The federal Occupational Safety and Health Administration (OSHA) whistleblower protection program enforces the whistleblower provisions of more than 20 whistleblower statutes—protecting employees from retaliation for reporting violations of various workplace laws (and for engaging in other related protected activities) related to:
• safety and health
• commercial motor carriers
• consumer products
• environmental protections
• financial reform
• food safety
• health insurance reform
• motor vehicle safety
• public transportation agencies
Retaliation occurs when an employer—through a manager, supervisor, or administrator—fires an employee or takes any other type of adverse action against an employee for engaging in protected activity. An adverse action is an action that would dissuade a reasonable employee from raising a concern about a possible violation or engaging in other related protected activity.
Examples of prohibited adverse actions include:
• firing or laying off
• denying overtime or promotion
• denying benefits
• failing to hire or rehire
• intimidation or harassment
• making threats
• reassignment to a less desirable position or actions affecting prospects for promotion (such as excluding an employee from training meetings)
• reducing pay or hours
• more subtle actions, such as isolating, ostracizing, mocking, or falsely accusing the employee of poor performance
• blacklisting (intentionally interfering with an employee’s ability to obtain future employment)
• constructive discharge (quitting when an employer makes working conditions intolerable due to the employee's protected activity)
• engaging in activities protected by OSHA’s whistleblower laws.
An employee has the right to file a whistleblower complaint with OSHA if the employee believes their employer retaliated against the employee for exercising the employee’s rights under the whistleblower protection laws enforced by OSHA. In states with OSHA-approved state plans, employees may file complaints under section 11(c) of the Occupational Safety and Health Act (OSH Act) with the federal OSHA agency and with the state plan under its equivalent state statutory provision.
Filing a Complaint
• An employee or their representative can file a whistleblower complaint with OSHA via mail, fax, telephone, in person, or online, against an employer for unlawful retaliation. During the investigation the employee who files the complaint is referred to as the Complainant, and the employer against whom the complaint is filed is referred to as the Respondent. Neither side is required to retain an attorney but if a party designates a representative, the designee will serve as the point of contact with OSHA.
• It is imperative for the Complainant or their representative to provide OSHA with current contact information. Failure to do so may cause OSHA to conclude the investigation.
• OSHA will interview the Complainant to obtain information about the alleged retaliation and will determine whether the allegation is sufficient to initiate an investigation under one or more of the whistleblower protection statutes administered by OSHA. Regardless of the statute under which the complaint is filed, the conduct of the investigation is generally the same.
• If the allegation is sufficient to proceed with an investigation, the complaint will be assigned to an OSHA whistleblower investigator who is a neutral factfinder who does not represent either party. The investigator will notify the Complainant, Respondent, and appropriate federal partner agency that OSHA has opened an investigation.
• The Complainant and the Respondent should keep any potential evidence regarding the circumstances of the allegations, including all pertinent emails, letters, notes, text messages, voicemails, phone logs, personnel files, contracts, work products, and meeting minutes.
• OSHA will request that both parties provide each other with a copy of all submissions they have made to OSHA related to the complaint. Both the Complainant and the Respondent should provide contact information for witnesses who could support or refute the alleged retaliation.
• OSHA will ask the Respondent to provide a written defense to the allegations, also known as a position statement. Both parties are expected to actively participate in the investigation and to respond to OSHA's requests. Both parties are also given an opportunity to rebut the opposing party's position.
• Whistleblower investigations vary in length of time. The parties may settle the retaliation complaint at any point in the investigation either through OSHA’s Alternative Dispute Resolution (ADR) program, with the assistance of the assigned investigator, or through their own negotiated settlement that OSHA approves.
• Under certain statutes, the Complainant may "kick out" and file the retaliation complaint in federal district court if there is no final order and a specified time from the filing of the complaint with OSHA has passed (180 or 210 days depending on the statute).
Conclusion of the Investigation
• At the conclusion of the investigation the investigator will make a recommendation to their supervisor regarding whether the evidence provides reasonable cause to believe the Respondent violated the specific statute in question. If the supervisor and management agree with the merit or dismissal recommendation, OSHA will issue a findings letter to both parties, which will include information about remedies (if appropriate) and the right to object and have the case heard by an administrative law judge—except in cases under section 11(c); the Asbestos Hazard Emergency Response Act (AHERA); or the International Safe Container Act (ISCA). In those cases, Complainants may request review by OSHA's national office of dismissal decisions. In merit section 11(c), AHERA, or ISCA cases, unless a settlement is reached, the Department of Labor would have to file a complaint in district court to remedy the retaliation.
In addition to OSHA, other state and federal agencies and departments have whistleblower programs—such as the Securities Exchange Commission (SEC), Department of Defense (military defense contracting), and Medicare and Medicaid Services (health care services).