On February 5 OHSA issued its “Interim Final Rule; Request For Comments” on whistle-blower protections contained in the Seaman’s Protection Act (“SPA”). The complaints’ determinations by OSHA may be appealed to an administrative law judge within the U.S. Department of Labor for a de novo hearing, and if needed, to federal court (where the U.S. Department of Labor has failed to take specified steps within a specified time frame).
The “interim final rule” is available here.
The statute text from the SPA is available here.
And the Washington DC Employment Law Update has a concise summary here.
It’s important for the executive of a business operation covered by the Seaman’s Protection Act to be aware that its whistle-blower provisions and OSHA’s implementing rules as issued here are similar in terms and structure to the 22 other statutes relating to whistle-blower protections – some of which are specific to transportation.
Here the SPA-implementing whistle-blower protection rule largely parallels the rules issued and now enforced by OSHA pursuant to the Surface Transportation Assistance Act, for instance. Copy of statute available here. Copy of rules OSHA issued last year available here.
Practical business take-away:
As an employer, stay on top of such complaints and don’t let the calendar get away from you. As an employee bear in mind that the statutes of limitation are relatively short and you need to act quickly if you want relief under the SPA.
The legal framework governing protecting against whistle-blower retaliation in the various transport sectors (and others administered and enforced by OHSA) is largely a three-step process. So federal statute and regulation largely present whistle-blower rights as a management challenge to the employer – keep track of the timeline:
1. Aggrieved employee complains to OSHA and OSHA makes a determination.
2. Such employee can appeal determination to an administrative law judge.
3. If untimely response on part of employer such employee can go directly to federal court with his or her whistle-blower anti-retaliation complaint.
Respond timely to complaints to OSHA timely or else the aggrieved employee has the legal right to go into federal court.
In any event such employee will have the right to appeal OSHA’s determination to an administrative law judge.