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Employment Law Guide
Chapter: Whistleblower Protection Provisions Enforced By OSHA
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Updated: September 2005
The Occupational Safety and Health Administration (OSHA)
administers the employee protection (or "whistleblower")
provisions of fourteen
statutes.
Occupational
Safety & Health Act (OSH Act), 29 USC § 660(c)
Surface
Transportation Assistance Act (STAA), 49 USC § 31105
Asbestos
Hazard Emergency Response Act (AHERA), 15 USC § 2651
International
Safety Container Act (ISCA), 46 USC App. § 1506
Energy
Reorganization Act of 1974 (ERA), 42 USC § 5851
Clean
Air Act (CAA), 42 USC § 7622
Safe
Drinking Water Act (SDWA), 42 USC § 300j-9(i)
Federal
Water Pollution Control Act (FWPCA), 33 USC § 1367
Toxic
Substances Control Act (TSCA), 15 USC § 2622
Solid
Waste Disposal Act (SWDA), 42 USC § 6971
Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA), 42 USC §
9610
Wendell H.
Ford Aviation Investment and Reform Act (AIR21), 49 USC § 42121
Sarbanes-Oxley
Act (SOA), 18 USC § 1514A
Pipeline
Safety Improvement Act (PSIA), 49 USC § 60129
Under the Occupational Safety and Health Act (OSH Act), employees who believe that their employer has
discriminated or retaliated against them for raising or reporting safety or
health concerns may file a complaint with the Occupational
Safety and Health Administration (OSHA). Under the Surface Transportation Assistance Act (STAA), employees in
the trucking industry may file complaints with OSHA if they believe that their
employer has discriminated against them for reporting safety concerns or for
refusing to drive under dangerous circumstances or in violation of safety
rules.
Similarly, under the other statutes, employees also may file complaints
with OSHA if they believe that their employer has discriminated against them
for reporting protected safety concerns involving the airline or pipeline
industries, for reporting protected environmental concerns including asbestos
in schools, or for reporting potential securities fraud.
The Department of Labor also enforces the anti-retaliation provisions of
several other statutes that are not administered by OSHA. Information
concerning many of these additional anti-retaliation statutes is available in
other sections of the Guide describing the statutes enforced by
different Department agencies, such as the Wage and Hour Division of the
Employment Standards Administration, the Employee
Benefits Security Administration, and the Mine Safety and Health
Administration.
Generally, the employee protection provisions listed above prohibit an
"employer" or any "person" (the definition of which may vary from statute to
statute) from discharging or otherwise discriminating against any employee with
respect to the employee's compensation, terms, conditions, or privileges of
employment because the employee engaged in specified "protected"
activities.
The protected activities typically include: (1) initiating a proceeding
under, or for the enforcement of, any of these statutes, or causing such a
proceeding to be initiated; (2) testifying in any such proceeding; (3)
assisting or participating in any such proceeding or in any other action to
carry out the purposes of these statutes; or (4) complaining about a
violation.
The Energy Reorganization Act of 1974 (ERA), the Wendell H. Ford Aviation Investment and Reform Act (AIR21), the Sarbanes-Oxley
Act (SOA), and the Pipeline Safety Improvement Act (PSIA) specifically cover an
employee's internal complaints to his or her employer, and it is the
Secretary's position, as set forth in regulations, that employees who express
safety or quality assurance concerns internally to their employers are
protected under the other whistleblower statutes. With the exception of the
Fifth Circuit, the courts of appeals that have considered whether internal
complaints are protected have agreed with the Secretary.
An employee who believes that he or she has been discriminated against
in violation of any of the statutes listed above may file a complaint with
OSHA. Complaints must be filed within 30 days after the occurrence of the
alleged violation under the OSH Act, the Clean Air Act (CAA), the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA), the Solid Waste Disposal Act (SWDA), the Federal Water Pollution Control Act (FWPCA),
the Safe Drinking Water Act (SDWA), and the Toxic Substance Control Act (TSCA); within 60 days under the
International Safety Container Act (ISCA);
within 90 days under the AIR21, the SOA, and the Asbestos Hazard Emergency Response Act (AHERA); and within 180 days
under the STAA, the ERA, and the PSIA. Under the SOA, if the Secretary has not issued a final decision within 180 days
of the filing of the complaint, and there is no showing that there has been delay due to the bad faith of the
employee, the employee may bring an action at law or equity in district court.
More detailed information, including copies of regulatory and
interpretative materials, may be obtained from the nearest OSHA office.
Additional compliance assistance information is available from the OSHA Web
site or by contacting OSHA’s help line at 1-800-321-OSHA
(1-800-321-6742).
Upon receipt of a timely complaint, OSHA notifies the employer and, if
conciliation fails, conducts an investigation. Where OSHA finds that complaints
filed under the OSH Act, the AHERA, and the ISCA have merit they are referred
to the Solicitor's Office for legal action. Complaints under these three
statutes found not to have merit will be dismissed.
Where OSHA finds a violation after investigating complaints under the
other statutes listed above, it will issue a determination letter requiring the
employer to pay back wages, reinstate the employee, reimburse the employee for
attorney's and expert witness fees, and take other steps to provide necessary
relief. Complaints found not to have merit will be dismissed.
Parties who object to OSHA's determinations under the statutes listed
above (except for the OSH Act, the AHERA, and the ISCA) may request a hearing
before the Department of Labor's Office of
Administrative Law Judges (OALJ). Judges' decisions are reviewed by the
Department of Labor's Administrative Review
Board, which the Secretary has designated to issue final agency decisions.
Under the STAA, if OSHA finds in favor of the employee, litigation
usually is conducted by the Solicitor's Office, but sometimes by the employee.
Under the other statutes, litigation generally is conducted by the private
parties themselves. Employers and employees may seek judicial review of an
adverse ARB decision.
Under the AIR21, the SOA, and the PSIA, employees who file complaints
frivolously or in bad faith may be liable for attorney's fees up to $1,000.
The Supreme Court has held that the employee protection provisions of
the ERA do not preempt existing state statutes and common
law claims. The other statutes listed above should be consulted separately to
determine whether or not their employee protection provisions are supplementary
to protection provided by state laws.
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The Employment Law Guide is offered as a public resource. It
does not create new legal obligations and it is not a substitute for the U.S.
Code, Federal Register, and Code of Federal Regulations as the official sources
of applicable law. Every effort has been made to ensure that the information
provided is complete and accurate as of the time of publication, and this will
continue. Later versions of this Guide will be offered at
www.dol.gov/compliance or by calling our Toll-Free
Help Line at 1-866-4-USA-DOL (1-866-487-2365). |
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