John Spear, director of the Office of Investigative Assistance,
says the Sarbanes-Oxley Act presents new and different challenges
to OSHA's whistleblower investigators.
Just a year ago, it would have been a highly unlikely
scenario: a group of OSHA's whistleblower investigators
from offices around the country gathered in Washington, D.C.,
to learn about corporate fraud.
As they listened to attorneys from the Securities and Exchange
Commission talk about the new Corporate and Criminal Fraud Accountability
Act of 2002-also known as the Sarbanes-Oxley Act-
investigators had a lot of questions. Among them was Dennis Russell
from OSHA's Atlanta Regional Office, which had already received
three new cases involving whistleblowers covered by the new act.
The Sarbanes-Oxley Act provides new civil and criminal protections
for employees in publicly traded companies as well as their contractors,
subcontractors, or agents. It prohibits employers from firing,
demoting, harassing, or taking other adverse action against employees
for providing information to their supervisors or the government
relating to securities fraud.
With responsibility for enforcing whistleblower
protections in 13 other federal statutes, OSHA took on the Sarbanes-Oxley
Act as well when it took effect last July. Since then, OSHA has
received 26 cases covered by the new law.
According to John Spear, director of the agency's
Office of Investigative Assistance, the new law presents new and
different challenges than presented by the laws previously in
place to prevent employer retaliation against whistleblowers,
as well as the new Pipeline Safety Improvement Act of 2002 that
took effect in December. The other 13 laws all involve safety,
health, or environmental issues; the Sarbanes-Oxley Act involves
Spear said the issues involved in the Sarbanes-Oxley
Act are technically more difficult than those in the other whistleblower
statutes. To ensure that the agency's investigators are
prepared for the cases they will receive under the new law, he
scheduled two days of training in November for supervisors from
each OSHA region. The attendees, in turn, returned to their home
offices to train their staffs.
"There's definitely a learning curve for us,"
said Rita Lucero, a supervisory investigator at the Denver Regional
Office who has conducted whistleblower investigations for almost
15 years. "We need to develop a general knowledge of the
industry and to understand its terminology. But there's
no doubt in my mind that OSHA and the discrimination group are
all capable of successfully investigating these types of complaints."
Lucero has been forced to get up to speed on the new law more
quickly than she may have anticipated. She's investigating
a case in which a company fired its chief executive officer after
he voiced concerns within the company about the accuracy of its
filings with the SEC, then took his complaint directly to the
Similarly, Russell's most recent case involves an employee
at a manufacturing company who was fired after complaining that
the company's questionable accounting practices showed inflated
profits, and as a result, drove up stock prices.
Russell agreed that OSHA's investigators are up to their
new challenge enforcing the Sarbanes-Oxley Act. "The statute
is new and the type of complaints we will receive will be new,"
he said, "but what we have to determine in the end is the
same: Did the person voice a concern and was discriminatory action
taken as a result?" JSHQ
OSHA's Investigative Jurisdiction
whistleblower protection program was established under section
11(c) of the Occupational Safety and Health Act. The act ensures
that employers do not discriminate against an employee for
participating in certain safety and health activities, such
as complaining about workplace safety or health or testifying
in a proceeding covered by the act.
OSHA's Office of 11(c) Programs-recently renamed
the Office of Investigative Assistance-is responsible
for investigating whistleblower complaints. Its investigators
are commonly referred to as 11(c) investigators.
OSHA now has jurisdiction for 14 federal statutes that provide
whistleblower protections. The agency's investigators
receive about 2,000 complaints a year from employees who charge
their employer with retaliation. Complaints must be reported
to OSHA within set timeframes following the discriminatory
action, as prescribed by each law.
- Occupational Safety and Health Act of 1977 (30 days)
- Surface Transportation Assistance Act (180 days)
- Asbestos Hazard Emergency Response Act (90 days)
- International Safety Container Act (60 days)
- Energy Reorganization Act (180 days)
- Clean Air Act (30 days)
- Safe Drinking Water Act (30 days)
- Federal Water Pollution Control Act (30 days)
- Toxic Substances Control Act (30 days)
- Solid Waste Disposal Act (30 days)
- Comprehensive Environmental Response, Compensation, and Liability Act (30 days)
- Wendell H. Ford Aviation Investment and Reform Act