United States: OSHA Continues To Turn Up The Volume On Whistleblowing

Last Updated: April 6 2016
Article by Kevin E. Griffith and Thomas Benjamin Huggett

Rushing to put final rules in place before the current Administration's term ends, on March 17, 2016, the Occupational Safety and Health Administration (OSHA) published its final rule for implementing the whistleblower protections under Section 1057 of the Dodd-Frank Wall Street Reform and Consumer Financial Protection Act of 2010 (CFPA). The day before, OSHA published its interim final rule and request for comments on its proposed procedures for handling whistleblower retaliation complaints under Section 31307 of the Moving Ahead for Progress in the 21st Century Act (MAP-21), applicable to automotive industry manufacturers, suppliers and dealers. Both sets of rules establish procedures and timeframes for OSHA's handling of whistleblower retaliation complaints under each statute, as well as identify the available legal and equitable remedies for whistleblowers who prevail.

Consumer Financial Protection Act of 2010

OSHA's final rule for its handling of whistleblower retaliation complaints under the CFPA is, in most respects, the same as OSHA's final rule for its handling of Sarbanes-Oxley Act (SOX) complaints. For instance, apart from differences in the deadlines for seeking de novo review in U.S. district court, both final rules provide the same deadlines and procedures for OSHA's administrative adjudication of whistleblower retaliation complaints.

But, the statutory coverage and protected activity definitions contained in the final rules are very different. Many employers and legal practitioners get this confused, especially since Congress enacted the CFPA on July 21, 2010 as part of Dodd-Frank. But, CFPA's whistleblower protections contained in Section 1057 are distinct and independent from those contained in SOX and Dodd-Frank.

For example, the CFPA whistleblower protections apply to companies and their affiliates —whether publicly traded or not—that are engaged in selling a "consumer financial product or service." This includes a wide variety of financial products and services commonly sold to individual consumers for personal, family or household purposes. Thus, the types of companies the CFPA covers include credit unions that extend consumer credit, and provide residential mortgages, loans (such as student loans), lease financing, and check cashing and collection services. Other types of covered companies include those that provide real estate settlement or appraisal services, debt collection services, foreclosure relief, consumer reporting, payday loans, and financial advice and products—such as independent wealth management firms.

In addition, "protected activity" under the CFPA is defined differently from "protected activity" under SOX and Dodd-Frank. First, a "covered" whistleblower under the CFPA must be an individual "performing tasks related to the offering or provision of a consumer financial product or service." Second, for this employee to be protected, the type of information the employee reports must concern a violation of (1) Title X of Dodd-Frank (pertaining to the CFPA); OR (2) any provision of law "subject to the jurisdiction of the Consumer Financial Protection Bureau ("Bureau"), which oversees more than a dozen federal consumer financial laws, as well as regulations issued by seven "transferor agencies," including the Board of Governors of the Federal Reserve System, the FDIC, the FTC, the Office of the Comptroller of the Currency, HUD and others; OR (3) any rule, order or standard "prescribed by the Bureau."

Finally, to engage in "protected activity," the employee must have provided such information to "the employer, the Bureau, or any other federal, state or local governmental authority"; OR, testified in a proceeding identified in the CFPA; OR, filed a legal action under any federal consumer financial law; OR, "objected to or refused to participate in any activity, policy, practice, or assigned task that the employee...reasonably believed to be in violation of any law, rule, order, standard, or prohibition" subject to the Bureau's jurisdiction.

Thus, as you can see, the type of employers the CFPA covers, and the type of whistleblower activity it protects, is much different from the SEC-oriented and anti-shareholder-fraud protections for whistleblowers under SOX and Dodd-Frank.

Moving Ahead for Progress in the 21st Century Act

Section 31307 of MAP-21, enacted July 6, 2012, contains a whistleblower protection provision for workers in automobile manufacturing, parts suppliers, and car dealerships who have been discharged or otherwise retaliated against for providing information concerning motor vehicle defects or violations of motor vehicle safety standards to their employer or the Secretary of Transportation. Chapter 301 of Title 49 of the U.S. Code (Chapter 301) gives the National Highway Traffic Safety Administration (NHTSA) the authority to issue vehicle safety standards and to require manufacturers to recall vehicles that have a safety-related defect or that do not meet federal safety standards. It also contains other reporting and notification requirements for motor vehicle manufacturers and part suppliers. Employees of manufacturers, part suppliers, and dealerships are now protected when they report these issues within 180 days of an adverse employment action.

The Act provides that the Secretary may conduct an investigation only if the complaint has made a prima facie showing that the protected activity was a contributing factor in the adverse action alleged in the complaint. Following its statement of policy in the memorandum titled Clarification of the Investigative Standard for OSHA Whistleblower Investigations, and notwithstanding the Supreme Court's 2013 decision in University of Texas Southwestern Medical Center v. Nassar (requiring strict "but-for" causation for retaliation claims), OSHA's rules provide that a claimant need only show that "reasonable cause to believe that retaliation has occurred" for the agency to move forward with a cause finding. 29 C.F.R. § 1988.105. This will result in an obligation for the Department of Labor Solicitor's Office to represent the claimant in a hearing before the DOL Office of Administrative Law Judges. The employer can still prevail by demonstrating through clear and convincing evidence that it would have taken the same adverse action in the absence of that activity, but instead of considering that during the inspection, OSHA will force the employer to a trial.

The interim final rule was effective as of the date of its publication, March 16, 2016. OSHA did, however, invite comments on:

  • Whether the proposed information collection requirements are necessary for the proper performance of the Agency's functions, including whether the information is useful;
  • The accuracy of OSHA's estimate of the burden (time and costs) of the information collection requirements, including the validity of the methodology and assumptions used;
  • Enhancing the quality, utility, and clarity of the information collected; and
  • Minimizing the burden on employees who must comply; for example, by using automated or other technological information collection and transmission techniques.

Although not specifically requested, Employers can comment on other items such as the improper attempt to change the burden of proof. Employers may submit comments electronically at http://www.regulations.gov, the Federal eRulemaking Portal. Comments can also be submitted by mail or facsimile; for details, see the Federal Register notice. The deadline for comments is May 16, 2016.

Conclusion

These regulations continue OSHA's pattern of handling whistleblower and retaliation complaints in similar manners and in accord with the Agency's disregard of statutory language to force the cost of an evidentiary hearing on employers where less than 50% of the evidence supports the claimant.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Kevin E. Griffith
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.