Whistleblowers: Call 1-800-OSHA

Obama Administration expands efforts to protect employees from retaliation

Published in Workplace Safety & Health (Tuesday, June 17, 2014 1:32 pm)

For most employers, “OSHA” is (quite literally) a four-letter word. It stands for the Occupational Safety and Health Administration, an agency within the U.S. Department of Labor established by the Occupational Safety and Health Act of 1970 (OSH Act).1 Most employers are familiar with OSHA’s role in enforcing workplace safety and health regulations, but it has other roles as well: 1) it has the authority to develop new regulations to address health or safety hazards in the workplace; 2) it conducts training and offers voluntary compliance programs for employers; and 3) it enforces the so-called “whistleblower” provisions of over 20 federal laws – many having nothing to do with workplace safety or health.

Whistleblower provisions protect employees who report violations of these laws from “retaliation” by their employers. This means an employer cannot fire, demote, discipline, deny benefits to, intimidate, harass, or take any other “adverse action” against an employee who reports a violation. OSHA has created a separate website, www.whistleblowers.gov, to explain the rights employees have under these laws and to assist (and even encourage) employees in filing complaints.2

Whistleblower laws cover a wide swath of the American economy, including companies engaged in virtually all forms of transportation (airlines, railroads, motor carriers, pipelines, cargo containers); financial services (banks, insurers, brokers); and all publicly-traded companies. In fact, the U.S. Supreme Court recently held that the Sarbanes-Oxley Act (“SOX”), passed in response to the Enron scandal in 2002, protects not only the employees of publicly traded companies, but also the employees of the contractors that do business with them.3 That is an astounding extension of the law: from approximately 4,500 employers to perhaps millions. Employees who prevail under whistleblower laws can also collect millions of dollars from agencies that have enacted so-called bounty programs, providing further incentive to file claims.4

The OSH Act itself has a whistleblower provision that prohibits employers from retaliating against workers who report safety and health violations to the agency. Even the Affordable Care Act (AKA “Obamacare”) has a whistleblower provision that protects an employee from discrimination based on the employee’s “receipt of health insurance subsidies, the denial of coverage based on a preexisting condition, or an insurer’s failure to rebate a portion of an excess premium.”5 Employees who prevail under whistleblower laws are entitled to reinstatement, back pay, and other “make whole” remedies. Punitive damages may also be available, but are rarely pursued.

Under the Obama Administration, OSHA has taken steps to beef up its whistleblower protection role. The agency requested and received additional funding to hire more whistleblower investigators during FY 2014-15. In May 2014, it also re-established the “Whistleblower Protection Advisory Committee,” which is charged with finding ways “to improve the fairness, efficiency, effectiveness and transparency of OSHA’s whistleblower protection activities.”6 As an advisory committee, it has no teeth, but its recommendations may lead to expanded legal protections for whistleblowers as well as greater resources for agency investigations. OSHA is clearly signaling a more aggressive effort in this area, and all employers should take note.

Here are several steps employers can take to protect their companies from defending whistleblower complaints:

1) Review the list of federal laws that contain whistleblower provisions on OSHA’s website and determine which apply to your company. Virtually all employers will be covered under at least one – the OSH Act. Keep in mind that the Internal Revenue Service also provides rewards to employees who report tax-related misconduct.

2) Provide training to senior management and all supervisors about these laws, the need to take whistleblower complaints seriously, and the duty to report complaints immediately to a designated company official – often the chief financial officer or general counsel. The human resources department also often plays an important role in investigating complaints, usually under the direction of an attorney.

3) Develop a written policy that expressly encourages employees to report concerns about the safety of their workplace, irregular financial practices, or other perceived misconduct by the company. Include an anti-retaliation provision, and enforce it consistently.

4) Finally, take action, if necessary, to ensure that any company misconduct is immediately corrected. In the end, a whistleblower may, in fact, be a company’s best friend.

— Laurie T. Baulig

  1. OSHA was established the same year as the Environmental Protection Agency. The laws creating these agencies were passed with bipartisan support in Congress and signed by Richard Nixon.
  2. See OSHA Fact Sheet (Feb. 2103) “Your Rights as a Whistleblower.”
  3. Lawson v. FMR, 134 S.Ct. 1158 (2014).
  4. See e.g., Associated Press, “IRS Paid Whistleblowers $53 Million Last Year (April 4, 2014); R. Ensign, “SEC Gives Whistleblower More Than $14 Million in Record In Record Award,” Wall Street Journal (Oct. 1, 2013).
  5. Patient Protection and Affordable Care Act (2010); 29 United States Code §218(c).
  6. See Whistleblowers News Release (May 13, 2014).

Disclaimer

The information contained in this website is provided solely for informational purposes. It should not be construed as legal advice, is not a substitute for legal counsel, and is not intended to create an attorney-client relationship. For legal advice or answers to specific questions, please contact Ms. Baulig.

Baulig Law focuses on employment issues

Problems with your employees? Problems with your employer? Frustrated with government regulations? Baulig Law provides experienced, cost-effective legal services for businesses and individuals in the areas of employment discrimination, wages and overtime, workplace safety and health, and health care compliance.

Laurie T. Baulig
Laurie T. Baulig

Attorney at Law

With a career spanning three decades, Laurie Baulig has been a litigator for the federal government, a private practitioner, in-house counsel for two business trade associations, and a teacher at a liberal arts college.  She founded Baulig Law with the idea that, at its best, law is a service profession that should be transparent, accessible and affordable.  The firm’s focus on employment law also reflects her philosophy that both businesses and their employees benefit when the workplace is free from discrimination, unfair wage practices, and unsafe or unhealthy conditions.

Laurie began her career as an antitrust litigator for the Federal Trade Commission in Washington, D.C.  She later shifted her focus to employment law as in-house counsel for the American Trucking Associations, one of the largest business trade groups in the nation’s capital.   While at ATA, she travelled across the country explaining the requirements of new laws passed by Congress – such as the Americans with Disabilities Act, Civil Rights Act of 1991, and Family and Medical Leave Act – and regulatory proposals that would have an impact on the trucking industry.   This experience not only confirmed her passion for employment law, but also awakened her interest in teaching.   So she left D.C. for Lancaster, PA in 2008 to serve as adjunct assistant professor at Franklin & Marshall College.  From 2008-13, she taught Human Resources Management, Gender and the Law, and other courses affecting legal rights and responsibilities in the workplace.

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