oshaOSHA recently released its final rule implementing the whistleblower provisions of the Consumer Financial Protection Act of 2010 (“CFPA”).  The following are the key features of the rule:

 

 

 

  • Deadline for Filing a Complaint:  A complaint must be filed within 180 days of the alleged retaliation.  OSHA’s rule notes that such a complaint need not conform to the pleading standards for complaints filed in federal district court.  29 CFR Part 1985.103.  Instead, the complaint must only “alert[] OSHA to the existence of the alleged retaliation and the complainant’s desire that OSHA investigate the complaint.”
  • Investigation of Complaints:  After a complaint is filed, OSHA will conduct a confidential investigation to determine whether there is reasonable cause to believe that retaliation has occurred.  OSHA only will investigate if the complaint states a prima facie case that the protected activity was a contributing factor in the adverse employment action.  Even if OSHA finds reasonable cause to believe that the complainant’s alleged protected activity was a contributing factor in the adverse employment action, however, OSHA will not conduct an investigation if the employer can demonstrate by clear and convincing evidence that it would have made the same employment decision absent the employee’s protected activity.  29 CFR Part 1985.104.
  • OSHA’s Findings/Order:  On the basis of all information obtained in its investigation, the OSHA Assistant Secretary will issue within 60 days of the filing of a complaint written findings as to whether there is reasonable cause to believe that there was a violation of the Dodd-Frank whistleblower provision.  If the Assistant Secretary finds that reasonable cause exists, he/she will also issue a preliminary order providing relief to the complainant, which may include reinstatement or compensatory damages.  The findings and/or preliminary order will inform the parties of the right to appeal the decision before an Administrative Law Judge (ALJ).  29 CFR Part 1985.105.
  • Appeal to ALJ:  Either party may file an appeal of OSHA’s findings and/or order within thirty of days of receipt of the findings and/or order.  Additionally, the respondent may seek reasonable attorneys’ fees, not to exceed $1,000, from an ALJ if the respondent alleges that the complaint was frivolous or brought in bad faith.  29 CFR Part 1985.106.  An ALJ will review OSHA’s findings and/or order de novo in accordance with the rules of practice and procedure for administrative hearings before the Office of Administrative Law Judges.  29 CFR Part 1985.107.
  • Appeal to the ARB:  Either party may file a written petition for discretionary review with the ARB within 14 days of the ALJ’s decision.  The ARB then has thirty days to decide whether to grant review of the case.  If it does not grant review, the ALJ’s decision becomes final.  29 CFR Part 1985.110.
  • Settlement:  The parties may voluntarily settle their dispute, subject to approval by OSHA/the ALJ/ the ARB, depending on the stage of the proceedings at the time of settlement.  29 CFR Part 1985.111.
  • Judicial Review and Enforcement:  Within 60 days of an ALJ or ARB final order, either party may file a petition for review of the order in the United States Court of Appeals for the circuit in which the violation allegedly occurred or the circuit in which the complainant resided on the date of the violation.  29 CFR Part 1985.112.  A party may also bring a civil action for enforcement of orders or settlement agreement terms, or bring an original de novo action in the United States district court for the district in which the violation was found, under certain circumstances.  29 CFR Parts 1985.113 & 1985.114.

The foregoing are substantially similar to the rules applicable to claims under Section 806 of SOX.  The arguably relaxed standard and other features arguably are likely to encourage complainants’ counsel to pursue claims through the DOL’s adjudicative system.

Photo of Steven J. Pearlman Steven J. Pearlman

Steven J. Pearlman is a partner in the Labor & Employment Law Department, where he is Head of the Restrictive Covenants, Trade Secrets & Unfair Competition Group and Co-Head of the Whistleblowing & Retaliation Group.

Employment, Restrictive Covenant & Trade Secret, and Whistleblower…

Steven J. Pearlman is a partner in the Labor & Employment Law Department, where he is Head of the Restrictive Covenants, Trade Secrets & Unfair Competition Group and Co-Head of the Whistleblowing & Retaliation Group.

Employment, Restrictive Covenant & Trade Secret, and Whistleblower Practice. Steven’s national practice focuses on defending companies in federal and state courts and in arbitration fora against the full spectrum of employment-related claims, including claims of executives; restrictive covenant violations; employee raiding; theft of trade secrets; whistleblower retaliation under the Sarbanes-Oxley Act, the Dodd-Frank Act and similar state laws; and wage-and-hour violations, including class, collective and PAGA actions.

Steven has successfully handled trials in multiple jurisdictions; prevailed in seeking and defending against applications for temporary restraining orders and preliminary injunctions; defended one of the largest Illinois-only class actions in the history of the federal courts in Illinois (over 90k putative class members); and prevailed following his oral arguments before federal and state appellate courts. He brings his litigation experience (beginning in 1998) to bear in counseling clients to minimize risk and avoid or prepare for success in litigation.

Investigations. Reporting to boards of directors, their audit committees, CEOs and in-house counsel, Steven conducts sensitive investigations and has the unusual experience of testifying in federal court in connection with investigations. His investigations have involved complaints of sexual harassment involving C-suite officers; systemic violations of employment laws and company policies; and fraud, compliance failures and unethical conduct.

Thought Leadership and Accolades. Steven was named Lawyer of the Year for Chicago Labor & Employment Litigation in the 2023 edition of The Best Lawyers in America. He is a Fellow of the College of Labor and Employment Lawyers. Chambers has reported:

  • Steven is “one of the best in the country and has a lot of experience”;
  • Steven is as an “outstanding lawyer” who is “very sharp and very responsive,” a “strong advocate,” and an “expert in his field”;
  • He is thoughtful, attentive and demonstrates an acute understanding of matters top of mind for business-minded general counsel; and
  • “He is someone who can navigate the twists and turns of litigation without difficulty.”

Steven was 1 of 12 individuals selected by Compliance Week as a “Top Mind.” Earlier in his career, he was 1 of 5 U.S. lawyers selected by Law360 as a ”Rising Star Under 40” in the area of employment law and 1 of “40 Illinois Attorneys Under Forty to Watch” selected by Law Bulletin Publishing Company. Steven is a U.S. Library of Congress Burton Award Winner for “Distinguished Legal Writing.”

Steven was appointed to Law360’s Employment Editorial Advisory Board and selected as a Contributor to Forbes.com. He has appeared on Bloomberg News (television and radio) and Yahoo! Finance, and is often quoted in leading publications such as The Wall Street Journal. The U.S. Chamber of Commerce has engaged Steven to serve as lead counsel on amicus briefs to the U.S. Supreme Court and federal circuit courts of appeal.

In 2024, Steven received the Excellence in Pro Bono Service Award from the United States District Court for the Northern District of Illinois and the Chicago Chapter of the Federal Bar Association.

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