OSHA issues rules governing whistleblower complaint procedures under various statutes

[Omaha Steve]

http://www.lexology.com/library/detail.aspx?g=9021e966-3bc7-4b44-be5c-eea76dcd3e0b

Littler Mendelson PC
Ilyse Schuman

USA

August 30 2010

The Occupational Safety and Health Administration (OSHA) will issue three interim final rules that outline the procedures for handling retaliation complaints under the whistleblower provisions of the Surface Transportation Assistance Act (STAA), National Transit Systems Security Act (NTSSA), Federal Railroad Safety Act (FRSA), and the Consumer Product Safety Improvement Act (CPSIA). OSHA enforces the anti-retaliation provisions of 19 separate statutes, including the four mentioned above. The new rules governing the NTSSA and the FRSA, (pdf) the STAA, (pdf) and the CPSIA (pdf) seek to establish and/or clarify and improve the procedures and time frames for handling retaliation complaints under these laws. In general, the complaint procedures outlined in each set of rules are consistent with one another. The similarities among the rules include the following:

* Each rule contains a section describing the activities that are protected and the conduct that is prohibited in response to any protected activity under the applicable statute.

* An aggrieved individual must file a complaint within 180 days of the alleged violation. The complaint may be made orally or in writing and in any format or language.

* The rules under each of these statutes explain that a complainant must make an initial prima facie showing that he or she engaged in protected activity that was “a contributing factor” in the adverse action alleged in the complaint, i.e., that the protected activity, alone or in combination with other factors, affected in some way the outcome of the employer’s decision. The burden then shifts to the employer to show by “clear and convincing evidence” that it would have taken the same action in the absence of the protected activity.

* The Assistant Secretary will issue, within 60 days of the filing of the complaint, written findings regarding whether or not there is reasonable cause to believe that the complaint has merit. The rules explain the remedies available to the aggrieved individual, as well as the right of both parties to contest the findings and proceed to a hearing.

* Each set of rules sets forth the provisions allowing a complainant to bring an original de novo action in federal court if no final decision has been issued within 210 days of the filing of the complaint (or within 90 days after receiving a written determination under the CPSIA) and there is no delay due to the complainant’s bad faith. Each rule requires complainants to provide notice 15 days in advance of their intent to file a complaint in federal district court.

Comments on these rules must be made within 60 days of publication in the Federal Register, which is scheduled for August 31, 2010. Comments must be identified by the appropriate regulatory identification number (RIN) or docket number: RIN 1218–AC36 or OSHA-2008-027 for the rule governing the NTSSA and the FRSA; 1218-AC36 or OSHA-2008-0026 for the STAA; and 1218-AC47 or OSHA-2010-0006 for the CPSIA. Written comments should be sent to: OSHA Docket Office, U.S. Department of Labor, Room N-2625, 200 Constitution Avenue, N.W., Washington, DC 20210. Comments that do not exceed 10 pages may be faxed to the OSHA Docket Office at [phone]. Alternatively, comments may be submitted electronically via the federal eRulemaking portal: www.regulations.gov.