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Protecting the Whistleblowers
 
The Sarbanes-Oxley Act expands OSHA's investigative authority
to include discrimination associated with corporate fraud cases.


by Donna Miles

John Spear
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 securities fraud.

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 SEC.

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
OSHA's 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