What Protection is There for Whistleblowers?

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If you have seen something at work that must change, but your employer is unwilling to do anything about it, what can you do? Will you be protected or can your employer immediately terminate you? How much will you jeopardize your job by doing the right thing?

OSHA, the Occupational Safety and Health Administration, has a number of regulations designed to protect whistleblowers. OSHA's Whistleblower Protection Program enforces the statutory and regulatory provisions of more than twenty different statutes designed to protect employees who report violations of various workplace safety and other conditions. Indeed, the Whiestleblower Protection Program protects those who raise concerns over a variety of concerns, not just those directly affecting the whistleblower's own safety and well-being. For example, those who report matters of concern regarding airlines, commercial motor carriers, consumer products, environmental violations, financial violations, food safety issues, health insurance fraud, motor vehicle safety, nuclear safety and proliferation, utility pipelines, public transportation, railroads, ships, securities violations, and many others are all protected by this program.

The whistleblower protection laws afford certain rights, like worker participation in safety and health activities; providing mechanisms for reporting a work related injury, illness or fatality; and providing means to allow the reporting of a violation of the statutes.

One of the primary sources of whistleblower protection in recent years has come from the Sarbanes-Oxley Act of 2002 (“SOX”). Unlike most whistleblower laws, the SOX's whistleblower protections extend beyond just providing a legal remedy for wrongfully discharged employees. It contains four other provisions directly relevant to whistleblower protection:

1. All publicly traded corporations must create internal and independent “audit committees.” As part of this process, the companies must also create procedures for employees to file internal whistleblower complaints, and ways to protect the confidentiality of these employees.

2. Attorneys who practice before the Securities and Exchange Commission (SEC) must abide by a new set of ethical standards. These rules actually require attorneys to blow the whistle on their own clients under certain circumstances; an unpopular provision that has drawn much criticism for its variance from long-established laws regarding attorney-client privilege.

3. It may actually be considered federal obstruction of justice and criminal retaliation to take action against a whistleblower who provides truthful information to law enforcement regarding the SEC or possible commission of any Federal offense. This provision relates to every employer nationwide, not just publicly traded companies.

4. Section 3(b) of the SOX contains an enforcement provision that states “a violation by any person of this Act … shall be treated for all purposes in the same manner as a violation of the Securities Exchange Act of 1934.” In other words, the SEC has jurisdiction to enforce every aspect of the SOX, including the various whistleblower-related provisions, and may bring criminal penalties for any violation of the SOX, including the whistleblower-related provisions.

These four provisions of the Sarbanes-Oxley Act establish much of the framework for modern whistleblower protection. Additionally, another provision of the SOX permits whistleblowers to file a complaint before the U.S. Department of Labor alleging unlawful retaliation. The Department of Labor has created an extensive body of law interpreting whistleblower provisions and has created a policy of broadly protecting those who blow the whistle on their employers.

If you believe you have been fired for whistleblowing, you should contact an attorney. A lawyer will be able to help you file the appropriate paperwork to get your claim started and guide you to the appropriate agencies to report illegal retaliation. You may also have your own civil claims against your former employer that the attorney can help you pursue.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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