What is a Whistleblower and
Are You One?
Have you ever discovered what you think might be illegal conduct by your boss or employer? This can be everything from illegally dumping waste products to improperly reporting taxes withheld by your employer to forcing employees to work in unsafe conditions. You have protection in
The Whistleblower Protection Act has several steps that must be followed.
First, you must report the illegal or improper conduct to management verbally and follow it up in writing. You must do both of these steps before you notify an outside agency. You can either first report the problem in writing or you can verbally report it to management. But you should always keep a record of who you told, when you told them and what you said. Likewise, you should keep a copy of your written document and note on it who you gave it too, when and what was the company’s response?
Second, after you have completed the reporting within the company, you must wait at least a day before you notify the government for coverage under this law. Of course if you believe a serious health or safety situation exists, you should immediately notify OSHA (the Occupational Safety and Health Administration). They have offices throughout the country and will talk you through the process of filing a complaint. OSHA, as discussed below, provides their protection from retaliation for filing a complaint. When you contact the governmental agency you feel is responsible for correcting the improper action, be sure to give them the information you gave to the company.
If you suffer some form of retaliation, you have the right to file a lawsuit in the
The Whistleblower Program
The Occupational Safety and Health Act is designed to regulate employment conditions relating to occupational safety and health and to achieve safer and more healthful workplaces throughout the nation. The Act provides for a wide range of substantive and procedural rights for employees and representatives of employees. The Act also recognizes that effective implementation and achievement of its goals depend in large measure upon the active and orderly participation of employees, individually and through their representatives, at every level of safety and health activity.
To help ensure that employees are, in fact, free to participation in safety and health activities, Section 11(c) of the Act prohibits any person from discharging or in any manner discriminating against any employee because the employee has exercised rights under the Act.
These rights include complaining to OSHA and seeking an OSHA inspection, participating in an OSHA inspection, and participating or testifying in any proceeding related to an OSHA inspection.
OSHA also administers the whistleblowing provisions of thirteen other statutes, protecting employees who report violations of various trucking, airline, nuclear power, pipeline, environmental, and securities laws.
A person filing a complaint of discrimination or retaliation will be required to show that he or she engaged in protected activity, the employer knew about that activity, the employer subjected him or her to an adverse employment action, and the protected activity contributed to the adverse action. Adverse employment action is generally defined as a material change in the terms or conditions of employment. Depending upon the circumstances of the case, "discrimination" can include:
- Firing or laying off
- Blacklisting
- Demoting
- Denying overtime or promotion
- Disciplining
- Denial of benefits
- Failure to hire or rehire
- Intimidation
- Reassignment affecting prospects for promotion
- Reducing pay or hours
- Section 11(c) of the Occupational Safety and Health Act of 1970 (OSHA)
- The Surface Transportation Assistance Act of 1982 (STAA)
- The Asbestos Hazard Emergency Response Act of 1986 (AHERA)
- The International Safety Container Act of 1977 (ISCA)
- The Safe Drinking Water Act of 1974 (SDWA)
- The Federal Water Pollution Control Act of 1972 (FWPCA)
- The Toxic Substances Control Act of 1976 (TSCA)
- The Solid Waste Disposal Act of 1976 (SWDA)
- The Clean Air Act of 1977 (CAA)
- The Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA)
- The Energy Reorganization Act of 1978 (ERA)
- The Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21)
- Section 806 of the Corporate and Criminal Fraud Accountability Act of 2002 (CCFA) (Sarbanes-Oxley Act)
- Section 6 of the Pipeline Safety Improvement Act of 2002 (PSIA)
- 29 CFR Part 1977 - Discrimination Against Employees Exercising Rights under the Williams-Steiger Occupational Safety and Health Act of 1970
- 29 CFR Part 1978 - Rules for Implementing Section 405 of the Surface Transportation Assistance Act of 1982
- 29 CFR Part 1979 - Procedures for the Handling of Discrimination Complaints under Section 519 of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century
- 29 CFR Part 1980 - Procedures for the Handling of Discrimination Complaints under Section 806 of the Corporate and Criminal Fraud Accountability Act of 2002
- 29 CFR Part 24 - Procedures for the Handling of Discrimination Complaints under Federal Employee Protection Statutes [DOL Site]
If you believe your employer has discriminated against you because you exercised your safety and health rights, contact your local OSHA Office right away. Most discrimination complaints fall under the OSH Act, which gives you only 30 days to report discrimination. Some of the other laws have complaint-filing deadlines that differ from OSHA's, so be sure to check.
You can telephone, fax or mail your OSHA complaint. OSHA conducts an in-depth interview with each complainant to determine the need for an investigation. If evidence supports the worker's claim of discrimination, OSHA will ask the employer to restore the worker's job, earnings and benefits. If the employer objects, OSHA may take the employer to court to seek relief for the worker. The procedures for investigations of discrimination complaints are contained in the OSHA Whistleblower Investigations Manual.
