Whistleblower Complaints Are Skyrocketing Due to COVID-19

Alerts / September 28, 2020

On May 15, 2020, BakerHostetler published an alert warning that the COVID-19 crisis would undoubtedly lead to a new wave of whistleblower complaints. The alert explained that “[a]s the pandemic continues, … companies may seek to suppress the public dissemination of information regarding employee safety and health issues, COVID-19 infections, outbreak responses, staffing reductions, and pay cuts,” which “would likely result in additional whistleblower filings.” As predicted, the filing of whistleblower complaints with the Occupational Safety and Health Administration (OSHA) has skyrocketed since the beginning of the pandemic.

The U.S. Department of Labor’s Office of Inspector General (OIG) recently published the results of an audit in which the OIG found that the COVID-19 pandemic has resulted in a 30 percent increase in the filing of whistleblower complaints. From February through May 2019, OSHA received roughly 3,150 whistleblower complaints. During that same period this year, OSHA received more than 4,100 complaints – an increase of more than 235 complaints per month on average. The increase in complaint filings is occurring nationwide. Indeed, complaint filings have increased in each of OSHA’s 10 regions.

In its report, the OIG also found that nearly 40 percent of the whistleblower complaints filed with OSHA from February through May 2020 were specifically related to the COVID-19 pandemic. In these more than 1,600 COVID-19-related whistleblower complaints, the whistleblowers claimed, for example, that they had raised concerns to their employers about violations of social distancing guidelines or personal protective equipment requirements and were retaliated against as a result.

According to the OIG’s report, the increased complaint filings, along with staffing shortages, are taking their toll on OSHA’s ability to timely screen new whistleblower complaints and investigate open cases. Due to the delays noted in the report, the OIG provided OSHA with three recommendations to improve its handling of whistleblower complaints: (1) hire additional investigators to fill vacant positions; (2) expand its implementation of a pilot program (currently applicable only to Section 11(c) whistleblower complaints) aimed at closing out complaints more quickly; and (3) create a “caseload management plan” to better spread out caseloads among its investigators. OSHA’s principal deputy assistant secretary has since stated that she agrees with each of the OIG’s recommendations and will make it a priority to strengthen OSHA’s whistleblower program.

The attorneys who comprise BakerHostetler’s Whistleblower and Corporate Compliance team and White Collar team have significant expertise in defending companies against whistleblower complaints filed with OSHA, the Securities and Exchange Commission, and many other federal and state governmental agencies. They also have helped numerous clients avoid liability in enforcement actions. BakerHostetler’s attorneys have successfully worked with potential whistleblowers to avoid additional investigation. Most important, however, BakerHostetler’s attorneys are especially adept at helping companies avoid potential whistleblower complaints by drafting and revising internal policies, providing management training, and offering timely advice and counseling.

Authorship Credit: Ryan Cates, Joe Devine and Lauren Lyster

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