As many employers know, “whistleblower” retaliation claims have proliferated in recent years, under the many federal and state laws which recognize and protect whistleblowing activities. The Occupational Safety and Health Administration (OSHA), which is charged with enforcing the whistleblower protection provisions of 21 federal statutes, including the Occupational Safety and Health Act, Sarbannes-Oxley, CERCLA, the Consumer Protection Act of 2010, and the Federal Railroad Safety Act, last month issued a new Whistleblower Investigations Manual for use by its field staff. The Manual overhauls the agency’s investigation procedures and is anticipated to be part of broader changes to OSHA’s whistleblower protection efforts. As part of those efforts, and despite the federal government’s budget crunch, OSHA plans to add 45 more investigators in 2012.
Overall, the manual will make it easier for employees to file whistleblower complaints and may make investigations of those complaints more difficult and time-consuming for employers. Among the significant changes announced in the Manual are:
- Clarifying that whistleblower complaints under any statute may be filed orally or in writing, and in any language, and that OSHA eventually will accept electronically-filed complaints on its Whistleblower Protection Program Web site
- Requiring that OSHA investigators attempt to interview the complainant in all cases
- Removing the requirement that a signed statement be obtained from each relevant witness (though the investigator must still attempt to interview each such witness)
- Clarifying procedures for processing complaint amendments and issuing administrative subpoenas. Setting forth additional guidance on addressing uncooperative respondents
- Mandating an award of attorney’s fees where authorized by the applicable statute
- Clarifying the calculation of interest on back pay and other damages
- Mandating that specific findings be issued in all dismissals of complaints under the Occupational Safety and Health Act, the Asbestos Hazard Emergency Response Act, and the International Safe Container Act
- Offering new guidance for the processing and investigation of complaints under the Federal Railroad Safety Act, the National Transit Systems Security Act, and the Consumer Product Safety Improvement Act
- Updating language to reflect amendments to the 9/11 Act and the Dodd-Frank Financial Reform and Consumer Protection Act
- Changing the handling of Privacy Act files and Freedom of Information Act requests OSHA supervisors to verify that applicable coverage requirements have been met and that the prima facie elements of the allegation have been properly identified
- Expanding procedures for the review and approval of settlement agreements
The new manual can be obtained from OSHA’s Web site.