Jaclyn A. Hermes and Paul Christopher Sarahan
January 20, 2011
On January 18, 2011, the Occupational Safety and Health Administration (“OSHA”) published its final regulations on how to handle retaliation claims under Section 211 of the Energy Reorganization Act of 1974, as amended (“ERA”), the Safe Drinking Water Act, the Federal Water Pollution Control Act, the Toxic Substances Control Act, the Solid Waste Disposal Act, the Clean Air Act, and the Comprehensive Environmental Response, Compensation and Liability Act of 1980.
OSHA is responsible for enforcing the whistleblower provisions of 20 separate statutes, and the stated purpose of these new regulations is to make the whistleblower provisions of the ERA and the six environmental statutes more consistent with the procedures OSHA uses to handle retaliation complaints under the other statutes. The new regulations are effective as of January 18, 2011. This briefing highlights the more significant portions of the regulations, but any employer faced with a potential whistleblower claim under these statutes should consult with counsel regarding their specific issues.
A. Claims Under Section 211 of the ERA
Section 211 of the ERA provides protection for nuclear safety whistleblowers. Specifically, under the ERA, an employer may not discharge or otherwise retaliate against any employee because that employee: notified the employer of an alleged violation; refused to engage in any unlawful practice if the employee has identified the alleged illegality to the employer; testified before Congress or at any Federal or State proceeding; or initiated or testified in a proceeding under the statutory provisions applicable to the Nuclear Regulatory Commission. 42 U.S.C. § 5851; see also 29 CFR § 24.102(c).
An employee who believes he/she has suffered retaliation under the ERA must file a complaint with OSHA within 180 days of the alleged retaliatory act. 29 CFR § 24.103(d)(2). The regulations state that the retaliation “occurs” when the alleged retaliatory decision has been made and communicated to the employee. 29 CFR § 24.103(d)(2).
OSHA’s final regulations apply ERA’s statutory burden of proof for ERA whistleblower claims. Specifically, an employee must demonstrate, by a preponderance of the evidence, that he/she engaged in a protected activity under the ERA, as identified above, and this protected activity was a “contributing factor” in an adverse employment action. 29 CFR § 24.104(f). In other words, the employee must show that his/her protected activity, alone or in combination with other factors, affected in some way the outcome of the employer’s decision. If the employee fails to make that showing, OSHA must discontinue its investigation and dismiss the complaint. Id. However, this “contributing factor” standard appears to be a fairly low standard, as the regulations state an employee may meet this burden by showing that the adverse action “took place shortly after the protected activity, giving rise to the inference that it was a contributing factor in the adverse employment action.” 29 CFR § 24.104(f)(3). While the regulations do not define what constitutes “shortly after,” employers should pay careful attention to the timing of any employment decisions that occur after an employee has engaged, or is suspected of engaging, in any ERA protected activity.
Nevertheless, even if the employee does show that his/her protected activity was a “contributing factor” to an adverse employment action, OSHA will discontinue the investigation if the employer demonstrates by clear and convincing evidence that it would have taken the same adverse action even in the absence of the employee’s protected activity. 29 CFR § 24.104(f)(4). The regulations do not provide examples of what evidence would suffice as “clear and convincing.” Importantly, as detailed below, this “clear and convincing” standard differs from the standards for the environmental statutes. The regulations expressly recognized the disparity, but concluded that the ERA’s statutory language required the higher “clear and convincing” burden of proof. In other words, it will likely be harder for an employer to obtain dismissal of an ERA whistleblower complaint than one under the other environmental statutes. Indeed, with this higher burden of proof, it will likely be extremely important for employers to maintain clear, consistent documentation fully supporting their legitimate, non-retaliatory reasons for making employment decisions.
B. Claims Under the Environmental Statutes
Under the environmental statutes, employers may not discharge or otherwise retaliate against any employee with respect to the employee’s compensation, terms, conditions, or privileges of employment because the employee, or any person acting pursuant to the employee’s request, engaged in any protected activities. 29 CFR § 24.102(a). Protected activities include: (1) commencing or causing to be commenced a proceeding under one of the environmental statutes, or a proceeding for the administration or enforcement of any of the statutes’ requirements; (2) testifying or about to testify in any such proceedings; (3) assisting or participating, or about to assist or participate, in any manner in such a proceeding or in any other action to carry out the purposes of such statutes. 29 CFR § 24.102(b).
Employees seeking to file claims under the six environmental statutes have a much shorter timeframe to file their complaints with OSHA. Unlike the ERA, which allows for 180 days, the regulations only allow employees 30 days to file their complaints under the environmental statutes. 29 CFR § 24.103(d)(1). However, like the ERA, the alleged retaliation “occurs” on the date it was both made and communicated to the employee. Id.
As mentioned above, OSHA applies a different burden of proof when investigating complaints under the six environmental statutes than it does for ERA claims. When adjudicating environmental whistleblower complaints, OSHA has previously relied on standards derived from traditional employment discrimination claims under Title VII of the Civil Rights Act of 1964, as amended (“Title VII”). While commentators suggested that OSHA apply the ERA burden of proof standards to the six environmental statutes, the final regulations specifically declined to do so and instead continue to use Title VII standards. Thus, for the six environmental statutes, an employee must demonstrate that he/she engaged in a protected activity under the statutes, and “the circumstances were sufficient to raise the inference that the protected activity was a motivating factor in the adverse action.” 29 CFR § 24.104(e)(2)(iv) (emphasis added). While the regulations specifically differentiate between “motivating factor” and “contributing factor,” they do not identify how the standards are different. Indeed, like the ERA’s “contributing factor” standard, an employee filing a claim under the environmental statutes can show “motivating factor” by simply showing that an adverse employment action “took place shortly after” he/she engaged in a protected activity. 29 CFR § 24.104(e)(3). Thus, employers under both the ERA and the six environmental statutes should pay careful attention to the timing of any adverse employment action for an employee who has engaged in any protected activity under any of these statutes.
However, even if the employee demonstrates that retaliation was a “motivating factor” in an employer’s decision, OSHA can still dismiss the complaint if the employer proves by a preponderance of the evidence that it would have reached the same decision even in the absence of the employee’s protected activities. 29 CFR § 24.104(e)(4). Thus, unlike the ERA, employers facing claims under the six whistleblower statutes do not have to meet the higher “clear and convincing evidence” burden. Nevertheless, even under the lower preponderance of evidence standard, it is best practice for employers to maintain clear, consistent documentation to support their legitimate, non-retaliatory reasons for employment decisions.
C. Other Notable Procedural Changes or Clarifications
Under both the ERA and the six environmental statutes, the Assistant Secretary of Labor for OSHA has 30 days from the date an employee files a complaint to issue written findings. 29 CFR § 24.105(a). If retaliation is found to have occurred, the findings can require an employer to: abate the violation; reinstate the employee to his/her former position with his/her former compensation, and former terms, conditions, and privileges of employment; pay compensatory damages; and under the Toxic Substance Control Act and the Safe Drinking Water Act, pay exemplary damages. 29 CFR § 24. 105(a)(1). Costs and attorneys’ fees may also be available. Id.
Under the old regulations, parties had only five business days to object to such findings. However, under the new regulations, parties now have 30 days to file objections. 29 CFR § 24.106(a). These objections must be in writing and state whether the objection is to the factual findings and/or the order. Id. A filing of objections is deemed to be a request for a hearing before an Administrative Law Judge.
However, if OSHA dismisses a complaint without a complete investigation, such a decision is not subject to review by an Administrative Law Judge. 29 CFR § 24.109(c). Administrative Law Judges hear cases de novo, and therefore cannot remand cases back to the Assistant Secretary to conduct an investigation or make further factual findings. Id. Rather, the Administrative Law Judge must decide the case on merits before it. 29 CFR § 24.109(c).
Any party seeking review of an Administrative Law Judge finding has 10 days to file a petition for review with the Administrative Review Board. 29 CFR § 24.110(a). The final regulations clarify that an appeal to the Administrative Review Board is not a matter of right, but is accepted only at the discretion of the Board. The Board has 30 days to decide whether to grant the petition for review. 29 CFR § 24.111(b). If the review is granted, the Administrative Review Board will give special deference to the Administrative Law Judge’s findings of fact. Id.
Notably, for ERA cases, even if a decision is pending before the Administrative Review Board, the Administrative Law Judge’s awarded relief, except for compensatory damages, is still effective. 29 CFR § 24.109(d)(2); 29 CFR § 24.111(b). Thus, if the Administrative Law Judge orders reinstatement for a ERA whistleblower complainant, the employer must immediately reinstate the employee even if the decision is on appeal with the Administrative Review Board. Id. However, Administrative Law Judge orders under the six environmental statutes are inoperative while the matter is pending before the Administrative Review Board. 29 CFR § 24.109(e); 29 CFR § 24.111(b).
The Administrative Review Board has 90 days to issue its final decision. 29 CFR § 24.110(c). Parties who seek judicial review can file a petition for review with the appropriate United States Court of Appeals. 29 CFR § 24.112(a). The timing of such petition depends on the statute implicated, and parties should consult with counsel to ensure they timely file any appeals with the appropriate court.
Finally, it is important to note that settlements under the ERA, Clean Air Act, Safe Drinking Water Act, and Toxic Substances Control Act must be reviewed and approved by the Department of Labor Secretary to ensure the settlement is just, reasonable, and in the public interest. 29 CFR § 24.111(a). While the other statutes do not require Secretary approval, the regulations encourages parties to submit all settlements under all of the statutes for review and approval. Id.
In sum, while the new OSHA regulations strive to make the whistleblower provisions more consistent across a broad array of statutes, distinctions still exist regarding applicable burdens of proof, filing deadlines, and available damages. Parties facing potential whistleblower claims should immediately consult with counsel to discuss their specific issues and how to best protect their interests.
This article was prepared by Jaclyn A. Hermes (firstname.lastname@example.org or 512 536 2465) from Fulbright's Labor and Employment Law Practice Group, and Paul C. Sarahan (email@example.com or 713 651 5493) from Fulbright's Environmental Law Practice Group.
 The Safe Drinking Water Act (SDWA) is designed to ensure the safety of public water systems. The Federal Water Pollution Control Act (FWPCA) is designed to protect the chemical, physical and biological integrity of the Nation’s waters. The Toxic Substances Control Act (TSCA) requires that adequate health and environmental data be developed regarding the effect of chemical substances and mixtures. The Solid Waste Disposal Act (SWDA) provides the framework for federal regulation of the management of solid waste, including disposal, recycling and reclamation. The Clean Air Act (CAA) is designed to protect and enhance the quality of the Nation’s air resources. The Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) is the primary federal statute addressing the cleanup of improperly disposed chemical substances.
 The specific statutory whistleblower provisions for the environmental statutes are: 42 U.S.C. § 300j-9(i) (SDWA); 33 U.S.C. § 1367, 15 U.S.C. § 2622 (FWPCA and TSCA); 42 U.S.C. § 6971 (SWDA); 42 U.S.C. § 7622 (CAA); and 42 U.S.C. § 9610 (CERCLA).
Jaclyn A. Hermes
Paul Christopher Sarahan