Whistleblower Alert: Politics and Procedures: OSHA Keeps Control and DOL Conforms Energy and Environmental Whistleblower Regulations

Date: Jan 24, 2011

The Occupational Safety and Health Administration (OSHA) has published a new rule, effective January 18th, revising the procedures for handling whistleblower claims arising under the Energy Reorganization Act (ERA) and six environmental statutes: the Safe Drinking Water Act (SDWA); Federal Water Pollution Control Act (FWPCA); Toxic Substances Control Act (TSCA); Solid Waste Disposal Act (SWDA); Clear Air Act (CAA); and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). Almost contemporaneously, the Obama administration rejected DOL's recommendation to transfer authority over whistleblower enforcement cases to the DOL Office of Labor-Management Standards -- the agency responsible for enforcing the provisions of the Labor-Management Reporting and Disclosure Act of 1959. Not surprisingly, unions and whistleblower advocacy groups opposed the transfer. On January 19th, the administration announced that whistleblower enforcement will remain within OSHA and that the administration would direct additional funding to OSHA to buttress the agency's manpower and investigative needs.

Summary of New Rule

In general, employers may not discharge or otherwise retaliate against employees with respect to the employee's compensation, terms, conditions, or privileges of employment because the employee has engaged in a protected activity. Under the environmental statutes, employees are protected when they commence, testify, assist or participate in a proceeding under one of the acts. Under the ERA, which protects nuclear safety whistleblowers, employers may not discharge or otherwise retaliate against an employee who: notifies the employer of an alleged violation; refuses to engage in an unlawful practice if the employee has identified the alleged illegality to the employer; or testifies before Congress or at any federal or state proceeding regarding the ERA or the AEA

An employee who believes he or she has been retaliated against under the ERA has 180 days to file a complaint with OSHA. The statute of limitations under the environmental statutes is far shorter – only 30 days.

Under the ERA, an employee must show, by a preponderance of the evidence, that he or she engaged in a protected activity, that an adverse employment action was taken, and that the protected activity, alone or in combination with other factors, affected, in some way, the employer's action; that is, that the protected activity was a "contributing factor" in the adverse action. This is a fairly low standard and can be met merely by showing that the adverse action occurred shortly after the protected activity. If the employee meets this burden, the employer must demonstrate by clear and convincing evidence – a far higher standard – that it would have taken the same action even if the employee had not engaged in a protected activity.

The burdens of proof under the environmental statutes are different. An employee must establish by a preponderance of evidence that his or her protected activity was a "motivating factor" in the employer's adverse action. If the employee succeeds, however, the employer must demonstrate by a preponderance of the evidence that it would have taken the same action regardless of the employee's protected activity – the same standard followed by the National Labor Relations Board in adjudicating unfair labor practice cases.

No matter the statute, once a complaint is filed, the Assistant Secretary for Occupational Safety and Health has 30 days to render a decision. If the Assistant Secretary finds reasonable cause to believe retaliation occurred, he or she can order that the employer reinstate the employee to his or her former position, pay back pay and compensatory damages and, under the TSCA and the SDWA, pay punitive damages. The employer may also be required to pay the employee's costs and attorney's fees.

Parties now have 30 days, rather than the 5 days provided under the old regulations, to appeal the Assistant Secretary's Order, in which case the appellant is entitled to de novo review proceedings before a Department of Labor (DOL) Administrative Law Judge (ALJ). Prior to the conduct of a merits hearing before the ALJ, the parties also enjoy broad discovery privileges, except there is no authority to compel third party witnesses to comply with DOL administrative subpoenas. Following the issuance of the ALJ's decision, the parties must file a request for review with the DOL Administrative Review Board (Board) challenging specific factual findings claimed to be lacking in substantial evidence, as well as conclusions of law claimed to be erroneous. In the past, the Board routinely approved all requests for review, but the new regulations make clear that the Board has the discretion to reject a request for review (which, given the growth of the Board's whistleblower docket and the backlog of appellate cases, is expected to be exercised frequently). Appeals of the Board's decision (or denial of review) must be made to the United States Court of Appeals with jurisdiction over the place of employment.

While the rules allow for private settlements prior to a final agency decision, under the ERA, the CAA, the SDWA and the TSCA, such settlements must be reviewed and approved by DOL. Approval of settlements under the other statutes is not required, but is strongly recommended.

What These Developments Mean For Employers

Without a doubt, the OSHA Office of Whistleblower Enforcement Programs has the broadest employee protection mandate within the federal government – enforcing the whistleblower protections contained in 19 federal statutes. With enhanced status, funding, and a mandate to punish employers who retaliate against workers who blow the whistle, it is more important than ever that employers implement effective compliance policies and procedures and train managers and supervisors not only to recognize protected activity, but also how to manage workers who seek an unfair advantage under the whistleblower statutes. For more information regarding whistleblower laws and regulations or assistance with drafting or revising whistleblower policies, procedures and managerial training programs, please contact Manesh K. Rath at 202-434-4182 or rath@khlaw.com.