Employee claims of retaliation have risen steadily on a year-to-year basis and recent government statistics suggest this is a continuing trend. The Occupational Safety and Health Administration (“OSHA”), which enforces 22 separate federal whistleblower statutes, has issued updated statistics showing the number of whistleblower cases filed with the agency and their outcome. According to the report, OSHA completed a total of 2,769 cases in 2012, a significant increase from the 1,948 completions in 2011. This continues an upward trend going back several years. The number of complaint “determinations” in 2012 was 2,867, a 42 percent increase from the 2,013 “determinations” in 2011.
The number of whistleblower cases filed under the Sarbanes-Oxley Act (“SOX”) totaled 164, up slightly from the previous year, but fewer than the 2005 record. In virtually every year from 2005 through 2012, a majority of claims were dismissed or withdrawn, while a small percentage was determined to have merit.
SOX whistleblower claims continue to be a real concern for organizations, and employees now have alternatives for pursuing a retaliation-type claim against their employers. One reason the number of whistleblower claims filed under SOX has not increased more rapidly may be the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“DFA”) and the new whistleblower protection program under that statute. DFA allows employees to report their claims directly to the Securities and Exchange Commission (“SEC”), creates a bounty system for whistleblowers, and enables employees to file a claim in federal court without first filing an administrative claim.
According to OSHA, statutes with the greatest increases in filings included the Occupational Health and Safety Act (filings have grown every year since 2005), the Surface Transportation Assistance Act (involving commercial vehicles) and the Federal Railroad Safety Act.
Alas, the growth of whistleblower claims probably has not peaked. The SEC’s latest annual report on the DFA whistleblower protection program states that the agency received 3,001 whistleblower reports in 2012, and virtually all of these remain pending. Further, in September of 2012, the SEC announced its whistleblower fund has set aside more than $453.4 million to reward whistleblowers. Required employer compliance programs, including employee awareness programs that educate employees about the whistleblowing process, will only make it more likely employees will bring tips and cases to the government. We predict 2013 will reveal whether the SEC whistleblower program under DFA (which provides direct access to federal court) overtakes the OSHA administrative whistleblower protection program under SOX in the number of whistleblower cases brought to the government.