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Whistleblower Confidential

DOL Creates New Whistleblower Protocols

March 19, 2021
OSHA oversees enforcement of whistleblower provisions in 25 different statutes.

The U.S. Department of Labor (DOL) has announced that the Occupational Safety and Health Administration (OSHA) will now be responsible for overseeing worker retaliation complaints that are filed under the Criminal Antitrust Anti-Retaliation Act (CAARA) and the Anti-Money Laundering Act (AMLA).

In addition to enforcing whistleblower protections for workers regarding federal health and safety laws, over the years OSHA also has been made responsible by Congress for overseeing the enforcement of the whistleblower provisions of 25 different statutes. In fact, only about 62% of the whistleblower claims OSHA investigates deal with safety and health violations.

OSHA’s staff handles complaints of retaliation arising from—among other things—employees reporting violations of securities and tax laws as well as violations of consumer product, food, nuclear industry, motor carrier, pipeline and maritime safety, and health insurance reform laws.

In 2019, the then newly-enacted Taxpayer First Act also assigned OSHA responsibility for investigating retaliation complaints filed by employees who provide information regarding their employers’ alleged underpayment of taxes, violations of internal revenue laws, or any other violations of federal laws relating to tax fraud.

The CAARA and AMLA laws, which were enacted in the waning days of the Trump administration, contain similar provisions. CAARA prohibits employers from taking adverse employment action against covered individuals who report criminal antitrust violations to their employer or to the federal government, or who participate in a federal governmental criminal antitrust investigation and proceedings.

AMLA, enacted as part of the National Defense Authorization Act, is the most expansive anti-money laundering statute created since the USA Patriot Act of 2001, say attorneys Melissa L. Shingles and Steve Biddle of the law firm of Littler Mendelson.

That statute bars employers from retaliating against employees who report money laundering and Bank Secrecy Act (BSA) violations to their employer or the federal government, or who participate in a Treasury Department or Justice Department investigation or proceeding based on the information they’ve supplied.

DOL also announced that OSHA will process these kinds of complaints using the procedures set forth in the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21) until the agency is able to issue interim final rules for that purpose. AIR21 was enacted to protect employees who provide information relating to air carrier safety violations.

How it Works

Like the other 25 statutes whose whistleblower provisions are administered by OSHA, AIR21 already has well-established complaint reporting and investigative mechanisms, note Shingles and Biddle.

When the AIR21 framework is applied to CAARA and AMLA whistleblower claims, employees who believe they were discharged or otherwise discriminated against for reporting a violation of either law are allowed to file a complaint with the Secretary of Labor within 90 days after the date on which the violation allegedly occurred.

Following an investigation into the complaint, which includes an opportunity for the employer to provide a written response and present witness statements, DOL will issue findings. Where there is reasonable cause to believe that a violation of CAARA or AMLA has occurred, the findings will be accompanied by a preliminary order providing relief to the whistleblower.

Both the complaining employee and the employer will have 30 days after the date they are notified of the findings to file objections to the findings and order, and to request a hearing before the Office of Administrative Law Judges.

Similar to AIR21, individuals under both CAARA and the AMLA bear the burden of establishing a prima facie case that their protected activity was “a contributing factor” to the employer’s alleged adverse action, according to Shingles and Biddle.

If the employer demonstrates by clear and convincing evidence that “the employer would have taken the same unfavorable personnel action in the absence” of the protected activity, DOL cannot provide relief for the employee.

The attorneys explain that other statutes where whistleblower protections are overseen by OSHA also fall under the same causation standard and burden-shifting mechanisms, such as the Sarbanes-Oxley Act (SOX) and the Taxpayer First Act.

“With a reporting mechanism now in place for whistleblower provisions under CAARA and the AMLA, we can expect to see complaints under these statutes,” they warn. “Employers will want to advise members of management and human resources, including investigators, to be aware of whistleblower complaints that could involve CAARA and the AMLA.”

Shingles and Biddle also point out that these new workplace retaliation provisions will “provide an additional opportunity for organizations to review and strengthen their anti-retaliation policies and communicate to all employees their commitment to ethical conduct and non-retaliation.”

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