Thank you for the Carl Barus Award you have bestowed on me. I am proud that I share this honor with those who felt what they did could make a difference and better the lives of others. I am sure they must have asked themselves, as I did, if not me, who? If not now, when?

  I would like to share with you some of my experiences as a whistleblower, my opinion and suggestions on the subject.

  In 1995 I joined Air-Shields as a Sr. Engineer. Shortly after joining the company, I discovered a serious flaw in a medical product that could kill an infant. I informed my supervisor what I had uncovered. I also explained to him a simple solution that would correct the problem. I was told that Air-Shields was not going to correct the problem or inform the FDA. I told him that as a Professional Engineer my first obligation is the life and safety of the public. If the company was not going to correct the problem and inform the FDA, I was going to notify the FDA. A few weeks later I was fired as incompetent.

  The FDA eventually forced Air-Shields to recall the medical device and correct the defect.

  I am presently suing Air-Shields in the Pennsylvania Courts for wrongful discharge under the public policy exception. Air-Shields has been unsuccessful in three attempts to have my case dismissed. 

  I became aware that IEEE was providing help to any engineer who was faced with an ethics problem at their workplace. I was put in contact with Dr. Steve Unger. He invited me to attend an SSIT meeting that was being held at University of Pennsylvania. I explained to those attending the meeting the facts that resulted in my being fired from Air-Shields. I was later informed that IEEE would support my case as amicus curiae (friend of the court) in my civil suit.

  Pennsylvania, like many other states, is an "At-Will" state. That means that an employer in these states can fire you for a good reason, a bad reason, or no reason. There are a few exceptions. You can not be fired without cause if you are a public employee or have a contract with your employer. If you belong to a union, you are not considered "At-Will" because you are working under a union contract. I might add that those in upper management always have a contract with a "Golden Parachute."

  There are seven statutory acts that have whistleblower protection in Pennsylvania. They are:

  1. Clean Air Act (42 USC §7622)

  2. Comprehensive Environmental Response, Compensation and Liability Act (42 USC §9610)

  3. Energy Reorganization Act of 1974 (42 USC §5851 as amended by Section 2902, P.L. 102-486 (106 Stat. 2776)) 

  4. Safe Drinking Water Act (42 USC §300j-9(I)) 

  5. Solid Waste Disposal Act (42 USC §6971) 

  6. Toxic Substance Control Act (15 USC §2622) 

  7. Federal Water Pollution Control Act (33 USC §1367); 29 CFR 24 

  This means that most Pennsylvania engineers who work in the private sector as "At-Will" employees have no legal whistleblower protection involving manufactured products. 

  An "At-Will" engineer who discovers a dangerous flaw in a product has a number of choices:

He could call it to the attention of management. An enlightened management would immediately correct the flaw and hopefully reward the engineer. He still has a job.

He can say nothing. Eventually the company could pay millions in damages to injured people and then the flaw gets corrected. He still has a job. On the other hand, management may refuse to correct the flaw because it does not have the competence to understand the problem and its solution. The engineer must now make a choice. 

He can drop the subject and look the other way with the same results as choice 2). 

He can report the flaw to the government authority that controls that industry. Soon after the government agents visit the company the flaw is corrected. The manager knows who blew the whistle and he is fired. The company now faces the joy of a possible class action suit with the potential of being driven into bankruptcy. 

  The citizens of New Jersey are fortunate to have legislators with the courage to pass a law that protects all whistleblowers. It is called the Conscientious Employee Protection Act (CEPA). New Jersey is the first state in the nation to adopt such a law. This law must be adopted by all states. 

  All engineering societies in this country have codes of ethics they expect their members to uphold. These codes require that the members themselves do nothing that will endanger the life and safety of the public. What is an engineer's moral responsibility when he becomes aware that his employer or a coworker is involved in a situation that will have an adverse impact on the health and safety of the public ? If he blows the whistle, his boss could be sanctioned, but the engineer can be fired. Yet these societies are powerless to protect members when they act in a responsible manner. At best, the society can only enter in a lawsuit as amicus curiae if the engineer sues his employer in a civil court action.

  The one power engineering societies do have is to inform their members of the dangers they face for speaking out against an employer in their particular state. It could be a deciding factor in where they will work in the future. The societies can petition State and Federal legislators to pass laws that will ensure an ethical workplace.

  State professional engineering licensing laws include a code of ethics but have no provision to protect the engineer who acts to protect the life and safety of the public. They will not act as amicus curiae.

  Many years ago New Jersey passed a "Good Samaritan Act." It was needed because accident victims were suing doctors who stopped to give first aide. As a result, doctors stopped rendering aide. The public in general was the ultimate loser. 

  We need a national "Good Samaritan Act" to protect conscientious employees who act for the good of society. 

  We can have a national Conscientious Employee Protection Act (CEPA) if all of the engineering societies got together and petition Congress. IEEE alone has about 360 000 members that are also voters. 

  The public and industry must be convinced that CEPA it is in their best interest. Truly ethical companies find themselves at a disadvantage when a few companies have unethical managers. 

  Most of our common laws in the United States are based on English Law. The "At-Will" common law in this country is not based on English law. It is an American creation. It is based on a treatise called "Master and Servant" written by Horace G. Wood in 1877. Recently Dr. Ronald B. Standler wrote a paper on this subject called "History of At-Will Employment Law in the USA." He claims that the "At-Will" doctrine is based on a number of false premises. The full text of his paper can be found at www.rbs2.com. It also has a link on the SSIT web page.

  The "At-Will" doctrine is based on the free enterprise idea of reciprocity. If an employee is free to leave his employer without cause, than the employer has the same right. That may have been valid in the nineteenth century, but not today. Today an employee does not have the same economic power of his employer. 

  Many court decisions and legislative laws are now eroding the "At-Will" employment concept. 

  I sometimes wonder about the logic in some of the laws we have. The Federal law known as Federal Water Pollution Control Act has provisions to protect whistleblowers. The Food and Drug Act does not. If it did, I would not be here today. It would be a criminal offense if I were fired for reporting to the Federal Government that my employer contaminated a stream that killed fish.

  The Federal Government, in its infinite wisdom, places a higher value on the life of a fish over that of a baby.

  Together we have the power to make a difference in the lives of others. To paraphrase, what Benjamin Franklin said 225 years ago is still true today. "We must all hang together or surely we will continue to be hung separately"

  Salvador Castro, P.E., can be reached at castro@ieee.org.
 
 

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