On March 19, 2018, the SEC issued an Order jointly awarding two whistleblowers more than $49 million, and awarding a third whistleblower more than $33 million, for reporting information to the SEC that led to its successful prosecution of an enforcement action against the perpetrators of securities violations.

In 2010, the Dodd-Frank Act amended the

Last August, we reported on two significant cease-and-desist orders issued by the SEC that, for the first time, found certain language in the confidentiality and release provisions of separation agreements to violate the SEC’s Rule 21F-17(a), which precludes anyone from impeding any individual (i.e., a whistleblower) from communicating directly with the agency.[1] Since

Section 806 of SOX prohibits publicly traded companies, as well as their subsidiaries, contractors, subcontractors, and agents, from taking adverse personnel actions against employees for reporting activity that they reasonably believe constitutes mail fraud, wire fraud, bank fraud, securities fraud, or a violation of any Securities and Exchange Commission (“SEC”) rule or federal law relating

On March 5, 2015, the Occupational Health and Safety Administration (“OSHA”) issued its “Final Rule” establishing the procedures for handling retaliation complaints brought under Section 806 of the Sarbanes-Oxley Act (“SOX”). Section 806, as amended by Dodd-Frank, protects employees of publicly traded companies, as well as employees of contractors, subcontractors, and agents of

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