WHAT SHOULD MANAGERS KNOW ABOUT RETALIATION PROTECTIONS? Robin Soderblom BA 638 Bellevue University September 13, 2013

Whistleblower & Retaliation Protection  “The Occupational Safety and Health Administration (OSHA) administers the employee protection or “whistleblower” provisions of seventeen statutes  Under the Occupational Safety and Health Act (OSH Act), employees may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for exercising any right afforded by the OSH act, such as complaining to the employer union, OSHA, or any other government agency about workplace safety or health hazards; or for participating in OSHA inspection conferences, hearings, or other OSHA-related activities.”

Examples of Anti-Retaliation Protection Acts  Surface Transportation Assistance Act (STAA)  Asbestos Hazard Emergency Response Act (AHERA)  International Safe Container Act (ISCA)  Energy Reorganization Act (ERA)  Clean Air Act (CAA), Safe Drinking Water Act (SDWA)  Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21)  Corporate and Criminal Fraud Accountability Act, Title VIII of the Sarbanes-Oxley Act (SOX)  Pipeline Safety Improvement Act (PSIA)  Federal Rail Safety Act (FRSA)  National Transit Systems Security Act (NTSSA)  Consumer Product Safety Improvement Act (CPSIA)  “Other Department of Labor agencies, such as the Wage and Hour Division, the Employee Benefits Security Administration, and the Mine Safety and Health Administration, enforce the anti-retaliation provisions of numerous other statutes and Executive Orders”Wage and Hour DivisionEmployee Benefits Security AdministrationMine Safety and Health Administration

Basic Provisions/Requirements  “Generally, the employee protection provisions listed above prohibit covered employers from discharging or otherwise discriminating against any employee because the employee engaged in certain activities protected by law  The protected activities typically include: Initiating a proceeding under, or for the enforcement of, any of these statutes, or causing such a proceeding to be initiated; Testifying in any such proceeding; Assisting or participating in any such proceeding or in any other action to carry out the purposes of these statutes; or Complaining about a violation.  Many of the statutes specifically protect an employee's internal complaints to his or her employer  It is the Department of Labor's position, as set forth in regulations, that employees who express safety or quality assurance concerns internally to their employers are protected under all of the whistleblower statutes administered by OSHA”

Employee Rights  “Any employee who believes that he or she has been discriminated or retaliated 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, CAA, CERCLA, SWDA, FWPCA, SDWA, and TSCA within 60 days under ISCA within 90 days under AIR21, SOX, and AHERA and within 180 days under STAA, ERA, PSIA, FRSA, NTSSA, and CPSIA.  If the Secretary of Labor has not issued a final decision within 180 days of the filing of a SOX complaint, one year of the filing of an ERA complaint, or 210 days of a STAA, FRSA, NTSSA, or CPSIA 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 under those statutes.”

Recordkeeping/Reporting & Notices  “Posters. Although there is no specific Whistleblower Poster, the Whistleblower Protection provisions have the following poster requirements under the Occupational Safety and Health Act (OSH Act) and the Energy Reorganization Act of 1974 (ERA):  All employers covered by the OSH Act are required to display and keep displayed the OSHA “Job Safety and Health: It’s the Law” poster. There is a separate poster for Federal agencies. This poster informs employees of their right to file a retaliation or discrimination complaint with OSHA for making safety and health complaints or for exercising rights under the OSH ActJob Safety and Health: It’s the LawFederal agencies  The poster must be displayed in a conspicuous place where employees and applicants for employment can see it. Reproductions or facsimiles of the poster shall be at least 8 1/2 by 14 inches with 10 point type. Posting of the notice in languages other than English is not required  Employers covered by the Energy Reorganization Act of 1974 (ERA) must display the poster, “Your Rights Under the Energy Reorganization Act,” where employees can readily see itYour Rights Under the Energy Reorganization Act  Notices.  There are generally no notice requirements for employers under most of the Whistleblower Protection provisions administered and enforced by OSHA. For other notice requirements under the OSH Act, see the OSHA Recordkeeping, Reporting, Poster, and Other Notice Requirements pageOSHA Recordkeeping, Reporting, Poster, and Other Notice Requirements page  Recordkeeping  There are generally no recordkeeping requirements for employers under most of the Whistleblower Protection provisions administered and enforced by OSHA. For other recordkeeping requirements under the OSH Act, see the OSHA Recordkeeping, Reporting, Poster, and Other Notice Requirements pageOSHA Recordkeeping, Reporting, Poster, and Other Notice Requirements page  Reporting  There are generally no reporting requirements for employers under most of the Whistleblower Protection provisions administered and enforced by OSHA. For other reporting requirements under the OSH Act, see the OSHA Recordkeeping, Reporting, Poster, and Other Notice Requirements page’”OSHA Recordkeeping, Reporting, Poster, and Other Notice Requirements page

Penalties & Sanctions  “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, AHERA, and 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 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 other statutes listed above (except for the OSH Act, AHERA, and ISCA) may request a hearing before the Department of Labor's Office of Administrative Law Judges (OALJ). Administrative Law Judges' decisions are reviewed by the Department of Labor's Administrative Review Board, which the Secretary of Labor has designated to issue final agency decisions.Office of Administrative Law Judges (OALJ)Administrative Review Board  Under STAA, if OSHA finds in favor of the employee, litigation ordinarily is conducted by the Solicitor's Office, but sometimes by the private party. Under the other statutes, litigation generally is conducted by the private parties themselves. Employers and employees may seek judicial review of an adverse Administrative Review Board decision.  Under the AIR21, SOX, PSIA, FRSA, NTSSA, and CPSIA, employees who file complaints frivolously or in bad faith may be liable for attorney's fees up to $1,000.”

State, Local, and Other Federal Laws  “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”

Compliance Assistance  “The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the Whistleblower Protection provisions, including OSHA’s Whistleblower Program Web site. Compliance assistance related to the Act, including explanatory brochures, fact sheets, and regulatory and interpretive materials, is available on the Compliance Assistance “By Law” Web page”OSHA’s Whistleblower Program Web site Compliance Assistance “By Law”

Department of Labor Contacts  Occupational Safety and Health Administration (OSHA) Occupational Safety and Health Administration (OSHA)  Contact OSHA Contact OSHA  Telephone: OSHA  ( )

Conclusion  “The Occupational Safety and Health Act (OSH Act) is designed to protect employees who may file complaints with OSHA, a union, or any other government agency about workplace safety or health hazards  The Occupational Safety and Health Administration (OSHA) administers the employee protection or “whistleblower” provisions of seventeen statutes”  Compliance Assistance:  OSHA’s Whistleblower Program Web site OSHA’s Whistleblower Program Web site  Compliance Assistance “By Law” Compliance Assistance “By Law”  Occupational Safety and Health Administration (OSHA) Occupational Safety and Health Administration (OSHA)  Contact OSHA Contact OSHA  Telephone: OSHA  ( ) 

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