The Pipeline Safety Improvement Act (“Act”) is a federal statute aimed at ensuring the safety and integrity of natural gas and hazardous liquid pipelines. The Act and regulations promulgated thereunder contain standards and requirements for pipeline inspection, remediation, and construction. The Act also includes a “whistleblower” provision that protects employees from retaliation by employers for expressing concerns about pipeline safety violations. Those with potential liability under the whistleblower provision include not only owners and operators of pipelines, but also contractors and subcontractors performing work on pipelines.
An employer may not terminate an employee for refusing to work under certain circumstances.
Under the Act, an employer cannot retaliate against an employee for reporting pipeline safety violations to his or her employer or the government. This scenario is most likely to arise when an employee refuses to work on a pipeline or pipeline facility because the employee believes conditions are unsafe or otherwise in violation of the Act. For example, in the case of Daniel and Edward Rocha v. New England Gas Company, the Rocha brothers refused to weld pipe on a high pressure gas line beneath a bridge that spanned Interstate 95 in Providence, Rhode Island. The Rochas alleged the pipe to be used on the project had been stored outside, and had become corroded and unsafe to be used on the bridge. The Rochas were subsequently terminated by their employer, a subcontractor on the bridge rehabilitation project. The Rochas brought an action under the whistleblower provision of the Act seeking lost wages and benefits from the subcontractor and from the operator of the gas line, New England Gas Company. The Rochas were held to be within the protection of the Act’s whistleblower provision, but (as discussed below) they did not ultimately prevail on their claims.
An employee is not required to show that the alleged illegal practice actually violates the pipeline safety law in order to be protected.
Contractors and subcontractors should understand that if they terminate an employee for refusing to do what the employee believes is an unlawful act, the employer may be liable for the employee’s lost wages and benefits even if the employer can establish that no pipeline safety violation actually exists. All the employee needs to show is that his or her refusal to work was properly communicated to the employer and was based on a reasonable and good faith belief that the work was illegal. Whether an employee is reasonable in his belief that a violation of a federal pipeline safety law exists depends on whether a reasonable person with the employee’s training and experience could reach the same conclusion. In the Rocha case, the Administrative Law Judge found that regardless of whether the condition of the pipes actually violated federal pipeline safety regulations, the Rocha brothers honestly believed that the pipes that they were instructed to weld were unsafe and substandard. Because the Rochas communicated their safety concern to their supervisor, they were protected against retaliation from the subcontractor for refusing to work on the pipes.
In order to avoid liability, employers must investigate pipeline safety concerns and adequately explain the findings to their employees.
An employee who refuses to work on a pipeline loses his protection under the Act if the perceived hazard is investigated by responsible management and, if found safe, is adequately explained to the employee. The employer must address the employee’s concerns in a manner that reasonably quells the employee’s fears. Once an employer has investigated the perceived danger and adequately explained the results of the investigation to the employee, the employer has fulfilled its duty under the Act to respond to the employee’s good faith refusal to work. At that point, absent some further evidence from the employee as to why his or her continued refusal to work is justified, the employee is no longer protected for refusing to work. If the employee continues to refuse to work, the employer may terminate the employee without any liability under the Act.
In the Rocha case, the Rocha brothers brought their good faith concerns regarding the integrity of the pipe to the attention of their supervisor. The management for the subcontractor and the gas company took the welders’ complaint and refusal to work seriously and proceeded to conduct an investigation. That investigation confirmed that although it was necessary to grind and scrape the pipe clean to achieve a “good weld,” the integrity and thickness of the pipe met all applicable standards for use on a high pressure gas line. The Rochas’ supervisor advised them that the pipes were satisfactory and instructed them to proceed to scrape, grind, and weld the pipes. The Rochas refused to weld the pipe and consequently were terminated. The Administrative Law Judge in the Rocha case ruled that the subcontractor and the gas company had investigated the Rochas’ concerns and adequately explained to them why the pipe was sound and safe to use. The Administrative Law Judge concluded that neither the subcontractor nor the gas company had any liability to the Rochas under the Pipeline Safety Act.
The lesson for contractors and subcontractors is that when an employee communicates a pipeline safety concern, that concern should be taken seriously and investigated. If the results of the investigation establish that there is no pipeline safety violation, the results of the investigation should be communicated to the employee to avoid liability under the Act.