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Whistleblowers gain protections as OSHA updates rules

Posted On: May. 25, 2016 12:00 AM CST

The U.S. Occupational Safety and Health Administration has been busy revamping rules protecting whistleblowers under the various laws the agency is charged with enforcing to ensure consistency and give employees time to file complaints.

OSHA enforces the whistleblower provisions of 22 federal statutes, and the agency has been publishing new regulations for enforcing those provisions one statute at a time — the latest being the Food Safety Modernization Act, with the agency publishing final rules in April to allow employees to file whistleblower complaints with OSHA related to food safety concerns.

“The new rule is consistent with a lot of the other whistleblower statutes,” said Marc Goldstein, St. Louis-based associate with Stinson Leonard Street L.L.P. “It's really not that different, other than the fact that it's another industry.”

OSHA has enhanced its focus on protecting whistleblowers, with the agency recently publishing its electronic record-keeping rule featuring anti-retaliation provisions that have sparked controversy because employees already can file retaliation complaints under Section 11(c) of the Occupational Safety and Health Act.

However, Section 11(c) has a 30-day statute of limitations whereas other statutes give employees 180 days to file complaints, experts said. In addition, Section 11(c) complaints, after being investigated, are litigated in U.S. District Court, which has limited the number of lawsuits filed to protect whistleblowers, they said.

“As a result, the enforcement of 11(c) hasn't been as strenuous as I know OSHA would like,” said David Jones, Atlanta-based shareholder with Ogletree Deakins Nash Smoak & Stewart P.C.

In contrast, the Food Safety Modernization Act allows for administrative proceedings to consider whistleblower complaints.

“Those are a lot easier for the (Department of Labor) to bring rather than to file a lawsuit in federal district court,” Mr. Jones said. “I think, notwithstanding the authority of the federal district courts to issue and to enforce remedies in situations like these, it's likely that OSHA will be able to fashion remedies that have greater teeth because of the (additional) accessibility of the complaint process given the longer period of the statute of the limitations and the relative ease with which these proceedings can be brought in front of an administrative law judge as opposed to the federal district court.”

Under the new food safety regulations, an employee only needs to provide direct or circumstantial evidence to give rise to an inference that the employer suspected the employee engaged in protected activity and the protected activity was merely a contributing factor in the adverse action, which essentially requires the employer to show with clear and convincing evidence that it would have taken the same action even if the person had not engaged in protected conduct, legal experts said.

“I think that's the right rule,” said Carolyn Wheeler, senior counsel at Katz, Marshall & Banks L.L.P. in Washington. “I think that's the way to ensure protection for people so they'll feel comfortable making these complaints. It's a pretty robust protection.”

Employers governed by the Food Safety Modernization Act and other statutes enforced by OSHA should review their policies, train supervisors and managers on the policies, and communicate their policies to employees and reassure them they will not be retaliated against for reporting issues, experts said. They should also document any performance issues before taking adverse actions such as termination, demotion or transfer, experts said.

“The employer is going to have to be able to prove it had those nonretaliatory reasons,” Ms. Wheeler said.