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What to Expect After Blowing the Whistle

whistleblower defense

When an individual discovers unethical or illegal employer conduct or reports dangerous or unsafe working conditions, that individual may file a complaint to a federal agency reporting their supervisor. This complaint is called a whistleblower complaint and is informally known as “blowing the whistle” on your employer/supervisor. After blowing the whistle, you may feel a mix of emotions ranging from satisfaction and accomplishment to regret and anxiety. If your employer has retaliated against you in response to engaging in certain protected activities or has otherwise taken adverse action against you, you may experience emotional stress, embarrassment, or other pressures.

In addition to the emotions and confusion that are accompanied with blowing the whistle, it is important to be aware of the typical federal investigative process of your filed complaint. To keep matters simple, assume you reported unsafe or dangerous working conditions to the human resources department of your company and experienced retaliatory adverse action as a result—such as reduced pay, demotion, or termination. You file a whistleblower complaint with the Occupational Safety and Health Administration (“OSHA”). What next?

The first response to a filed complaint is that a member of the OSHA staff will contact the complainant—you—to obtain information regarding your alleged retaliation claim. This step is important because it helps the OSHA staff determine whether your allegation presents sufficient facts to warrant a formal investigation under one or more whistleblower protection statutes administered by OSHA. The investigative process is typically the same regardless of the statute under which the complaint is filed. If the OSHA staff decides that your allegation is sufficient to initiate an investigation, your complaint will be assigned to an OSHA whistleblower investigator. This investigator is an independent fact-finder who does not represent either party to the investigation. The OSHA investigator will notify you, your employer/supervisor, and any relevant federal agency and explain to them that OSHA has initiated an investigation. At this stage, both your employer/supervisor and you should keep all potential evidence that sheds light on the retaliation allegations such as letters, notes, phone logs, contracts, work products, etc. OSHA will ask both parties to the investigation to provide the other with a copy of all submissions made to OSHA as well as prepare the contact information for witnesses who could support or refute the alleged retaliation claim.

Next, OSHA will get in contact with the employer/supervisor regarding their defense to the retaliation allegation. During all stages of the investigation, both you as the complainant and your employer/supervisor are expected to respond to all requests and are given the opportunity to rebut the other party’s claims. At any time during the investigation, the parties could agree to settle the claim via OSHA’s Alternative Dispute Resolution (“ADR”) program or via their own settlement, if OSHA approves. The complainant may, under certain cases, be able to take their claim to federal district court if there is not a final order and the time period for filing a complaint under the relevant statute has passed.

Finally, at the end of the investigation, the OSHA investigator will make a recommendation to their supervisor as to whether the evidence presented and uncovered demonstrates reasonable cause that the employer/supervisor violated federal law. If OSHA determines that no violation occurred, the complaint is dismissed. If the supervisor agrees with the investigator’s decision that a violation has occurred, OSHA will provide both parties with a findings letter that lists remedies. In these cases, OSHA will issue an order requiring the employer/supervisor to reinstate the employee, reimburse the employee for lost wages, or give the employee other applicable relief and compensation. OSHA will also tell both parties of the right to object before an administrative law judge (with certain exceptions where the objection is reviewed by other parties). In some cases, such as with Section 11(c) of OSHA, the complainant would have to file their complaint in district court to remedy the retaliation claim unless a settlement is reached first.

If you need advice or have questions about what to do after blowing the whistle or if you think that you would like to file a retaliation lawsuit against your employer, you should contact an employment law attorney. An attorney can advise you on how to respond after filing a complaint, whether you have a viable case, and, if so, how to prepare.

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