On December 29, 2022, President Biden signed the Anti-Money Laundering Whistleblower Improvement Act (“the Act”) into law, overhauling the Anti-Money Laundering Act of 2020 (“AMLA”). When initially passed, the AMLA met with extensive criticism by plaintiff-side whistleblower attorneys for failing to set a defined guaranteed rate for whistleblower awards, with the potential awards ranging from zero percent to thirty percent for identifying wrongful conduct in the anti-money laundering area. In response to this criticism and to correct other “shortcomings,” Congress amended the law in 2022 through its omnibus budget to expand enforcement measures within the United States and beyond its borders by clarifying who can be a whistleblower and the rewards for successfully raising compliance complaints. Below, we delve into these changes and their significance for employers. Essentially, these changes will increase employers’ potential liability for retaliation claims by emboldening newly eligible whistleblowers and their lawyers to raise non-compliance complaints.
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…
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.
Under a final rule (“Final Rule”) issued by the Occupational Safety and Health Administration (“OSHA”), commercial motor carriers that own or lease a vehicle in a business affecting interstate commerce or assign employees to operate such a vehicle are impacted by Surface Transportation Assistance Act of 1982…