Agency Loses Fight to Reveal Whistle-Blowers

     (CN) - The Department of Labor need not identify hundreds of social workers who complained about an allegedly illegal overtime policy in Washington state, the 9th Circuit ruled Friday.
     It has been eight years since the agency sued the Washington State Department of Social and Health Services (DSHS) after about 50 social workers complained that they were not paid overtime compensation for working 45 to 65 hours per week.
     The workers reported that DSHS had a policy not to pay for overtime but rather to offer "flex time" that heavy caseloads made impossible to use.
     During discovery in the case, the agency sent out a questionnaire about work conditions to 1,500 DSHS employees and promised to keep the answers confidential. About 350 employees responded.
     While about 150 of the 400 total informants in the case waived confidentiality, DSHS requested the identities of the remaining 250. The government objected, but U.S. District Judge Benjamin Settle in Tacoma found that the employees were not protected by the informants' privilege, and that DSHS's defense depended on knowing the names.
     After its request to reconsider failed, the Department of Labor petitioned the 9th Circuit for a writ of mandamus. A three-judge panel of that court ruled Friday that the names should remain secret.
     It was arbitrary for Settle to limit the informants' privilege to those who complained prior to the initial complaint, and DSHS had failed to show a compelling need to know the identities, according to the ruling.
     Extending confidentiality to all the informants is the best way to combat retaliation, as most of them still work for the department, the panel found.
     "DSHS's promise not to retaliate is ... insufficient to dispel such fears," Judge Stephen Trott wrote for the panel. "A common theme in the employees' statements is that they were told by their immediate supervisors not to request overtime because the funding was not available. Several employees further reported being reprimanded or threatened with discipline when they persisted in requesting or recording overtime. As a practical matter, we are not convinced that DSHS can effectively monitor all 42 supervisors' daily conduct to enforce its promise. Here too an ounce of prevention is worth a pound of cure."
     The appeals panel granted the agency's petition and told the District Court to enter an order of protection prohibiting disclosure of the informants' identities.
     This is the not the first time that the 9th Circuit has ruled in this long-running case.
     In 2011, the appellate court rescued the complaint from summary judgment by reversing Settle's finding that DSHS social workers were exempt from overtime under the Fair Labor Standards Act as "learned professionals."
     Positions subject to the exemption require "advanced knowledge customarily acquired by a prolonged course of specialized intellectual instruction," while social workers must have an undergraduate degree in one of many fields, that ruling had said.