Employees need not make an express concern for the environment or public health when engaging in protected whistleblower activity under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Toxic Substances Control Act (TSCA). An employee was terminated allegedly in violation of protected whistleblower activity under CERCLA and TSCA, as a result of the employee’s request from the employer of environmental and safety information relating to employee’s workplace. An Administrative Law Judge (“ALJ”) granted the employer’s motion for summary judgment because the ALJ found that the employee made no express concern about the environment or public health when he engaged in the alleged protected activity; that the employee was instead motivated purely for his and his coworkers’ personal safety and health; and thus that the employee’s activity was not protected activity under CERCLA and TSCA. The Department of Labor (“DOL”) Administrative Review Board vacated the ALJ’s grant of summary judgment and held that, to survive the summary judgment stage, an employee need not make express concern about the environment or public health for whistleblower actions to be protected under CERCLA and TSCA, provided the actions touch on the concerns for the environment or public health and safety that are the focus of CERCLA or TSCA.
Williams v. Dall. Indep. Sch. Dist., ARB No. 12-024, ALJ No. 2008-TSC-1 (ARB Dec. 28, 2012); Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C.A. § 9610 (Thomson/West 2005); Toxic Substances Control Act (TSCA), 15 U.S.C.A. § 2622 (Thomson Reuters 2009); see also Melendez v. Exxon Chems. Americas, ARB No. 96-051, ALJ No. 1993-ERA-006, slip op. at 18 (ARB July 14, 2000).
(Development Authored by Mark Soto)