In three recent regulatory initiatives, the U.S. Occupational Safety and Health Administration (OSHA) publicized procedures and remedies for workers in the food production, financial services and automotive industries. It also continued its practice of making the protections and legal standards consistent with whistleblower protections under other statutes OSHA enforces, to the extent possible.  

Below are the three regulatory initiatives:

In all of these regulations the substantive standards governing who is a covered complainant, what entities are covered, what conduct is protected and what legal standards govern the assessment of the claims are very similar except for the variations compelled by the differences in the regulated industries. All of the regulations have virtually identical procedural requirements, and they are also very similar to provisions under other whistleblower regulations, with some slight variations in time limits for seeking judicial review.

The following is a rundown of the three final OSHA rules.

The MAP-21 Interim Final Rule

Section 31307 of MAP-21, enacted in 2012, contains a whistleblower protection provision for workers in automobile manufacturing, parts suppliers and car dealerships who have been discharged or otherwise retaliated against for providing information concerning motor vehicle defects or violations of motor vehicle safety standards to their employer or the Secretary of Transportation. The interim final rule is effective as of March 16, and comments can be submitted through May 16, 2016.

Chapter 301 of Title 49 of the U.S. Code gives the National Highway Traffic Safety Administration (NHSTA) the authority to issue vehicle safety standards and to require manufacturers to recall vehicles that have safety defects or that do not meet federal safety standards. Employees who report such issues are protected from retaliation.

What Is Protected Activity? Employees of covered entities engage in protected activity if they: (1) provide information about any motor vehicle defect or alleged violation of Chapter 301, including NHSTA vehicle safety standards and reporting requirements, to their employer or the Department of Transportation; (2) file, testify, assist or participate in a proceeding concerning any motor vehicle defect or alleged violation of Chapter 301, including NHSTA vehicle safety standards and reporting requirements; or (3) object to or refuse to participate in any activity that he or she reasonably believes to be in violation of Chapter 301 or any order, rule, regulation, standard or ban under Chapter 301.

What Is Prohibited Retaliation? Employers may not fire, lay off, reduce pay or hours, blacklist, demote, deny overtime or promotion, discipline, deny benefits, fail to hire or rehire, intimidate, threaten or reassign employees who engage in protected activity.

What Are the Procedural Requirements? Employees who think their employer has retaliated against them in violation of MAP-21 may file or have a representative file on their behalf a complaint with OSHA within 180 days. There is no particular form required, and the complaint may be issued by visiting or calling a local OSHA office, by sending a written complaint to the closest OSHA office or by filing online. OSHA will investigate and issue a determination, and either the employee or employer may request a hearing before a Department of Labor Administrative Law Judge (ALJ). The ALJ’s decision may be appealed to the Labor Department’s Administrative Review Board. Within 60 days of the final decision, either party may file a petition for review in the United States Court of Appeals for the circuit in which the violation allegedly occurred. The employee may also file a de novo complaint in federal district court if there is no final decision within 210 days.

What Legal Standards Apply? The legal standards applicable to such claims are governed by the same standards as other whistleblower claims, requiring that an employee have only a reasonable belief there has been a violation and not that he prove an actual underlying violation; that an employee must show his protected activity was a contributing factor in the adverse action; and that an employer can avoid liability if the employer demonstrates by “clear and convincing” evidence that it would have taken the same action in the absence of the protected activity.

The CFPA Final Rule

The Dodd-Frank CFPA regulation has no surprises. OSHA had received only two public comments in response to the interim final rule, and the final rule is not materially different from the interim final rule published in April 2014. CFPA whistleblower protections are substantively quite different from the whistleblower protections provided by the Sarbanes-Oxley Act (SOX) and the Dodd-Frank Act because of the different definitions of statutory coverage and protected activity.

Substantive Protections

What Entities Are Covered? All companies and their affiliates, whether publicly traded or not, that are engaged in selling a “consumer financial product or service” are subject to these rules. Consumer financial products or services include a wide variety of products or services offered for personal, family or household use by consumers, including residential mortgage origination, lending, brokerage and servicing, mortgage loan modification and foreclosure relief, student loans, payday loans, debt collection, credit reporting, credit cards, money transmitting, check cashing, prepaid cards, and debt relief service.

Who Is Protected? The Act and Rule make clear that all employees, past and present, as well as applicants for employment with covered entities are protected. In addition, individuals whose employment could be affected by a covered person or service provider are protected from retaliation if they engage in protected activity while performing tasks related to the offering or provision of consumer financial products or services.

What Is Protected Activity? A covered individual is protected if he or she reports information concerning a violation of (1) Title X of Dodd-Frank (a CFPA violation); (2) any provision of any law “subject to the jurisdiction of the Consumer Financial Protection Bureau [CFPB]”; or (3) any rule, order, or standard prescribed by the CFPB. The second category is quite extensive, because the CFPB oversees over a dozen federal consumer financial laws and regulations issued by seven “transferor agencies,” including the Board of Governors of the Federal Reserve System, the FDIC, the FTC, the Office of the Comptroller of Currency, HUD and others. To engage in protected conduct, a covered employee must (1) present information about alleged violations of the sort described above to the employer, the CFPB or any other federal, state or local governmental authority; (2) testify in a proceeding identified in the CFPA; (3) file a legal action under any federal consumer financial law; or (4) object to or refuse to participate in any activity, policy, practice or assigned task that the employee reasonably believes is in violation of any “law, rule, order, standard or prohibition” subject to CFPB’s broad jurisdiction (described above).

What Is Retaliation? A whistleblower can challenge not only termination but other adverse employment actions, including reduction in pay or hours, denial of benefits, discipline, reassignment, and demotion. Other retaliatory conduct specifically prohibited by the Rule includes “intimidating, threatening, restraining, coercing, blacklisting or disciplining” a covered individual.

The legal standards the Rule prescribes for establishing a whistleblower claim are similar to those under other whistleblower statutes:

  • the complaining employee must have a reasonable belief that s/he is reporting or opposing illegal conduct;
  • reasonableness is measured objectively and subjectively;
  • but the complainant does not have to show an actual violation;
  • the employer will be liable if the employee’s protected conduct was a “contributing factor” in the adverse action;
  • contributing factor is defined as “any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision”; and
  • employers will not be subject to remedial orders if they can show by “clear and convincing” evidence that they would have taken the adverse action even if the employee had not engaged in protected conduct.

What Remedies Does the Rule Provide? Upon a finding of reasonable cause, or upon a final order by the Secretary, the Secretary can order affirmative action to abate the violation; reinstatement of the complainant with back pay and interest; restoration of all benefits and privileges of employment; compensatory damages; and attorney’s fees and costs.

CFPA Procedures

The procedural aspects of the CFPA rule are the same as those for OSHA’s handling of SOX complaints except for a different deadline for seeking judicial review.

  • Complaints must be filed within 180 days of the alleged retaliatory act, and there is no need to exhaust an employer’s internal complaint procedures before filing with OSHA.
  • Complaints may be filed orally or in writing, in any language, and do not need to meet standards for pleadings filed in court.
  • Such a complaint must merely alert OSHA to the existence of alleged retaliation and the individual’s desire that OSHA investigate the complaint.
  • OSHA must issue findings within 60 days, and any objections must be filed with the chief Administrative Law Judge within 30 days.
  • Further review is available through petition to the Administrative Review Board, which must be filed within 14 days, or through a petition for review in the court of appeals for the circuit in which the alleged violation occurred, which must be filed within 60 days after a final order.
  • Whistleblowers may file de novo complaints in federal district court within 90 days of receiving a written determination of reasonable cause if there has been no final decision by the Secretary of Labor or within 210 days of filing the original complaint if here has been no final decision. (SOX regulations have a different time period – under SOX whistleblowers can seek de novo review within 180 days of filing a complaint if there has been no final decision.)

The FSMA Final Rule

The FDA Food Safety Modernization Act (FSMA), an amendment to the Federal Food, Drug and Cosmetic Act (FD&C), became effective on Jan. 4, 2011. The FSMA imposes strict food safety standards and grants the FDA greater authority to regulate tainted food. The FSMA also ensures that workers can disclose food safety concerns without fear of reprisal by their employers.

The FSMA regulation tracks the interim final rule published Feb. 13, 2014; OSHA made no substantive changes in response to the two public comments it had received.

Substantive Protections

What Entities Are Covered? “Persons” under the Act include an individual, partnership, corporation or association involved in the manufacture, processing, packing, transporting, distribution, reception, holding or importation of food. “Food” is defined by the FD&C as (1) articles used for food or drink for man or other animals; (2) chewing gum; and (3) articles used for components of any such articles.

Who Is Protected? All present and former employees and applicants for employment with covered entities are protected from retaliation if they engage in protected conduct.

What Is Protected Conduct? A covered individual is protected (1) if he provides or is about to provide information to the employer, the federal government or the attorney general of a state relating to any violation of, or any act or omission the employee reasonably believes to be a violation of, any provision of the FD&C; (2) if he testifies, assists in or participates in proceedings concerning such violations; or (3) if he objects to or refuses to participate in any activity, practice, policy or assigned task he reasonably believes to be in violation of the FD&C or any order, rule, regulation, standard or ban under the FD&C. The employee’s belief must be objectively and subjectively reasonable.

What Is Retaliation? Similar to other whistleblower protections enforced by OSHA, the FSMA rule makes clear that covered entities may not retaliate by firing or laying off whistleblowers; reducing their pay or hours; blacklisting them; demoting them; denying them overtime or promotion; disciplining them; reassigning them; denying them benefits; failing to hire or rehire them; or intimidating or threatening them. Such adverse actions are prohibited where the complainant can show that protected whistleblowing was a contributing factor in the employment decision.

What Legal Standards Does OSHA Apply? 

  • The complainant must only have a subjectively and objectively reasonable belief that the covered entity has violated the FD&C Act;
  • the employer will be liable if the employee’s protected conduct was a “contributing factor” in the adverse action;
  • contributing factor is defined as “any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision”; and
  • employers will not be subject to remedial orders if they can show by “clear and convincing” evidence that they would have taken the adverse action even if the employee had not engaged in protected conduct.

What Remedies Does the Rule Provide?  Upon a finding of cause, the Assistant Secretary of Labor may order reinstatement; back pay with interest; affirmative action to abate the violation; restoration of all terms, conditions and privileges associated with employment; and compensatory damages, attorney’s fees and costs.

FSMA Procedures

The procedural aspects of the FSMA rule are the same as those for OSHA’s handling of whistleblower complaints under the other whistleblower provisions it enforces, with some variation in the timeframes for seeking judicial review of administrative decisions.

  • Complaints must be filed within 180 days of the alleged retaliatory act, may be oral or written, and may be in any language.
  • The Assistant Secretary must issue written reasonable cause findings within 60 days, and the parties have 30 days to file objections and request a hearing before an Administrative Law Judge (ALJ).
  • After the ALJ issues a written decision, the parties have 14 days to seek review by the Administrative Review Board, which will issue a decision within 120 days after the conclusion of the hearing before the ALJ.
  • Parties may file a petition for review of an ARB decision in the court of appeals for the circuit in which the alleged violation occurred within 60 days.
  • Complainants may also seek de novo review in district court within 90 days after receiving a written reasonable cause determination, provided that there has been no final decision of the Secretary of Labor, or within 210 days of filing the complaint if there has been no final decision of the Secretary.