OSHA Creates New Whistleblower Protection CategoriesMar 09, 2021
Employers take note: two new whistleblower protection categories have just been created.
On February 19, 2021, the Department of Labor announced that the Occupational Health and Safety Administration (OSHA) would be overseeing the investigation of whistleblower complaints in two new categories: antitrust and anti-money laundering. Two laws recently passed by Congress — the Criminal Antitrust Anti-Retaliation Act (CARRA) and the Anti-Money Laundering Act (AMF)— created concurrent whistleblower complaint programs, along with all the policies and procedures that govern investigations.
The AMF was signed into law in January 2021 and protects whistleblowers who suspect violations of the Bank Secrecy Act, the 1970 legislation that requires all US financial institutions to assist government agencies in identifying and preventing money laundering. CARRA, which was signed into law in December 2020, protects whistleblowers in antitrust situations, where a whistleblower may report unfair or unlawful business practices and then experiences retaliation.
Retaliation is defined similarly in both pieces of legislation. Employers may not “directly or indirectly, discharge, demote, suspend, threaten, blacklist, harass, or in any other manner discriminate against a whistleblower in the terms and conditions of employment or post-employment because of any lawful act done by the whistleblower.”
OSHA, which already enforces the whistleblower retaliation provisions of more than 20 statutes, said in the announcement that the agency:
…will investigate individual whistleblower complaints of retaliation for reporting criminal antitrust [or money laundering-related] violations to their superiors or the federal government; or for showing cause, testifying, or participating in, or otherwise assisting an investigation or proceeding related to antitrust [or anti-money laundering] law violations.
The agency also stated that it would be utilizing the procedures and guidelines outlined in the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21) “until OSHA issues final rules:”
What does this mean for employers?
Employers should note that whistleblower protection is not limited to just those who report actual violations. In most cases, these protections extend to a whistleblower’s mistaken belief that the conduct being reported violates the law.
Considering the broad potential application of these new antitrust and anti-money laundering laws — and the stepped-up OSHA investigations everyone is anticipating in the Biden administration— employers would be wise to make a thorough compliance review a priority in 2021. Audit all existing internal policies and procedures for how internal whistleblower claims are handled. Consider some additional training.
When OSHA investigates a whistleblower complaint like this, it helps when the employer can show that strong internal communication and training programs are in place to educate employees about illegal activity and how to report it. An employer’s internal records should demonstrate how internal complaints, performance reviews, and similar matters have been handled through time — including exit interviews when an employee is fired.
As I mentioned last August — when commenting on OSHA’s commitment to “improve complaint processing” amidst the explosion of COVID-related complaints — the employer’s response to a complaint notification is key to what happens next. If OSHA notifies you that a complaint has been filed, it means that the complaint has passed the first administrative hurdle at OSHA and has moved to the investigation phase.
How you respond — the quality and completeness of your response – is critical and makes a big difference in how the investigation proceeds. Legal support in structuring and writing this response is recommended.
Should you receive notification from OSHA about any whistleblower complaint, or if you have questions about your internal management system for handling employee complaints, please don’t hesitate to contact me.
About the Author: James Laboe