The Occupational Safety and Health Administration plans to issue three interim final rules detailing the proper handling of retaliation complaints under the whistleblower provisions of four separate acts. The interim rules, which will impact the retaliation provisions of the National Transit Systems Security Act, the Federal Railroad Safety Act, the Consumer Product Safety Improvement Act and the Surface Transportation Assistance Act, are issued under OSHA™s enforcement jurisdiction. The new rules are intended to clarify existing procedures and establish new procedures that deal with the procedures of handling retaliation complaints, including the time frames relevant to each Act.
The interim rules are all roughly similar. Each deals with the rights and obligations of complainants. Retaliation complainants must file complaints with 180 days of any alleged violation, either in writing or orally. Additionally, complainants must make a prima facie showing that their participation in a protected activity was a contributing factor to whatever adverse employment action is alleged in the complaint. Once this showing is made, the burden shifts to the employer to show through clear and convincing evidence that, regardless of the protected activity, it would have taken the same action. The assistant secretary of labor for OSHA will issue written findings, within 60 days of the filing, as to whether reasonable cause exists to believe that the complaint has merit.
If no final decision has been issued within 210 days after the complainant has made the required showing, the complainant may file an original de novo action in federal court; they must provide notice 15 days in advance of their intent to file a federal suit. Lastly, all four rules have sections that explain the activities that are protected, and what responsive conduct is prohibited, under the statutes.
Interested parties must submit comments on these rules within 60 days of publication in the Federal Register.