Overview of OSHA's Whistleblower Protection Program

The goal of the Occupational Safety and Health Administration (OSHA), a federal agency created in 1970 under President Richard M. Nixon, was to create and maintain a safe working environment for workers in U.S.-based companies. The enabling legislation was called the Williams-Steiger Occupational Safety and Health Act of 1970, or more commonly, the OSH Act. In 1977, an addendum to the OSH Act, Section 11(c), created specific protections for employees who exercised their rights under the original terms of the Act. The Whistleblower Protection Program, as it came to be called, provides protection to those workers who report or testify about actions by their employer which are deemed to be unsafe, unhealthy, and illegal or which specifically violate public policy.

The inclusion of such "whistleblower" legislation, in effect, recognizes that workers play a critical role in identifying potential threats to health and safety at the workplace, which cannot be identified solely through OSHA's cycle of regular safety inspections. Indeed, without the assistance of the general public, or until the occurrence of an accident, it is extremely difficult, if not impossible, for OSHA to initiate an investigation, and as result, many firms, especially the smaller firms, might continue to operate in a manner in which its employees are regularly exposed to health or safety hazards. Asbestos hazards are among those which the program covers, and people should not be reluctant to report any asbestos safety violations in their workplace.

An employee who is covered under the protection program is one who has identified and disclosed violations of OSHA-enforced federal statutes, and who believes that, as a result of that disclosure, his employer has engaged in adverse employment activities against him or her. The Department of Labor offers compliance assistance for employers.

Employees covered under the protection program fall into two categories. The first are those individuals who expose activities that relate to personal health and safety conditions within the workplace, as well as disclosure of environmental dangers. Each federal act, as listed below, identifies those actions which result in a violation of it, and provides specific guidelines for a complainant as regards the statute of limitations and the means of complaint.

Occupational Safety and Health Act - within 30 days, by telephonic or written complaint,
Clean Air Act - within 30 days, by written complaint,
Asbestos Hazard Emergency Response Act - within 30 days, by telephonic or written complaint,
International Safe Container Act - within 60 days, by telephonic or written complaint,
Comprehensive Environmental Response, Compensation and Liability Act - within 30 days, by written complaint,
Safe Drinking Water Act - within 30 days, by written complaint,
The Energy Reorganization Act - within 180 days, by written complaint,
Federal Water Pollution Control Act - within 30 days, by written complaint,
Solid Waste Disposal Act - within 30 days, by written complaint, and
Toxic Substances Control Act - within 30 days, by written complaint.
Surface Transportation Assistance Act as amended by The Implementing Recommendations of the 9/11 Commission Act - within 180 days, by telephonic or written complaint,
W.H. Ford Aviation Investment and Reform Act for the 21st Century - within 90 days, by written complaint,
Pipeline Safety Improvement Act of 2002 - within 180 days, by written complaint,
National Transit Systems Security Act as amended by The Implementing Recommendations of the 9/11 Commission Act - within 180 days, by telephonic or written complaint, and
Federal Rail Safety Act as amended by The Implementing recommendations of the 9/11 Commission Act - within 180 days, by telephonic or written complaint.

The second category of employees who are covered under the protection program includes an individual who exposes illegal or fraudulent activities among publicly traded U.S. companies, as it regards their management, accounting and/or financial reporting requirements; the statute below identifies those covered employees entitled to protection under the OSHA Whistleblowers Protection Program:

The Corporate and Criminal Fraud Accountability Act of 2002, within 90 days, by written complaint.

An employee, who has reported or exposed illegal health or safety-related actions to OSHA, or any illegal activity to the property authority, such as a federal agency or law-enforcement authority, is shielded from retaliation, reprisal or discrimination from or by an employer, by the provisions of the OSH Act. Any action taken by the employer, including employee discharge or layoff, demotion, discipline, denial of promotion, benefits or overtime, reduction in working hours, intimidation or threats, blacklisting or reassignment, are considered discriminatory actions and are prohibited by the OSH Act.

An aggrieved employee who finds himself discriminated against for exercising his rights under the OSH Act, may file a complaint against his employer with OSHA, for violation of the Whistleblower Protection Act. Depending upon the Act which has been allegedly violated, there are specific regulations and guidelines that must be followed in order for OSHA to provide protection to a covered employee.

If OSHA deems that the complaint is valid, it will investigate through an inspection process, with the complainant permitted to participate in such proceeding. OSHA will consider that retaliation took place provided that certain criteria are met, namely the employee engaged in the protected activity, the employer was aware of the protected activity, the employer took adverse action against the employee, and the employee's disclosure of the protected activity was either a motivating or contributing factor to the employer's negative action against the employee.

If the investigation proves the complainant's allegation to be true, then OSHA will attempt to negotiate a settlement between the parties. Such settlement may include ordering the employer to repay lost wages, reinstate or rehire the employee, provide the employee with reimbursement for related expenses, and other remunerations as OSHA sees fit. If no settlement can be reached, the case will be referred to the Office of the Solicitor for consideration of a civil law suit.

If the OSHA investigation concludes that the complaint had no merit, the complaint will be summarily dismissed.

The National Whistleblowers Center (NWC) is an advocacy organization.

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