HandelontheLaw.com Staff Writer
A “whistleblower” generically is one who reveals acts or omissions that break laws and/or pose a threat to the public. Within the United States, “whistleblower” can refer to a federal, state or private employee who: reasonably believes his/her employer has broken a law, rule or regulation; brings or at least testifies at a related proceeding; or refuses to act or fails to act in violation of the subject law, rule or regulation. We usually think of whistleblowers on a grand scale but as you can see from the general description, a whistleblower can be a private employee who acts within a much smaller system. While public opinions about whistleblowers run the gamut from “hero” to “traitor,” there are a number of laws empowering and protecting whistleblowers due to their value in combatting criminal and otherwise damaging behavior.
On the federal level, great pains are taken to protect whistleblowers in every arena. The basic idea is that if you, as an employee, act as a whistleblower due to some violation by your employer and your employer retaliates against you because of that, you can report the retaliation and be protected. The Occupational Safety and Health Administration (OSHA) is particularly charged with assisting and protecting whistleblowers. OSHA is an “old hand” at employer retaliation against whistleblowers and covers such employer retaliation as: issuing or applying a policy “for an unfavorable personnel action”; blacklisting; demoting; denying overtime or promotion; disciplining; denying benefits; failing to hire or rehire; firing or laying off; intimidation; threats; reassignment to a less desirable position, including one that harms prospects for promotion; reducing pay or hours; and suspension.
The easiest part of reporting employer retaliation to OSHA is finding the complaint form, which is here: https://www.osha.gov/whistleblower/WBComplaint.html Perhaps the trickiest parts of reporting employer retaliation to OSHA are the various time limitations for filing complaints, depending on the Act.
There is a 30-day time limit for filing a complaint of employer retaliation if the whistleblowing is for a violation of Acts concerning: Clean Air; Comprehensive Environmental Response, Compensation and Liability; Federal Water Pollution Control; Occupational Safety and Health; Safe Drinking Water; Solid Waste Disposal; and Toxic Substances Control.
There is a 60-day time limit for filing a complaint of employer retaliation if the whistleblowing is for a violation of the International Safe Container Act.
There is a 90-day time limit for filing a complaint of employer retaliation if the whistleblowing is for a violation of Acts concerning: Asbestos Hazard Emergency Response or the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century.
There is a 180-day time limit for filing a complaint of employer retaliation if the whistleblowing is for a violation of Acts concerning: Consumer Financial Protection (2010); Consumer Product Safety Improvement; Energy Reorganization; Federal Railroad Safety; Moving Ahead for Progress in the 21st Century (Motor Vehicle Safety); National Transit Systems Security; Pipeline Safety Improvement; Sarbanes-Oxley (fraud in publicly traded companies); Seaman’s Protection; Section 402 of the FDA Food Safety Modernization; Section 1558 of the Affordable Care Act; and Surface Transportation Assistance.
These are only some of the Acts involved in whistleblower protection. There are also military whistleblower protections, national defense whistleblower protections, and the like. Given the myriad federal laws protecting whistleblowers, the safest approach appears to be calling OSHA @ 1-800-321-OSHA (6742); TTY 1-877-889-5627 well within 30 days after the employer retaliation begins. OSHA should be able to tell you the appropriate Act and time limitation and/or redirect you to another organization.
Reducing the OSHA complaint process to its absolutely simplest terms, after a complaint is filed, it is reviewed and if retaliation is found, the Secretary of State issues an order directing the employer to: take affirmative action to abate the violation; reinstate the whistleblower to his/her former position, along with back pay, compensation, terms, conditions and privileges; costs and expenses (including attorney’s fees and expert witness fees); and possibly pay compensatory damages to the whistleblower. If the employer does not comply with the order, action may be brought in federal district court by the Secretary of State and/or the whistleblower. If the suit is successful, the court can award: injunctive relief (telling the employer to do or stop doing something); compensatory relief (basically money); and exemplary relief (basically more money, to punish the employer).
On the state level, more than 30 states have whistleblower laws protecting public and sometimes private employees. The National Conference of State Legislatures (NCSL) maintains a web page with state whistleblower laws (though the site apparently has not been updated since November 2010?!), found here: http://www.ncsl.org/research/labor-and-employment/state-whistleblower-laws.aspx In California, for example, both public and private employees are protected by Govt. Code §§53296 et seq, which states, “It is unlawful for an employer to make or enforce a rule or policy or to retaliate against an employee for disclosing information to a government or law enforcement agency if the employee reasonably believes the information involves a violation of state or federal law. Claims must be reported to the State Division of Labor Standards Enforcement within 90 days of the alleged retaliatory act. California employees are directed to report violations by calling the California State Attorney General’s Whistleblower Hotline @ 1-800-952-5225. You can find your latest state whistleblower laws by googling “whistleblower protection” and your state’s name. Finding the latest state law is important, as your time limitations and other filing requirements will be governed by it.
DO’S AND DON’TS
DON’T be intimidated by the process or the people.
DO understand that there are federal and sometimes state whistleblower protection laws.
DO understand that whistleblower protections sometimes protect private as well as public employees.
DO understand that if you, as an employee, act as a whistleblower due to some violation by your employer and your employer retaliates against you because of that, you can report the retaliation and be protected.
DO understand that you can be protected from employer retaliation including:
a. issuing or applying a policy “for an unfavorable personnel action”;
d. denying overtime or promotion;
f. denying benefits;
g. failing to hire or rehire;
h. firing or laying off;
k. reassignment to a less desirable position, including one that harms prospects for promotion;
l. reducing pay or hours;
DO file a complaint about employer retaliation to OSHA here:
DO understand that there are various time limitations of 30, 60, 90 and 180 days, depending on the Act.
DO call OSHA @ 1-800-321-OSHA (6742); TTY 1-877-889-5627 well within 30 days after the employer retaliation begins if you are unsure about filing requirements.
DO review state whistleblower protections here:
DO call the California State Attorney General’s Whistleblower Hotline @ 1-800-952-5225 if you are a California public or private employee.
DO find your latest state whistleblower laws by googling “whistleblower protection” and your state’s name.
By Kathy Catanzarite
Note from HandelontheLaw.com: This article is to be used as an educational guide only and should not be interpreted as a legal consultation. Readers of this article are advised to seek an attorney if a legal consultation is needed. Laws may vary by state and are subject to change, thus the accuracy of this information can not be guaranteed. Readers act on this information solely at their own risk. Neither the author, handelonthelaw.com, or any of its affiliates shall have any liability stemming from this article.
ADMINISTRATIVE LAW DOS AND DON'TS