Audit, Compliance and Risk Blog

Employment Law: Protecting Whistleblowers Protects the Organization

Posted by Jon Elliott on Wed, Mar 17, 2021


Regulators often rely on whistleblowers to reveal ongoing violations, and prosecutors rely on whistleblowers and informants from time to time to “make their cases.” Recognizing this value, many federal and state laws provide explicit protections for employees who report actual or potential violations to their employers or to the agencies that administer and enforce those laws.

The Occupational Safety and Health Administration (OSHA) has administered such a provision for workers disclosing violations of the Occupational Safety and Health Act for more than 40 years. In the intervening decades, a wide variety of federal statutes have expanded OSHA’s whistleblower protection activities, assigning OSHA to enforce whistleblower protection provisions of other laws; as of 2021 this authority covers 24 distinct federal laws. The best known and most litigated of these non-worker laws probably is the Sarbanes-Oxley Act of 2002 (SOx) – Section 806 of that law protects whistleblowers who report activities that may violate anti-fraud provisions of the federal Securities Acts. The rest of this posting identifies these laws, and summarizes how OSHA administers them.

Which laws are covered?

As of February 2021, the 25 laws that assign whistleblower protection provisions to OSHA for investigation and enforcement are:

  • Affordable Care Act (ACA)

  • Anti-Money Laundering Act (AMLA) (new in 2021)

  • Asbestos Hazard Emergency Response Act (AHERA)

  • Clean Air Act (CAA)

  • Comprehensive Environmental Response, Compensation and Liability Act (CERCLA; Superfund)

  • Consumer Financial Protection Act of 2010 (CFPA)

  • Consumer Product Safety Improvement Act (CPSIA)

  • Criminal Antitrust Anti-Retaliation Act (CAARA) (new in 2021)

  • Energy Reorganization Act (ERA)

  • FDA Food Safety Modernization Act (FSMA)

  • Federal Railroad Safety Act (FRSA)

  • Federal Water Pollution Control Act (FWPCA; Clean Water Act)

  • International Safe Container Act (ISCA)

  • Moving Ahead for Progress in the 21st Century Act (MAP-21)

  • National Transit Systems Security Act (NTSSA)

  • Occupational Safety and Health Act (OSH Act)

  • Pipeline Safety Improvement Act (PSIA)

  • Safe Drinking Water Act (SDWA)

  • Sarbanes-Oxley Act (SOx)

  • Seaman's Protection Act (SPA)

  • Solid Waste Disposal Act (SWDA; including Resource Conservation and Recovery Act (RCRA))

  • Surface Transportation Assistance Act (STAA)

  • Taxpayer First Act (TFA)

  • Toxic Substances Control Act (TSCA)

  • Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21)

Other laws directly protect federal employees. States also provide similar protections.

How do these provisions work?

Each whistleblower protection provision includes some identification of legal rights and responsibilities. OSHA provides a general purpose online Whistleblower Complaint Form, and explains that each whistleblower complaint must allege four key elements:

  • The employee engaged in activity protected by the whistleblower protection law(s) (such as reporting a violation of law);

  • The employer knew about, or suspected, that the employee engaged in the protected activity;

  • The employer took an adverse action against the employee;

  • The employee's protected activity motivated or contributed to the adverse action.

What should organizations do?

Organizations should establish and implement policies to ensure compliance with applicable laws and regulations, including policies that encourage employees to report possible violations internally, with assurances that the organization will respond to any such reports responsibly and without threats or retaliation against reporting employees. The scope of covered activities will vary depending on the provision(s) applicable to the organization, but the general principles of compliance assurance, encouragement for internal reporting of non-compliance, and protections for reporters should apply. The appropriate way to prevent whistleblowing to outside agencies is to manage (non)compliance within the organization. 

Implementation Checklist

Does the organization specify policies against bribery, corruption and other forms of organizational and individual wrongdoing (these may be assembled in a formalized Code of Conduct)?

Do these policies apply to all management and non-management employees, agents, commissioned sales personnel and other affiliated personnel?

Are they administered by appropriate individuals and/or organizational units? 

Do they include appropriate and accessible internal reporting and whistleblowing provisions? 

Do they include an organizational commitment against retaliation?

Does the organization have a formal policy declaring its intention to do any or all of the following:

  • Following up on internal reports, complaints and whistleblowing?

  • Not to retaliate against employees who come forward?

  • To protect the anonymity of reporting employees, as appropriate?

  • To acknowledge reporting employees, as appropriate?

  • To reward reporting employees, as appropriate?

Where Can I Go For More Information?

About the Author

Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 30 years. 

Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).

Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).

You may contact Mr. Elliott directly at: