Department of Labor Publishes New Interim Whistleblower Regulations
On August 31, 2010, the Department of Labor (DOL) published new regulations governing whistleblower complaints brought under four distinct federal statutes: (i) the National Transit Systems Security Act (NTSSA), (ii) the Federal Railroad Safety Act (FRSA), (iii) the Consumer Product Safety Improvement Act (CPSIA), and (iv) the Surface Transportation Assistance Act (STAA). 29 CFR Parts 1978 (for the STAA), 1982 (for the FRSA and NTSSA) and 1983 (for the CPSIA). With the increased publicity surrounding the new DOL regulations, which clarify the procedures for an employee to initiate a formal whistleblower investigation, employers are likely to see an uptick in whistleblower complaints in the coming months. Unlike employment discrimination investigations conducted by the EEOC, whistleblower investigations may result in an order awarding substantial damages as quickly as weeks after the employer submits its initial response to the complaint.
In general, these statutes prohibit employers from retaliating against employees for engaging in specific activity protected by each statute. Such protected activity includes reporting to a supervisor any conduct reasonably believed to violate a federal rule, law, or regulation pertaining to safety or security (NTSSA, FRSA); furnishing information to any regulatory or law enforcement agency about an accident or injury (NTSSA, FRSA, STAA); refusing to work under conditions the employee reasonably believes to be hazardous (NTSSA, FRSA, STAA); reporting a workplace injury (FRSA); and objecting to, or reporting to the employer or certain government officials, any policy or practice violating the Consumer Product Safety Act or similar federal consumer protection laws (CPSIA). Moreover, the regulations purport to expand the scope of prohibited retaliatory conduct beyond tangible economic employment actions to encompass such subjective actions as intimidation, threats, and coercion.
Contrary to the Hollywood stereotype of stealth executives transmitting "smoking gun" internal documents to government investigators, DOL whistleblower investigations frequently arise when an employee, at any level, seeks redress for an adverse employment action by alleging that a "contributing factor" in the employer’s decision was the employee's past protected activity, which could include such routine workplace activities as providing a statement to the police following an accident, reporting a workplace injury or submitting a recommendation to an employer's internal safety committee.
The new regulations afford DOL only 210 days to adjudicate whistleblower complaints, including administrative appeals. Complaints are initially filed with the Occupational Safety and Health Administration (OSHA), which is charged with rendering factual findings and a preliminary order within 60 days. If a violation is found, OSHA will order make-whole relief, including reinstatement, backpay, other compensatory damages, attorney fees, and (for the NTSSA, FRSA, and STAA) punitive damages of up to $250,000. OSHA also frequently will issue a press release contemporaneously with its preliminary order in cases where a violation is found. If either party is not satisfied with DOL’s preliminary order, they can request a formal hearing before a DOL Administrative Law Judge, with appeals to the DOL's Administrative Review Board.
Given the significant potential liability and the accelerated administrative procedures, employers confronting a DOL whistleblower complaint must promptly develop and execute a sure-footed plan of defense no later than at the outset of the investigatory phase.