of these decisions.

The book also discusses state causes of action for environmental whistleblowers, the refusal to perform hazardous or radioactive work, litigation within the Department of the interior under the Surface Mining Act's Employee Protective Provision OSTIA protection remedies available to truck drivers under the surface Transportation Act, and remedies for miners under the Federal Mine Safety Act. Here as well, the discussion is Supported by case law, including unreported decisions and pertinent secondary authority.

Although a valuable resource for anyone who practices, teaches, or possesses an interest in this area of law, this book has one limitation common to any treatise. Statutes and regulations are susceptible to repeal and amendment on a daily basis, particularly in the areas of environmental and labor law. The book should be updated annually and its use supplemented by other sources (such as the Federal Register for regulatory changes).