The Occupational Safety and Health Administration (OSHA) will oversee worker retaliation claims for two new categories of whistleblowers—antitrust and anti-money laundering (AML).
The new antitrust and AML whistleblower programs were created under two laws passed by Congress last year: the Criminal Antitrust Anti-Retaliation Act and the Anti-Money Laundering Act, which was passed as part of the “National Defense Authorization Act for Fiscal Year 2021” (H.R.6395).
According to OSHA’s announcement Friday, the agency “will investigate individual whistleblower complaints of retaliation for reporting criminal antitrust violations to their superiors or the federal government; or for showing cause, testifying or participating in, or otherwise assisting an investigation or proceeding related to antitrust law violations.” The agency said the same regarding AML law violations.
OSHA is still expected to issue final rules, but in the meantime, the agency said it will process whistleblower complaints related to these statutes using procedures under the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century.
OSHA, a division of the Department of Labor, already oversees retaliation claims in a number of other whistleblower programs, including workplace safety and health, airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health insurance reform, motor vehicle safety, nuclear, pipeline, public transportation agency, railroad, maritime, securities, and tax.
Compliance takeaway: Whistleblower advocates have praised the creation of both laws but were critical that neither provides a minimum award percentage for whistleblowers on settlements worth more than $1 million. That incentive is crucial to encouraging whistleblowers to come forward, advocates say.
The antitrust law contains no provision for whistleblowers to be compensated. The AML law contains a provision that whistleblowers can receive up to 30 percent of settlements worth over $1 million but does not set a minimum percentage.
Other federal whistleblower programs do offer minimum awards, like those administered by the Securities and Exchange Commission, the Commodity Futures Trading Commission, and the Internal Revenue Service, or the system set up under the Department of Justice that offers payouts to whistleblowers who file federal lawsuits alleging violations of the Foreign Corrupt Practices Act (FCPA) and False Claims Act (FCA).
The IRS offers a whistleblower award of at least 15 percent on fines over $1 million, as does the DOJ for FCA settlements. The SEC, CFTC, and DOJ (in FCPA settlements) each offer at least 10 percent on fines over $1 million.