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, where he is Head of the Restrictive Covenants, Trade Secrets & Unfair Competition Group and Co-Head of the Whistleblowing & Retaliation Group.

Employment, Restrictive Covenant & Trade Secret, and Whistleblower…

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

Employment, Restrictive Covenant & Trade Secret, and Whistleblower Practice. Steven’s national practice focuses on defending companies in federal and state courts and in arbitration fora against the full spectrum of employment-related claims, including claims of executives; restrictive covenant violations; employee raiding; theft of trade secrets; whistleblower retaliation under the Sarbanes-Oxley Act, the Dodd-Frank Act and similar state laws; and wage-and-hour violations, including class, collective and PAGA actions.

Steven has successfully handled trials in multiple jurisdictions; prevailed in seeking and defending against applications for temporary restraining orders and preliminary injunctions; defended one of the largest Illinois-only class actions in the history of the federal courts in Illinois (over 90k putative class members); and prevailed following his oral arguments before federal and state appellate courts. He brings his litigation experience (beginning in 1998) to bear in counseling clients to minimize risk and avoid or prepare for success in litigation.

Investigations. Reporting to boards of directors, their audit committees, CEOs and in-house counsel, Steven conducts sensitive investigations and has the unusual experience of testifying in federal court in connection with investigations. 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.

Thought Leadership and Accolades. Steven was named 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 has reported:

  • Steven is “one of the best in the country and has a lot of experience”;
  • Steven is as an “outstanding lawyer” who is “very sharp and very responsive,” a “strong advocate,” and an “expert in his field”;
  • He is thoughtful, attentive and demonstrates an acute understanding of matters top of mind for business-minded general counsel; and
  • “He is someone who can navigate the twists and turns of litigation without difficulty.”

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 U.S. Library of Congress Burton Award Winner for “Distinguished Legal Writing.”

Steven was appointed to Law360’s Employment Editorial Advisory Board and selected as a Contributor to Forbes.com. He has appeared on Bloomberg News (television and radio) and Yahoo! Finance, and is often 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.

In 2024, Steven received the Excellence in Pro Bono Service Award from the United States District Court for the Northern District of Illinois and the Chicago Chapter of the Federal Bar Association.

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