OSHA Publishes Interim Final Rule to Protect Antitrust Whistleblowers

On February 10th, 2023, the Occupational Safety and Health Administration (OSHA) published an interim final rule on handling retaliation complaints by antitrust whistleblowers under the Criminal Antitrust Anti-Retaliation Act (CAARA). Briefly, the rule establishes procedures and timeframes for handling such complaints and is effective immediately. As part of the Biden Administration’s Executive Order on Promoting Competition in the American Economy (E.O.), OSHA and other agencies continue to work to stop anti-competitive behavior by employers. Last month, the Federal Trade Commission (FTC) proposed a rule to ban employers from imposing non-compete clauses in employment contracts.

Antitrust Whistleblowers Under CAARA

Enacted in December 2020, CAARA protects antitrust whistleblowers who report criminal antitrust violations or engage in related protected activities. These protected activities include:

• reporting criminal antitrust violations;
• testifying, participating, or assisting in federal investigations;
• providing information about price fixing, bid rigging, or market allocation schemes; or
• releasing information about violations of laws related to criminal antitrust laws.

CAARA prohibits employers from retaliating against covered individuals engaged in any of the abovementioned activities. Retaliation can include any tangible adverse employment action like firing, demoting, denying benefits, reducing pay or hours, and reporting covered individuals to the police or immigration authorities. OSHA enforces whistleblower provisions for more than 20 statutes, including many federal employment laws affecting virtually all businesses.

Interim Final Rule Protecting Antitrust Whistleblowers

According to the interim final rule, OSHA, the U.S. Department of Labor (DOL) and the Department of Justice (DOJ) will collaborate to enforce CAARA. This joint enforcement effort will strengthen the protection of antitrust whistleblowers from retaliation for engaging in protected activities. Covered individuals may report criminal antitrust violations, or related violations, to a federal agency, supervisor, or any employee who has the authority to investigate such violations without retaliation. The interim final rule also defines a covered individual as “an employee, contractor, subcontractor, or agent of an employer.” Meanwhile, an employer is “a person, or any officer, employee, contractor, subcontractor, or agent of such person.” The interim final rule also establishes the procedures and time frames for addressing antitrust whistleblower retaliation complaints. Under the rule, covered individuals who have been retaliated against can file a complaint with their regional OSHA office. Individuals must file complaints within 180 days of the retaliation. However, the complaint requires no specific form and may be delivered either orally or written. Next, within 60 days of complaint receipt, OSHA will issue written notice whether there is reasonable cause to believe retaliation occurred. If OSHA finds reasonable cause, they will issue a preliminary order of relief. Complainants may then receive job reinstatement, back pay, and/or other monetary damages. OSHA will accept public comments on the final rule until April 23rd, 2023. Interested parties may submit their comments on the rule using Docket Number OSHA-2021-0011 at the Federal eRulemaking Portal.