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OSHA finalizes whistleblower protection rules, seeks advisory committee nominations

The Occupational Safety and Health Administration earlier this month published a final rule [1] for the handling of whistleblower (that is, retaliation) complaints filed under Section 806 of the Sarbanes-Oxley Act of 2002. The SOX Act is only one of 21 statutes whose whistleblower protections OSHA is responsible for enforcing. OSHA also has in development rules for the handling of whistleblower complaints under the National Transit Systems Act, the Surface Transportation Assistance Act, the Federal Railroad Safety Act, the Moving Ahead for Progress in the 21st Century Act, and the Affordable Care Act. All are in the final stage and are likely to be published within the next year.

And last week, OSHA began accepting nominations for members to serve on the Whistleblower Protection Advisory Committee.

Final Rule. The SOX Act protects employees who report fraudulent activities and violations of Securities Exchange Commission rules that can harm investors in publicly traded companies.

“This final rule safeguards investors by protecting whistleblowers who shine a light on illegal or fraudulent conduct that otherwise may go uncorrected,” said Assistant Secretary of Labor for Occupational Safety and Health, Dr. David Michaels.

The SOX Act prohibits publicly-traded companies, nationally recognized statistical ratings organizations, and other covered persons from retaliating against an employee who provides information about conduct that the employee reasonably believes violates federal mail, wire, bank or securities fraud statutes, SEC rules, or any provision of federal law relating to fraud against shareholders.

In order to have a “reasonable belief” under Sarbanes-Oxley, a complainant must have both a subjective, good faith belief and an objectively reasonable belief that the complained-of conduct violates one of the enumerated categories of law. According to the rule, however, as long as the employee actually believed, even if mistakenly, that the conduct complained of violated the relevant law, the reasonable belief requirement is met, thus affording the worker whistleblower protections.

In the case of Lawson v. FMR LLC, the U.S. Supreme Court in March of 2014 ruled the whistleblower protections of the SOX Act extend to the employees of private contractors and subcontractors of covered, publicly-traded companies:

“The whistleblower protections OSHA is authorized to enforce, including those under SOX, extend to all employees, and both agencies and host employers can be held responsible for retaliation that violates those protections,” said Eric Hobbs, a management-side labor and employment lawyer with Michael Best & Friedrich LLP in Milwaukee. “Temporary staffing employees can bring claims against their staffing company employers and/or their host employers if they lose their positions or are otherwise retaliated against for activity that is protected by SOX or any other whistleblower statute. It doesn’t matter who owns the workplace in issue. The key is who perpetrates the retaliation.”

Workers can file a complaint with OSHA if they believe that their employer has retaliated against them for exercising their rights under the SOX Act. OSHA’s Whistleblower Protection Programs [2] Web page provides instructions on how to file a complaint and information on worker rights and protections.

And OSHA has made a point to focus on temp worker safety in particular, establishing a program in 2013 [3] following an increase in temp worker injuries and fatalities.  Among those rights of temp staff workers that OSHA focuses on is the right to be free from retaliation.

As a result of a 2010 Government Accountability Office report that was critical of OSHA’s retaliation investigation and enforcement, OSHA in 2012 established a “Directorate of the Whistleblower Protection Program.” In the past, the “Office of the Whistleblower Protection Program,” as it was called, had reported to OSHA’s Director of Enforcement. The Director of the new Directorate reports directly to OSHA’s head, Dr. Michaels.

“OSHA is more serious today than it ever has been about investigating whistleblower retaliation in the workplace and in pursuing companies who the Agency believes have violated any of the two dozen or so statutes whose whistleblower provisions OSHA is authorized to enforce,” Hobbs said. “Temporary staffing agencies need to understand that they may be subject to liability in the event they or their customers retaliate unlawfully against one of their temp staff workers. And companies who use temp staff workers need to understand that they can be as liable for retaliation against those temp staff workers as for retaliation against their own, regular employees.”

Advisory Committee. OSHA is accepting nominations for six members to serve on the 12-member committee for a two-year term. The committee advises and makes recommendations to the secretary of labor and the assistant secretary for occupational safety and health on ways to improve the fairness, efficiency, effectiveness and transparency of OSHA’s whistleblower protection activities.

The six positions will become vacant Dec. 1. Nominations will be accepted from those interested in representing management (two), labor (two), the public (one), and State Occupational Safety and Health Plan states (one).

See the Federal Register notice [4] for submission details. Nominations must be submitted by May 18.

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