The Occupational Safety and Health Administration (OSHA) has issued a final rule (pdf) implementing the whistleblower provisions of the Surface Transportation Assistance Act (STAA). OSHA is charged with enforcing the whistleblower provisions in 21 separate statutes, including §31105 of the STAA, which, among other things, makes it unlawful to discharge or otherwise discipline or discriminate against an employee regarding pay, terms, or privileges of employment, because that employee has filed (or is believed to have filed or is about to file) a complaint regarding a violation of commercial motor vehicle (CMV) safety or security laws or regulations; refuses to operate a vehicle in violation of regulations, standards, or orders related to commercial motor vehicle security; refuses to operate a vehicle because he or she has a reasonable apprehension of serious injury to himself or herself or the public due to the vehicle’s hazardous security condition; accurately reports hours of duty; cooperates with federal or local investigators regarding CMV safety or security; or provides information to federal or local regulatory or law enforcement agency about any accident or incident resulting in injury or death to an individual or damage to property occurring in connection with CMV transportation.

The final rule incorporates the amendments made to the STAA by the 9/11 Commission Act of 2007 (9/11 Commission Act), which strengthened the STAA’s whistleblower provisions. The rule also finalizes changes to the procedures for handling whistleblower complaints under the STAA to make them more consistent with other OSHA whistleblower regulations.

9/11 Commission Act Amendments

The 9/11 Commission Act made several significant changes to the STAA’s whistleblower statute. Among other changes, the revised STAA states that whistleblower complaints will be governed by the legal burdens of proof set forth in the law (AIR21) governing the aviation industry. Under AIR21, a whistleblower violation may be found only if the complainant demonstrates that protected activity was a contributing factor in the adverse action described in the complaint. A contributing factor is “any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision.” The rule explains that a complainant will be considered to have met the required burden “if the complaint on its face, supplemented as appropriate through interviews of the complainant, alleges the existence of facts and either direct or circumstantial evidence to meet the required showing.” Relief is unavailable if the employer demonstrates by clear and convincing evidence that it would have taken the same adverse action in the absence of the protected activity.

With respect to the form of whistleblower complaints, the rule states that OSHA will accept either oral or written STAA whistleblower complaints, and that whistleblower protections apply to both forms of complaint to the employer or government agency.

The rule instructs that certain whistleblower complaints filed under the STAA could also constitute safety complaints under Section 11(c) of the Occupational Safety and Health (OSH) Act. Section 11(c) of the OSH Act generally prohibits employers from retaliating against employees for filing safety or health complaints or otherwise initiating or participating in proceedings under the OSH Act. Therefore, the final rule clarifies that STAA whistleblower complaints that also allege facts constituting an 11(c) violation will be deemed to have been filed under both statutes.

As to whistleblower investigations under the STAA, the rule requires that throughout the investigation, the agency must provide the complainant or his/her representative with a copy of the employer’s response to the whistleblower complaint, confidential information redacted as necessary. The complainant will have an opportunity to respond to the employer’s submissions. The complainant will also receive a copy of materials the agency provides to the employer.

The 9/11 Commission Act also expanded remedies available to whistleblowers. Specifically, the 9/11 Commission Act amended the STAA to expressly provide for the award of interest on back pay as well as compensation for any special damages sustained as a result of the unlawful discrimination, including litigation costs, expert witness fees, and reasonable attorney fees. The amendments also authorize awards of punitive damages up to $250,000. Another amendment preserves any other rights or remedies available to the employee under federal or state law. The rule incorporates these changes, and notes that there is no statutory basis for allowing the employer to recover the costs of economically reinstating a complainant should the employer ultimately prevail in the whistleblower litigation.

Finally, the rule explains the procedures for allowing judicial review of STAA whistleblower determinations. For example, the rule provides that federal district courts may review a STAA whistleblower claim de novo if a final decision regarding the administrative claim is not issued within 210 days after the filing of a complaint and the delay is not due to the complainant’s bad faith.

The provisions of this final rule take effect upon publication in the Federal Register, which is scheduled for July 27, 2012.