On Sept. 1, 2022, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued a news release claiming that a financial services employer “violated the whistleblower protection provisions of the Sarbanes-Oxley Act” (SOX) by terminating the employment of a manager who “alleged financial misconduct.” According to OSHA, it had “ordered” the employer “to pay the employee more than $22 million” as a result of the “violation.” However, the news release is misleading because OSHA does not have authority to order the payment of a proposed award in a whistleblower case.
OSHA’s Investigative Role in Whistleblower Cases
OSHA has authority to investigate whistleblower claims under the Occupational Safety and Health Act (OSH Act), SOX, and 20 other federal laws that have whistleblower protection provisions (including environmental laws and laws regulating the aviation, railroad, trucking, healthcare, and nuclear power industries).
But OSHA’s findings are not necessarily final as they can be reviewed in a de novo hearing by an administrative law judge, whose decision can then also be appealed to the Labor Department’s Administrative Review Board (ARB) for another review. ARB decisions can be further reviewed in federal court.
This procedural backdrop illustrates that whistleblower cases, even those without merit, can go on for an extended period of time and be costly to defend.
Elements of Whistleblower Actions
Whistleblower provisions prohibit employers...
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