What whistleblower protection does OSHA provide?

The Occupational Safety and Health Act was enacted to achieve safer and more healthful workplaces throughout the nation. The Act provides for a wide range of substantive and procedural rights for employees and representatives of employees. To help ensure that employees are, in fact, free to participation in safety and health activities, 11(c) of the Act prohibits any person from discharging or in any manner discriminating against any employee because the employee has exercised rights under the Act. These rights include complaining to OSHA and seeking an OSHA inspection, participating in an OSHA inspection, and participating or testifying in any proceeding related to an OSHA inspection.

"Discrimination" can include the following actions:

• Firing or laying off;
• Assigning to undesirable shifts;
• Blacklisting;
• Demoting;
• Denying overtime or promotion;
• Disciplining;
• Denial of benefits
• Failure to hire or rehire;
• Intimidation;
• Transferring;
• Reassigning work;
• Reducing pay or hours.

Filing a complaint. If an employee believes his or her employer has discriminated against him or her because he or she exercised his or her safety and health rights, the employee should contact his or her local OSHA office right away. Most discrimination complaints fall under the OSH Act, which allows only 30 days to report discrimination. (Some of the other laws listed below have complaint-filing deadlines that differ from OSHA's.) Complaints may be telephoned, faxed or mailed to OSHA. OSHA conducts an in-depth interview with each complainant to determine the need for an investigation. If evidence supports the worker's claim of discrimination, OSHA will ask the employer to restore the worker's job, earnings and benefits. If the employer objects, OSHA may take the employer to court to seek relief for the worker. The procedures for investigations of discrimination complaints are contained in the OSHA Whistleblower Investigations Manual.

OSHA also administers the whistle blowing provisions of 13 other statutes (in addition to the OSH Act), protecting employees who report violations of various trucking, airline, nuclear power, pipeline, environmental and securities laws. Laws with whistleblower protections administered by OSHA:

1. The Occupational Safety & Health Act of 1970;

2. The Surface Transportation Assistance Act;

3. The Asbestos Hazard Emergency Response Act;

4. The International Safety Container Act;

5. The Energy Reorganization Act;

6. The Clean Air Act;

7. The Safe Drinking Water Act;

8. The Federal Water Pollution Control Act;

9. The Toxic Substances Control Act;

10. The Solid Waste Disposal Act;

11. The Comprehensive Environmental Response, Compensation and Liability Act;

12. The Wendell H. Ford Aviation Investment and Reform Act for the 21st Century;

13. Corporate and Criminal Fraud Accountability Act of 2002;

14. Pipeline Safety Improvement Act of 2002.

Regulations. The following regulations affect whistleblower protections under OSHA:

• -- 29 CFR Part 1977 - Discrimination Against Employees Exercising Rights under the Williams-Steiger Occupational Safety and Health Act of 1970.
• -- 29 CFR Part 1978 - Rules for Implementing Section 405 of the Surface Transportation Assistance Act of 1982.
• -- 29 CFR Part 1979 - Procedures for the Handling of Discrimination Complaints under Section 519 of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century.
• -- 29 CFR Part 1980 - Procedures for the Handling of Discrimination Complaints under Section 806 of the Corporate and Criminal Fraud Accountability Act of 2002.
• -- 29 CFR Part 1981 - Procedures for the Handling of Discrimination Complaints under Section 6 of the Pipeline Safety Improvement Act of 2002.
• -- 29 CFR Part 24 - Procedures for the Handling of Discrimination Complaints under Federal Employee Protection Statutes (see the DOL website at www.dol.gov).]

Whistleblower provisions under Sarbanes-Oxley Act. OSHA published a final rule establishing procedures for the handling of whistleblower complaints under the Corporate and Criminal Fraud Accountability Act of 2002, also known as the Sarbanes-Oxley Act, one of 14 laws with whistleblower protections administered by OSHA--listed above. The law was enacted July 30, 2002, to protect employees in publicly-traded companies and their contractors, subcontractors or agents from retaliation for providing information that an employee believes is a violation of a Securities and Exchange Commission rule or other federal law relating to fraud against shareholders. The rule establishes procedures for the expeditious handling of discrimination complaints made by employees or by persons acting on their behalf. Included in the rule are procedures for submitting complaints under the Sarbanes-Oxley Act, investigations and issuing findings and preliminary orders. A major part of the rule details litigation procedures and how one can object to the findings and request a hearing. The final section of the rule discusses miscellaneous provisions including withdrawals of complaints and settlements and judicial review and judicial enforcement.

The Whistleblower Program webpage. Everything you need to know about whistleblower protections can be found on OSHA's Whistleblower Program webpage. It provides a single source for obtaining detailed information on the laws with whistleblower protections that are administered by OSHA, consolidating a variety of whistleblower information previously available on the website, and supplementing that with access to other resources and direct links to the 14 laws with whistleblower protections administered by the agency. Regulations, complaint procedures and access to relevant fact sheets are available. For more information, visit http://www.osha.gov/dep/oia/whistleblower/index.html.

Whistleblower protection fact sheets. OSHA fact sheets dealing with whistleblower protections are available on the OSHA website.

• Whistleblowers & Airlines Fact Sheet (http://www.osha.gov/OshDoc/data_WhistleblowerFacts/whistleblowers_and_airlines-factsheet.pdf)
• Whistleblowers & Corporate Fraud Fact Sheet (http://www.osha.gov/OshDoc/data_WhistleblowerFacts/whistleblowers_corporatefraud-factsheet.pdf)
• Whistleblower Protections-General Fact Sheet (http://www.osha.gov/OshDoc/data_WhistleblowerFacts/whistleblower_protections-general.pdf)

Reprinted with permission. © CCH