Employers Beware: Agency May Reinstate Whistleblowers following Investigation

By Patrick Miller

Under some statutes, the Occupational Safety and Health Administration (“OSHA”) may order the reinstatement of former employees as part of its conclusions after a whistleblower investigation, even while the employer’s administrative appeal is pending. OSHA is responsible for investigating claims of retaliation under numerous federal statutes, including the Occupational Safety and Health Act, the Surface Transportation Assistance Act (“STAA”), the Sarbanes-Oxley Act (“SOX”), the Federal Railroad Safety Act (“FRSA”), and the Energy Reorganization Act (“ERA”), just to name a few. Under the STAA, FRSA and SOX, for example, OSHA may order an employer to reinstate an employee and the employer must effect reinstatement even while it seeks and prepares for an administrative hearing to determine whether it in fact engaged in unlawful retaliation. A recent example of such an order came out of OSHA’s Region 5, where the agency found that the employer violated the anti-retaliation provisions of the FRSA and ordered that employer to immediately reinstate the complaining employee and to pay over $350,000 in compensatory and punitive damages. Now the employer has the employee back while the whistleblower case goes on. (http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=NEWS_RELEASES&p_id=23769).

Employers should know the statutes that reasonably apply to their employees and their industry. When OSHA starts a retaliation investigation, the employer might want to whistle for help itself.

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