OSHA Issues Final Rule on Whistleblower Provisions in Various Environmental, Energy Statutes

The Occupational Safety and Health Administration (OSHA) will issue a final rule (pdf) that outlines the procedures for handling retaliation complaints under the whistleblower provisions of six environmental statutes and Section 211 of the Energy Reorganization Act (ERA) of 1974, as amended. OSHA is responsible for enforcing the whistleblower provisions of 20 separate statutes. The stated purpose of the final rule is to make the employee protection provisions “as consistent as possible with the more recently promulgated procedures for handling retaliation complaints under other whistleblower provisions administered by [OSHA].”

The final rule amends the employee protection provisions of the following six environmental statutes: Safe Drinking Water Act; Federal Water Pollution Control Act; Toxic Substances Control Act; Solid Waste Disposal Act; Clean Air Act; and the Comprehensive Environmental Response, Compensation and Liability Act of 1980. Separate procedures are applicable to the ERA.

Among other things, the final rule clarifies that under the six environmental statutes, it is unlawful for an employer covered by those laws to discharge or otherwise retaliate against any employee with respect to the employee’s compensation, terms, conditions, or privileges of employment because the employee, or any person acting pursuant to the employee’s request, engaged in certain protected activities specified in the rule. Similarly, it is unlawful for an employer to intimidate, threaten, restrain, coerce, blacklist, discharge, discipline, or in any other manner retaliate against any employee because the employee has:

  • Commenced or caused to be commenced, or is about to commence or cause to be commenced, a proceeding under one of the aforementioned six environmental statutes or a proceeding for the administration or enforcement of any requirement imposed under these statutes;
  • Testified or is about to testify in any such proceeding; or
  • Assisted or participated, or is about to assist or participate, in any manner in such a proceeding or in any other action to carry out the purposes of such statutes.

With respect to the ERA, the final rule states that it is a violation for an employer to take the previously discussed adverse actions against an employee for notifying the employer of an alleged violation of the ERA or the Atomic Energy Act (AEA); refusing to engage in any practice made unlawful by the ERA or AEA if the employee has identified the alleged illegality to the employer; or testifying or is about to testify before Congress or at any federal or state proceeding regarding any provision (or proposed provision) of either statute.

In addition, the rule requires every employer subject to the ERA to post a notice regarding the employee’s whistleblower rights. A copy of such a poster – Your Rights Under the Energy Reorganization Act – is included in the final regulation.

As for filing a complaint with the agency and the subsequent investigation, the final rule notes that for the six environmental statutes, no particular form of complaint is required. The employee must allege – either orally or in writing and as supplemented by follow-up interviews – that he or she:

  • engaged in a protected activity;
  • the employer knew or suspected that the employee engaged in the protected activity;
  • the employee suffered an adverse action; and
  • the circumstances were sufficient to raise the inference that the protected activity was a motivating factor in the adverse action.

The final rule explains that this prima facie standard may be satisfied if the complainant shows that the adverse action took place shortly after the protected activity, for example, as it gives rise to the inference that it was a motivating factor in the adverse action. An employer can rebut this claim – and OSHA will thus dismiss the complaint – if it can show, by a “preponderance of the evidence,” that it would have taken the same adverse action in the absence of the complainant’s protected activity.

The prima facie standard is slightly different under the ERA. Under this Act, an employee must show that the protected activity was a “a contributing factor” in the adverse action alleged in the complaint. The employer can rebut this claim by showing by “clear and convincing evidence” that it would have taken the same adverse action absent the protected activity. According to OSHA, the ERA statutory burdens of proof do not address the evidentiary standard that applies to a complainant’s proof that the protected activity was a contributing factor in an adverse action. Therefore, “[a]dhering to traditional Title VII discrimination law,” OSHA has taken the position that “the complainant must prove by a ‘preponderance of the evidence’ that his or her protected activity contributed to the adverse action; otherwise, the burden never shifts to the employer to establish its ‘clear and convincing evidence’ defense.”

The final rule also sets forth the specific procedures and timeframes for conducting investigations, issuing orders and findings, holding administrative hearings, and moving for judicial enforcement of employee whistleblower complaints.

The final rule is effective as of the date it is published in the Federal Register, which is scheduled for January 18, 2011. 

Photo credit: Lkmorlan

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.