POSTED BY HEATHER MACDOUGALL ON NOVEMBER 27, 2012

The U.S. Occupational Safety and Health Administration ("OSHA") has named a former chairman of the U.S. Merit Systems Protection Board ("MSPB"), as the new director of OSHA's Whistleblower Protection Program.  On November 20, officials of OSHA announced that Beth Siavet will lead the agency's whistleblower protection efforts.

OSHA enforces the whistleblower provisions of the Occupational Safety and Health Act of 1970 and 21 other statutes protecting employees who report alleged violations of various workplace regulations.  Rights afforded by these whistleblower acts include, but are not limited to, worker participation in safety and health activities, reporting a work related injury, illness or fatality, or reporting a violation of the statutes.

Beth Siavet was with the MSPB as vice chairman, chairman, and member from 1995 to 2003.  The Merit Systems Protection Board is an independent agency that oversees the personnel activities of federal government employees. Siavet replaces the program's former director, Sandra Dillon, who retired in August.  OSHA has recently sought to expand the reach of its Whistleblower Protection Program and to make it a greater priority to the agency.  Earlier this year, the program was restructured and now reports directly to OSHA's head.

OSHA's announcement that Siavet was named director of the whistleblower program comes as lawmakers have moved to expand protections for employees who blow the whistle on government fraud.  Days before, the U.S. Senate approved changes to legislation aimed at strengthening whistleblower legislation first passed in 1989.   The Whistleblower Protection Enhancement Act of 2012 was unanimously passed by the U.S. House of Representatives a little more than a month ago, and now goes to the President for signature.  The bill takes aim at court decisions that limited protections for whistleblowers to cover situations where the whistleblower was the first to report wrongdoing and in which the whistleblowing was connected to the worker's job duties.  The Act provides additional protections to whistleblowers reporting waste, fraud, and abuse at federal agencies.

Employers are well advised to keep an eye on OSHA's whistleblower developments and to take steps to avoid unnecessary retaliation claims. First and foremost, employers should be vigilant in assessing their workplace for compliance with workplace safety and health standards.  Employers should already have anti-discrimination and anti-harassment policies in place. In addition, employers should have and disseminate to every employee a written internal procedure setting forth how employees can bring complaints to their employer outside the discrimination and harassment realm.  These policies should contain provisions to encourage employees to come forward with complaints about health and safety and a non-retaliation statement.

POSTED BY ERIC GORDON ON MARCH 23, 2012

You have done everything right. You provide a legitimate, non-discriminatory reason for taking an adverse employment action against one of your employees. You provide all the evidence any jury could ever want, which you believe shows that the employee was never treated differently than other similarly situated employees. You think you are a sure bet for winning summary judgment. Right? Wrong! You just forgot about one of the largest problems in employment discrimination:  the retaliation claim.

Employers are prohibited under various provisions of state and federal law from retaliating against employees who engage in certain protected activities and/or who “blow the whistle” on employer misdeeds. Indeed, the Florida legislature has enacted specific “whistleblower” statutes designed to protect employees in the private and public sectors and incorporated anti-retaliation provisions into numerous other state and local laws. None of these specific statutes require any finding of discrimination.

It is important for employers in Florida to be mindful of the federal, state, and local prohibitions as whistleblower and retaliation claims are forever on the rise and although retaliation claims may be brought in isolation, more often than not, they are coupled with claims alleging underlying statutory violations. And, as recent decisions highlight, the law of retaliation continues to expand. In fact, the EEOC has reported that in 2011, it received 37,334 charges of retaliation under Title VII, the ADEA, the ADA and the EPA – which represents 37.4% of all charges of discrimination filed with the EEOC in 2011 – making retaliation claims the most popular employee claims in 2011.

Whistleblower and retaliation claims are at an all-time high. For more information about recent case decisions that are shaping how the courts and administrative agencies are dealing with these claims, we hope you will join us at Akerman's 17th Annual Labor & Employment Law Seminar on April 19, 2012. To learn more, please visit http://www.akerman.com/events/LELS12/overview.asp