On May 21, 2014, the National Labor Relations Board (NLRB) published a memorandum discussing a new agreement between NLRB and OSHA regarding a backdoor route for employees to file safety related whistleblower claims that are too stale to be filed with OSHA.  The NLRB memo directs OSHA representatives to “notify all complainants who file an untimely [OSHA] whistleblower charge of their right to file a charge with the NLRB.”  As a result of this agreement, employers should expect an increase in the number of unfair labor practice claims filed by employees alleging retaliation for protected safety related whistleblower activity.

Section 11(c) of the Occupational Safety and Health Act of 1970 (Section 11(c)) requires employees to file complaints alleging retaliation for protected safety related whistleblower activities within thirty days of the triggering adverse employment action.  The Assistant Secretary of Labor for OSHA, Dr. David Michaels, recently testified before the Senate, Labor and Pensions Subcommittee on Employee and Workplace Safety about OSHA’s whistleblower program.  One of the key points of his testimony was that between 300 and 600 Section 11(c) complaints per year (roughly 10%) were filed beyond the 30-day deadline.  Dr. Michaels added that at least 100 of these complaints barely missed the deadline — by less than a month.

The National Labor Relations Act (NLRA), on the other hand, addresses different types of claims and also provides for a much longer statute of limitations.  Section 7 of the NLRA provide: “Employees shall have the right to. . . engage in concerted activities for the purpose of collective bargaining or other mutual air or protection.”  Section 8 prohibits unfair labor practices that “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.”  The NLRA has a 6-month statute of limitations for claims of unfair labor practices.

Because the NLRA’s statute of limitations is six months longer than the OSH Act’s, OSHA agents will now advise employees who file an untimely Section 11(c) claim that their claims may qualify as unfair labor practices under the NLRA, and explain their rights to file such claims with the NLRB, where their claims could be timely.  For a claim to qualify for protection as an unfair labor practice, however, the claim must involve “concerted activities.”  Thus, not every employee who was unable to file a timely Section 11(c) complaint will have a viable unfair labor practice claim, even if it would be timely under the NLRA.

The NLRB has provided a set of talking points to OSHA to help the OHSA agents discuss these rights with employees:

  • OSHA recommends that you contact the NLRB as soon as possible, to inquire about filing a charge
    alleging unfair labor practices.
  • The time limit to file a charge with the NLRB is 6 months from the unfair labor practice.
  • The NLRB is responsible for enforcing employee rights under the NLRA. The NLRA protects employee rights to act together to try to improve working conditions, including safety and health conditions, even if the employees aren’t in a union.
  • OSHA may not determine whether you are covered by the NLRA. Please contact the NLRB to discuss your rights under the NLRA.

OSHA also plans to include this information when it sends letters alerting employees that their 11(c) claims are being closed as untimely.

Neither the NLRB nor OSHA has addressed the legal issues posed by this agreement.  Congress intended that employees must file safety related whistleblower complaints very quickly, which is why it set such a short limitations period.  The short deadline for such claims makes sense because safety and health issues pose special risks; i.e., it is not a matter of fairness at stake, it is potentially a matter of life and death, where delays in reporting such issues could have grave consequences.  Creating a loophole or backdoor to extend the filing deadline for claims that could have been timely pursued as 11(c) claims by treating them as NLRA violations could discourage timely reporting under the OSH Act.
Continue Reading OSHA and NLRB Create Loophole for Stale Safety Whistleblower Claims

By John F. Fullerton

On April 29, 2014, the Assistant Secretary of Labor for OSHA, Dr. David Michaels, recently testified before the Senate Education, Labor and Pensions Subcommittee on Employee and Workplace Safety to seek a number of changes to the whistleblower protection provisions of Section 11(c) of the Occupational Safety and Health Act (“OSH

By John F. Fullerton III

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.


Continue Reading OSHA Introduces On-Line Filing Tool to Facilitate More Whistleblower Complaints

Our colleague Jang H. Im recently published an article, “The $34 Million Question: What All IT Consulting Companies Should Learn from the Infosys Settlement,” pointing out key lessons that all companies, including financial services employers may learn from InfoSys’ immigration issues with the U.S. Department of Justice and the precautionary measures employers should

By John F. Fullerton III

A New York federal district court has become the second court to hold that the Dodd-Frank anti-retaliation provision, 15 U.S.C. § 78u-6(h)(1)(a), which prohibits retaliation against a whistleblower who makes disclosures required or protected by the Sarbanes-Oxley Act, among other laws, does not apply extraterritorially.  In Meng-Lin Liu v. Siemens

By Paul Friedman and Meg Thering

Most prudent employers have begun efforts to ensure compliance with the Patient Protection and Affordable Care Act (“ACA”), which is bringing about myriad changes with which employers must comply.  Many employers are evaluating their employee populations, deciding whether it makes economic sense to continue offering coverage, and performing self-audits to ensure compliance.  Employers should also be aware that the Department of Labor has already started auditing employers for compliance.  What many employers may not be aware of, however, is that employees may bring whistleblower claims for violations of the ACA – and these claims will be policed by the Occupational Safety and Health Administration (“OSHA”).

The ACA prohibits retaliation against employees (as defined by the Fair Labor Standards Act) for receiving cost sharing reductions or tax credits on a Health Insurance Exchange (or Marketplace), and it prohibits retaliation against employees who report alleged violations of Title I of the ACA.  Employees who believe they have been retaliated against in violation of these rules can file a complaint with OSHA within 180 days of the alleged violation.  Here is a link to OSHA’s Fact Sheet providing more information about these provisions.

OSHA’s Fact Sheet explains: “To further these goals, the Affordable Care Act’s section 1558 provides protection to employees against retaliation by an employer for reporting alleged violations of Title I of the Act or for receiving a health insurance tax credit or cost sharing reductions as a result of participating in a Health Insurance Exchange, or Marketplace.”

The period just closed (on April 28, 2013) for comments on the interim final rule published by OSHA of “Procedures for the Handling of Retaliation Complaints Under Section 1558 of the Affordable Care Act.”
Continue Reading OSHA to Police Whistleblower Claims under the Affordable Care Act

By:  John F. Fullerton III

On March 5, 2013, the U.S. Second Circuit Court of Appeals clarified the burden-shifting framework applicable to whistleblower retaliation claims under Section 806 of the Sarbanes-Oxley Act, 18 U.S.C. § 1514A.  In Bechtel v. Administrative Review Board et al., (pdf), the Court issued a decision, consistent with prior decisions of

Before the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd Frank”) was enacted, whistleblower claims by registered representatives, including those arising pursuant to the Sarbanes-Oxley Act of 2002 (“SOX”) were subject to mandatory arbitration at FINRA.  See FINRA Notice 12-21 (PDF).  Dodd Frank changed that.  Dodd Frank specifically amended SOX to provide that “[n]o