Blowing the Whistle at Hanford
An Insider’s Guide
Warning: This is not legal advice. Please consult a qualified attorney to evaluate your particular situation.
If you work at Hanford, you may encounter a situation involving illegality, violations of law, rules or regulations, or unaddressed threats to public and worker health and safety. Depending upon your employer, your concern may be quickly and adequately resolved, or it may be ignored or even covered up. Many who have raised concerns in the past have been subjected to reprisals and harassment simply for being the bearer of bad news.
This guide explains steps you can take to blow the whistle at Hanford and still protect yourself.
A worker who is thinking about blowing the whistle must act cautiously and get educated about the pitfalls of blowing the whistle.
In this section, you will find:
- A Unique Model for Whistleblowing: the Hanford Concerns Council
- Legal Protections Available: CONTRACTOR EMPLOYEE
- Legal Protections Available: FEDERAL EMPLOYEE
- Legal Protections Available: STATE EMPLOYEES
Your decisions about whether and how to blow the whistle may be among the most significant professional and personal choices you make; you should understand the implications and potential pitfalls of your choices. Through assisting whistleblowers over the years, we have learned much about what kinds of strategies and cases are most likely to be successful and which are a recipe for frustration or failure. If you decide to speak out even after learning about the risks, you should act in a smart and strategic manner, one that will serve your own as well as the public’s interests.
- Is the wrongdoing at issue substantial enough to warrant the risks of reprisal and the investment of human and financial resources to expose it?
- Are your allegations reasonable and can they be proven?
- Can you make a difference in resolving the wrongdoing if you blow the whistle, or will you be beating your head against the bureaucratic wall?
- Experience shows that when individuals act strategically with the truth on their side, they can make a difference. Whistleblowers are the Achilles heel of organizational misconduct, if they bear witness when it counts. Used astutely, truth is still the most powerful political weapon in our society, capable of defeating money and entrenched political machines.
Once you decide to blow the whistle, you are faced with another dilemma: Where should you take your story? To government officials? The media? What avenue is most likely to expose and correct the wrongdoing you have revealed? Which is best able to protect your interests and concerns? Some avenues provide greater confidentiality than others. Some are well-positioned to expose wrongdoing; others tend to discourage dissent. Still others are known for taking action against whistleblowers. You should know the pros and cons of each before you choose.
- Before taking any irreversible steps, talk to your family of close friends about your decision to blow the whistle.
- Be alert and discreetly attempt to learn of any other witnesses who are upset about the wrongdoing.
- Before formally breaking ranks consider whether there is any reasonable way to work within the system by going to the first level of authority. If you do decide to break ranks, think carefully about whether you want to “go public” with your concerns or remain an anonymous source. Each strategy has implications: the decision depends on the quantity and quality of your evidence, your ability to camouflage your knowledge of key facts, the risks you are willing to assume and your willingness to endure intense public scrutiny.
- Develop a plan-such as strategically-timed release of information to government agencies-so that your employer is reacting to you, instead of vice-versa.
- Maintain good relations with administration and support staff.
- Before and after you blow the whistle, keep a careful record of events as they unfold. Try to construct a straightforward, factual log of the relevant activities and events on the job, keeping in mind that your employer will have access to your diary if there is a lawsuit.
- Identify and copy all necessary supporting records before drawing any suspicion to your concerns. Be careful to not copy classified records.
- Break the cycle of isolation research and identify and seek a support network of potential allies, such as elected officials, journalists and activists. The solidarity of key constituencies can be more powerful than the bureaucracy you are challenging.
- Invest the funds to obtain a legal opinion from a competent lawyer.
- Always be on guard not to embellish your charges.
- Engage in whistleblowing initiatives on your own time and with your own resources, not your employer’s.
- Learn to develop patience and be ready to repeat your story calmly, credibly and consistently.
A Unique Model for Whistleblowing: the Hanford Concerns Council
The Hanford Concerns Council (HCC) is an independent panel designed to handle employee concerns of workplace safety, worker health, and environmental hazards. HCC was inaugurated in June 2005.
HCC is a joint venture of Hanford Challenge and government contractors at Hanford, such as Washington River Protection Solutions and Washington Closure Hanford. The council brings together important representatives of the Hanford community to collaborate and provide timely solutions for difficult problems. By gathering the perspectives of the employees, company, and neutral participants, HCC mediates fair and equitable solutions.
Most importantly, HCC has contractors’ commitment to implement recommended resolutions with the exception of extraordinary circumstances.
More information about HCC can be found at its Web site: http://www.hanfordconcernscouncil.org.
Legal Protections Available
In order to explain the possible paths for an employee who wants to blow the whistle, it is necessary to define whether the employer is a contractor of the Department of Energy, a federal employee directly of the DOE, or a state official charged with overseeing compliance at Hanford. Who do you work for? Each category is explained below.
Contractor employees of the Department of Energy are afforded protection against retaliation for raising nuclear-related or environmental concerns by federal law in the way of employee-protection provisions contained within the Nuclear Whistleblower Protection Act and six other environmental statutes such as the Clean Air Act, the Clean Water Act, the Superfund Act, the Toxic Substances Control Act and the Resources Conservation and Recovery Act (RCRA). In addition, state law prohibits the wrongful discharge of employees because they raise a concern important to protecting public policy.
Finally, the Department of Energy has enacted a regulation to protect contractor employees of the DOE which can be found at Title 10 of the Code of Federal Regulations, Section 708.
Statutory Protection under Federal Law
- Clean Air Act Employee Protection Provisions, Title 42 of the U.S. Code. section 7622;
- Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9610
- Toxic Substance and Control Act Employee Protection Provisions, 42 U.S.C. § 2622
- Surface Transportation Assistance Act, 49 U.S.C. § 31105
- Surface Transportation Assistance Act of 1982, 49 U.S.C. § 2305
- Solid Waste Disposal Act Employee Protection, 42 U.S.C. § 6971
- Safe Drinking Water Act Employee Protection, 42 U.S.C. § 300j
- Federal Water Pollution Control Act Employee Protection, 33 U.S.C. § 1367
- Energy Reorganization Act Employee Protection, 42 U.S.C. § 5851
- Department of Energy Regulations for Protecting Whistleblowers, 10 C.F.R. Part 708
Washington Common Law
- Tort of Wrongful Discharge, Public Policy Exception to the Employment-at-Will Doctrine under Washington Common Law, established by Thompson v. St. Regis Paper Co., 102 Wash. 2nd 219 (1984). Caution: A recent Washington Supreme Court decision may affect the ability of Hanford workers to utilize this legal avenue (Korslund v. Dyncorp, 121 Wn.App. 295, 88 P.3d 966 (2004)
- Statutory Protection Under Federal Law: In order to qualify for protection under one of the federal statutes, you must be able to show that – -
- You are an employee of a contractor or sub-contractor at a DOE facility;
- You engaged in protected activity, such as making a disclosure about a safety-related issue;
- The Employer knew of your protected activity;
- There was an adverse employment action against you (such as a poor performance appraisal, transfer, demotion, harassment, loss of pay or benefits or termination)
- There was a connection between the management knowledge of your protected activity and the adverse employment action.
Employees who believe that they have suffered discrimination or retaliation at work because they raised a concern can file a complaint with the U.S. Department of Labor. At Hanford, the OSHA Regional Office in Seattle will handle your complaint. Its address is:
Occupational Safety and Health Administration
Department of Labor
1111 Third Ave. #715
Seattle WA 98101
Filing a complaint is simple. You must file a complaint with 180 days of your learning of the adverse action taken against you under the Nuclear Whistleblower Protection Act, or within 30 days under the other environmental laws. Write a letter to OSHA explaining your situation, including the elements listed above. Ask for an investigation and whatever relief may be available to you under applicable law. An investigator will then be assigned to your case. After an investigation, OSHA will issue a finding in your case. Either party – the employer or the claimant – - may file a request for a formal hearing on the record within five days of receiving the OSHA finding.
The hearing stage involves a Department of Labor Administrative Law Judge, and is a formal on-the-record hearing. Witnesses may be called and subject to examination and cross-examination. Generally, it is wise to obtain legal counsel throughout this process.
Possible remedies include restoration of back pay with interest, restoration of lost benefits such as vacation leave, seniority rights, sick leave, pension benefits, and the like, as if you had never been terminated or the adverse action never taken against you. You have a right to recover attorney fees and costs and to seek compensatory damages for emotional distress.
For a fuller discussion of your rights under federal law, you can visit the Department of Labor web site at http://www.oalj.dol.gov/libwhist.htm
Department of Energy Regulations for Protecting Whistleblowers can be found at 10 C.F.R. Part 708. Under this Rule, a complainant must file within 90 days of an act or reprisal with the local DOE field office element.
The process set forth in the regulations is similar to the Labor Department process above. However, investigations can take as long as two years to complete. Employees cannot access this remedy if they have a possible grievance or other process – - no matter how flawed or under the control of the contractor it may be – available to them.
There is no right of discovery in the process.
Contractors found liable under the process may refuse to implement the remedy ordered, and the employee has no legal recourse to enforce the order. Instead, the DOE must force the contractor to implement the remedy – - which it has refused to do in past cases
Remedies include restoration of back pay and similar make-whole remedies, but do not include compensatory damages.
Employees who wish to file using the Department of Energy regulation at 10 C.F.R. Part 708 must do so within 90 days of the alleged retaliatory action against them. For more information about how to use the DOE’s process, check the DOE web site at http://www.oha.doe.gov/regs/rule708/index.htm.
Washington Common Law
Under Washington state common law, there is a Tort of Wrongful Discharge, Public Policy Exception to the Employment-at-Will Doctrine established by Thompson v. St. Regis Paper Co., 102 Wash. 2nd 219 (1984). In order for employees to utilize this tort (personal injury) remedy, they must have suffered discharge from the job because of their whistleblowing activities. The statute of limitations in which to file a claim is three years from the date of the discharge. The remedies available to plaintiffs include damage awards as determined by a jury, and equitable relief afforded by a court, which could include an order of reinstatement, an award of attorney fees and the like. Recent case law developments in the Washington Supreme Court raises significant doubt whether Hanford employees may file in state court under this legal theory. See, Korslund v. Dyncorp, 121 Wn.App. 295, 88 P.3d 966 (2004).
Washington Industrial Safety and Health Act (WISHA)
The Revised Code of Washington (RCW 49.17.160), provides that no person shall discharge or in any manner discriminate against any employee because the employee has filed any complaint under or related to WISHA, instituted or caused to be instituted any proceeding under or related to WISHA, testified or is about to testify in any proceeding under or related to WISHA, or exercised on his or her own behalf or on behalf of others any right afforded by WISHA. Any employee who believes that he/she has been discriminated against in violation of section 16 of WISHA may, within thirty days after the violation occurs, file a complaint with the assistant director alleging the violation. The division shall investigate the complaint and, if the assistant director determines that section 16 of WISHA has been violated, the division may bring a civil action against the violator in superior court. The suit may ask the court to restrain violations of RCW 49.17.160 and to grant other appropriate relief, including rehiring or reinstating the employee to his or her former position with back pay.
If you are a federal employee at the Hanford Site, your rights are radically different than for contractor employees. Federal employees who allege reprisal for whistleblowing have only one remedy, available under the Civil Service Reform Act.
Federal employees of the U.S. government are generally not eligible for protection under the environmental laws, and not at all under the state whistleblower protection laws. All federal, civil service employees are protected under the federal Whistleblower Protection Act. The Act is codified at Title 5 of the U.S. Code, Section 2302(b). Again, this Act is an administrative process. The U.S. Congress created a special agency, called the Merit Systems Protection Bond, to adjudicate federal employee claims. This includes the whistleblower claims. Unlike private workers, federal civil servants can only bring a claim under this law alone if they allege that they have suffered reprisal for blowing the whistle.
A special division of this agency, the Office of Special Counsel, is charged with investigating whistleblower complaints and helping federal employees who suffer reprisal as a result of blowing the whistle.
The OSC provides a safe channel through which current and former federal employees, and applicants for employment, may disclose information that they believe shows:
- a violation of law, rule or regulation,
- gross mismanagement,
- gross waste of funds,
- abuse of authority, or
- a substantial and specific danger to public health or safety.
The OSC disclosure channel differs from other government whistleblower hotline channels in at least three way
- federal law guarantees confidentiality to the whistleblower;
- the Special Counsel may order an agency head to investigate and report on the disclosure; and
- after any such investigation, the Special Counsel must send the agency’s report, with the whistleblower’s comments, to the President and Congress.
The OSC does not independently investigate allegations reported through its disclosure channel. The law requires the Special Counsel to send the information to the head of the agency concerned if the Special Counsel determines that there is a substantial likelihood that the information discloses the kind of wrongdoing described in the statute. The OSC will not divulge the identity of a whistleblower unless he or she consents.
When the Special Counsel sends the information to the agency, the agency head must conduct an investigation and submit a report to the Special Counsel. The Special Counsel sends the agency report, along with any comments provided by the whistleblower, and any comments or recommendations by the Special Counsel, to the President and the congressional committees with jurisdiction over the agency.
If the OSC does not send the whistleblower’s disclosures to an agency head, it returns the information and any accompanying documents to the whistleblower. The OSC sends the whistleblower a letter explaining why the Special Counsel did not refer the information. This letter will let the whistleblower know what other disclosure channels may be available.
It is considered a Prohibited Personnel Practice for an agency to engage in reprisal for whistleblowing-i.e., take, fail to take, or threaten to take or fail to take a personnel action against an employee or applicant for disclosing to the Special Counsel, or to an Inspector General or comparable agency official (or others, except when disclosure is barred by law, or by Executive Order to avoid harm to the national defense or foreign affairs), information which the employee or applicant reasonably believes evidences a violation of any law, rule or regulation; gross mismanagement; a gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety).
Federal employees who allege that they have been retaliated against for blowing the whistle can file a complaint for adjudication with the Merit Systems Protection Board (MSPB).
For more information, you can visit the web site of the Office of Special Counsel at http://www.osc.gov.
Employees of the State of Washington must file a complaint with the State Auditor’s Office in Olympia in order to qualify for protection under the State Whistleblower Protection Law.
State Auditor’s Office
Summary of Provisions and Protections
Chapter 42.40 RCW
The State Employee Whistleblower Act
The Whistleblower Act, enacted by the Washington State Legislature in 1983 and significantly amended by Chapter 361 Laws of 1999, provides an avenue for state employees to report suspected improper governmental activity. The Act does not authorize the State Auditor’s Office to investigate personnel actions for which other remedies exist, such as employee grievances.
Any Washington state employee may report a suspected improper governmental action through the Whistleblower Program. This includes temporary employees, classified and exempt civil service employees and elected officials. The Act does not cover employees of state contractors.
Under the 1999 legislation, the asserted improper activity(ies) must have occurred within one year of the filing of the assertion(s).
How to File a Report of Improper Governmental Activity
Improper governmental activity is defined as any action by an employee undertaken in the performance of the employee’s official duties which:
Results in mismanagement or gross waste of public funds or resources.
- Is in violation of federal or state law or rule, if the violation is not merely technical or of a minimum nature.
- Is of substantial and specific danger to the public health or safety.
- Assertions of improper governmental activity must be filed in writing with the State Auditor’s Office.
They can be reported using the Whistleblower Reporting Form, or in a separate letter. In either case, the report should include:
- A detailed description of the improper governmental action(s).
- The name of the employee(s) involved.
- The agency, division and location where the action(s) occurred.
- When the action(s) occurred.
- Any other details that may be important for our investigation — other witnesses, documents, evidence, etc.
- If you know it, the specific law or regulation that has been violated.
- Your name, address and phone number.
Each assertions(s) should be noted separately and supported with as much specific information as possible. Supplying detailed information contributes to a thorough and efficient investigation. The Whistleblower Reporting Form is designed to help you supply the needed information.
Assertions of improper governmental activity may be filed anonymously.
Under state law, anyone who conducts a state employee whistleblower investigation must keep the whistleblower’s name confidential. In addition, the law provides remedies for individuals subjected to retaliation as a result of their whistleblower activities and penalties for those who retaliate.
Send your Whistleblower Reporting Form or letter to:
State Auditor’s Office
PO Box 40021
Olympia, WA 98504-0021
If you wish to file assertions regarding the State Auditor’s Office, please contact:
Assistant Attorney General
State Attorney General’s Office
PO Box 40100
Olympia, WA 98504-0100
The Investigative Process
Whistleblower investigations are conducted independently, objectively and thoroughly. It is the goal of the State Auditor’s Office to treat all parties to the investigation – the state agency, the whistleblower and the subject – with respect and fairly. Further, it is the goal of the State Auditor’s Office to conduct all whistleblower investigations as timely as possible. On average we try to have whistleblower reports issued to the public within 90 days and must have them completed within one year of receipt of the assertion or assertions.
A whistleblower investigation involves a five-step process. The identity of the whistleblower is confidential throughout the investigative process whether State Auditor’s Office investigators or others perform the investigation. Further, confidentiality is maintained even after the final report is issued. All working papers and final reports are redacted in responding to all public record requests to maintain that confidentiality.
The State Auditor is authorized to determine whether to investigate any assertions received.
Between 8:00 a.m. and 5:00 p.m. Monday through Friday you can call the State Auditor’s Office and receive technical assistance. (360) 902-0369
For over fifty years, Hanford has established a culture of secrecy and denial. Employees were expected to not ask questions or to challenge assumptions. Even though the underlying reasons for that culture have gone away with a change in mission from plutonium production to cleanup, the culture persists.
In addition to the above-described rights and remedies for employees who choose to blow the whistle on unsafe or illegal activities at Hanford, the Department of Energy and the contractor community have set up a myriad of employee concern, hotline, and employee grievance systems. Based upon the experiences of numerous employees who have used these systems in the past, and upon independent and credible reviews of those systems, the Government Accountability Project does not believe that these systems are effective, nor will they protect your confidentiality or career. Use these systems at your peril.
The Department of Energy professes to not tolerate reprisals against whistleblowers. However, this appears to be merely a rhetorical public relations act rather than a commitment to change. In case after case, the DOE continues to pay the legal costs and penalties incurred by contractors fighting whistleblower claims. In one recent case, DOE has also claimed attorney-client privilege with respect to a Hanford contractor lawsuit even though DOE was not a named party in the suit. More to the point, DOE continues to fail to take a single action in support of a whistleblower, or to punish a contractor for engaging in illegal reprisals against whistleblowers.
Blowing the whistle can be a life-changing experience. If this is a path you choose to take, do so with your eyes open. Seek legal assistance, counsel from your trusted friends and associates, and support from your family. In extreme cases, be prepared to take on a new career or even to move out of the area.
Despite the risks, employees continue to raise concerns at Hanford. Hanford Challenge was established to attempt to provide support for whistleblowers at Hanford, and to change the culture and the legal system to better protect, and even reward those employees who commit the truth. We rely on private support from foundations and individual contributors for subsistence.