U.S. Department of Labor

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Bryan Green
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1 U.S. Department of Labor Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC (202) (202) (FAX) WHISTLEBLOWER JURISDICTION OF THE UNITED STATES DEPARTMENT OF LABOR The U.S. Department of Labor is responsible for investigating and adjudicating complaints filed by whistleblowers under federal laws which protect workers who report violations of various trucking, airline, nuclear power, pipeline, environmental, rail, consumer product and securities laws. Complaints of discrimination or retaliation may be brought by workers whenever they believe they have suffered an adverse employment action (e.g., discharge, demotion, involuntary transfer, blacklisting) as a result of having reported what they reasonably believe was a violation of one or more of these statutes. These whistleblower complaints are initially investigated by DOL s Occupational Safety & Health Administration, after which OSHA issues written findings and conclusions regarding the complaint. In the event OSHA determines that a violation has occurred, it may issue a preliminary order providing the complainant with various forms of relief including reinstatement, back pay, and special damages such as litigation costs, expert witness fees, and reasonable attorney fees. Whenever a complainant or respondent is dissatisfied with OSHA s determination, that party may file an objection to OSHA s findings and request a hearing before the Office of Administrative Law Judges. When an appeal from an OSHA determination on a whistleblower complaint is docked by OALJ, the case is assigned to an Administrative Law Judge who will then issue a notice of hearing and prehearing order informing the parties of the date, time and location of the formal hearing and establishing discovery and other procedural deadlines. Hearings before ALJs are de novo, i.e., the findings and conclusions of OSHA are entitled to no weight in the ALJ s final decision. Formal rules of evidence do not generally apply, but the ALJ may exclude evidence that is immaterial, irrelevant, or unduly repetitious. Decisions by ALJs must be based on the testimony, documents, and other exhibits produced by the parties at the hearing and admitted by the judge into the evidentiary record. As with OSHA, favorable determinations may result in orders requiring the whistleblower s reinstatement, an award of back pay, and other forms of relief. Any party dissatisfied with the judge s decision may appeal that decision to DOL s Administrative Review Board.

2 Petitions for review filed with the ARB must specifically identify the findings, conclusions or orders of the judge to which exception is taken. If the case is accepted by the ARB for review, the decision of the ALJ becomes inoperative, although a preliminary order of reinstatement may become effective while review is conducted unless the Board grants a motion to stay reinstatement. Decisions of the ARB may be appealed by any party adversely affected by the order by filing a petition for review in the U.S. Court of Appeals for the circuit in which the violation occurred or the circuit in which the complainant resided at the time of the violation. Under some whistleblower laws, a reinstatement order becomes effective immediately. If an employer fails to comply with an immediately effective reinstatement order, or with the provisions of a final order of the ALJ or the ARB, the Secretary of Labor or the whistleblower may file a civil action seeking enforcement of the order in the U.S. District Court for the district in which the violation was found to have occurred. DEPARTMENT OF LABOR WEB SITES OALJ maintains a web site with links to a variety of materials relevant to the whistleblower statutes administered by DOL. These include links to the fourteen major statutes under which whistleblower complaints are adjudicated by OALJ, the regulations governing those proceedings, digests summarizing case law relevant to the various whistleblower provisions, and copies of decisions rendered by Administrative Law Judges, the Department of Labor s Administrative Review Board, and U.S. District Courts and Courts of Appeals. The gateway page for the whistleblower collection may be accessed at: OSHA also maintains a web site with links to various materials relevant to the whistleblower statutes administered by DOL. OSHA s Whistleblower Protection Program page is located at: A copy of OSHA s Whistleblower Investigation Manual is also available online at:

3 WHISTLEBLOWER STATUTES UNDER THE JURISDICTION OF THE UNITED STATES DEPARTMENT OF LABOR OFFICE OF ADMINISTRATIVE LAW JUDGES Clean Air Act (CAA), 42 U.S.C Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), 42 U.S.C Consumer Product Safety Improvement Act (CPSIA), 15 U.S.C Energy Reorganization Act (ERA), 42 U.S.C Federal Rail Safety Act (FRSA), 49 U.S.C Federal Water Pollution Control Act (FWPCA), 33 U.S.C Pipeline Safety Improvement Act of 2002 (PSIA), 49 U.S.C National Transit Systems Security Act of 2007 (NTSSA), 6 U.S.C. Section 1142 Safe Drinking Water Act (SDWA), 42 U.S.C. 300j-9 Sarbanes-Oxley Act of 2002 (SOX), 18 U.S.C. 1514A Solid Waste Disposal Act (SWDA), 42 U.S.C Surface Transportation Assistance Act (STAA), 49 U.S.C Toxic Substances Control Act (TSCA), 15 U.S.C Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21), 49 U.S.C

4 ALL WHISTLEBLOWER CASES DOCKETED AND DISPOSED OF BY THE OFFICE OF ADMINISTRATIVE LAW JUDGES 1994 THROUGH AUGUST 18, Docketed Disposed (through Aug. 18, 2009) WHISTLEBLOWER CASES BY TYPE DOCKETED AND DISPOSED OF BY THE OFFICE OF ADMINISTRATIVE LAW JUDGES FY 2009 THROUGH AUGUST 18, Docketed Disposed 50 0 (through 08/18/2009) SDWA FWPCA TSCA SWDA CAA CERCLA ERA STAA AIR21 SOX PSIA FRSA NTSSA TOTAL - 4 -

5 YEARLY SUMMARIES OF WHISTLEBLOWER CASES DOCKETED AND DISPOSED OF BY THE OFFICE OF ADMINISTRATIVE LAW JUDGES FY 1994 THROUGH AUGUST 18, 2009 Fiscal Year 1994 Docketed Disposed SDWA FWPCA TSCA SWDA CAA CERCLA ERA STAA TOTAL Fiscal Year 1995 Docketed Disposed SDWA FWPCA TSCA SWDA CAA CERCLA ERA STAA TOTAL Fiscal Year 1996 Docketed Disposed SDWA FWPCA TSCA SWDA CAA CERCLA ERA STAA TOTAL Fiscal Year 1997 Docketed Disposed SDWA FWPCA TSCA SWDA CAA CERCLA ERA STAA TOTAL

6 Fiscal Year 1998 Docketed Disposed SDWA FWPCA TSCA SWDA CAA CERCLA ERA STAA TOTAL Fiscal Year 1999 Docketed Disposed SDWA FWPCA TSCA SWDA CAA CERCLA ERA STAA TOTAL Fiscal Year 2000 Docketed Disposed SDWA FWPCA TSCA SWDA CAA CERCLA ERA STAA AIR TOTAL Fiscal Year 2001 Docketed Disposed SDWA FWPCA TSCA SWDA CAA CERCLA ERA STAA AIR TOTAL

7 Fiscal Year 2002 Docketed Disposed SDWA FWPCA TSCA SWDA CAA CERCLA ERA STAA AIR SOX TOTAL Fiscal Year 2003 Docketed Disposed SDWA FWPCA TSCA SWDA CAA CERCLA ERA STAA AIR SOX PSIA TOTAL Fiscal Year 2004 Docketed Disposed SDWA FWPCA TSCA SWDA CAA CERCLA ERA STAA AIR SOX PSIA TOTAL

8 Fiscal Year 2005 Docketed Disposed SDWA FWPCA TSCA SWDA CAA CERCLA ERA STAA AIR SOX PSIA TOTAL Fiscal Year 2006 Docketed Disposed SDWA FWPCA TSCA SWDA CAA CERCLA ERA STAA AIR SOX PSIA TOTAL Fiscal Year 2007 Docketed Disposed SDWA FWPCA TSCA SWDA CAA CERCLA ERA STAA AIR SOX PSIA TOTAL

9 Fiscal Year 2008 Docketed Disposed SDWA FWPCA TSCA SWDA CAA CERCLA ERA STAA AIR SOX PSIA FRSA NTSSA TOTAL Fiscal Year 2009 Docketed Disposed (through 08/18/2009) SDWA FWPCA TSCA SWDA CAA CERCLA ERA STAA AIR SOX PSIA FRSA NTSSA TOTAL

Whistleblower Protection and the Sarbanes-Oxley Act: A Road Under Construction

ABA Convention, August 12, 2003 Whistleblower Protection and the Sarbanes-Oxley Act: A Road Under Construction Paul Greenberg, Esq. Washington, D.C. * When enacting the Sarbanes-Oxley Act in 2002, Congress