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Whistleblower Protections

The Occupational Safety and Health Act of 1970 is the U.S. labor law that establishes the Occupational Safety and Health Administration (OSHA) which governs the federal law of occupational health and safety in the private sector.  OSHA covers most private sector employers and employees in all 50 states directly through Federal OSHA or through an OSHA-approved state plan.  This law entitles employees to have a safe workplace and requires employers to keep workplaces free of known health and safety hazards.  OSHA’s Whistleblower Protection Program ensures employees have the right to speak up about hazards without fear of retaliation and enforces the whistleblower provisions of 22 federal statutes.  Basically, employers are prohibited from retaliating against an employee for engaging in activities that are protected under these laws.  The meaning of the term “whistleblower” most commonly refers to a person who reports wrongful, unsafe, unethical, or illegal behavior at their workplace. 

Federal Level Whistleblower Protection

Agencies under the U.S. Department of Labor enforce anti-retaliation and whistleblower protection laws:

  • Occupational Safety and Health Administration (OSHA) enforces more than 20 laws that protect whistleblowers and prohibits retaliation against employees who report matters related to the violation of law, employee safety, financial fraud, and others.  OSHA statistics show 2,309 cases were reviewed in 2023 (up from 1,870 cases in 2018).
  • Office of Federal Contract Compliance Programs (OFCCP) protects whistleblowers from retaliation, intimidation, or harassment after reporting unlawful practices related to equal employment opportunity laws in the federal contracts environment (e.g., discrimination based on race, religion, color, national origin, sex, sexual orientation, or gender identity).
  • Wage and Hour Division (WHD) protects from retaliation for reporting wrongdoings related to The Fair Labor Standards Act (FLSA) laws relating to minimum wage, overtime pay, youth employment, and recordkeeping standards.

OSHA sorts whistleblower laws into several subject-specific categories:

  • Employee Safety Laws: Protect those who report occupational safety and health concerns.
  • Consumer Products Laws: Protect those who report violations of consumer safety protections.
  • Transportation Laws: Protect those who report violations of federal transportation safety standards.
  • Food Safety Laws: Protects workers in food-related industries, such as manufacturing and processing, when they report violations of federal standards.
  • Environmental Laws: Protect those who report violations of federal environmental laws.
  • Fraud And Financial Laws: Protect those who expose fraud and misconduct in the financial industries or by publicly-traded companies.

According to Gaps and Disparities in Whistleblower Laws as published by the Office of the Whistleblower Ombuds, “the amount of time an individual has to file a retaliation claim can range from 30 days (e.g. Occupational Safety and Health Act) to three years (e.g. Whistleblower Protection Act).  The clock generally starts when the retaliatory action takes place, or when the whistleblower becomes aware of it.”  

Protected Activities

Protected activities may include

  • Filing a report about a possible violation of the law with OSHA or other government agencies
  • Reporting a concern about a possible violation of the law to the employer
  • Reporting a workplace injury, illness, or hazard
  • Cooperating with law enforcement
  • Refusing to conduct tasks that would violate the law
  • Engaging in any other type of statutorily pro­tected activity

Employees who believe that they have been retaliated against may file a complaint with OSHA or with a state specific OSHA agency.

  • Twenty-two of the approved State Plans cover private sector businesses and state and local governments: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming. 
  • Seven of the approved State Plans cover state and local governments only: Connecticut, Illinois, Maine, Massachusetts, New Jersey, New York, and the Virgin Islands. 

Employees may file a complaint with OSHA before the filing deadline under the relevant statute by visiting the local OSHA office, calling 1-800-321-OSHA, sending a written complaint to the closest OSHA regional office, or filing a complaint online at www.whistleblowers.gov/complaint_page.html.

What Is Adverse Action / Retaliation?

Retaliation occurs when an employer takes an adverse action against an employee because the employee engaged in protected activity, such as raising a concern about a workplace condition or reporting a suspected violation of law. An adverse action is an action that could dissuade or intimidate a reasonable worker from raising a concern about a workplace condition or activity.  Either action can be harmful to the employee and have a negative impact on employee morale as employees lose the willingness to report concerns.   According to the OSHA publication Recommended Practices for Anti-Retaliation Programs, examples of adverse action include, but are not limited to:

  • Firing or laying off
  • Demoting
  • Denying overtime or promotion
  • Disciplining
  • Denying benefits
  • Failing to hire or rehire
  • Intimidation
  • Reassignment to a less desirable position or actions affecting prospects for promotion
  • Reducing pay or hours
  • Subtle actions such as isolating or falsely accusing the employee of poor performance

Recent Whistleblower Cases

A February 8, 2024 Supreme Court decision underscores the need for employers to have well-documented justification to show that the employment-related actions involving whistleblowers would have been taken regardless of any protected activity.  In Murray v. UBS Securities, LLC, a former employee alleged that his employer violated the anti-retaliation provisions of the Sarbanes-Oxley Act by terminating his employment after he reported alleged unethical and illegal conduct by other employees.  The employer claimed “Murray was laid off during a larger cost-cutting reduction in force due to the company’s financial challenges” and “Murray failed to produce any evidence that [his supervisor] possessed any sort of retaliatory animus toward him.”  The Supreme Court clarified that a plaintiff must prove only that engaging in protected activity “was a contributing factor” to some adverse employment action taken.  Plaintiffs need not show the employer acted with “retaliatory intent” or animus.  If the employee meets this standard, then the burden of proof shifts to the employer to show with clear and convincing evidence that the employer would have taken the negative personnel action even absent the protected whistleblowing activity.

In another case, a fatigued driver raised concerns to his supervisor about endangering themselves and others by operating a commercial vehicle without sufficient rest after working 19 hours in a single day which is above the legally required amount of time off before returning to work.   The company responded by terminating the driver.  On May 13, 2024, the judge issued a decision upholding OSHA’s findings and ordered the company to pay the former driver $14,945 in back pay and compensatory damages. OSHA found the company fired the employee illegally for exercising protected rights under the federal Whistleblower Protection Program. 

On May 5, 2023 the Securities and Exchange Commission (SEC) announced the largest-ever award, nearly $279 million, to a whistleblower whose information led to the successful enforcement of SEC security laws. 

On June 28, 2023, the U.S. Department of Labor reached a settlement agreement with a Delaware salvage yard company and its owner after a federal whistleblower investigation found the company fired a smelter operator for reporting safety concerns.  The company agreed to pay $40,000 in back wages and damages.  OSHA determined the company wrongly terminated the employee after he alerted his supervisor.  Subsequent safety investigations by OSHA resulted in 13 serious citations and $81,255 in proposed penalties to the company.

Since December 2020, defense contractor Boeing has faced 32 whistleblower complaints lodged with OSHA. Of those 13 were concerned aviation safety, 15 pertained to workplace safety, two to fraud, and one to the management of hazardous chemicals.

Recommended Employer Practices for Anti-Retaliation Programs

Employers stand to lose financially and suffer a loss of public reputation if a whistleblower is retaliated against and decides to file a retaliation lawsuit.  In addition to the cost of time spent preparing for a trail and retaining an attorney to defend the company, there is a substantial risk the court may rule in the employee’s favor ordering the employer to pay back wages, lost benefits, attorney fees, court fees, pain and suffering.  Also, given that trials are public, an employer may risk damage to its reputation should the case receive public and media attention.

The best protection a company can have is an established protocol for dealing with reports of misconduct and non-compliance, combined with a corporate culture where all employees know that non-compliance will not be tolerated. In addition, even where not required by statute, employers should invest in an anonymous whistleblower hotline for their employees available 24/7, preferably operated by a third-party vendor.

OSHA has a set of recommendations in the publication  Recommended Practices for Anti-Retaliation Programs, to “assist employers in creating workplaces that are free of retaliation to receive and respond appropriately to employees’ compliance concerns about hazards and prevent retaliation against employees who raise or report concerns.”   While the program can encourage employees to communicate their compliance concerns directly to the employer, the program must respect and not dissuade employees from exercising their right to file complaints directly to OSHA and other government agencies.  Other aspects of a successful program are:

  • Management commitment, and accountability
    • Managers at all levels should lead by example valuing and addressing employees’ concerns.  
    • Provide training for managers so mangers understand what retaliation is and the employer’s legal obligation to maintain the confidentiality of employees who make reports. 
    • Implement a code of conduct that clearly identify whistleblower retaliation as a form of misconduct. 
  • Listening to employees’ concerns
    • Establish procedures that enable employees to report con­cerns.
    • Provide for fair and transparent evaluation of concerns raised.
    • Offer a timely response.
    • Ensure a fair and effective resolution of concerns. 
    • Protect the anonymity of employees who report con­cerns. 
    • Give employees clear instructions on how they can report compliance concerns both internally and externally.
  • Resolving employees’ concerns
    • Investigate con­cerns promptly, thoroughly, and with transparency.
    • Respond to the employee who brought forward the initial concern.
    • Follow through on employee concerns, even if concerns appear to be trivial. 
    • Have a policy of not punishing employees for engaging in any protected activity.
    • Ensure employment actions are only made for legitimate non-retaliatory reasons and are not likely to be perceived as retaliatory.
  • Receiving and responding to reports of retaliation
    • Employees who believe they have experienced retaliation should have independent channels for reporting the retaliation.
    • Employees should not be required to report to the manager who they believe retaliated against them.
    • Employees can also elevate the matter to higher levels, if necessary. 
    • Investigate claims using an objective, independent complaint review process.
    • Evaluate the circumstances surrounding the employment decision objectively.
  • Anti-Retaliation Training
    • Provide management and employees with the knowledge to recognize, report, prevent, and/or properly address hazards, potential violations of the law, and retaliation.
    • Training should be tailored to teach workers and managers about the specific federal whistleblower protection laws and company policies that apply to them.