whistleblower

The SpaceX and Jarkesy Ripple Effect: What Recent Court Decisions Could Mean for OSHA’s Whistleblower Program

Mark Henry Ishu Leave a comment

By Mark Ishu

A New Constitutional Reckoning for Agency Adjudication

The Supreme Court’s decision in SEC v. Jarkesy (2024) and the Fifth Circuit’s ruling in SpaceX v. NLRB (2025) together mark the most significant challenge in decades to the modern administrative state. Both decisions question how—and by whom—federal agencies may prosecute and adjudicate enforcement actions.

Although neither case arose under OSHA or the Department of Labor (DOL), their reasoning reaches squarely into the heart of OSHA’s whistleblower program, which relies on Administrative Law Judges (ALJs) in DOL’s Office of Administrative Law Judges (OALJ) and Administrative Review Board (ARB) to decide retaliation claims.

For employers, these rulings signal not an enforcement surge, but a structural shift that could fundamentally alter how whistleblower cases are handled and appealed. Continue reading →

Common Questions in Evaluating a Whistleblower Complaint Filed with OSHA

Lindsay A. DiSalvo Leave a comment

By Lindsay A. DiSalvo

In FY 2023, the Occupational Safety and Health Administration (“OSHA”) received 3,243 Whistleblower complaints filed under various statutes’ anti-retaliation provisions. OSHA is charged with investigating alleged retaliation under more than 20 different statutes, including, but limited to, the Occupational Safety and Health Act (“OSH Act”), the Sarbanes-Oxley Act (“SOX”), the Surface Transportation Assistance Act (“STAA”), and the Environmental Protection Act (“EPA”) and related environmental statutes. Although the number of Whistleblower complaints dipped some in FY 2021 after peaking at 3,448 in FY 2020, they have been steadily increasing since then. Indeed, the number of complaints filed with OSHA increased by about 15% between FY 2022 and FY 2023, and a vast majority of these complaints, about 71%, are filed under Section 11(c) of the OSH Act.

We have yet to see what impact, if any, the change in Administration will have on the filing and investigation of Whistleblower complaints, though if the prior Trump Administration is any indication, complaints are likely to continue to increase. Thus, it’s important for an employer to know the types of questions they should ask in evaluating how to respond to a Whistleblower complaint and what information will be most useful to provide the OSHA investigator. Here, we provide several of those essential questions to assist in navigating the Whistleblower investigation process. Note that the same or similar questions also apply to analyzing other types of retaliation claims, like those filed with the Equal Employment Opportunity Commission under Title VII and other anti-discrimination laws.

Under Which Statute Did the Complainant File Their Complaint? Continue reading →

Strategies for Responding to Whistleblower / Retaliation Complaints [Webinar Recording]

Theresa Jordan Leave a comment

On Tuesday, March 21, 2023, Jordan B. Schwartz, Lindsay A. DiSalvo, and Victoria L. Voight presented a webinar regarding Strategies for Responding to Whistleblower/Retaliation Complaints.

Over the past several years, employers have seen a significant uptick in retaliation claims filed by employees and investigated by federal agencies. For example, in 2010, only approx. 30% of all charges filed with the EEOC included a retaliation claim, but that number shot up to almost 60% in FY 2021. Similarly, the vast majority of whistleblower complaints filed with OSHA in FY 2022 – about 76% – were filed under Sec. 11(c) of the OSH Act (retaliation based on protected safety acts).

When a general retaliation or whistleblower complaint is received, employers have a chance to explain why the complaint should be dismissed. The response is an opportunity for the employer to provide information so the agency investigating the complaint can close its file; whether that means OSHA decides an onsite inspection is unnecessary or the EEOC dismisses the discrimination charge. The responses can, however, create a written record of admissions that OSHA or the EEOC could use against the employer. Employers should thus be strategic about the information shared at that early stage and should ensure there is a procedure in place for managing and developing these responses.

Participants in this webinar learned: Continue reading →

Announcing Conn Maciel Carey LLP’s 2023 Labor and Employment Webinar Series

Theresa Jordan Leave a comment

Announcing Conn Maciel Carey LLP’s

2023 Labor and Employment Webinar Series

The legal landscape facing employers seems as difficult to navigate as it has ever been.  Keeping track of the ever-changing patchwork of federal, state and local laws governing the workplace may often seem like a full-time job whether you are a human resources professional, in-house attorney or  business owner.  Change appears to be the one constant.  As we enter Year 3 of President Biden’s Administration, employers will continue to closely track the changes taking place at the NLRB, the DOL and the EEOC.  At the same time, a number of states will continue introducing new laws and regulations governing workplaces across the country, making it more important than ever for employers to pay attention to the bills pending in the legislatures of the states where they operate.  

Conn Maciel Carey’s complimentary 2023 Labor and Employment Webinar Series, which includes monthly programs (sometimes more often, if events warrant) put on by attorneys in the firm’s national Labor and Employment Practice, will focus on a host of the most challenging and timely issues facing employers, examine past trends and look ahead at the issues most likely to arise.

​To register for an individual webinar in the series, click on the link in the program description below. To register for the entire 2023 series, click here to send us an email request, and we will register you.  If you missed any of our programs from the past eight years of our annual Labor and Employment Webinar Series, here is a link to an archive of recordings of those webinars.

California Employment Law Update

Thursday, January 19, 2023

Remote Work Challenges

Wednesday, February 22, 2023

Whistleblower/Retaliation Issues

Tuesday, March 21, 2023

Pay Transparency & Non-Compete Laws

Wednesday, April 20, 2023

Managing Internal Investigations

Thursday, May 11, 2023

Hot Topics in Wage and Hour Law

Tuesday, June 20, 2023

Marijuana and Drug Testing

Tuesday, July 18, 2023

Privacy Issues in the Workplace

Wednesday, September 20, 2023

ADA Reasonable Accommodations

Wednesday, October 18, 2023

Artificial Intelligence in the Workplace

Tuesday, November 21, 2023

NLRB Issues and Joint Employer Update

Thursday, December 14, 2023

See below for the full schedule with program descriptions, dates, times and links to register for each webinar event.

Continue reading →

Whistleblower Retaliation Article Published in BLR’s HR Daily Advisor and Upcoming Webinar

Daniel C. Deacon Leave a comment

whistleblower-articleBLR recently published a two piece article in the HR Daily Advisor by Kara Maciel and Daniel Deacon, of Conn Maciel Carey’s national Labor & Employment Law Practice Group, regarding government agencies increased focus on whistleblowers and retaliation, and how employers can avoid whistleblower and retaliation complaints from their employees.

Over the past year, there have been significant changes in both the Equal Employment Opportunity Commission (“EEOC”) and Occupational Safety and Health Administration (“OSHA”) that make it easier for employees to demonstrate that an employer acted with retaliatory intent.  Given this increased focus on retaliation, it is prudent for employers to take steps to avoid whistleblower and retaliation complaints from their employees, and ensure that they have adequate workplace policies and complaint systems to address retaliation complaints before an employee complaint lands before the EEOC or OSHA.

Part 1 of the article, titled “Preventing Whistleblowers in the Workplace: EEOC Expands the Rights of Whistleblowers,” focuses on how the EEOC has modified the standard it uses to evaluate retaliation claims, and has become more aggressive in its whistleblower enforcement efforts. Continue reading →