Harvard Law School professor Terri Gerstein writes that the case of the IC whistleblower is strangely familiar to her.

A worker learns of brazen violations of law and feels compelled to speak up. The boss and his buddies go bananas, demanding to know the worker’s identity, making veiled or explicit threats, disparaging the worker’s credibility…

Terri Gerstein

Gerstein is director of the State and Local Enforcement Project at the Harvard Law School Labor and Worklife Program. Writing in The American Prospect, she describes what she’s seen in her years of enforcing workplace laws: A fast food is worker fired after reporting a gas leak to the fire department. An airport skycap reported fired the day after appearing at a press conference about minimum wage violation. Countless examples of workers being pressured to stay quiet about sexual harassment.

These examples point to the need for better protections for workers who report serious illegality. The focus on these high-profile whistleblowers should be a catalyst for strengthening whistleblower laws in general, which are currently a patchwork.

Protections vary from statute to statute and from state to state. Ideally, these laws would include strong protection against retaliation; confidentiality; standing for whistleblowers to bring their own lawsuits; and finally, incentives for coming forward. These goals are not unrealistic; the False Claims Act, for example, allows people reporting fraud against the government to file their own lawsuits. The Securities and Exchange Commission and the Internal Revenue Service have paid millions of dollars to whistleblowers who have provided original information leading to successful enforcement actions.
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This Tuesday, the Occupational Safety and Health Administration (OSHA) hosted a public meeting on whistleblower protections in the transportation industry at the Department of Labor headquarters. The meeting was organized by OSHA to obtain feedback from stakeholders about how it could better promote, enforce, and operationalize its OSHA Whistleblower Protection Program. The meeting featured unions, industry representatives, former whistleblowers, and whistleblower attorneys.

truck-driver-speaking-to-bystander


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The OSHA Directorate of Whistleblower Protection Programs issued new policy guidance on the criteria it uses to ensure settlement agreements do not impermissibly restrict or discourage whistleblowing.

The new policy guidelines, issued August 23, 2016, state that OSHA will not approve settlements that contain “gag” clauses that restrict or discourage whistleblowing. Such clauses are often found in broad confidentiality or non-disparagement provisions and prevent individuals from filing a complaint with a government agency, participating in an investigation, testifying in proceedings, or otherwise providing information to the government.
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The Administrative Review Board issues final agency decisions for the Secretary of Labor in cases arising under a wide range of worker protection laws, primarily involving environmental, transportation, and securities whistleblower protection.  The below list includes decisions of the Administrative Review Board from January to April 2016 as reported in the USDOL/OALJ Reporter:

April 2016

  • Gupta v. Compunnel Software Group, Inc., ARB No. 16-056, ALJ No. 2011-LCA-45 (ARB Apr. 29, 2016)
    Final Decision and Order PDF
  • Bohanon v. Grand Trunk Western Railroad Co., ARB No. 16-048, ALJ No. 2014-FRS-3 (ARB Apr. 27, 2016)
    Final Decision and Order Denying Motion to File Petition for Review, After Time for the Filing Has Expired PDF
  • Graves v. MV Transportation, Inc., ARB No. 14-098, ALJ Nos. 2014-NTS-1 and 2 (ARB Apr. 27, 2016)
    Order Approving Settlement and Dismissing Complaint PDF
  • OFCCP, USDOL v. Bank of America, ARB No. 13-099, ALJ No. 1997-OFC-16 (ARB Apr. 21, 2016)
    Final Decision and Order PDF


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On May 31, 2016 the U.S. Department of Labor’s Occupational Safety and Health Administration announced it had launched a pilot for its first severe violator enforcement program for employers that continually and willfully disregard the rights of whistleblowers.

OSHA’s “Whistleblower-Severe Violator Enforcement Program” will be similar to its enforcement Severe Violator Enforcement Program which includes employers that routinely ignore federal workplace safety and health regulations. W-SVEP became effective on May 27, 2016, in the agency’s Kansas City Region, which includes employers in Kansas, Missouri and Nebraska, and those companies under federal enforcement in Iowa.
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On April 18, the Occupational Safety and Health Administration published a final rule establishing procedures for handling retaliation complaints under the Food Safety Modernization Act. The final rule explains the burdens of proof, remedies and statute of limitations similar to other whistleblower protection statutes that OSHA administers.
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The Labor Department’s Occupational Safety and Health Administration (OSHA) has fallen for a trap laid by the U.S. Chamber of Commerce.

The Chamber and its big corporate allies have led a long campaign dedicated to eroding protections for whistleblowers who report crimes. One of their favorite tactics is to try to get whistleblowers to report issues to the company’s attorneys or other company-led programs. They want to discourage reporting to law enforcement authorities, making it harder to rein in corruption on Wall Street and Corporate America at large.

Now the Chamber of Commerce is at it again and they’ve roped in OSHA to support them.

Take Action: tell the DOL they need to protect whistleblowers.
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