Employers have been known to ask employees to violate environmental laws. Sometimes, the request occurs because of an honest misunderstanding of the law and should be considered an innocent mistake. Less scrupulous employers have been known to ask employees to perform an activity that is in violation of an environmental law because it is a cheaper way of doing business. In either case, the employee faces both a moral and a legal dilemma. Questions like, "Could I go to jail for this?" or "If I refuse will I be fired, or passed over for a raise or promotion?" and "Who is responsible if someone gets hurt?" often haunt the employee. As he wrestles with his conscience, the employee may not know where to turn, or what to do. The employee may not even be certain that what the employer is requesting is illegal. The employee may only suspect that the activity is illegal because of something he heard, or something he read. In such situations, the employee must know for what he has legal responsibility, and for what his employer has legal responsibility. The employee must also know what to do if he finds that his employer is retaliating against him for not violating the law.
The law holds that a person responsible for compliance with a law must also answer for violations of the law. An employee who has no responsibility for compliance with a law, when directed to violate the law, is usually not held responsible for the violation unless the employee knew or should have known that his conduct was illegal. For example, an employee who uses an illegal type of paint when ordered to do so would probably not be held responsible for a violation of the Clean Air Act if the employee was not responsible for maintaining company compliance with the Clean Air Act. However, an employee performing midnight dumping of drums of used solvent into a vacant field when ordered to do so could be held liable since such activity is without question known to be illegal.
If a supervisor asks an employee to perform an act, such as using a paint that the employee believes to be illegal, the employee should state the concern to the employer. He should specifically tell the person requesting the activity that the environmental laws could prohibit the requested activity. The employee should determine if the person making the request is responsible for environmental compliance. If the person making the request is not responsible for environmental compliance, the employee and the person making the request should consult the person with responsibility for environmental compliance before proceeding. The employee should state that he is only requesting the consultation to protect the company. If the person making the request refuses to consult with the company's environmental compliance officer, or if the person making the request happens to be the company's environmental compliance officer, the employee should remind the person that if EPA later determines that the activity was illegal, the company and the person ordering the illegal activity will be liable, but usually not the employee who simply follows the order.
If the person ordering the activity states that he knows the activity is illegal, but orders the employee to perform the activity anyway, the employee has a difficult decision to make. If he continues, he is committing a knowing violation of the law, possibly exposing himself to criminal sanctions. If he does not continue, he is subjecting himself to retaliation by his employer for not following directions, albeit illegal directions. Congress contemplated such a problem and passed "whistle-blower" laws to protect the employee. The Clean Water Act (33 U.S.C. § 1367(a)), the Clean Air Act (42 U.S. C. § 7622), the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § 9610), the Safe Drinking Water Act (42 U.S.C. § 300(j)-9(i)), the Resource Conservation and Recovery Act (42 U.S.C. § 6971), and the Toxic Substances Control Act (15 U.S.C § 2622) all contain whistle-blower provisions. Other state and federal laws also contain whistle-blower provisions that could be applicable depending on the specific situation.
Under the whistle blower laws, no employer may discharge or otherwise discriminate against any employee concerning his compensation, terms, conditions, or privileges of employment because the employee reported, or is threatening to report suspected illegal activity of the employer. Such whistle-blower provisions promote a working environment in which employees are relatively free from the debilitating threat of employment reprisals for publicly alleging violations of laws protecting the environment. The whistle-blower laws encourage employees to aid in the enforcement of the underlying laws by allowing employees to raise legitimate concerns through protected procedural channels. It is usually not necessary for the employee to know that the activity is illegal, provided the employee substantiated the allegation and was not merely harassing the employer. The courts scrutinize an employer's motivation for his actions regarding an employee who reports, or threatens to report a violation. Hence, after an employee "blows the whistle," the employer must show that a legitimate reason exists for taking action against an employee. Even if an employer had compiled enough information to terminate an employee, but failed to do so until the employee reported a violation of an environmental law, the whistle-blower statutes would protect the employee from being terminated as a result of reporting theviolation of the environmental law.
In the case of Passaic Valley Sewerage Commissioners v. U. S. Department of Labor, 992 F. 2d 474 (1993), the third circuit court of appeals extended the whistle-blower protection to reports made internal to an organization. Thus, an employee can make his initial report to upper management where he feels that such reporting could result in correction of the illegal activity. There is no legal requirement that the employee start within the organization to report the alleged illegal activity. However, some employment contracts require that an employee report all grievances internally before being reported outside the company. It is important that the employee be aware of such requirements since disciplinary action for not following company procedures are at least arguably not covered by the whistle-blower statutes.
Whistle-blower statutes do not apply to an employee who, acting without direction from his employer, deliberately violates the law. Thus, an employee who initiates the violation and then threatens to report the "company's" illegal activity to save his job when the employer finds out, cannot rely on the whistle-blower statute for protection. It is also important to remember that the law affords no protection to a person who sits on his rights. An employee only has a limited amount of time to file a claim under the whistle blower statutes. For example, an employee must file within thirty days under the Clean Air Act's whistle-blower statute.
I recommend the following course of action to any employee who is asked to perform an illegal activity:
1) If the employee does not know, but merely suspects the activity to be illegal, question the person making the request as to the legality of the activity. The employee should ask to speak to the environmental compliance officer "to protect the company." If possible, the employee should try to have a witness present during the conversation. If the employer tells the employee that the activity is legal, then the employee should perform the task. The employee is not the person responsible for making the determination of compliance with the law.
2) If the employee knows that the activity is illegal, but the employer orders the employee to perform the illegal activity anyway, the employee should only perform the task if retaliation is likely, and performing the task is not likely to put others in danger. If possible, the employee should try to have a witness present during the conversation. On the employee's own time, the employee should write down the sequence of events leading up to the violation, and all details related to what violation occurred. The employee should pay particular attention to who ordered the violation, witnesses, times, dates and details about the violation in his writing. When practical, the employee should report the situation to management and/or EPA for resolution. Reporting is important since it negates any inference that the employee was the person initiating or responsible for the illegal activity.
3) If the illegal activity is one that could result in someone being hurt, the employee should simply refuse. An employee should never knowingly endanger anyone by creating an environmental hazard. The employee should report the situation to management immediately before someone with less integrity performs the activity. If management does not take immediate steps to prevent the illegal activity, immediately report the situation to EPA. If the employee believes that the activity endangers employees of the company, the employee should also report the situation to OSHA. OSHA gives any matter in which there is an imminent danger of employee harm first priority. Furthermore, under OSHA's interagency sharing of information agreement, OSHA will cooperate with EPA by providing EPA with information regarding violations of environmental law. If the company retaliates against the employee for reporting or threatening to report the illegal activity, the employee should immediately seek legal assistance. Congress designed the whistle-blower statutes to protect and to compensate employees in such situations, but the employee may only have thirty days in which to act after retaliation occurs.
In addition, I offer the following advice to employers. When any employee comes forward with an allegation that a supervisor asked the employee to violate the law, treat the matter seriously. Investigate the facts and the law. If the supervisor did request that the employee violate the law, try to determine if the supervisor understood that the action was illegal. If he did, consider the supervisor's value to the company compared to the potential environmental liability your company could have faced. Furthermore, if your company or the supervisor does anything which might even appear to be retaliatory against the employee who reported the incident, the company is again exposed to liability under the whistle-blower statutes. The best businesses are those that find cost effective ways to comply with the law, not those that look for employees who are willing to violate the law.