As prosecutions against employers for violating workers’ rights under the Occupational Safety & Health Act have ramped up, OSHA has released a new 168-page manual updating its Whistleblower Investigations procedures. The document, CPL 02-03-011, is dated April 29, 2022, but was announced on August 11th. It is the first update since 2016, at the end of the Obama Administration, when OSHA launched a whistleblower advisory committee. That committee was disbanded under the Trump Administration, and prosecutions dropped off during that period.
In addition to enforcing the whistleblower protections under Section 11(c) of the OSH Act, and the related standard 29 CFR 1904.36, OSHA also has jurisdiction over whistleblower complaints filed concerning over a dozen environmental laws, the Surface Transportation Assistance Act (covering CDL drivers, rail and aviation workers), and the Sarbanes-Oxley Act (protecting employees of publicly traded companies with respect to information disseminated to shareholders and the public). The Mine Safety & Health Administration (MSHA) runs its own whistleblower protection program under Section 105(c) of the Mine Act, and that also covers contractors performing work at workplaces under MSHA jurisdiction. Therefore, the new manual does not impact MSHA investigation protocols.
The comprehensive overhaul sets new procedural requirements for steps in the OSHA process, and also requires the 22 state-run OSHA programs (plus those in the territories) to adopt their own version of the manual within 60 days. However, state-plan OSHA agencies are not responsible for investigating claims arising under other statutes, unlike federal OSHA, so the manual provides information on when such matters should be referred to the federal government for investigation and prosecution. The CPL incorporates 11 policy members issued between 2016-2022 and also requires OSHA officials to consult with a representative of the Department of Labor’s regional solicitor’s office before deferring to any outside agency or tribunal’s final determination of an issue.
Adele Abrams will present a pre-conference seminar on whistleblower protections at the ASSP Region 6 Professional Development Conference (and virtually) on September 13, 2022. For more information, contact Adele at safetylawyer@gmail.com.
