OSHA Issues Final Rule on Whistleblower Protections

In an unusual departure from its ordinary rulemaking activities, OSHA has issued a final rule that has nothing to do with occupational safety or health.

Two years after Congress passed the Sarbanes-Oxley Act to protect employees who blow the whistle on corporate fraud, the agency has established the procedures for handling complaints from workers who believe they are the subject of illegal retaliation. According to OSHA, 307 employees have already filed complaints under Sarbanes-Oxley.

"Whistleblower protection is an important part of the Sarbanes-Oxley Act," said Secretary of Labor Elaine Chao in a statement. "The whistleblower protection provision of Sarbanes-Oxley will protect courageous workers who speak out against corporate abuse and fraud."

Included in OSHA's final rule are procedures for investigations and the issuing of 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. Under Sarbanes-Oxley, a covered employee of a publicly traded company may file a complaint with the secretary of labor within 90 days of the alleged discrimination. The secretary must then notify the person named in the complaint and the employer that the complaint has been filed.

The preamble to the final rule, which includes public comment on the final, indicates that the Society for Human Resource Management and the U.S. Chamber of Commerce worried that OSHA may lack the expertise to undertake Sarbanes-Oxley investigations. The industry groups pointed out that because it involves complex matters of corporate securities and financial laws, Sarbanes-Oxley differs from other whistleblower laws OSHA administers.

"My chief concern is how OSHA will determine whether a complaint is frivolous or not," commented Arthur Rogers in an interview. Rogers is an attorney with the D.C. Employment Justice Center. Sarbanes-Oxley is tied to violations of Securities and Exchange Commission (SEC) law and "SEC law is extremely complicated," according to Rogers.

In the preamble, the agency countered that the whistleblower provisions of Sarbanes-Oxley are similar to the 13 other whistleblower statutes OSHA administers, as they all involve protecting employees from employers who retaliate against workers who engage in protected activity. As a result, OSHA believes it is prepared to handle Sarbanes-Oxley investigations.

Last year, OSHA published a fact sheet describing whistleblower protections for workers employed by publicly traded companies or their contractors, subcontractors or agents. The fact sheet details a worker's rights as a whistleblower as well as instructions on how to file complaints. The information is available online at www.osha.gov/OshDoc/data_WhistleblowerFacts/whistleblowers_corporatefraud-factsheet.pdf.

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