August 15, 2018
Author: Eric R. Miller
Organization: The Kullman Firm
Congress enacted the Occupational Safety and Health Act with the goal of reducing the number of job-related fatalities, illnesses, and injuries suffered by American workers. All employers are covered by the “General Duty Clause” of the Act, which states:
Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.
29 U.S.C. §654(a)(1). Employers in covered industries must also comply with occupational safety and health standards promulgated by the Occupational Safety and Health administration. 29 U.S.C. §654(a)(2). Major OSHA safety standards include process safety management, permit-required confined spaces, fall protection in construction, electrical safety-related work practices, and scaffolds. Safety standards also cover a wide range of issues such as fire protection and electrical safety, field sanitation in agriculture, grain handling, hazardous waste operations and emergency response, and lockout/tagout of hazardous energy sources, and a bloodborne pathogens standard to address biological hazards.
During the 1990s, the agency also updated its asbestos, formaldehyde, methylene chloride, personal protective equipment, and respiratory protection standards; developed a standard covering lead exposure in construction; and issued rules to protect laboratory workers exposed to toxic chemicals. The agency has also issued guidelines for preventing workplace violence in health care and social services work and in late-night retail establishments.
As part of their obligations under the OSH Act, employers are required to post in a conspicuous place a poster furnished by OSHA, which contains the basic information about the OSH Act and the employees’ rights under the Act. 29 C.F.R. §1903.2(a). In addition, covered employers are required to maintain logs of work-related injuries an illnesses for each establishment. 29 C.F.R. §1904.2.
Employee Access to Records
The regulations provide that an employee or certain employee representatives may view, inspect and copy the OSHA recordkeeping documents of his employer. 29 C.F.R. § 1904.35. Upon request by an employee, an employer shall make such information available to any employee, former employee, or their representatives for examination and copying at reasonable times and in a reasonable manner. 29 C.F.R. § 1904.35. The employee (or his/her representative) is entitled to a copy of the OSHA 300 Log by the end of the next business day.
The employer (or his/her representative) is also entitled to a copy of his/her own OSHA 301 Incident Report by the end of the next business day. If the union asks for the OSHA 301 Incident Report, the company must provide copies of the section “Tell us about the case” within seven (7) days. The company cannot charge for the copies.
Employers must inform their employees of the existence, location and availability of the employees’ medical and exposure records upon initial employment and annually thereafter. Production of these records must be made within 15 days of an employee’s request or his/her representative’s request.
The OSH Act also affords employees and their representatives the right to observe employee exposure monitoring conducted pursuant to regulations promulgated by OSHA. 29 C.F.R. §657(c)(3).
The Health Insurance Portability and Accountability Act (HIPAA) generally forbids the disclosure of protected health information (PHI). An employer’s reporting of a condition’s work-relatedness, in compliance with OSHA standards, is an exception to this general prohibition. 45 C.F.R. §164.512(b).
Employees of non-governmental employers have no “right” of access to their personnel files. Generally, under Louisiana law, personnel files and the material therein are the property of the employer. Employees do, however, have a right to copies, without cost, of any medical examination or medical report received by the employer to which the employee was required to submit. LA. REV. STAT. 23:1125 (workers’ compensation). Such a report or record is required to be submitted within thirty (30) days of demand. Further, employees also have the right of access an employer’s records of employee exposure to potentially toxic material or harmful physical agents, including the employee’s medical records or any analysis done using employee exposure or medical records. LA. REV. STAT. 23:1015. Government employees, however, may have a right to access personnel files under Louisiana’s “public records” statutes, subject to reasonable limitations by the employer. For instance, all school employees are permitted access to their personnel files. LA. REV. STAT. 17:1237.
Failure to provide access can result in liability to the employer. For example, an employer was found liable for intentionally provided union representatives with incomplete logs. The employer admitted it willfully provided incomplete information; but argued that it did so under OSHA’s “greater hazard” affirmative defense. To succeed with this affirmative defense, an employer must show (1) that the hazards of compliance are greater than the hazards of noncompliance, (2) that alternative means of protection are unavailable, and (3) that applying for an OSHA variance would be inappropriate. Here, the employer argued that releasing the names of employees injured on the job would therefore be divulging the identities of some of the workers who had crossed the picket lines and returned to work. The Review Commission held that if, as the employer claimed, it was fearful for the safety of those employees listed on the log, it must seek a variance from OSHA; and held that “employers may not unilaterally determine whether OSHA standards need be complied with.” Therefore, a penalty of $5,000.00 was imposed on the employer. Caterpillar, Inc., 17 OSHAC 2112 (Rev. Comm’n 1997). The regulations also expressly authorize employees to collectively bargain to obtain access to occupation injuries and illnesses information beyond that provided for in 29 C.F.R. §1904.7(b)(1).
Likewise, an employer was fined for not promptly allowing inspection of its logs. Geo & Ted Electric Corp. (“G&T”) had been cited in 1991 for not maintaining a log of all occupational illnesses and injuries. In 1994, G&T was one of several contractors working at a site where one of the general contractor’s employees was killed. The OSHA compliance officer testified that he asked unsuccessfully to see G&T’s log on two occasions. According to the OSHA representative, it was several weeks after the second request before a G&T officer made the log available. G&T gave only vague and uncertain testimony to counter this accusation; and therefore, a $1200 penalty was upheld. Geo & Ted Electric Corp., 18 OSHC 1030 (Rev. Comm’n 1997).
Should an employer cease to do business and there is no successor employer, the employer must notify the employees of their right of access to exposure and medical records at least three (3) months prior to the closing of the business.
OSHA first published its Hazard Communication Standard (HCS) on November 25, 1983, a culmination of 10 years of difficult rulemaking activity that included a rulemaking Advisory Committee, an aborted plan to do joint rulemaking with EPA, and a withdrawn proposal. OSHA persevered, and issued a rule requiring chemical manufacturers and importers to evaluate the hazards of the chemicals they produce and distribute. The information about the hazards and associated protective measures is required to be disseminated on container labels and material safety data sheets (MSDSs). All employers with exposed employees are required to provide access to the labels and MSDSs, and to train workers on the MSDSs and handling of chemicals.
Important aspects of the HCS and its implementation include the following:
- It is generic and performance-oriented -- all chemicals are covered
- It is criteria-based, not limiting coverage to a list that can become outdated
- It incorporates a downstream flow of information from producers to users
- Trade secrets have been addressed to ensure protection of legitimate claims while requiring disclosure where necessary for health and safety
- It has an impact on interstate commerce and international trade
- It interfaces with other Federal requirements for classification and labeling
- It is designed in part on communication theory in addition to technical data, and the concept of modifying behavior through transmittal of key information
The standard addresses accuracy in the requirements for MSDSs, as well as requiring MSDSs to be updated when there is new and significant information regarding the hazards or ways to protect against the hazards. 29 CFR §1910.1200 (g)(5).
The chemical manufacturer, importer, or employer preparing the material safety data sheet is required to ensure that the information recorded accurately reflects the scientific evidence used in making the hazard determination. If the chemical manufacturer, importer or employer preparing the material safety data sheet becomes newly aware of any significant information regarding the hazards of a chemical, or ways to protect against the hazards, this new information shall be added to the material safety data sheet within three months. Id. Labels are an important aspect of hazard communication. OSHA’s requirements are performance-oriented, so employers may choose how to convey the hazard information on the label. Many follow the suggestions of the ANSI labeling standard in terms of language used to convey the hazards, but others do not. As a result, workers see different statements to convey the same information from different suppliers. And smaller employers have the burden of determining how to convey the information. A more specific approach to labels could improve the communication aspects of them, as well as making it easier for employers to comply.
Employers are required to provide training to employees who are exposed to hazardous chemicals. Training is needed to explain and reinforce the information presented on labels and MSDSs.
OSHA encourages employers and employees to work together to reduce hazards. Employees can discuss safety and health problems with the employer, other workers and union representatives, if a labor union exists at the facility. OSHA has issued a draft rule of a Proposed Safety and Health Program, 29 CFR §1900.1, which is at Docket No. S&H-0027 and can be found at http://www.osha.gov/SLTC/safetyhealth/nshp.html:
What is the purpose of this rule?
The purpose of this rule is to reduce the number of jobrelated fatalities, illnesses, and injuries. The rule will accomplish this by requiring employers to establish a workplace safety and health program to ensure compliance with OSHA standards and the General Duty Clause of the Act (Section 5(a)(1)).
(a)(1) Who is covered by this rule? All employers covered by the Act, except employers engaged in construction and agriculture, are covered by this rule.
(a)(2) To what hazards does this rule apply? This rule applies to hazards covered by the General Duty Clause and by OSHA standards.
(b) Basic obligation.
(b)(1) What are the employer's basic obligations under the rule? Each employer must set up a safety and health program to manage workplace safety and health to reduce injuries, illnesses and fatalities by systematically achieving compliance with OSHA standards and the General Duty Clause. The program must be appropriate to conditions in the workplace, such as the hazards to which employees are exposed and the number of employees there.
(b)(2) What core elements must the program have? The program must have the following core elements:
(i) Management leadership and employee participation;
(ii) Hazard identification and assessment;
(iii) Hazard prevention and control;
(iv) Information and training; and
(v) Evaluation of program effectiveness.
(b)(3) Does the rule have a grandfather clause? Yes. Employers who have implemented a safety and health program before the effective date of this rule may continue to implement that program if:
(i) The program satisfies the basic obligation for each core element; and
(ii) The employer can demonstrate the effectiveness of any provision of the employer's program that differs from the other requirements included under the core elements of this rule.
(c) Management leadership and employee participation.
(c)(1) Management leadership.
(c)(1)(i) What is the employer's basic obligation? The employer must demonstrate management leadership of the safety and health program.
(c)(1)(ii) What must an employer do to demonstrate management leadership of the program? An employer must:
(A) Establish the program responsibilities of managers, supervisors, and employees for safety and health in the workplace and hold them accountable for carrying out those responsibilities;
(B) Provide managers, supervisors, and employees with the authority, access to relevant information, training, and resources they need to carry out their safety and health responsibilities; and
(C) Identify at least one manager, supervisor, or employee to receive and respond to reports about workplace safety and health conditions and, where appropriate, to initiate corrective action.
(c)(2) Employee participation.
(c)(2)(i) What is the employer's basic obligation? The employer must provide employees with opportunities for participation in establishing, implementing, and evaluating the program.
(c)(2)(ii) What must the employer do to ensure that employees have opportunities for participation? The employer must:
(A) Regularly communicate with employees about workplace safety and health matters;
(B) Provide employees with access to information relevant to the program;
(C) Provide ways for employees to become involved in hazard identification and assessment, prioritizing hazards, training, and program evaluation;
(D) Establish a way for employees to report job-related fatalities, injuries, illnesses, incidents, and hazards promptly and to make recommendations about appropriate ways to control those hazards; and
(E) Provide prompt responses to such reports and recommendations.
(c)(2)(iii) What must the employer do to safeguard employee participation in the program? The employer must not discourage employees from making reports and recommendations about fatalities, injuries, illnesses, incidents, or hazards in the workplace, or from otherwise participating in the workplace safety and health program. Note: In carrying out this paragraph (c)(2), the employer must comply with the National Labor Relations Act.
(d) Hazard identification and assessment.
(d)(1) What is the employer's basic obligation? The employer must systematically identify and assess hazards to which employees are exposed and assess compliance with the General Duty Clause and OSHA standards.
(d)(2) What must the employer do to systematically identify and assess hazards and assess compliance? The employer must:
(i) Conduct inspections of the workplace;
(ii) Review safety and health information;
(iii) Evaluate new equipment, materials, and processes for hazards before they are introduced into the workplace; and
(iv) Assess the severity of identified hazards and rank those that cannot be corrected immediately according to their severity.
Note: Some OSHA standards impose additional, more specific requirements for hazard identification and assessment. This rule does not displace those requirements.
(d)(3) How often must the employer carry out the hazard identification and assessment process? The employer must carry it out:
(ii) As often thereafter as necessary to ensure compliance with the General Duty Clause and OSHA standards and at least every two years; and
(iii) When safety and health information or a change in workplace conditions indicates that a new or increased hazard may be present.
(d)(4) When must the employer investigate safety and health events in the workplace? The employer must investigate each work-related death, serious injury or illness, or incident (near-miss) having the potential to cause death or serious physical harm.
(d)(5) What records of safety and health program activities must the employer keep? The employer must keep records of the hazards identified and their assessment and the actions the employer has taken or plans to take to control those hazards.
Exemption: Employers with fewer than 10 employees are exempt from the recordkeeping requirements of this rule.
(e) Hazard prevention and control.
(e)(1) What is the employer's basic obligation? The employer's basic obligation is to systematically comply with the hazard prevention and control requirements of the General Duty Clause and OSHA standards.
(e)(2) If it is not possible for the employer to comply immediately, what must the employer do? The employer must develop a plan for coming into compliance as promptly as possible, which includes setting priorities and deadlines and tracking progress in controlling hazards.
Note: Any hazard identified by the employer's hazard identification and assessment process that is covered by an OSHA standard or the General Duty Clause must be controlled as required by that standard or that clause, as appropriate.
(f) Information and training.
(f)(1) What is the employer's basic obligation? The employer must ensure that:
(i) Each employee is provided with information and training in the safety and health program; and (ii) Each employee exposed to a hazard is provided with information and training in that hazard.
Note: Some OSHA standards impose additional, more specific requirements for information and training. This rule does not displace those requirements.
(f)(2) What information and training must the employer provide to exposed employees? The employer must provide information and training in the following subjects:
(i) The nature of the hazards to which the employee is exposed and how to recognize them;
(ii) What is being done to control these hazards;
(iii) What protective measures the employee must follow to prevent or minimize exposure to these hazards; and
(iv) The provisions of applicable standards.
(f)(3) When must the employer provide the information and training required by this rule? (f)(3)(i) The employer must provide initial information and training as follows:
(A) For current employees, before the compliance date specified in paragraph (i) for this paragraph (f); and
(B) For new employees, before initial assignment to a job involving exposure to a hazard.
Note: The employer is not required to provide initial information and training in any subject in paragraph (f)(2) for which the employer can demonstrate that the employee has already been adequately trained.
(f)(3)(ii) The employer must provide periodic information and training:
(A) As often as necessary to ensure that employees are adequately informed and trained; and
(B) When safety and health information or a change in workplace conditions indicates that a new or increased hazard exists.
(f)(4) What training must the employer provide to employees who have program responsibilities? The employer must provide all employees who have program responsibilities with the information and training necessary for them to carry out their safety and health responsibilities.
(g) Evaluation of program effectiveness.
(g)(1) What is the employer's basic obligation? The employer's basic obligation is to evaluate the safety and health program to ensure that it is effective and appropriate to workplace conditions.
(g)(2) How often must the employer evaluate the effectiveness of the program? The employer must evaluate the effectiveness of the program:
(i) As often as necessary to ensure program effectiveness;
(ii) At least once within the 12 months following the final compliance date specified in paragraph (i); and
(iii) Thereafter at least once every two years.
(g)(3) When is the employer required to revise the program? The employer must revise the program in a timely manner to correct deficiencies identified by the program evaluation.
(h) Multi-employer workplaces.
(h)(1) What are the host employer's responsibilities? The host employer's responsibilities are to:
(i) Provide information about hazards, controls, safety and health rules, and emergency procedures to all employers at the workplace; and
(ii) Ensure that safety and health responsibilities are assigned as appropriate to other employers at the workplace.
(h)(2) What are the responsibilities of the contract employer? The responsibilities of a contract employer are to:
(i) Ensure that the host employer is aware of the hazards associated with the contract employer's work and what the contract employer is doing to address them; and
(ii) Advise the host employer of any previously unidentified hazards that the contract employer identifies at the workplace.
(i)(1) What is the effective date for this rule? The effective date for this rule is [insert date 90 days from the date of publication in the Federal Register].
(i)(2) When must the employer be in compliance with the requirements of this rule?
(i)(2)(i) Employers with fewer than 10 employees must comply with the requirements of paragraphs (c), (f), and (h) by [insert date 18 months after the effective date], and with paragraphs (d), (e), and (g) by [insert date 36 months after the effective date].
(i)(2)(ii) Employers with 10 employees or more must comply with the requirements in paragraphs (c), (f), and (h) by [insert date 9 months after the effective date], and with paragraphs (d), (e), and (g) by [insert date 18 months after the effective date].
Control means to reduce exposure to hazards in accordance with the General Duty Clause or OSHA standards, including providing appropriate supplemental and/or interim protection, as necessary, to exposed employees. Prevention and elimination are the best forms of control.
Contract employer is an employer who performs work for a host employer at the host employer's workplace. A contract employer does not include an employer who provides incidental services that do not influence the workplace safety and health program, whose employees are only incidentally exposed to hazards at the host employer's workplace (e.g., food and drink services, delivery services, or other supply services).
Employee means all persons who are considered employees under the OSH Act, including temporary, seasonal, and \"leased\" employees.
Employer means all persons who are considered employers under the OSH Act.
Exposure (exposed) means that an employee in the course of employment is reasonably likely to be subjected to a hazard.
General Duty Clause means the General Duty Clause of the OSH Act, Section 5(a)(1), which states that \"[e]ach employer...shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.\"
Host employer means an employer who controls conditions at a multi-employer worksite.
Multi-employer worksite means a workplace where there is a host employer and at least one contract employer.
Program means procedures, methods, processes, and practices that are part of the management system at the workplace.
Safety and health information means the establishment's fatality, injury, and illness experience, OSHA 200 logs, workers' compensation claims, nurses' logs, the results of any medical screening/surveillance, employee safety and health complaints and reports, environmental and biological exposure data, information from prior workplace safety and health inspections, Materials Safety Data Sheets (MSDSs), the results of employee symptom surveys, safety manuals and health and safety warnings provided to the employer by equipment manufacturers and chemical suppliers, information about occupational safety and health provided to the employer by trade associations or professional safety or health organizations, and the results of prior accident and incident investigations at the workplace.
Severity means the likelihood of employee exposure, the seriousness of harm associated with the exposure, and the number of exposed employees.
On November 22, 1999, OSHA issued its far reaching “Proposed Ergonomic Standard” which would require numerous employers to make engineering modifications, to change the pace of production, and to implement comprehensive ergonomic programs. The Standards were geared toward musculoskeletal disorders (“MSD”) that are caused by (a) physical work activities and conditions in the job that are reasonably likely to cause a MSD, and (b) such activities that are the core element of the job or constitute a significant amount of the employee’s worktime. Employers affected were those with manufacturing jobs or manual handling jobs, or which happen to have employees with certain specific MSDs.
The regulations were loosened, and voluntary guidelines were issued. These guidelines are industry specific: (a) poultry processing, (b) retail grocery stores, (c) nursing homes, (d) meatpacking plants, (e) computer workstations, (f) baggage handling, (g) beverage delivery, (h) printing and (i) sewing, and can be found at www.osha.gov/SLTC/ergonomics.
Although the guidelines are voluntary, OSHA can (and will) reduce ergonomic hazards by enforcement of its general duty clause. Before issuing any citations, OSHA will consider evidence of the particular case related to:
- Whether there exists an ergonomic hazard;
- Whether that hazard is recognized;
- Whether the hazard is causing, or is likely to cause, harm to the employee; and
- Whether there is a feasible means to reduce the hazard.
An ergonomic hazard results in an ergonomic injury, that is, a musculoskeletal disorder. As OSHA develops guidance material for specific industries, the agency may narrow the definition as appropriate to address the specific workplace hazard covered.
In certain instances, employees have a statutory right to complain, even if the complaint is unfounded, as long as the employees act in good faith and express the complaint in a way that is not unreasonable or unduly disruptive. Under Title VII, ADEA and ADA, employers may not discharge or otherwise discipline an employee who opposes unlawful discrimination under those statutes. OSHA likewise prohibits discrimination against employees who voice safety complaints or who refuse to perform certain work that the employees reasonably believe violates a safety standard under OSHA or the related regulations. Similarly, the Surface Transportation Act prohibits discrimination against a commercial truck driver who refuses to drive a truck that violates federal safety standards or that the driver reasonably believes is unsafe and would cause serious injury to himself or to another person.
A. Work at Home
Extraordinary advances in recent years in telecommunications and other technologies have altered the American workplace. Employers and employees have come to recognize the benefits of working out of one’s home with the aid of telephone and computer connections – commonly referred to ‘telecommuting” or the “virtual office”.
1. Telecommuting is beneficial in that it reduces office expenses and gives employers access to the services of individuals who might be unavailable if forced to work in a more traditional environment. However, it presents employers with a host of potential legal problems:
(a) Traditional employment laws are no less applicable to the “virtual office” than to the traditional office. In the absence of careful planning, employers’ inability to closely monitor home-based employees and control their working environments can give rise to significant legal exposure.
2. OSHA Directives
(a) In November 1999, the Director of Compliance Programs for the Occupational Safety and Health Administration issued a detailed advisory opinion letter that OSHA applied to homebased workers and that employers were responsible for ensuring that such workers’ home offices were safe and in full compliance with OSHA. The opinion letter suggested that one-site examinations might be necessary and that hazardous that were found in the house might violate OSHA even if they were not part of the employee’s designated workspace. It was even proposed that employers might be liable under OSHA if they know there was lead paint in their employees’ home offices but did nothing to remove the attendant dangers.
- The opinion letter was met with widespread criticism, and was retracted shortly after it was released. The OSHA Administration has since issued a February 25, 2000 Directive on Home-Based Worksites that makes clear that a distinction will be drawn between the home offices of telecommuters and ‘home-based worksites, such as home manufacturing operations.” The Administration also announced that while it reserves the right to inspect home manufacturing operations, and although it requires that employers keep appropriate records of all work-related injuries, it will not, as a matter of policy, conduct inspections of ordinary home offices and hold employers liable for work activities in employees’ home office.
- For the moment – it seems that the OSHA Administration does not intend to actively pursue cases involving home offices. That is not to suggest that employers should be unconcerned about the conditions of the home offices of their telecommuters.
- Employers are still advised to take reasonable steps to ensure that home offices are safe. This includes, in appropriate circumstances, entering into a telecommuting agreement in which the employer specifically reserves the right to inspect the employer’s home workspace.
Section 806 of the Sarbanes-Oxley Act of 2002 (“SOX”) authorizes OSHA to investigate whistleblower complaints and to issue findings and determinations.
1. Purpose of the Sarbanes-Oxley Act
a) The Act was enacted in response to the misconduct of companies such as Arthur Anderson, Enron, and WorldCom.
b) The stated purpose of the statute as a whole is to “protect investors by improving the accuracy and reliability of corporate disclosures made pursuant to the securities laws, and for other purposes.”
c) In enacting the whistleblower provisions, Congress (as reported in the Congressional record) recognized that “although current law protects may government employees who act in the public interest by reporting wrongdoing, there is no similar protection for employees of publicly traded companies who blow the whistle on fraud and protect investors. With an unprecedented portion of the American public investing in these companies and depending upon their honesty, this distinction does not serve the public good.”
d) Congress has stated that “corporate employees who report fraud are subject to the patchwork and vagaries of current state laws, even though most publicly traded companies do business nationwide.”
2. Whistleblower Provisions Contained in the Sarbanes-Oxley Act
a) Civil whistleblower provisions
(1) The Act makes it unlawful for any publicly traded company “or any officer, employee, contractors, subcontractor, or agent of such company” to “discharge , demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment” for engaging in any activity protected under the Act.
(2) Two kinds of protected activity under the Act
a. Providing information, causing information to be provided, or otherwise assisting in the investigation of conduct the employee reasonable believes to be wire fraud, bank fraud, securities fraud, violation of SEC rules, or any federal law relating to fraud against shareholders, where the information is provided to, or investigation is conducted by, a federal agency, a member of committee of Congress, a person with supervisory authority over the employee, a person working for the employer with authority to investigate, discovery or terminate misconduct.
b. Filing, causing to be filed, testifying in, participating in, or otherwise assisting in a proceeding filed or about to be filed relating to a violation of the federal laws mentioned above.
(3) The Act essentially protects both internal and external whistleblowers.
(4) The scope of the prohibited conduct under the Sarbanes-Oxley Act is further defined in 20 C.F.R. § 1980, which states that it prohibits behavior by an employer that “intimidates, threatens, restrains, coerces, blacklists or in any other manner discriminates against an employee in the terms and conditions of employment because of any lawful act done by the employer”.
b) Criminal whistleblower provisions
(1) The Act makes it a felony for any person to “knowingly: and “with the intent to retaliate” take “any actions harmful to any person, including interference with the lawful employment or livelihood of any person” for providing truthful information to a law enforcement officer relating to the commission or possible commission of “any federal offense.”
(2) The “any person” language of the Act imposes individual criminal liability.
(3) The “any federal offense” language could arguably include violations of discrimination, wage and hour, safety, environmental, or other laws.
3. Surprises and Oddities under the Sarbanes-Oxley Act that can help (and hurt) employers
a) Any whistleblower bringing a claim under SOX must have actually complained. SOX requires complaints to notify a supervisor, a member of Congress, or a federal regulatory or law enforcement agency of the suspected wrongdoing.
b) SOX complaints must be filed no more than ninety days after the alleged discriminatory violation. This is much shorter filing period than under other employment laws such as Title VII (300 days) and MLRA (six months). Additionally, the ninety days, as under Title VII, starts running when the employee notified of the adverse employment action and settlement discussions with the employer do not toll the short filing period.
c) OSHA can order reinstatement at this stage even though evidentiary hearing has been held allowing the employer to refute the whistleblower’s allegations. SOX decisions recognize that such preliminary reinstatement is a drastic remedy but are much more willing to grant it, calling reinstatement “a remedy [that] is generally appropriate to further the stated goals of Sarbanes-Oxley.”
4. Preventing Claims of Retaliation Under the Sarbanes-Oxley Act
a) Conduct an unbiased investigation of employees’ complaints.
(1) Once a complaint of alleged misconduct or retaliation in the workplace is received, draft a letter to the whistleblower to acknowledge that the company received the report of alleged misconduct and will investigate the allegations.
(2) Limit communication regarding the complaints, investigations and its conclusions to those with a “need to know” basis.
(3) When advising employees that a complaint has been received and an investigation will be undertaken, have each employee sign a statement acknowledging that he or she has been advised that retaliatory conduct will not be tolerated.
(4) Review and retain all retrievable e-mails to and from the complainant and the alleged wrongdoers and any other knowledgeable employees to assess the gravi6ty of the Allegations
(5) Always maintain a paper trail of management deliberations and actions.
(6) There should be records reflecting the deliberation and decision-making basis of any and all adverse actions against the whistleblower occurring prior and subsequent to the alleged material violations.
b) Actions that employers should be wary of in response to an employee’s complaint of workplace misconduct.
(1) Separating the alleged wrongdoer from the alleged victim during the investigation into the complaint.
(a) May not be the wisest approach to investigating complaints of workplace misconduct.
(b) Corporations subject to Sarbanes-Oxley should determine whether such a separation will give rise to a cause of action for retaliation or discrimination under the Act.
(2) Changing the employer’s worksite, line of reporting, decreasing authority, or subjecting the employee’s performance to greater scrutiny not applied to other employees.
(3) Transfer of the complaining employee or reassignment of the supervisor who is subject to a retaliation complaint made by the employee.
(a) Courts are split over whether such a transfer constitutes an adverse employment action.
(b) Court, in general, hold that such a transfer alone is not adverse, if working conditions are generally similar and there is no adverse difference in pay.
(4) Assignment of a new manager/supervisor
(a) Employer should make sure that the new manager/supervisor is unaware of the earlier report in order to protect the employee from being subject to further retaliation and/or a feeling of being ostracized.
(5) Pending adverse actions
(a) Consider a postponement on all pending adverse actions against a whistleblower if you are aware that a lawful report of an alleged material violation has been made.