As we reported on Epstein Becker & Green’s Financial Services Employment Law Blog, the Department of Labor - OSHA announced earlier this month that employees protected by the whistleblower provisions in any one of the 22 statutes administered by OSHA, from claims of retaliation under the OSH Act based on workplace safety and health complaints, to financial fraud whistleblower retaliation under the Affordable Care Act or Sarbanes-Oxley, can now file their retaliation complaints with OSHA on-line. Specifically, in a December 5, 2013 press release, OSHA revealed a new web-based tool available for whistleblowers to submit their complaints to OSHA directly on-line, and introduced the on-line complaint form itself.
In the press release, David Michaels, the Assistant Secretary of Labor for OSHA, explained that “[t]he ability of workers to speak out and exercise their rights without fear of retaliation provides the backbone for some of American workers’ most essential protections. Whistleblower laws protect not only workers, but also the public at large and now workers will have an additional avenue available to file a complaint with OSHA.”
The online form, which is already live, provides employees an additional, and for many a much easier, way to file a retaliation complaint to trigger OSHA’s investigative process. Previously, employees had to mail a written complaint, visit an OSHA office in-person, or place a telephone call to 1-800-321-OSHA (6742) or to one of OSHA’s Regional or Area offices. Now that filing a complaint is faster, more efficiency, and linked to the familiarity of the internet, we expect an increase in the likelihood that some employees, who might not otherwise have filed complaints, may now do so.
The online form asks employees to list or select from a set of choices the basic information about their complaints. The complaints will then be followed-up on by investigators, who will contact the whistleblowers to obtain any more detailed information needed by OSHA to determine how to proceed against the employer.
This new accessibility to OSHA for whistleblowing on-line is similar to the on-line ease with which employees can provide tips regarding wrongdoing or apply for bounties under some of the same statutes, such as tips to the Securities and Exchange Commission or the Commodity Futures Trading Commission under the Dodd-Frank Act. This on-line whistleblower retaliation form is another step in OSHA’s broader effort to make employee protections and information about those protections more accessible to the public. For example, OSHA had already set up a webpage to educate employees about the whistleblower protections available to them.
The online complaint tool and other web-based outreach to employees is having precisely the effect that OSHA desired, as the number of whistleblower complaints filed with OSHA has grown each of the last five years (i.e., ever year under the current Administration), from 2,160 in FY 2009, to 2,920 in FY 2013. OSHA released a comprehensive data set reflecting whistleblower activity over the past decade. In addition to growth in the total number of complaints filed, the number of complaint determinations made by OSHA also grew substantially in 2013 – by nearly 15% to 3,272 (up from 2,865 in FY 2012). In 2013, however, case determinations by OSHA were much more likely to be made in favor of the whistleblower than in recent years. Still, cases that OSHA found to have “merit” continue to be rare -- only 2.3% (or 76 complaints) in FY 2013 were found to have merit.
That extraordinarily low percentage of valid whistleblower complaints obviously has not slowed down OSHA’s efforts to increase complaints, and drive more public resources into the whistleblower arena. To handle the ever increasing trend of more whistleblower cases, and more cases advanced by OSHA, OSHA is poised to hire approximately 50 new whistleblower investigators in 2014. The path has been cleared for OSHA to boost its boots on the ground force in the whistleblower division by the recent budget deal, which undid much of the sequester cuts that impacted OSHA’s budget. We can expect 2014 and beyond to continue the trend of increasing whistleblower activity by OSHA across many industries.