The whistleblower protection provisions 2821
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Do we have this protection only after the Sarbanes Oxley Act? This is not true.
The Occupational Safety and Health Act of 1970 created the Occupational Safety and Health Administration - OSHA that investigates complaints and enforces the whistleblower provisions of Sarbanes-Oxley and 16 other statutes protecting employees who report violations of various securities laws; trucking, airline, nuclear power, pipeline, environmental, rail, and workplace safety and health regulations; and consumer product safety laws.
The Sarbanes Oxley Act’s whistleblower protection provision
The Sarbanes Oxley Act’s whistleblower protection provision is encouraging employees of publicly traded companies to disclose information that they reasonably believe indicates federal securities violations or various forms of fraud, including fraud against shareholders.
Employees of publicly traded companies and contractors, subcontractors, and agencies of publicly traded companies are protected.
A complaint must be filed with the Department of Labor in writing within 90 days of the time an employee learns that he or she will be, or has been, subjected to discrimination, harassment, or retaliation.
The complaints should be be filed at:
U.S. Department of Labor
Office of the Assistant Secretary
Occupational Safety and Health Administration - Room: S2315
200 Constitution Avenue
Washington, D.C. 20210
U.S. Department of Labor
Occupational Safety and Health Administration OSHA
The Occupational Safety and Health Act of 1970 created the Occupational Safety and Health Administration to help employers and employees reduce injuries, illnesses and deaths on the job in America.
Since then, workplace fatalities have been cut by more than 60 percent and occupational injury and illness rates have declined 40 percent. At the same time, U.S. employment has more than doubled and now includes over 115 million workers at 7.2 million worksites.
Your Rights as a Whistleblower
You may file a complaint with OSHA if your employer retaliates against you by taking unfavorable personnel action because you engaged in protected activity relating to workplace safety and health, commercial motor carrier safety, pipeline safety, air carrier safety, nuclear safety, the environment, asbestos in schools, corporate fraud, SEC rules or regulations, railroad carrier safety or security, or public transportation agency safety or security.
Whistleblower Laws Enforced by OSHA
Each law requires that complaints be filed within a certain number of days after the alleged retaliation.
You may file complaints by telephone or in writing under the:
’ Occupational Safety and Health Act 30 days
’ SurfaceTransportation Assistance Act 180 days
’ Asbestos Hazard Emergency Response Act 90 days
’ International Safe Container Act 60 days
’ Federal Rail Safety Act 180 days
’ NationalTransit Systems Security Act 180 days
Under the following laws, complaints must be filed in writing:
’ Clean Air Act 30 days
’ Comprehensive Environmental Response, Compensation and Liability Act 30 days
’ Energy Reorganization Act 180 days
’ FederalWater Pollution Control Act 30 days
’ Pipeline Safety Improvement Act 180 days
’ Safe DrinkingWater Act 30 days
’ Sarbanes-Oxley Act 90 days
’ SolidWaste Disposal Act 30 days
’ Toxic Substances Control Act 30 days
’ Wendell H. Ford Aviation Investment and Reform Act for the 21st Century 90 days
Unfavorable Personnel Actions
Your employer may be found to have retaliated against you if your protected activity was a contributing or motivating factor in its decision to take unfavorable personnel action against you.
Such actions may include:
’ Firing or laying off
’ Denying overtime or promotion
’ Denying benefits
’ Failing to hire or rehire
’ Reassignment affecting promotion prospects
’ Reducing pay or hours
Filing a Complaint
If you believe that your employer retaliated against you because you exercised your legal rights as an employee, contact your local OSHA office as soon as possible, because you must file your complaint within the legal time limits.
OSHA conducts an in-depth interview with each complainant to determine whether to conduct an investigation. For more information, call your closest OSHA Regional Office
’ Boston 617 565-9860
’ NewYork 212 337-2378
’ Philadelphia 215 861-4900
’ Atlanta 404 562-2300
’ Chicago 312 353-2220
’ Dallas 972 850-4145
’ Kansas City 816 283-8745
’ Denver 720 264-6550
’ San Francisco 415 625-2547
’ Seattle 206 553-5930
How OSHA Determines Whether Retaliation Took Place
The investigation must reveal that:
’ The employee engaged in protected activity;
’ The employer knew about the protected activity;
’ The employer took an adverse action; and
’ The protected activity was the motivating factor or under some laws, a contributing factor in the decision to take the adverse action against the employee.
If the evidence supports the employee’s allegation
and a settlement cannot be reached, OSHA will issue
an order requiring the employer to reinstate the
employee, pay back wages, restore benefits, and
other possible remedies to make the employee whole.
Whistleblower Protections When Reporting Corporate Fraud
Employees who work for publicly traded companies or companies required to file certain reports with the Securities and Exchange Commission are protected from retaliation for reporting alleged mail, wire, or bank fraud; violations of rules or regulations of the SEC, or federal laws relating to fraud against shareholders.
Recent Case Study 1
US Labor Department orders Tennessee Commerce Bank to reinstate whistleblower and pay more than USD1 million in back wages and other relief
Bank found in violation of whistleblower protection provisions of Sarbanes-Oxley Act
NASHVILLE, Tenn. – The U.S. Department of Labor’s Occupational Safety and Health Administration has ordered Tennessee Commerce Bank in Nashville to reinstate a former corporate officer and pay more than USD1 million in back wages, interest, attorney’s fees, compensatory damages and other relief.
The department found the bank had fired the individual in violation of the whistleblower protection provisions of the Sarbanes-Oxley Act of 2002.
‘Sarbanes-Oxley provides protection to workers who report alleged violations of mail, wire, bank or securities fraud; violations of rules or regulations of the Securities and Exchange Commission; or federal laws relating to fraud against shareholders,’ said Assistant Secretary of Labor for OSHA Dr. David Michaels.
‘This case clearly shows the department’s commitment to ensuring that individuals are provided the protections and relief afforded by the law and sends a strong message that retaliatory actions will not be tolerated.’
A complaint filed with OSHA in April 2008 named Tennessee Commerce Bank and Tennessee Commerce Bancorp Inc. as defendants.
The complaint alleged that the employee was placed on administrative leave in March 2008 and fired in May 2008 after raising concerns about internal controls, employee accounts, insider trading and other issues.
The complainant first raised concerns to the bank’s audit committee and later to the Federal Deposit Insurance Corp. and the Tennessee Department of Financial Institutions.
OSHA investigated the complaint as part of its responsibilities to enforce the whistleblower provisions of Sarbanes-Oxley and 16 other statutes protecting employees who report violations of various securities laws; trucking, airline, nuclear power, pipeline, environmental, rail, and workplace safety and health regulations; and consumer product safety laws.
Fact sheets and detailed information on employee whistleblower rights are available online at http://www.osha.gov/dep/oia/whistleblower/index.html
Either party to the case may file objections and/or request a hearing before the Labor Department’s Office of Administrative Law Judges within 30 days, but such an appeal does not stay the preliminary reinstatement order.
Under the numerous whistleblower provisions enacted by Congress, employers are prohibited from retaliating against employees who raise various protected concerns or provide protected information to the employer or to the government. Employees who believe that they have been retaliated against for engaging in protected conduct may file a complaint with the secretary of labor for an investigation by OSHA’s Whistleblower Protection Program.
Recent Case Study 2
US Department of Labor’s OSHA orders e-Smart Technologies Inc. to pay whistleblower back wages and USD600,000 in compensatory damages
Agency orders company to reinstate California worker
SAN FRANCISCO – The U.S. Department of Labor’s Occupational Safety and Health Administration has ordered e-Smart Technologies Inc. to pay back wages with interest and approximately USD600,000 in compensatory damages to a California worker who was discharged after raising concerns about misinformation contained in a draft public filing.
OSHA also ordered the company to reinstate the whistleblower to his former position.
‘It is vital that employees be able to raise fraud concerns to their employers without fear of retaliation,’ said Assistant Secretary of Labor for OSHA Dr. David Michaels.
‘This order reaffirms both the right of employees to raise concerns regarding violations of Securities and Exchange Commission rules and the Labor Department’s commitment to protecting that right.’
The action resulted from a whistleblower investigation conducted by OSHA’s regional office in San Francisco under the whistleblower protection provisions of the Sarbanes-Oxley Act of 2002.
The investigation substantiated the employee’s complaint that his job duties were systematically removed and his paychecks were delayed and ultimately stopped after he questioned the accuracy of several statements made in the company’s Securities and Exchange Commission filings.
In addition to requiring e-Smart Technologies to fairly compensate and rehire the whistleblower, OSHA’s order instructs the company to provide a neutral reference, expunge his personnel file of any reference to his exercise of rights under the Sarbanes-Oxley Act and post a notice to employees outlining whistleblower protections.
E-Smart Technologies is a registered Nevada corporation with an office in New York. The company or complainant may file objections or request a hearing before the Labor Department’s Office of Administrative Law Judges within 30 days.
Recent Case Study 3
US Department of Labor secures back wages for fired whistleblower in Corpus Christi, Texas
CORPUS CHRISTI, Texas â€ A former employee of Corpus Christi-based Orion Drilling Co., fired after complaining to management about being exposed to mold in the workplace, has been paid USD10,000 in back wages as a result of a settlement secured by the U.S. Department of Labor.
The former employee, who served as a crew member on a drilling rig, complained to management about being exposed to mold in the crew members’ living quarters.
After being fired, the former employee filed a complaint with the department’s Occupational Safety and Health Administration OSHA alleging a violation of the whistleblower provisions of the Occupational Safety and Health OSH Act of 1970.
OSHA’s investigation found merit to the complaint.
After OSHA informed the employer of its preliminary finding and referred the case to the Labor Department’s Office of the Solicitor for enforcement, the employer elected to settle the case.
In addition to paying the complainant the USD10,000 in lost wages, the settlement agreement requires the employer to post a notice in the workplace informing employees of their rights under the OSH Act and to purge all derogatory or negative statements from the fired employee’s personnel file.
‘Employees should be free to exercise their rights under the law without fear of retaliation by their employers,’ said Dean McDaniel, OSHA’s regional administrator in Dallas, Texas.
‘This settlement underscores the Labor Department’s commitment to vigorously take action to protect worker rights.’