skip to page content
Office of Administrative Law Judges
Overview of the Employee Protection Provisions of
The Implementing Recommendations of the 9/11
Commission Act of 2007
August 7, 2007


On August 3, 2007 President Bush signed "The Implementing Recommendations of the 9/11 Commission Act of 2007." (Hereinafter "9/11 Act"). It has been designated as Public Law No: 110-053.

The legislation signed by the President was the result of a Conference Report, H.R. Rep. 110-259 (July 25, 2007) (Conf. Rep.).

Three sections of the Act pertain to employee protection – a new U.S. Code provision covering public transportation employees – and significant amendments to the current U.S. Code provisions covering railroad employees and commercial motor carrier employees. The following is an overview to introduce the new and amended provisions. Some details about the provision have been omitted. Thus, researchers should refer to the text of the laws for a full understanding of the provisions.1

PUBLIC TRANSPORTATION EMPLOYEES

The 9/11 Act includes the "National Transit Systems Security Act of 2007." ("NTSSA"). This is a new law which has the purpose of minimizing security threats and of maximizing the abilities of public transportation systems to mitigate damage that may result from terrorist attacks. Section 1413 provides employee protection (or "whistleblower") coverage for public transportation employees.

According to the Joint Explanatory Statement of the Conference Committee, this provision is modeled on the employee protection provisions of the Federal Rail Safety Act, 49 U.S.C. § 20109, and the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, 49 U.S.C. § 42121 ("AIR21").

Covered respondents: A public transportation agency, a contractor or subcontractor of such an agency, or an officer or employee of such an agency. The definitions section of the NTSSA, at section 1402(5), provides that the term ‘‘public transportation agency'' means a publicly owned operator of public transportation eligible to receive Federal assistance under chapter 53 of title 49, United States Code.

Covered complainants: An "employee."

Protected activity: Protected activity under the NTSSA is broken down into an "In General" provision and a "hazardous safety or security condition" provision.

In General. The "In General" provision covers providing information or assisting an investigation regarding conduct which the complainant reasonably believes constitutes a violation of any Federal law, rule, or regulation relating to public transportation safety or security, or fraud, waste, or abuse of Federal grants or other public funds intended to be used for public transportation safety or security. The complainant's actions must be lawful, and in good faith. The complainant is also covered if he or she is only perceived by the employer to have engaged in the protected activity.

Under the "In General" provision, to be covered, the information or assistance must be provided to

 a federal, state or local regulatory or law enforcement agency,

 any member or committee of Congress or the GAO,

 or a person with supervisory authority over the employee or such other person who has the authority to investigate, discover, or terminate the misconduct.

The "In General" provision also includes

 a refusal to violate or assist in the violation of Federal law, rule or regulation relating to public transportation safety or security;

 the filing of an employee protection complaint under the NTSSA;

 cooperating with safety or security investigation by the DOT, DHS or NTSB; and

 furnishing information to the DOT, DHS, NTSB or any Federal, State, or local regulatory or law enforcement agency relating to "any accident or incident resulting in injury or death to an individual or damage to property occurring in connection with public transportation."

Hazardous Safety or Security Conditions. The second category of protected activity relates to reporting a hazardous safety or security condition, refusing to work when confronted by a hazardous safety or security condition related to the performance of the employee's duties (under certain specified conditions), and refusing to authorize the use of any safety- or security-related equipment, track or structures under certain conditions. Work and authorization refusals must have been in good faith and under the condition that there were no reasonable alternatives. They are also conditioned on a "reasonable individual" test, which includes elements of an imminent danger of death or serious injury, and an urgent situation. The work and authorization refusals also are conditioned on, where possible, first giving notice to the public transportation agency and failure of that agency to immediately correct the condition or repair or replace the equipment track or structure. Certain security personnel are not covered for work refusals.

Procedure: The procedures under the NTSSA are similar to those found in AIR21. To be timely, the complaint must be filed with the Secretary of Labor within 180 days "after the date on which [the] violation occurs." DOL's investigation is to be completed within 60 days after receipt of the complaint. The goal of the investigation is to determine whether there is "reasonable cause to believe that the complaint has merit." The complainant or respondent has 30 days after notification of the investigatory findings to request a hearing on the record. If reinstatement is ordered, it is not stayed by a hearing request. Hearings are to be conducted "expeditiously." The ARB has 120 days "after the date of the conclusion of the hearing" to issue a final order. If DOL has not issued a final decision within 210 days after the filing of the complaint, the complainant can opt to file suit in federal district court. If a federal court suit is filed, the NTSSA provides for a jury trial at the request of either party.

Burden of proof: The legal burden of proof under the NTSSA is similar to the burden specified in AIR21, SOX and the PSIA. The complainant must establish that the protected activity was a "contributing factor" in the unfavorable personnel action alleged in the complaint. Relief may not be ordered notwithstanding this showing if the "employer" demonstrates by "clear and convincing evidence" that it would have taken the same unfavorable personnel action in the absence of the protected activity.

Settlements: A whistleblower proceeding under the NTSSA may be curtailed by a settlement agreement. This provision contains the "entered into by the Secretary of Labor" language, which under the caselaw interpreting other whistleblower cases adjudicated by DOL has uniformly been interpreted to mean that any settlement documents must be provided to OSHA, OALJ or the ARB, for a determination of whether the settlement is "fair, adequate and reasonable."

Remedies: The available remedies are similar to those available under other whistleblower cases adjudicated by DOL – reinstatement, backpay, compensatory damages. The NTSSA also provides for punitive damages in an amount not to exceed $250,000.

RAILROAD EMPLOYEES

Section 1521 of the 9/11 Act amends the Federal Rail Safety Act, 49 U.S.C. § 20109. ("FRSA"). It modifies the railroad carrier employee whistleblower provision -- both expanding what constitutes protected activity, and enhancing administrative and civil remedies for employees to mirror those in found in AIR21. The prior section 20109 procedure specified a special arbitration proceeding; the amended section will follow the AIR21 procedure for adjudication at the Department of Labor.

Covered respondents: A railroad carrier engaged in interstate or foreign commerce, a contractor or a subcontractor of such a railroad carrier, or an officer or employee of such a railroad carrier.

Covered complainants: An "employee."

Protected activity, generally: Like the NTSSA, protected activity under the FRSA is broken down into an "In General" provision and a "hazardous safety or security condition" provision.

In General. The "In General" provision covers providing information or assisting an investigation regarding conduct which the complainant reasonably believes constitutes a violation of any Federal law, rule, or regulation relating to railroad safety or security, or gross fraud,2 waste, or abuse of Federal grants or other public funds intended to be used for public transportation safety or security. The complainant's actions must be lawful, and in good faith. A complainant is also covered if he or she is only perceived by the employer to have engaged in the protected activity.

Under the "In General" provision, to be covered, the information or assistance must be provided to

 a federal, state or local regulatory or law enforcement agency,

 any member or committee of Congress or the GAO,

 or a person with supervisory authority over the employee or such other person who has the authority to investigate, discover, or terminate the misconduct.

The "In General" provision also includes:

 a refusal to violate or assist in the violation of Federal law, rule or regulation relating to railroad safety or security;

 the filing of an employee protection complaint under the FRSA;

 notifying or attempting to notify the railroad carrier or the DOT of a work-related personal injury or work-related illness of an employee;

 cooperating with a safety or security investigation by the DOT, DHS or NTSB;

 furnishing information to the DOT, DHS, NTSB or any Federal, State, or local regulatory or law enforcement agency relating to "any accident or incident resulting in injury or death to an individual or damage to property occurring in connection with railroad transportation;"

 and accurately reporting hours on duty pursuant to chapter 211 of the FRSA.

Hazardous Safety or Security Conditions. The second category of protected activity relates to reporting a hazardous safety or security condition, refusing to work when confronted by a hazardous safety or security condition related to the performance of the employee's duties (under certain specified conditions), and refusing to authorize the use of any safety- or security-related equipment, track or structures under certain conditions. To be covered, work and authorization refusals must have been done in good faith and under the condition that there were no reasonable alternatives. The protected activity is also conditioned on a "reasonable individual" test, which includes elements of an imminent danger of death or serious injury, and an urgent situation. The work and authorization refusals also are conditioned on, where possible, first giving notice to the railroad carrier, and failure of the railroad carrier to immediately correct the condition or repair or replace the equipment track or structure. Certain security personnel are not covered for work refusals.

Procedure: The procedures found in AIR21 apply to FRSA employee protection complaints. As with the NTSSA provision, if DOL has not issued a final decision within 210 days after the filing of the complaint, the complainant can opt to file suit in federal district court. If a federal suit is filed, the FRSA expressly provides for a jury trial at the request of either party.

Burden of proof: The FRSA adopts the legal burdens of proof found in AIR21.

Settlements: Since the AIR21 procedures are adopted under the FRSA, settlement documents will be required to be provided to OSHA, OALJ or the ARB, for a determination of whether the settlement is "fair, adequate and reasonable."

Remedies: The available remedies are similar to those available under other whistleblower cases adjudicated by DOL – reinstatement, backpay, and compensatory damages. The FRSA also provides for punitive damages in an amount not to exceed $250,000.

COMMERCIAL MOTOR CARRIER EMPLOYEES

Section 1536 of the 9/11 Act amends the employee protection provision of the Surface Transportation Assistance Act, 49 U.S.C. § 31105. ("STAA"). The amendments in general conform the STAA to the procedure and legal burden of proof set forth in the NTSSA and the amended FRSA (which in turn are essentially derived from AIR21).

Covered respondents: A "person."3

Covered complainants: An "employee." Under the amended STAA, an "employee" is defined as "driver of a commercial motor vehicle (including an independent contractor when personally operating a commercial motor vehicle), a mechanic, a freight handler, or an individual not an employer, who— (1) directly affects commercial motor vehicle safety or security in the course of employment by a commercial motor carrier; and (2) is not an employee of the United States Government, a State, or a political subdivision of a State acting in the course of employment."4

Protected activity, generally: Prior to the 2007 amendments, protected activity under the STAA consisted of three types: Section 31105(a)(1)(A) -- filing of complaint or instituting of proceeding, Section 31105(a)(1)(B)(i) -- "federal motor safety violation," and Section 31105(a)(1)(B)(ii) -- "reasonable apprehension of injury." Under the 2007 amendments, however, protected activity consists of five types of protected activity:

1. Filing a Complaint or Beginning a Proceeding. Section 31105(a)(1)(A) – the employee's filing of a complaint or beginning a proceeding related to violation of a commercial motor vehicle safety or security regulation, standard or order. A respondent's perception of such activity is also covered.

2. Work Refusal. Section 31105(a)(1)(B) – the employee's refusal to operate a vehicle because the operation would violate a regulation, standard or order related to commercial motor vehicle safety, health, or security – or because the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle's hazardous safety or security condition.

3. Reporting Hours on Duty. Section 31105(a)(1)(C) – the employee's accurate reporting of hours on duty.

4. Cooperating With DOT, DHS Or NTSB Investigation. Section 31105(a)(1)(D) – the employee's cooperation (or the respondent's perception that the employee is about to cooperate) with a safety or security investigation by the DOT, DHS or NTSB.

5. Furnishing Information to DOT, DHS, NTSB, or Other Authorities. Section 31105(a)(1)(E) – the employee's furnishing of (or the respondent's perception that the employee is about to furnish) information to the DOT, DHS, NTSB, or any Federal, State, or local regulatory or law enforcement agency as to the facts relating to any accident or incident resulting in injury or death to an individual or damage to property occurring in connection with commercial motor vehicle transportation

Procedure: To be timely, the complaint must be filed with the Secretary of Labor within 180 days "after the alleged violation occurred." DOL's investigation is to be completed within 60 days after receipt to the complaint. The goal of the investigation is to determine whether it is "reasonable to believe that the complaint has merit." The complainant or respondent has 30 days after notification of the investigatory findings to request a hearing on the record. If reinstatement is ordered, it is not stayed by a hearing request. Hearings are to be conducted "expeditiously." The ARB has 120 days "after the end of the hearing" to issue a final order. Under the amended STAA, if DOL has not issued a final decision within 210 days after the filing of the complaint, the complainant can opt to file suit in federal district court. If a suit is filed in federal court, the amended STAA expressly provides for a jury trial at the request of either party.

Burden of proof: The amended STAA adopts the legal burdens of proof found in AIR21.

Settlements: The amended STAA does not change the STAA in regard to settlements.

Remedies: The available remedies are amended to expressly provide for special damages. The amended STAA also provides for punitive damages in an amount not to exceed $250,000.

[ENDNOTES]

1 The full Conference Report is available on the thomas.loc.gov website. A version containing only the whistleblower provisions is found on this website.

2 In contrast, the similar provision of the NTSSA refers only to "fraud" and not to "gross fraud."

3 The current definitions section of the STAA at 49 U.S.C. § 31101 does not contain a definition of "person." The previous version of the STAA defined a "person" as "one or more individuals, partnerships, associations, corporations, business trusts, or any other organized group of individuals." See Killcrease v. S & S Sand and Gravel, Inc., 1992-STA-30 (Sec'y Feb. 2, 1993) (quoting 49 U.S.C. app. § 2301(4)).

4 The pre-amendment STAA defined an "employee" in the definitions section at 49 U.S.C. § 31101. The amended STAA places the definition within the STAA employee protection section at 49 U.S.C. 31105(j).