On March 5, 2015, the U.S. Department of Labor's Occupational Safety and Health Administration ("OSHA") issued a Final Rule implementing procedures for handling retaliation complaints brought by purported whistleblowers under the Sarbanes-Oxley Act of 2002 ("SOX"), as amended by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010.  Until now, the Interim Final Rule issued in November 2011 governed such retaliation complaints.

 

Important Features of the Final Rule

• A covered employee may file a retaliation complaint, either orally or in writing, with OSHA within 180 days from the date of the alleged retaliation or the date on which the employee becomes aware of the violation.

 

• A complainant must make an initial prima facie showing that a protected activity was "a contributing factor" in the adverse action alleged in the complaint. If the employee makes the prima facie showing, the burden shifts to the employer to demonstrate by clear and convincing evidence "that it would have taken the same adverse action in the absence of the protected activity."

 

• If OSHA determines through its investigation that there is reasonable cause to believe that the statute has been violated, it will issue a preliminary order for relief, which will include "all relief necessary to make the employee whole," including, among other things, preliminary reinstatement. An employer may file an objection and request a hearing with an Administrative Law Judge within 30 days, but any preliminary reinstatement order will be effective immediately.

  

• Under the Final Rule, whistleblowers may be provided with "economic reinstatement" (e.g., payment of wages in lieu of work) if OSHA determines that it is not advisable for the employee to return to work.  If the employer ultimately prevails in the whistleblower adjudication, the employer will not be reimbursed for wages paid to the employee during the actual or economic reinstatement period.