Employees who report or oppose actual or suspected legal or regulatory violations enjoy retaliation protections that are
spread across more than 50 federal statutes.

Depending on the nature of the violation and other factors, these whistleblower protections vary widely in terms of their filing deadlines, available remedies, and method of enforcement.

Potential venues for bringing a whistleblower claim include:

  • state and federal courts;
  • the Equal Employment Opportunity Commission (EEOC);
  • the Merit Systems Protection Board (MSPB); and
  • federal offices of inspector general.

However, for the general employment law practitioner who does not focus on whistleblower law, the Occupational Safety and Health Administration (OSHA) is likely to be the most common venue for bringing (or defending) a whistleblower claim.

What to Know about OSHA’s Whistleblower Protection Program

OSHA enforces the whistleblower retaliation provisions of
more than 20 federal laws, including:

  • the Consumer Financial Protection Act of 2010 (CFPA);
  • Sarbanes-Oxley Act (SOX);
  • the Taxpayer First Act (TFA);
  • the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21); and
  • the whistleblower protections within the Occupational Safety and Health Act.

Although the nature and procedural requirements under each of these statutes differ significantly from each other, the process for bringing a claim is the same for each:
filing a whistleblower complaint with OSHA.

Will Kramer headshot

Will Kramer,
U.W. 2018, is a labor and employment law associate with at
Pines Bach, LLP, in Madison, where his practice includes representing whistleblowers.

Tip 1: Don’t Miss the Filing Deadline!

The statutes of limitation for whistleblower retaliation claims are
much shorter than the typical employment cause of action.

For example, under the following statutes, the complainant must file within 30 days:

  • Section 11(c) of the Occupational Safety & Health Act
  • Safe Drinking Water Act (SDWA)
  • Federal Water Pollution Control Act (FWPCA)
  • Toxic Substances Control Act (TSCA)
  • Solid Waste Disposal Act (SWDA)
  • Clean Air Act (CAA)
  • Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)

OSHA maintains an
updated list of the statutes of limitation for the whistleblower protection provisions of each law it enforces, the longest of which is 180 days.

Missing these extremely short filing deadlines is deadly to even the most well-founded retaliation claim.

Tip 2: Use OSHA’s Whistleblower Investigations Manual to Your Advantage

It is crucial to understand the process from the investigator’s perspective by becoming intimately familiar with
OSHA’s Whistleblower Investigations Manual.

This publicly available resource provides an inside look at how OSHA screens complaints, conducts investigations, and makes determinations. By tailoring your case presentation to mirror OSHA’s whistleblower investigation process, you can:

  • draft a whistleblower complaint that aligns with the criteria OSHA uses to screen complaints;
  • more effectively facilitate OSHA’s investigation by understanding the type of information OSHA needs to find in your client’s favor; and
  • understand OSHA’s analysis methodology and make your arguments accordingly before the investigator makes a determination.

Failing to understand OSHA’s internal process for investigating whistleblower complaints puts you at a significant disadvantage.

Tip 3: Make It Easy for OSHA to Find in Your Client’s Favor

OSHA’s Whistleblower Protection Program is
consistently backlogged, with decreasing numbers of staff handling an increasing number of complaints.

From a complainant’s perspective, this is a real problem. Investigators do not have sufficient time or resources to conduct exhaustive investigations of each complaint.

As a result, at each stage of the process, the complainant and their attorney should do everything possible to make the investigator’s job as easy as possible.

For example, the complainant’s attorney should ideally:

  • conduct their own thorough investigation of the whistleblower’s claim and provide enough documentary evidence and witness statements for OSHA to find in your client’s favor even without conducting its own investigation;
  • educate the OSHA investigator in plain language about any highly technical aspects of the whistleblower’s industry and the alleged legal or regulatory violation at issue;
  • check in regularly with the investigator and always keep in mind that it is easier administratively for OSHA to close a whistleblower complaint than it is to determine that unlawful retaliation occurred; and
  • not give up prematurely. The OSHA investigator is required to notify the complainant prior to closing the investigation in favor of the employer. Rather than accepting defeat at this stage in the process, this is the complainant’s opportunity to provide additional evidence and make further argument.

Next Steps and Appeals

For the whistleblower statutes under OSHA’s enforcement authority, the administrative investigation and determination is potentially only the first step in the process.

After OSHA’s determination, either party may appeal to the Chief Administrative Law Judge of the Department of Labor, which reviews the matter de novo. After an administrative law judge issues a recommended decision and order, further appeal is possible to the Department of Labor Administrative Review Board.

Finally, either party may file a petition for review in the appropriate U.S. Court of Appeals.

Conclusion: A Complex Area of Law

Whistleblower law is complex and it can be difficult to know where to start.

By learning the basics about the broad scope of the laws that OSHA enforces and how it approaches investigations, employment attorneys will be much better prepared to act quickly when a potential whistleblower walks through their door.

This article was originally published on the State Bar of Wisconsin’s
Labor & Employment Law Section Blog. Visit the State Bar
sections or the
Labor & Employment Law Section webpages to learn more about the benefits of section membership.