oshaOn May 21, 2015, OSHA—which has responsibility for investigating and enforcement under 22 whistleblower retaliation statutes—released an updated edition of its Whistleblower Investigations Manual (the Manual), the first such update since September 2011.  The new edition provides additional guidance to investigators on a variety of issues, with the majority of changes related to potentially available damages and settlement agreements.

Among the key changes are the following:

Punitive Damages:  The Manual provides additional detail regarding when punitive damages should be awarded.  Additionally, the Manual discusses the effect of an employer’s good faith on such a potential award of punitive damages, including a statement that “[p]unitive damages may not be appropriate if the [employer] has a clear-cut policy against retaliation which was used to mitigate the retaliatory act.”

Training for Employees or Managers In Connection With Settlement:  For the first time, investigators are instructed to consider whether—as part of the settlement of a whistleblower claim—a respondent/employer should be required to provide whistleblower training to current employees and/or managers.

Front Pay:  Investigators should consider whether a former employee should be given front pay rather than being reinstated, particularly when reinstatement could result in “debilitating anxiety” or other risks to the complainant’s mental health.

Emotional Distress Damages:  Two full pages of the Manual address emotional distress damages (expanded from one paragraph in the earlier version) including that such damages may be available when the complainant can demonstrate objective manifestations of distress and a causal connection between the retaliation and distress.  (Here is our post on the Fourth Circuit’s recent decision that emotional distress damages are available under SOX.)

Additionally, the Manual includes references to newer whistleblower laws that were not in place at the time of the previous edition, including the Moving Ahead for Progress in the 21st Century Act (MAP-21), which relates to individuals who report automobile defects.

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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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