A whistleblower is an employee who reports unsafe working conditions or potentially illegal activity at work. Some—but not all—reports are considered “protected activity” by various “anti-retaliation” statutes (also called “whistleblower protection” statutes). A whistleblower is not required to prove that the conditions, actions or non-actions that they reported or complained about were actually illegal in order to be protected from retaliation. Such reports and complaints are protected so long as they are made in good faith, out of a genuine and reasonable concern under the circumstances.
There are over 20 different federal whistleblower protection laws administered by the Occupational Health and Safety Administration (OSHA) Whistleblower Office. Each law defines “protected activity” differently. For example, most whistleblower laws protect “internal reporting,” such as reports and complaints made verbally or in writing to supervisors, human resources or compliance. But some whistleblower laws require reports to be made in writing or to outside regulators.
While OSHA is known for regulating workplace safety issues, the OSHA Whistleblower Office is different. In addition to workplace safety whistleblowing, they enforce anti-retaliation laws that protect whistleblowing that involve Environmental Safety, Food Safety, Consumer Product safety, Securities and Finance regulations, FAA regulations, Trucking and Transportation. While all of these laws provide remedies like reinstatement and back pay, only some allow whistleblowers to recover “non-economic damages” or attorneys’ fees. The deadline or “statute of limitations” to file a complaint also differs widely depending on which law applies.
Complaints of retaliation under any of these laws can be filed with OSHA via fax, by mail, over the phone, online or in person. The whistleblower or “complainant” must keep OSHA informed of their contact information and may be interviewed about the allegations.
If you have suffered retaliation, an attorney with experience handling whistleblower complaints may advise you about which whistleblower statutes may apply to your case.
After a complaint is filed, OSHA will “screen” the complaint to confirm that it falls under at least one of the whistleblower protection statutes. OSHA will then assign the complaint to a Field Investigator. An OSHA investigator is a neutral fact-finder who does not represent the interests of either party. Case assignments can take anywhere from 24 hours to several weeks, depending on OSHA’s caseload.
The investigator will notify the employer, employee and appropriate federal agency that an investigation has been opened. The notification is called a “Docketing Letter” which includes a Case Number. During the investigation, both sides will have the opportunity to provide the investigator with any relevant evidence, including:
- Emails or texts
- Witness contact information
- Personnel files
- Work products
- Meeting minutes
If you are involved in a whistleblower investigation, make sure that you save any evidence you think may be helpful in a safe place.
Your employer will have the chance to provide their own evidence and refute any allegations. You will also have the opportunity to refute any statements they provide. Both parties are expected to actively participate in the investigation.
Investigations vary in the length of time they take to complete. Some may be settled through the OSHA Alternative Dispute Resolution program. In some cases, the whistleblowing employee may be entitled to proceed with filing a lawsuit if there is no resolution in the OSHA investigation from the time of filing the complaint within a specified time period.
When the investigation is concluded, the OSHA investigator will make a recommendation to their supervisor based on information obtained from both the employer and employee. The recommendation will state whether there is reasonable cause to believe the statute in question was violated. If the supervisor agrees with the findings, then OSHA will issue its findings in a letter.
If either side disagrees with the findings, they can file an appeal. Depending on which whistleblower protection law applies and where it has a “kick-out” provision, an employee may have a “private right of action,” meaning that they can litigate the case independently in federal district court or before a Department of Labor Administrative Law Judge. An attorney with experience handling whistleblower complaints may advise you about what to expect at this stage of the proceedings, which is generally subject to the Federal Rules of Civil Procedure