OSHA implements whistleblower provisions of Surface Transportation Assistance Act
OSHA has issued a final rule implementing the whistleblower provisions of the Surface Transportation Assistance Act (STAA). Section 31105 of the STAA makes it unlawful to discharge or in any way discriminate against an employee on any term or condition of employment because of a belief that the employee filed a complaint about a violation of commercial motor vehicle (CMV) safety or security laws or regulations.
The STAA also prohibits discrimination against employees who refuse to operate a vehicle in violation of regulations, standards, or orders related to commercial motor vehicle security or who refuse to do so because of a reasonable concern that the vehicle’s hazardous nature has rendered it unsafe to drive. The law also protects employees who either cooperate with federal or local CMV safety investigations or who give information to relevant agencies about incidents that may have led to death or damage.
The final rule incorporates amendments made to the STAA by the 9/11 Commission Act of 2007, which strengthened the STAA’s whistleblower provisions. It also finalized changes making the STAA’s processes for handling whistleblower complaints more consistent with OSHA’s other whistleblower regulations.
Under the final rule, whistleblower complaints will be governed by the legal burdens of proof set forth in the law (AIR21) governing the aviation industry. Whistleblower violations will only be found if employees show that their protected conduct was a “contributing factor” to the adverse employment action taken against them. However, the employer can evade liability if it shows by clear and convincing evidence that it would have taken the same adverse action regardless of the protected activity. Complaints may be either written or oral.
In addition, the rule states that some STAA whistleblower complaints might constitute safety complaints under Section 11(c) of the OSH Act, which bars retaliation against employees over the filing of safety or health complaints; the section also protects employees who have participated in OSH Act proceedings.
Under the rule, remedies available to whistleblowers are expanded. The 9/11 Commission Act expressly provided for the award of interest on back pay and for compensation for any special damages sustained as a result of the unlawful discrimination. In addition, complainants will be eligible to receive punitive damages up to $250,000. Another amendment preserves any other rights or remedies available to the employee under federal or state law.
The rule also governs OSHA’s actions. It must give a copy of the employer’s response to the complaining party and must give the complaining party the opportunity to respond.
The provisions of this final rule are effective upon publication in the Federal Register on July 27, 2012.