Employment Law Guide

Other Workplace Standards: Whistleblower and Retaliation Protections

Updated: December 2016

Who is Covered

The Occupational Safety and Health Administration (OSHA) administers the employee "whistleblower" protection provisions of twenty-two 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.

Under the Surface Transportation Assistance Act (STAA), employees and certain independent contractors in the trucking industry may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting certain commercial motor vehicle (CMV) safety, health, or security concerns; for refusing to drive under dangerous circumstances or in violation of CMV safety, health, or security rules; for accurately reporting their hours on duty; for cooperating with safety or security investigations conducted by certain Federal agencies; or for furnishing information to a government agency relating to any accident or incident resulting in injury or death or damage to property in connection with CMV transportation.

Under the Asbestos Hazard Emergency Response Act (AHERA), employees may file complaints with OSHA if they believe they have experienced discrimination or retaliation for reporting alleged violations of environmental laws relating to asbestos in elementary and secondary school systems.

Under the International Safe Container Act (ISCA), employees may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting allegations of an unsafe cargo container.

Under the Energy Reorganization Act (ERA), certain employees in the nuclear power and nuclear medicine industries may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting alleged violations of nuclear safety laws or regulations.

Under the Clean Air Act (CAA), Safe Drinking Water Act (SDWA), Federal Water Pollution Control Act (FWPCA), Toxic Substances Control Act (TSCA), Solid Waste Disposal Act (SWDA), Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), employees may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting alleged violations of certain environmental laws or regulations.

Under the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21), employees of air carriers and their contractors and subcontractors may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting alleged violations of Federal aviation safety laws or regulations.

Under the Sarbanes-Oxley Act (SOX), as amended by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, employees of certain publicly traded companies, companies with certain reporting requirements with the Securities and Exchange Commission (SEC), and their contractors, subcontractors, and agents may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting alleged violations of the Federal mail, wire, bank, or securities fraud statutes, any rule or regulation of the SEC, or any other provision of Federal law relating to fraud against shareholders.

Under the Pipeline Safety Improvement Act (PSIA), employees of owners or operators of pipeline facilities and their contractors and subcontractors may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting alleged violations of Federal law regarding pipeline safety or for refusing to violate such provisions.

Under the Federal Rail Safety Act (FRSA), employees of railroad carriers and their contractors and subcontractors may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting an alleged violation of any Federal law, rule, or regulation relating to railroad safety or security, or gross fraud, waste, or abuse of Federal grants or other public funds intended to be used for railroad safety or security; reporting hazardous safety or security conditions; refusing to violate or assist in the violation of any Federal law, rule, or regulation relating to railroad safety or security; refusing to work when confronted by a hazardous safety or security condition related to the performance of the employee's duties (under imminent danger circumstances); or for requesting prompt medical or first aid treatment for employment-related injuries.

Under the National Transit Systems Security Act (NTSSA), employees of public transportation agencies and their contractors and subcontractors may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting an alleged violation of any Federal law, rule, or regulation relating to public transportation safety or security, or fraud, waste, or abuse of Federal grants or other public funds intended to be used for public transportation safety or security; reporting hazardous safety or security conditions; refusing to violate or assist in the violation of any Federal law, rule, or regulation relating to public transportation safety or security; or refusing to work when confronted by a hazardous safety or security condition related to the performance of the employee's duties (under imminent danger circumstances).

Under the Moving Ahead for Progress in the 21st Century Act (MAP-21), employees of motor vehicle manufacturers, part suppliers, and dealerships may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for providing information to the employer or the U.S. Department of Transportation about motor vehicle defects, noncompliance, or violations of the notification or reporting requirements enforced by the National Highway Traffic Safety Administration (NHTSA), or for engaging in related protected activities as set forth in the provision.

Under the Consumer Product Safety Improvement Act (CPSIA), employees of manufacturers, private labelers, distributors, and retailers may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting alleged violations of any law or regulation within the jurisdiction of the Consumer Product Safety Commission (CPSC) to the employer, the Federal government, or a state attorney general; or for refusing to perform assigned tasks that the employee reasonably believes would violate CPSC requirements.

Under the FDA Food Safety Modernization Act (FSMA), employees of food manufacturers, distributors, packers, and transporters may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting a violation of the Food, Drug, and Cosmetic Act, or a regulation promulgated under the Act. Employees are also protected from retaliation for refusing to participate in a practice that violates the Act.

Under the Consumer Financial Protection Act (CFPA), employees performing tasks related to consumer financial products or services may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting reasonably perceived violations of any provision of title X of the Dodd-Frank Act or any other provision of law that is subject to the jurisdiction of the Bureau of Consumer Financial Protection, or any rule, order, standard, or prohibition prescribed by the Bureau.

Under the Affordable Care Act (ACA), employees may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting violations of any provision of title I of the ACA, including but not limited to discrimination based on an individual's receipt of health insurance subsidies, the denial of coverage based on a preexisting condition, or an insurer's failure to rebate a portion of an excess premium.

Under the Seaman's Protection Act (SPA), as amended by the Coast Guard Authorization Act of 2010, seamen may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting to the Coast Guard or another federal agency a violation of a maritime safety law or regulation. Among other things, the Act also protects seamen from retaliation for refusing to work when they reasonably believe an assigned task would result in serious injury or impairment of health to themselves, other seamen, or the public.

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. Information concerning many of these additional anti-retaliation protections is available in other sections of the Guide.

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, and 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 and AHERA; and within 180 days under ACA, FSMA, SPA, MAP-21, SOX, STAA, ERA, PSIA, FRSA, NTSSA, CFPA 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 ACA, SPA, FSMA, MAP-21, STAA, FRSA, NTSSA, CFPA 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 and Posters

Notices and Posters

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(http://www.osha.gov/Publications/poster.html)" poster. The poster is also available in Spanish(http://www.osha.gov/Publications/osha3167.pdf). There is a separate poster for Federal agencies(http://www.osha.gov/Publications/fedposter.html). 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 Act.

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 it.

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 Injury and Illness Recordkeeping and Reporting Requirements.

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 Injury and Illness Recordkeeping and Reporting Requirements.

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 Injury and Illness Recordkeeping and Reporting Requirements.

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)(http://www.oalj.dol.gov). Administrative Law Judges' decisions are reviewed by the Department of Labor's Administrative Review Board(https://www.dol.gov/agencies/arb), which the Secretary of Labor has designated to issue final agency decisions.

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, CPSIA, ACA, CFPA, FSMA, and MAP-21, employees who file complaints frivolously or in bad faith may be liable for attorney's fees up to $1,000.

Relation to 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 Available

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, at OSHA's Whistleblower Program website.

DOL Contacts

Occupational Safety and Health Administration (OSHA)
Contact OSHA
Tel.: 1-800-321-OSHA (1-800-321-6742); TTY: 1-877-889-5627

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