OSHA recently released the interim final text of regulations implementing the whistleblower protection provision (Section 1057) in Dodd-Frank. The interim final regulations establish the timing and processes for handling Dodd-Frank whistleblower complaints, including the procedures for filing a complaint with OSHA, OSHA’s investigation of the complaint, issuance of a decision and order, and appeals. OSHA is accepting comments on the interim final regulations until June 2, 2014.
Dodd-Frank established the Bureau of Consumer Financial Protection (Bureau) as the agency responsible for regulating the offering and provision of a variety of financial products or services for primarily personal, family, or household purposes, such as products or services related to residential mortgages, consumer credit cards, and debt collection, among others. Section 1057 of Dodd-Frank prohibits retaliation against an employee who has provided (or is about to provide) to their employer, the Bureau or other governmental authority, information relating to any act that they reasonably believe violates Dodd-Frank or other rule promulgated by the Bureau. Whistleblowers also are protected if they file a complaint or testify in any proceeding under Dodd-Frank, or if they object to or refuse to participate in an activity that they reasonably believe is a violation of any Bureau rule.
The regulations set forth the following procedures and processes for whistleblower complaints:
- Filing a Complaint: Any person who believes that he or she has been retaliated against may file a complaint with the OSHA office located in the geographical area where he or she lives or works. The whistleblower must file a complaint, which may be oral or written, within 180 days after the alleged retaliatory act. 29 CFR § 1985.102.
- Pre-Investigation: After a complaint is filed, OSHA will notify the respondent of the allegations. Within 20 days of notification, both the respondent and complainant may submit written statements and evidence in support of their respective positions, or may request a meeting with OSHA to present its position. 29 CFR §1985.104.
- Investigation: OSHA only will investigate if the complaint states a prima faciecase that the protected activity was a contributing factor in the adverse employment action. Even if a prima facie showing is made, however, OSHA will not conduct an investigation if the employer can demonstrate by clear and convincing evidence that it would have made the same employment decision absent the employee’s protected activity. 29 CFR §1985.104.
- OSHA’s Findings/Order: After the investigation, the OSHA Assistant Secretary will issue, by certified mail, written findings as to whether there is reasonable cause to believe that there was a violation of the Dodd-Frank whistleblower provision within 60 days of the filing of the complaint. If the Assistant Secretary finds that reasonable cause exists, he/she will also issue a preliminary order providing relief to the complainant, which may include reinstatement or compensatory damages. The findings and/or preliminary order will inform the parties of the right to appeal the decision before an Administrative Law Judge (ALJ). 29 CFR §1985.105.
- Appeal to an ALJ: Either party may file an appeal of OSHA’s findings and/or order within thirty of days of receipt of the findings and/or order. Additionally, the respondent may seek reasonable attorneys’ fees, not to exceed $1,000, from an ALJ if the respondent alleges that the complaint was frivolous or brought in bad faith. 29 CFR §1985.106.
- ALJ Hearing: An ALJ will conduct a de novo review of the record in accordance with the rules of practice and procedure for administrative hearings before the Office of Administrative Law Judges. 29 CFR §1985.107.
- Appeal to the ARB: Either party may file a written petition for discretionary review with the ARB within 14 days of the ALJ’s decision. 29 CFR §1985.110.
- Settlement: The parties may voluntarily settle their dispute, subject to approval by OSHA/the ALJ/ the ARB, depending on the stage of the proceedings at the time of settlement. 29 CFR §1985.111.
- Judicial Review: Within 60 days of an ALJ or ARB final order, either party may file a petition for review of the order in the United States Court of Appeals for the circuit in which the violation allegedly occurred or the circuit in which the complainant resided on the date of the violation. 29 CFR §1985.112.
- Judicial Actions: A party may bring a civil action for de novo review in the United States district court for the district in which the violation was found to occur under two circumstances— (i) if the Assistant Secretary fails to issue a final decision within 210 days after the complaint was filed or (ii) within 90 days after receiving the Assistant Secretary’s written decision, provided that the party does not file an appeal before OSHA. 29 CFR §1985.113; 1985.114.
The Dodd-Frank regulations proposed by OSHA are quite similar to the administrative procedures governing SOX whistleblower claims (also administered by OSHA). Given the relaxed pleading standard and interpretation of the scope of “protected activity” under SOX employed by the DOL, Dodd-Frank whistleblowers may find the DOL (starting with OSHA) to be an attractive venue.