OSHA recently released statistics (aggregated by BNA) showing dramatic increases in both the number of whistleblower cases filed with OSHA last year as well as the number of OSHA determinations. The number of whistleblower cases submitted to OSHA in fiscal year 2012 was 2,787 – up 5% from 2011 – and that the number of complaint determinations made by OSHA increased by 42%. Of those determinations, 21% resulted in settlements that the DOL approved or reviewed, and 2% resulted in a finding or preliminary order by the Assistant Secretary of Labor for Occupational Safety and Health. We also have seen daunting reinstatement orders – the impact of which may in some cases dwarf the impact of monetary awards. Query whether the newly formed OSHA Whistleblower Protection Advisory Committee (discussed in our recent post) will develop an effective triage process and other procedures to facilitate more rapid resolutions of whistleblower claims filed with OSHA.
Stats Regarding SOX Whistleblower Claims and Claims Under Dodd-Frank's Consumer Financial Products Or Services Whistleblower Provision:
- The number of SOX whistleblower claims filed with OSHA in 2012 (164 claims) increased by approximately 20% from 2011. OSHA determined that only 2 of those complaints were meritorious.
- In 2012, OSHA received 13 complaints under Section 1057 of Dodd-Frank, which creates a cause of action for whistleblowers who perform tasks related to the offering or provision of consumer financial products or services. OSHA has received only 18 complaints under Section 1057 since Dodd-Frank's enactment in 2010. Of the 13 complaints filed with OSHA in 2012, none were found to have merit.
Why The Uptick? It's no secret that we're in the "age of the whistleblower," and we expect 2013 to be a transformative year now that cases are percolating under a range of recent whistleblower legislation. The increase in complaints can be attributed to a confluence of factors, including: new whistleblower protections under myriad statutes; the efforts the SEC Office of the Whistleblower has made to educate the public about the Dodd-Frank whistleblower bounty provision; efforts the plaintiffs' bar has made to seek out new cases; the likelihood that substantial bounties will be issued soon and the fact that the first bounty was recently issued; and sweeping employee-friendly interpretations of Section 806 of SOX by the Administrative Review Board.
What Should Employers Do? Our recent posts provide employers with effective methods of paring the risks of employee whistleblower claims and heightening the likelihood that complaints will be lodged internally. Proskauer's Top 10 Ways To Minimize Whistleblower Risks quickly has become a favorite among employers who appreciate the sensitivity of the risks whistleblower claims present.
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