Workers Protected Against Retaliation for Reporting Violations

June 24, 2011

A lot of courage is sometimes required to report an employer's illegal activity or unsafe working conditions. A panoply of relatively recent laws and new amendments to existing laws offer legal protections and remedies for the courageous among us who wish to blow the whistle on corporate wrongdoing in the workplace. The laws address specific industries.

Whistleblower Protection Laws

The Occupational Safety and Health Administration (OSHA) oversees the Office of the Whistleblower Protection Program and is responsible for enforcing 21 federal-level whistleblower protection statutes. The most commonly used statute, Section 11(c) of the Occupational Safety and Health Act, prohibits employers from retaliating against employees who raise workplace safety and health concerns by:
- Complaining to OSHA about workplace safety
- Seeking an OSHA inspection
- Participating in an OSHA inspection
- Reporting an on-the-job injury, illness or death

Twenty other whistleblower protection statutes cover workers who report employers' violations of laws or regulations in specific areas of commerce such as transportation and shipping and securities. Recently, new legislation expanded whistleblower protection to workers in the food industry.

The 21 statutes enforced by OSHA and the regulations governing their administration are listed below:

- Section 11(c) of the Occupational Safety and Health Act, 29 U.S.C. Section 660

- Surface Transportation Assistance Act (STAA), 49 U.S.C. Section 31105

- Asbestos Hazard Emergency Response Act (AHERA), 15 U.S.C. Section 2651

- International Safe Container Act (ISCA), 46 U.S.C. Section 80507

- Safe Drinking Water Act (SDWA), 42 U.S.C. Section 300j-9(i)

- Federal Water Pollution Control Act (FWPCA), 33 U.S.C. Section 1367

- Toxic Substances Control Act (TSCA), 15 U.S.C. Section 2622

- Solid Waste Disposal Act (SWDA), 42 U.S.C. Section 6971

- Clean Air Act (CAA), 42 U.S.C. Section 7622

- Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. Section 9610

- Energy Reorganization Act (ERA), 42 U.S.C. Section 5851

- Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21), 49 U.S.C. Section 42121

- Sarbanes-Oxley Act (SOX), 18 U.S.C.A. Section 1514

Amendments to SOX, enacted July 21, 2010 - Sections 922 and 929A of the Dodd Frank Act (DFA)

- Pipeline Safety Improvement Act (PSIA), 49 U.S.C. Section 60129

- Federal Railroad Safety Act (FRSA), 49 U.S.C. Section 20109

- National Transit Systems Security Act (NTSSA), 6 U.S.C. Section 1142

- Consumer Product Safety Improvement Act (CPSIA), 15 U.S.C. Section 2087

- Section 1558 of the Affordable Care Act (ACA), P.L. 111-148

- Consumer Financial Protection Act of 2010 (CFPA), Section 1057 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, 12 U.S.C.A. Section 5567

- Seaman's Protection Act, 46 U.S.C. Section 2114 (SPA), as amended by Section 611 of the Coast Guard Authorization Act of 2010, P.L. 111-281

- Section 402 of the FDA Food Safety Modernization Act (FSMA), P.L. 111-353

Food Industry Whistleblowers

In January 2011, President Obama signed the U.S. Food and Drug Administration Food Safety Modernization Act. The Act is designed to ensure the safety of food in the U.S. by focusing federal regulation on preventing food contamination rather than simply responding to it. One way the Act seeks to prevent food contamination is by providing whistleblower protection to workers in the food industry.

Section 402 of the Act -- effective immediately -- prohibits retaliation against an employee "engaged in the manufacture, processing, packing, transporting, distribution, reception, holding or importation of food" when the employee performs a protected activity. Protected activity includes:
- Providing information about an employer's unlawful activity to the employer, the federal government or a state attorney general
- Testifying about a potential violation of any law, order, rule, regulation, standard or ban
- Assisting or participating in a proceeding concerning the potential violation
- Refusing to participate in any activity that the employee reasonably believes violates a law, order, rule, regulation, standard or ban

What Is Considered Retaliation?

Unlawful retaliation for reporting a workplace violation can take many forms, such as:
- Firing
- Demoting
- "Blacklisting"
- Denying promotions or overtime
- Reassigning to a different task or location
- Reducing pay or hours
- Denying benefits
- Intimidating or threatening

Employers who take any of these actions against an employee because he or she reported a workplace violation or engaged in a protected activity are breaking the law. If you work in the food industry or any other regulated industry and are thinking about reporting a workplace violation -- or if you have reported a violation and suffered negative employment consequences as a result -- contact a lawyer with experience in whistleblower claims to discuss your legal options.

Article provided by The Rubin Law Corporation
Visit us at www.stevenrubinlaw.com