OSHA Issues Amended Procedures for Handling Retaliation Complaints Under the Sarbanes-Oxley Act

On March 5, 2015, OSHA issued amended procedures for the handling of retaliation complaints under Section 806 of the Sarbanes-Oxley Act of 2002. The amended procedures, now effective, govern employee protection claims. By way of background, on November 3, 2011, an interim final rule (“IFR”) governing these provisions and requesting comment was published in the Federal Register, 76 FR 68084. Pursuant to the IFR, five comments were received.

The final rule, 29 C.F.R. Part 1980, “Procedures for Handling of Retaliation Complaints Under Section 806 of the Sarbanes-Oxley Act of 2002, as Amended,” responded to the comments and established the final procedures and time frames for the handling of retaliation complaints, including regarding employee complaints to OSHA, OSHA investigations, appeals of OSHA determinations to an administrative law judge (“ALJ”) for a hearing de novo, hearings by ALJs, review of ALJ decisions, and judicial review of the Secretary of Labor’s final decision.

Most notably, OSHA adopted IFR Section 1980.103(b), which provides that whistleblower complaints to OSHA need not be in writing, but may be oral. Now, if a complaint is made orally, OSHA will reduce the claim to writing. There was opposition to this change, but OSHA adopted the IFR changes, arguing that the IFR is consistent with the purpose of a complaint filed with OSHA – that being – to trigger an investigation regarding whether there is reasonable cause to believe that retaliation occurred.

On the other hand, OSHA did revise some IFR sections based on IFR comments. For example, now, after receiving a complaint, the Secretary shall notify the respondent of the filing of the complaint and the allegations contained therein, and of the substance of the evidence supporting the complaint. The amended rule requires the parties to provide each other with a copy of all submissions to OSHA responsive to the whistleblower complaint, and allows the opportunity to respond to the opposing party’s submissions.

The amended procedures, including comments and responses, are available in the Federal Register, Vol. 80, No. 43.


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