DoL Revises WhistleBlower Interpretation

January 28, 2003 ( - Workers reporting wrongdoing to Congress may now be afforded greater protection, after the US Department of Labor (DoL) changed its interpretation of a new corporate whistleblower law.

In a letter to Senators Charles Grassley (R-Iowa) and Patrick Leahy (D-Vermont), Acting Solicitor Howard Radzely reversed the DoL’s previous position that only whistleblower contacts with a “duly authorized” investigative committee of Congress were protected, not those with just any member of Congress. Radzely said in his letter that “it is the department’s view that . . . complaints to individual members of Congress are protected, even if such member is not conducting an ongoing committee investigation,” according to a Washington Post report.

Initially, the DoL had interpreted whistleblower provisions of the Sarbanes-Oxley Act in a manner that the two senators said conflicted with the original intention of the protections written into the bill.   However, Grassley said in the Post story that the recent DoL reversal would “make it easier for corporate whistleblowers to be protected when they speak out on wrongdoing in the boardroom.”

Long Time Coming

Grassley and Leahy have sent several letters to White House officials seeking assurances that the current administration understood the intent of the law. In September, they received an answer as to how the law would be interpreted, when then-DoL solicitor Eugene Scalia filed a friend-of-the-court brief with an administrative review board seeking to overturn a $200,000 punitive damages award won by Assistant US Attorney Gregory Sasse of Ohio in a whistleblower case against the Justice Department.

In the case, Sasse said his superiors downgraded his performance reviews, did not grant him training opportunities and removed him from some cases in retaliation for his contacts with Representative Dennis Kucinich (D-Ohio), in looking into reports of toxic materials on federally owned land near the Cleveland airport. An administrative law judge found Sasse’s contacts with Kucinich were protected and thus, the DoL and unlawfully retaliated against him.

However, in his brief, Scalia argued that only contacts with investigative panel members are protected and therefore, Sasse did not enjoy whistleblower protection.   Additionally, Scalia argued that a federal prosecutor could not sue the Justice Department over workplace disagreements involving priorities in government litigation.

Sasse’s attorney, Steven Bell, told the Post that recent reversal by the DoL would help his client’s case. “The Labor Department is acknowledging that the substance of the brief it filed is legally inaccurate.”

Advocates of the whistle-blower protection feared Scalia was attempting to use the case, concerning whistleblower provisions in environmental protection laws, to establish a legal precedent undermining whistleblowers in cases against corporations. The DoL has appealed the ruling to the administrative review board, which has yet to hand down a decision in the case.