OSHA recently released statistics (aggregated by BNA) showing dramatic increases in both the number of whistleblower cases filed with OSHA last year as well as the number of OSHA determinations.  The number of whistleblower cases submitted to OSHA in fiscal year 2012 was 2,787 – up 5% from 2011 –  and that the number of complaint determinations made by OSHA increased by 42%.  Of those determinations, 21% resulted in settlements that the DOL approved or reviewed, and 2% resulted in a finding or preliminary order by the Assistant Secretary of Labor for Occupational Safety and Health.  We also have seen daunting reinstatement orders – the impact of which may in some cases dwarf the impact of monetary awards.  Query whether the newly formed OSHA Whistleblower Protection Advisory Committee (discussed in our recent post) will develop an effective triage process and other procedures to facilitate more rapid resolutions of whistleblower claims filed with OSHA. 

Stats Regarding SOX Whistleblower Claims and Claims Under Dodd-Frank’s Consumer Financial Products Or Services Whistleblower Provision: 

  • The number of SOX whistleblower claims filed with OSHA in 2012 (164 claims) increased by approximately 20% from 2011.  OSHA determined that only 2 of those complaints were meritorious. 
  • In 2012, OSHA received 13 complaints under Section 1057 of Dodd-Frank, which creates a cause of action for whistleblowers who perform tasks related to the offering or provision of consumer financial products or services.  OSHA has received only 18 complaints under Section 1057 since Dodd-Frank’s enactment in 2010.  Of the 13 complaints filed with OSHA in 2012, none were found to have merit.

Why The Uptick?  It’s no secret that we’re in the “age of the whistleblower,” and we expect 2013 to be a transformative year now that cases are percolating under a range of recent whistleblower legislation.  The increase in complaints can be attributed to a confluence of factors, including:  new whistleblower protections under myriad statutes; the efforts the SEC Office of the Whistleblower has made to educate the public about the Dodd-Frank whistleblower bounty provision; efforts the plaintiffs’ bar has made to seek out new cases; the likelihood that substantial bounties will be issued soon and the fact that the first bounty was recently issued; and sweeping employee-friendly interpretations of Section 806 of SOX by the Administrative Review Board.

What Should Employers Do?  Our recent posts provide employers with effective methods of paring the risks of employee whistleblower claims and heightening the likelihood that complaints will be lodged internally.  Proskauer’s Top 10 Ways To Minimize Whistleblower Risks quickly has become a favorite among employers who appreciate the sensitivity of the risks whistleblower claims present.

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Photo of Steven J. Pearlman Steven J. Pearlman

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular…

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular focus on defending companies against claims of employment discrimination, retaliation and harassment; whistleblower retaliation; restrictive covenant violations; theft of trade secrets; and wage-and-hour violations. He has successfully tried cases in multiple jurisdictions, and defended one of the largest Illinois-only class actions in the history of the U.S. District Court for the Northern District of Illinois. He also secured one of only a few ex parte seizures orders that have been issued under the Defend Trade Secrets Act, and obtained a world-wide injunction in federal litigation against a high-level executive who jumped ship to a competitor.

Reporting to boards of directors, their audit committees, CEOs and in-house counsel, Steven conducts sensitive investigations and has testified in federal court. His investigations have involved complaints of sexual harassment involving C-suite officers; systemic violations of employment laws and company policies; and fraud, compliance failures and unethical conduct.

Steven was recognized as Lawyer of the Year for Chicago Labor & Employment Litigation in the 2023 edition of The Best Lawyers in America. He is a Fellow of the College of Labor and Employment Lawyers.  Chambers describes Steven as an “outstanding lawyer” who is “very sharp and very responsive,” a “strong advocate,” and an “expert in his field.” Steven was 1 of 12 individuals selected by Compliance Week as a “Top Mind.” Earlier in his career, he was 1 of 5 U.S. lawyers selected by Law360 as a “Rising Star Under 40” in the area of employment law and 1 of “40 Illinois Attorneys Under Forty to Watch” selected by Law Bulletin Publishing Company. Steven is a Burton Award Winner (U.S. Library of Congress) for “Distinguished Legal Writing.”

Steven has served on Law360’s Employment Editorial Advisory Board and is a Contributor to Forbes.com. He has appeared on Bloomberg News (television and radio) and Yahoo! Finance, and is regularly quoted in leading publications such as The Wall Street Journal.

The U.S. Chamber of Commerce has engaged Steven to serve as lead counsel on amicus briefs to the U.S. Supreme Court and federal circuit courts of appeal. He was appointed to serve as a Special Assistant Attorney General for the State of Illinois in employment litigation matters. He has presented with the Solicitor of the DOL, the Acting Chair of the EEOC, an EEOC Commissioner, Legal Counsel to the EEOC and heads of the SEC, CFTC and OSHA whistleblower programs. He is also a member of the Sedona Conference, focusing on trade secret matters.

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Photo of Lloyd B. Chinn Lloyd B. Chinn

Lloyd B. Chinn is a partner in the Labor & Employment Law Department and co-head of the Whistleblowing & Retaliation Group. He litigates employment disputes of all types before federal and state courts, arbitration tribunals (e.g., FINRA, JAMS and AAA), and before administrative…

Lloyd B. Chinn is a partner in the Labor & Employment Law Department and co-head of the Whistleblowing & Retaliation Group. He litigates employment disputes of all types before federal and state courts, arbitration tribunals (e.g., FINRA, JAMS and AAA), and before administrative agencies in New York and across the country. Lloyd’s practice ranges from litigating compensation disputes to defending whistleblower, discrimination and sexual harassment claims. Although he represents employers in a wide range of industries, including law, insurance, health care, consulting, media, education and technology, he focuses a substantial portion of his practice on the financial services sector. He has tried to final verdict or arbitration award substantial disputes in this area.

Due to Lloyd’s litigation experience, clients regularly turn to him for advice regarding the full range of employment matters, including terminations, whistleblower policy and procedure, reductions in force, employment agreements, and employment policies. For example, in the wake of the financial crisis, he has counseled a number of firms through reductions in force and related bonus and deferred compensation disputes. Lloyd has also been retained to conduct internal investigations of allegations of workplace misconduct, including claims leveled against senior executives.

Lloyd has represented global businesses in matters involving Sarbanes-Oxley and Dodd-Frank whistleblower claims. He has taken an active role in the American Bar Association on these issues, currently serving as Co-Chair of the Whistleblower subcommittee of the ABA Employee Rights and Responsibilities Committee. Lloyd has spoken on whistleblowing topics before a numerous organizations, including the American Bar Association, ALI-ABA, Association of the Bar of the City of New York, and New York University School of Law. He has testified twice before Congressional subcommittees regarding whistleblower legislation and has also published blog postings, articles and client alerts on a variety of topics in this area, including the Dodd-Frank Act’s whistleblower provisions. Lloyd is a co-editor of Proskauer’s Whistleblower Defense Blog, and he has been widely quoted by on whistleblower topics by a number of publications, including the New York Times, the Wall Street Journal, the National Law Journal and Law 360.

Lloyd has also become active in the International Bar Association, presenting on a variety of subjects, including: the #MeToo movement, the COVID-19 pandemic and employment law, and cross-border harmonization of employment provisions in transactions. Lloyd also hosts a quarterly roundtable discussion among financial services industry in-house employment lawyers. He has also published articles and given speeches on a variety of other employment-law topics, including non-solicitation provisions, FINRA arbitration rules, cross-border discovery, e-discovery, and the use of experts.

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