Whistleblower Laws: What Employers and Employees Need to Know
How the Whistleblower Protection Process Works
A whistleblower is someone who leaks information about a business or government agency that violated the law in some way. A whistleblower can be, but is not limited to:
- An employee of a federal or state agency
- An employee of a company
- Anyone who sees wrongdoing
Whistleblowers can report violations of company policy, specific lawbreakers, those who fail to follow state, local, or federal regulations, those who are a threat to national security, or those who engage in fraud or corruption.
Whistleblowers are often in the news and some have become famous, including Karen Silkwood, who blew the whistle on the Kerr-McGee Nuclear Power Plant and its plant safety violations. Another example of a famous whistleblower is Frank Serpico, the New York City policeman who blew the whistle on the corruption in the department. The stories of Silkwood and Serpico were later made into movies.
Whistleblower Protection Law
Whistleblower protection laws have been created to protect whistleblowers from retaliation by the companies or agencies involved.
- The original Whistleblower Protection Act (1986) and more recent Whistleblower Protection Enhancement Act (2012) protect federal employees against retaliation by agencies they work for.
- OSHA (the Occupational Health and Safety Administration) is a one-stop-shop administrator for whistleblower laws for 20 federal agencies, including the OSHA law, the Affordable Care Act, the Clean Air Act, and the Safe Drinking Water Act.
- All states have whistleblower protection laws, which vary from state to state.
- The Taxpayer First Act (effective July 1, 2019) includes several additional protections for tax whistleblowers.
Why Whistleblower Protection Laws are Needed
Employers have been known to retaliate against employees who blow the whistle on them. So, whistleblower protections have been built into many federal and state laws to protect employees.
Employers may retaliate in a number of ways, including:
- Firing or laying off the whistleblower(s)
- Denying overtime or promotions
- Denying benefits
- Failing to hire or rehire
- Reassignments affecting promotions
- Reducing pay or hours
- Making threats
It’s sometimes difficult to separate “normal” employer actions against employees from those actions which are the direct result of retaliation. That’s the reason the whistleblower protection laws have been created; to provide a way to investigate complaints and come to a resolution. These laws look at employer motivation for their actions, and the employer must show that the actions against the employee were part of their normal employment process.
Whistleblower Claims vs. Complaints Against an Employer
Filing a whistleblower complaint is not the same thing as filing a complaint against an employer for violations of the law. Let’s take OSHA for example; the federal agency responsible for overseeing employee safety while on the job. If an employee feels that their company is engaging in unsafe work practices, they can anonymously file a safety and health complaint against OSHA.
Other common employee complaints against employers relate to pay and other workplace violations. These types of complaints should be filed with a state employment agency or the U.S. Department of Labor.
If the employee feels they have been retaliated against by the employer for their complaint, that’s when he or she can file a whistleblower protection claim.
Filing a Whistleblower Complaint
If you think you have been wrongfully retaliated against for filing a complaint against your employer, you can file an OSHA whistleblower complaint using the online complaint form, or by phone, fax, or mail. An OSHA violation complaint must include the name of the person making the complaint, and it must be filed within a specific number of days of the event (varying by agency and law).
A whistleblower complaint must allege four key elements:
- The employee engaged in activity protected by the whistleblower protection law(s).
- The employer knew about, or suspected, that the employee engaged in the protected activity.
- The employer took an adverse action against the employee.
- The employee's protected activity motivated or contributed to the adverse action.
How the Whistleblower Process Works
The person making the claim is called the “Complainant” and the employer is the “Respondent” In most cases administered by OSHA, the general investigation process is described below.
- OSHA receives the claim and interviews the Complainant to see which law has been violated and if the claim is clear enough to begin an investigation.
- An investigator is assigned and the Complainant, Respondent, and the appropriate federal agencies are notified.
- The investigator will ask both parties to give each other a copy of everything they submit to OSHA about the complaint.
- OSHA will ask the Respondent to give a written defense (a position statement).
- Both parties should actively participate in the process, responding to OSHA’s requests and rebutting the other party’s position.
The parties may agree to settle the dispute using OSHA’s Alternative Dispute Resolution (ADR) program (similar to arbitration and mediation).
If the evidence supports the claim of the employee, OSHA will issue an order requiring the employer to take specific actions to provide relief to the employee—That is, to bring the employee back to his or her position before the retaliation. If the evidence doesn’t support the claim, OSHA will dismiss the claim.
After they receive the OSHA decision, the employer or employee can request a hearing before an administrative law judge of the Department of Labor. There is also an appeal process of the DOL judge’s decision.