United States: The Department Of Labor Establishes New Whistleblower Protocols

On February 19, 2021, the U.S. Department of Labor announced that the Occupational Safety and Health Administration (OSHA) will oversee worker retaliation complaints filed under the  Criminal Antitrust Anti-Retaliation Act (CAARA)¹ and the  Anti-Money Laundering Act (AMLA).² With this move, OSHA now oversees the enforcement of the whistleblower provisions of 25 different statutes, including those related to workplace safety and health—the Agency's original mandate—but also several concerning consumer products, food safety, securities, motor vehicle safety, health insurance, and financial reform, to name a few.

The Two New Statutes

CAARA and the AMLA were enacted in the waning days of the Trump administration. CAARA, signed into law on December 23, 2020, prohibits employers from taking adverse employment action against covered individuals who report criminal antitrust violations to their employer or the federal government, or who participate in a federal governmental criminal antitrust investigation or proceeding.

The AMLA, enacted on January 1, 2021, as part of the National Defense Authorization Act, is  the most expansive anti-money laundering statute since the USA Patriot Act of 2001. The statute bars employers from retaliating against employees who report money laundering and Bank Secrecy Act (BSA) violations to their employer or the federal government, or who participate in a Treasury Department or Justice Department investigation or proceeding based upon the information.

Whistleblower Complaints will be Processed According to AIR21 Procedures

In addition to announcing that probes of whistleblower complaints under CAARA and the AMLA will fall under OSHA's purview, the DOL advised that OSHA will process such complaints using the procedures set forth in the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21)³ until the Agency issues interim final rules. AIR21 was enacted to protect employees who provide information relating to air carrier safety violations. Like the more than 20 other statutes whose whistleblower provisions are administered by OSHA, AIR21 has well-established complaint reporting and investigative mechanisms.

Applying the AIR21 framework to CAARA and AMLA whistleblower claims, employees who believe they were discharged or otherwise discriminated against for reporting a violation of either law may file a complaint with the secretary of labor within 90 days after the date on which the violation occurs.

Following an investigation into the complaint, including an opportunity for the respondent to provide a written response to the complaint and present witness statements, the secretary of labor will issue findings. Where the secretary concludes there is reasonable cause to believe that a violation of CAARA or AMLA has occurred, the findings will be accompanied by a preliminary order providing relief to the complainant. Both the complainant and respondent have 30 days after the date they are notified of the findings to file objections to the findings and/or order and request a hearing before the Office of Administrative Law Judges.

Similar to AIR21, individuals under both CAARA and the AMLA bear the burden of establishing a prima facie  case that their protected activity was "a contributing factor" to the employer's alleged adverse action. If the employer demonstrates by clear and convincing evidence that "the employer would have taken the same unfavorable personnel action in the absence" of the protected activity, the DOL cannot provide relief for the covered individual. Other whistleblower statutes overseen by OSHA have adopted the same causation standard and burden-shifting mechanisms, such as the Sarbanes-Oxley Act (SOX) and the Taxpayer First Act.

Takeaway

With a reporting mechanism now in place for whistleblower provisions under CAARA and the AMLA, we can expect to see complaints under these statutes. Employers will want to advise members of management and human resources, including investigators, to be aware of whistleblower complaints that could involve CAARA and the AMLA. The enactment of these new workplace retaliation provisions provides an additional opportunity for organizations to review and strengthen their anti-retaliation policies and communicate to all employees their commitment to ethical conduct and non-retaliation.

Footnotes

1 15 U.S.C. § 7a-3.

2 31 U.S.C. § 5323(g) & (j).

3 49 U.S.C. §42121.

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