New Online Whistleblower Complaint Form

OSHA has, from time to time, published a Whistleblower Investigations Manual, most recently in September 2011. OSHA indicated then that it would, at some point in the future, begin accepting electronically filed complaints on its website. OSHA's announcement of the new online form was therefore not a surprise.

The New Online Form

The new Form, titled “OSHA Online Whistleblower Complaint Form,” contains 30 questions, ranging from basic identification information to specifics regarding the alleged retaliation. The Form notes that certain questions (marked with an asterisk) must be completed for the form to be accepted. Unfortunately, the Form only requires that five of its 30 questions be answered, and those questions are limited the complainant's name, phone number, address, employer name and the type of retaliation allegedly suffered (providing 10 multiple choices including: “Termination/Layoff, Discipline, Demotion/ Reduced Hours, Denial of Benefits, Failure to Promote, Negative Performance Evaluation, Failure Hire[sic]/Re-hire, Harassment/Intimidation, Suspension,” “Threat to Take Any of the Above Actions” and “Other”).

The other questions, i.e., those that are not required to be completed, seek factual support for the alleged whistleblowing claim. The Form seeks information regarding when the alleged retaliation act took place, the reasons given by the employer for the act, and the complainant's belief as to why the employer took the act (again, with multiple choices). The form also asks whether the complainant has made any prior complaints with OSHA regarding the employer and whether the complainant has taken any other actions to pursue the complaint being reported on the Form.

On a positive note, the Form includes a “Certification,” which recites that “It is unlawful to make any materially false, fictitious, or fraudulent statement to an agency of the United States ' ” Immediately thereafter is a box (to be checked electronically) stating, “ By checking this box, I certify that the information in this complaint is true and correct to the best of my knowledge and belief.”

Observations on the Form and Its Instructions

If a complainant completes only the required information (but neglects to provide any substantiation of his or her whistleblower claim), it appears that OSHA will contact the complainant to obtain answers to unanswered questions. As OSHA is required by regulation to dismiss a complaint that fails to establish a prima facie showing of retaliation, it does not seem that OSHA could reasonably proceed to investigate a complaint premised solely on the answers made to those few questions requiring them.”

Notably, the Form is not in any way tailored to any of the specific statutes under which OSHA has responsibility for investigating whistleblower complaints; rather, it appears to apply to apply generically to all 22 statutes. This is consistent with OSHA's view (as explained in the Whistleblower Investigations Manual), that is it OSHA's responsibility to determine the statute under which a complaint is filed, and that a complainant need not specify an applicable statute in his or her complaint. As a result, there are no questions on the Form geared to any of the more particularized elements of the various whistleblower statutes. For example, there is no question on the Form addressing whether the employer is a publicly traded company for the purposes of coverage under the Sarbanes-Oxley whistleblower provision.

The online instructions accompanying the Form make it clear that the complainant's identity (and other information included in the Form) will be provided to the employer (and that a whistleblower complaint cannot be filed with OSHA anonymously). By contrast, the instructions make it clear that information regarding alleged witnesses is to be kept from employers, stating in bold all-caps type, “DO NOT INCLUDE WITNESS NAMES OR THEIR CONTACT INFORMATION ON THIS FORM OR IN YOUR INITIAL COMPLAINT FILING.”

Whistleblower Claims: More of Them, Harder to Dismiss, Easier to Assert

The new OSHA online complaint form is merely the latest development in the cascade of pro-plaintiff/employee whistleblower developments over the last several years.

First, employers have faced an ever-increasing array of federal whistleblower provisions. In 2003, OSHA was responsible for investigating claims made under 14 federal whistleblower provisions; today, as noted above, it has responsibility for enforcing 22 such provisions, with the most recent addition being whistleblower provision contained in the Affordable Care Act.

Second, with the passage of Dodd-Frank, Congress provided a powerful financial incentive in the form of a “bounty” for erstwhile whistleblowers to ignore their employers' internal complaint procedures and proceed directly to the SEC or CFTC with their complaints.

Third, the current Department of Labor (DOL) has radically expanded its prior interpretations of the whistleblower provisions that it enforces. The scope of many of these provisions (in particular, the one contained in the Sarbanes-Oxley [SOX] statute) has been expanded dramatically. And the standards for pleading and proving claims under these statutes have been lowered (at least when such claims are being litigated before the Department of Labor, as opposed to in a federal court setting).”

The new online complaint Form is, in a sense, a logical extension of the DOL's erosion of pleading requirements for whistleblower claims. In Sylvester v. Parexel International LLC, ARB Case No. 07-123, May 25, 2011), the current DOL Administrative Review Board rejected the application of federal court pleading requirements to whistleblower claims pursued before the DOL. After noting Supreme Court precedent (Bell Atlantic v. Twombly, 550 US 544 (2007) and Ashcroft v. Iqbal, 556 US 662 (2009)) requiring that a federal court complaint present a claim that is “above the speculative level” and “plausible on its face,” the Administrative Review Board held that such a standard should not be applied to whistleblower claims before the DOL. The ARB did not articulate a substitute standard, and instead merely referred to the language of the applicable regulation requiring, “a full statement of the acts and omission, with pertinent dates, which are believed to constitute [SOX violations].” The ARB suggested that a whistleblower case before the DOL should be dismissed only when it “is so meritless on its face that it should be dismissed in the interests of justice.”

What to Do

The availability of the new OSHA online form for filing whistleblower complaints increases the likelihood that a putative whistleblower will initiate a claim. The relative ease of filling out the form and submitting it (at any hour of the day) make an impulsive filing that much more likely. Given the expenses and other risks associated with defending against whistleblower claims, this is negative development for employers.

The availability of the online OSHA whistleblower Form provides yet another impetus for employers to review their policies and practices in this regard. Employers should take steps to encourage putative whistleblowers to raise and resolve any concerns that they may have internally. If an otherwise well-intentioned putative whistleblower believes that the employer will fairly examine good faith concerns without retaliating, that person is less likely to resort to a complaint with OSHA. In addition, implementing such practices will put an employer in a better position to defend claims brought by someone motivated by bad intentions.”

These steps may include the following: 1) Issue a code of conduct prohibiting unlawful acts; 2) Require prompt reporting of unlawful conduct; 3) Require annual employee certifications of adherence to code of conduct and that they are unaware of any unlawful conduct; 4) Implement a complaint procedure with multiple avenues of complaint; 5) Investigate and remedy any wrongdoing promptly; 6) Train managers in the handling of whistleblower complaints; 7) Communicate with whistleblower as to steps taken; 8) Implement a policy prohibiting retaliation against good-faith whistleblowers; and 9) Oversee evaluations and employment decisions regarding whistleblowers.

Lloyd B. Chinn is a New York-based partner in Proskauer Rose's Labor & Employment Law Department and co-head of the firm's Whistleblowing & Retaliation Group.

In a move designed to ease the filing of whistleblower complaints, the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) recently unveiled a new online whistleblower complaint form. This is significant for employers because whistleblower complaints (and the litigation headaches that accompany them) are now literally only “a few clicks” away. An employee now may initiate a whistleblower complaint by submitting a written complaint, complaining orally (by either visiting or calling an OSHA office) or completing the new online form (and either submitting it electronically or printing it and filing it by mail, fax or hand delivery). OSHA states that it will accept a whistleblower complaint in any language.'

Background: OSHA's Role in Investigating Whistleblower Complaints

OSHA currently has responsibility for enforcing 22 whistleblower provisions found in federal statutes in a variety of areas including securities, consumer finance, health insurance, airline, environmental, nuclear power, trucking, rail, and workplace safety. OSHA is responsible, under each of these statutes for receiving and investigating the complaints made by whistleblowers. Under many of these statutes (e.g., the whistleblower provision in the Sarbanes-Oxley Act), a complainant may, after the passage of a certain amount of time, also pursue an action in federal court.

OSHA has, from time to time, published a Whistleblower Investigations Manual, most recently in September 2011. OSHA indicated then that it would, at some point in the future, begin accepting electronically filed complaints on its website. OSHA's announcement of the new online form was therefore not a surprise.

The New Online Form

The new Form, titled “OSHA Online Whistleblower Complaint Form,” contains 30 questions, ranging from basic identification information to specifics regarding the alleged retaliation. The Form notes that certain questions (marked with an asterisk) must be completed for the form to be accepted. Unfortunately, the Form only requires that five of its 30 questions be answered, and those questions are limited the complainant's name, phone number, address, employer name and the type of retaliation allegedly suffered (providing 10 multiple choices including: “Termination/Layoff, Discipline, Demotion/ Reduced Hours, Denial of Benefits, Failure to Promote, Negative Performance Evaluation, Failure Hire[sic]/Re-hire, Harassment/Intimidation, Suspension,” “Threat to Take Any of the Above Actions” and “Other”).

The other questions, i.e., those that are not required to be completed, seek factual support for the alleged whistleblowing claim. The Form seeks information regarding when the alleged retaliation act took place, the reasons given by the employer for the act, and the complainant's belief as to why the employer took the act (again, with multiple choices). The form also asks whether the complainant has made any prior complaints with OSHA regarding the employer and whether the complainant has taken any other actions to pursue the complaint being reported on the Form.

On a positive note, the Form includes a “Certification,” which recites that “It is unlawful to make any materially false, fictitious, or fraudulent statement to an agency of the United States ' ” Immediately thereafter is a box (to be checked electronically) stating, “ By checking this box, I certify that the information in this complaint is true and correct to the best of my knowledge and belief.”

Observations on the Form and Its Instructions

If a complainant completes only the required information (but neglects to provide any substantiation of his or her whistleblower claim), it appears that OSHA will contact the complainant to obtain answers to unanswered questions. As OSHA is required by regulation to dismiss a complaint that fails to establish a prima facie showing of retaliation, it does not seem that OSHA could reasonably proceed to investigate a complaint premised solely on the answers made to those few questions requiring them.”

Notably, the Form is not in any way tailored to any of the specific statutes under which OSHA has responsibility for investigating whistleblower complaints; rather, it appears to apply to apply generically to all 22 statutes. This is consistent with OSHA's view (as explained in the Whistleblower Investigations Manual), that is it OSHA's responsibility to determine the statute under which a complaint is filed, and that a complainant need not specify an applicable statute in his or her complaint. As a result, there are no questions on the Form geared to any of the more particularized elements of the various whistleblower statutes. For example, there is no question on the Form addressing whether the employer is a publicly traded company for the purposes of coverage under the Sarbanes-Oxley whistleblower provision.

The online instructions accompanying the Form make it clear that the complainant's identity (and other information included in the Form) will be provided to the employer (and that a whistleblower complaint cannot be filed with OSHA anonymously). By contrast, the instructions make it clear that information regarding alleged witnesses is to be kept from employers, stating in bold all-caps type, “DO NOT INCLUDE WITNESS NAMES OR THEIR CONTACT INFORMATION ON THIS FORM OR IN YOUR INITIAL COMPLAINT FILING.”

Whistleblower Claims: More of Them, Harder to Dismiss, Easier to Assert

The new OSHA online complaint form is merely the latest development in the cascade of pro-plaintiff/employee whistleblower developments over the last several years.

First, employers have faced an ever-increasing array of federal whistleblower provisions. In 2003, OSHA was responsible for investigating claims made under 14 federal whistleblower provisions; today, as noted above, it has responsibility for enforcing 22 such provisions, with the most recent addition being whistleblower provision contained in the Affordable Care Act.

Second, with the passage of Dodd-Frank, Congress provided a powerful financial incentive in the form of a “bounty” for erstwhile whistleblowers to ignore their employers' internal complaint procedures and proceed directly to the SEC or CFTC with their complaints.

Third, the current Department of Labor (DOL) has radically expanded its prior interpretations of the whistleblower provisions that it enforces. The scope of many of these provisions (in particular, the one contained in the Sarbanes-Oxley [SOX] statute) has been expanded dramatically. And the standards for pleading and proving claims under these statutes have been lowered (at least when such claims are being litigated before the Department of Labor, as opposed to in a federal court setting).”

The new online complaint Form is, in a sense, a logical extension of the DOL's erosion of pleading requirements for whistleblower claims. In Sylvester v. Parexel International LLC, ARB Case No. 07-123, May 25, 2011), the current DOL Administrative Review Board rejected the application of federal court pleading requirements to whistleblower claims pursued before the DOL. After noting Supreme Court precedent ( Bell Atlantic v. Twombly , 550 US 544 (2007) and Ashcroft v. Iqbal , 556 US 662 (2009)) requiring that a federal court complaint present a claim that is “above the speculative level” and “plausible on its face,” the Administrative Review Board held that such a standard should not be applied to whistleblower claims before the DOL. The ARB did not articulate a substitute standard, and instead merely referred to the language of the applicable regulation requiring, “a full statement of the acts and omission, with pertinent dates, which are believed to constitute [SOX violations].” The ARB suggested that a whistleblower case before the DOL should be dismissed only when it “is so meritless on its face that it should be dismissed in the interests of justice.”

What to Do

The availability of the new OSHA online form for filing whistleblower complaints increases the likelihood that a putative whistleblower will initiate a claim. The relative ease of filling out the form and submitting it (at any hour of the day) make an impulsive filing that much more likely. Given the expenses and other risks associated with defending against whistleblower claims, this is negative development for employers.

The availability of the online OSHA whistleblower Form provides yet another impetus for employers to review their policies and practices in this regard. Employers should take steps to encourage putative whistleblowers to raise and resolve any concerns that they may have internally. If an otherwise well-intentioned putative whistleblower believes that the employer will fairly examine good faith concerns without retaliating, that person is less likely to resort to a complaint with OSHA. In addition, implementing such practices will put an employer in a better position to defend claims brought by someone motivated by bad intentions.”

These steps may include the following: 1) Issue a code of conduct prohibiting unlawful acts; 2) Require prompt reporting of unlawful conduct; 3) Require annual employee certifications of adherence to code of conduct and that they are unaware of any unlawful conduct; 4) Implement a complaint procedure with multiple avenues of complaint; 5) Investigate and remedy any wrongdoing promptly; 6) Train managers in the handling of whistleblower complaints; 7) Communicate with whistleblower as to steps taken; 8) Implement a policy prohibiting retaliation against good-faith whistleblowers; and 9) Oversee evaluations and employment decisions regarding whistleblowers.

Lloyd B. Chinn is a New York-based partner in Proskauer Rose's Labor & Employment Law Department and co-head of the firm's Whistleblowing & Retaliation Group.