In an effort to protect corporate fraud whistleblowers, Section 806 of the Sarbanes-Oxley Act makes it unlawful for companies to retaliate against employees for engaging in certain whistleblowing activity. But before a whistleblowing employee can file suit for retaliation, she must first file a complaint with OSHA.
The requirement that whistleblowers exhaust administrative remedies before turning to the courts for relief is nothing new. Similar requirements exist, for example, in discrimination and harassment complaints under Title VII that must first be presented to the EEOC. And like the conciliation process with the EEOC, OSHA has recently issued revised policies and procedures applying a new alternative dispute resolution (ADR) process for whistleblower complaints. OSHA Policies and Procedures
In a press release issued last week, OSHA explains that “[t]he new process is an early resolution process” that “offers whistleblower parties the opportunity to negotiate a settlement with the assistance of a neutral, confidential OSHA representative who has subject-matter expertise in whistleblower investigations.” OSHA Press Release
Hoping to avoid the costs associated with investigations and litigation, the OSHA program offers an early resolution process for settlement negotiations facilitated by a “neutral, non-decision-making OSHA whistleblower expert” and a mediation process that involves a one-day, in-person mediation with “a professional third-party mediator.” Whether such an ADR process will ultimately be effective in resolving whistleblower disputes remains to be seen.
Importantly, OSHA’s new ADR initiative may have an expansive application across industries. OSHA, after all, is concerned with more than just corporate fraud whistleblowers under Sarbanes-Oxley. The agency enforces the whistleblower provisions of 21 other statutes protecting employees who report violations of various trucking, airline, nuclear power, pipeline, environmental, rail, maritime, health care, workplace safety and health regulations, and consumer product safety laws. Employers would be well advised, consequently, to keep themselves at least generally advised of these laws and OSHA’s requirements in the event they confront employee whistleblower complaints.