What is a Whistleblower and
Are You One?


Have you ever discovered what you think might be illegal conduct by your boss or employer? This can be everything from illegally dumping waste products to improperly reporting taxes withheld by your employer to forcing employees to work in unsafe conditions. If you are a public employee in Texas you are protected for reporting the improper conduct to your supervisor or to the appropriate authorities.

If you believe there is a violation of local, state or federal law by your public employer, the first step you must folow is to allow the employer's internal grievance procedure 60 days to process your claim before the employee files a lawsuit. The Whistleblower's 90 day statute of limitation is tolled while the grievance porcess is pursued. However it is important to remember that a public employer is not required to provide a grievance procedure. Therefore to be safe, an employee should attempt to invoke any possible procedure available. Rememeber the grievance must be in writing and must be sufficiently clear to identify the alleged improper activity.

The Whisleblower Act protects an employee from retailaitionif he or she reports illegality to the appropriate law enforcement authority. Ther eis no protection for en employee from internal whistleblowing. This is a result of the statute's view that reporting to a supervisor with no law enforcement authority is not a protected activity. Finally, the employee must have a good faith belief that the conduct of his employer is a violation of a law.

 
The Whistleblower Program

The Occupational Safety and Health Act is designed to regulate employment conditions relating to occupational safety and health and to achieve safer and more healthful workplaces throughout the nation. The Act provides for a wide range of substantive and procedural rights for employees and representatives of employees. The Act also recognizes that effective implementation and achievement of its goals depend in large measure upon the active and orderly participation of employees, individually and through their representatives, at every level of safety and health activity.

To help ensure that employees are, in fact, free to participation in safety and health activities, Section 11(c) of the Act prohibits any person from discharging or in any manner discriminating against any employee because the employee has exercised rights under the Act.

These rights include complaining to OSHA and seeking an OSHA inspection, participating in an OSHA inspection, and participating or testifying in any proceeding related to an OSHA inspection.

OSHA also administers the whistleblowing provisions of thirteen other statutes, protecting employees who report violations of various trucking, airline, nuclear power, pipeline, environmental, and securities laws.

A person filing a complaint of discrimination or retaliation will be required to show that he or she engaged in protected activity, the employer knew about that activity, the employer subjected him or her to an adverse employment action, and the protected activity contributed to the adverse action. Adverse employment action is generally defined as a material change in the terms or conditions of employment. Depending upon the circumstances of the case, "discrimination" can include:

  • Firing or laying off
  • Blacklisting
  • Demoting
  • Denying overtime or promotion
  • Disciplining
  • Denial of benefits
  • Failure to hire or rehire
  • Intimidation
  • Reassignment affecting prospects for promotion
  • Reducing pay or hours
The 14 statutes enforced by OSHA and the regulations governing their administration are listed below. Click on any statute for a downloadable PDF document.
  • Section 11(c) of the Occupational Safety and Health Act of 1970 (OSHA)
  • The Surface Transportation Assistance Act of 1982 (STAA)
  • The Asbestos Hazard Emergency Response Act of 1986 (AHERA)
  • The International Safety Container Act of 1977 (ISCA)
  • The Safe Drinking Water Act of 1974 (SDWA)
  • The Federal Water Pollution Control Act of 1972 (FWPCA)
  • The Toxic Substances Control Act of 1976 (TSCA)
  • The Solid Waste Disposal Act of 1976 (SWDA)
  • The Clean Air Act of 1977 (CAA)
  • The Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA)
  • The Energy Reorganization Act of 1978 (ERA)
  • The Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21)
  • Section 806 of the Corporate and Criminal Fraud Accountability Act of 2002 (CCFA) (Sarbanes-Oxley Act)
  • Section 6 of the Pipeline Safety Improvement Act of 2002 (PSIA)

The foregoing statutes cover employees in the transporation, aviation indutries as well as businesses subject to the various air and watere pollution laws. The newst additoin to this list is the Sarbanes-Oxley Fianacial Accountablility Act which applies to all publically traded companies. It is a very powerulf and widely applicable law.

Regulations
  • 29 CFR Part 1977 - Discrimination Against Employees Exercising Rights under the Williams-Steiger Occupational Safety and Health Act of 1970
  • 29 CFR Part 1978 - Rules for Implementing Section 405 of the Surface Transportation Assistance Act of 1982
  • 29 CFR Part 1979 - Procedures for the Handling of Discrimination Complaints under Section 519 of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century
  • 29 CFR Part 1980 - Procedures for the Handling of Discrimination Complaints under Section 806 of the Corporate and Criminal Fraud Accountability Act of 2002
  • 29 CFR Part 24 - Procedures for the Handling of Discrimination Complaints under Federal Employee Protection Statutes [DOL Site]
Filing a Complaint

If you believe your employer has discriminated against you because you exercised your safety and health rights, contact your local OSHA Office right away. Most discrimination complaints fall under the OSH Act, which gives you only 30 days to report discrimination. Some of the other laws have complaint-filing deadlines that differ from OSHA's, so be sure to check.

You can telephone, fax or mail your OSHA complaint. OSHA conducts an in-depth interview with each complainant to determine the need for an investigation. If evidence supports the worker's claim of discrimination, OSHA will ask the employer to restore the worker's job, earnings and benefits. If the employer objects, OSHA may take the employer to court to seek relief for the worker. The procedures for investigations of discrimination complaints are contained in the OSHA Whistleblower Investigations Manual.