Key points
- Under the federal Occupational Safety and Health Act, an employee who believes they were punished for a safety complaint has 30 days after the violation to file a complaint with the Secretary of Labor.[1]
- A Sarbanes-Oxley retaliation complaint is filed with the Secretary of Labor within 180 days after the violation or after the employee became aware of it.[2]
- The federal False Claims Act allows a retaliation suit in federal district court, brought no more than 3 years after the retaliation, with relief that includes reinstatement and 2 times the amount of back pay.[3]
- Dodd-Frank's anti-retaliation provision does not extend to a person who has not reported a securities-law violation to the SEC, the U.S. Supreme Court held in Digital Realty Trust v. Somers.[4]
- Under OSHA's regulation, filing with another agency or pursuing a grievance does not justify tolling the 30-day period for a safety retaliation complaint.[5]
Several federal laws protect workers who report safety hazards, fraud on the government, or securities fraud, and each has its own agency, time limit and remedies. The shortest time limit on this page is 30 days, for a safety retaliation complaint under the Occupational Safety and Health Act.[1] Others are measured in months or years: 180 days under Sarbanes-Oxley and 3 years under the federal False Claims Act.[2][3] This page sets the laws side by side and links to the New York State laws that can cover the same events.
These statutes are separate from the anti-discrimination laws. Retaliation for complaining about discrimination or harassment is covered in what workplace retaliation is in New York.
The federal whistleblower laws at a glance
| Law | What is protected | Where the claim goes | Time limit | Relief named in the statute |
|---|---|---|---|---|
| Occupational Safety and Health Act § 11(c) (federal) | Filing a safety complaint, starting or testifying in a proceeding under the Act, or exercising rights under the Act.[1] | A complaint to the Secretary of Labor, handled by OSHA.[1] | 30 days after the violation occurs.[1] | If the Secretary finds a violation, the Secretary sues in federal district court, which may order relief including reinstatement with back pay.[1] |
| Sarbanes-Oxley Act, 18 U.S.C. § 1514A (federal) | Providing information about conduct the employee reasonably believes is mail, wire, bank or securities fraud, a violation of SEC rules, or a violation of federal law on fraud against shareholders.[2] | A complaint to the Secretary of Labor; federal district court if there is no final decision within 180 days of filing.[2] | 180 days after the violation or after the employee became aware of it.[2] | Reinstatement, back pay with interest, and special damages including litigation costs, expert witness fees and attorney fees.[2] |
| Dodd-Frank Act, 15 U.S.C. § 78u-6(h) (federal) | Lawful acts by a "whistleblower" in providing information to the SEC, assisting an SEC investigation or action, or making certain disclosures required or protected by law.[6] | A suit filed directly in federal district court.[6] | The action may not be brought more than 6 years after the violation, or more than 3 years after the material facts were or reasonably should have been known, and never more than 10 years after the violation.[4] | Reinstatement, 2 times the amount of back pay otherwise owed with interest, and fees.[4] |
| False Claims Act, 31 U.S.C. § 3730(h) (federal) | Lawful acts in furtherance of a False Claims Act action or other efforts to stop a violation of the Act.[7] | A civil action in federal district court.[7] | 3 years after the retaliation occurred.[3] | Reinstatement with seniority, 2 times the amount of back pay, interest on the back pay, and special damages including litigation costs and reasonable attorneys' fees.[3] |
One New York State law addresses the same subject as the federal False Claims Act. The New York False Claims Act, State Finance Law § 191, protects a current or former employee, contractor or agent who is retaliated against because of lawful acts in furtherance of an action under that Act or other efforts to stop a violation of it.[8] Its relief includes reinstatement, two times back pay plus interest, and special damages including litigation costs and reasonable attorneys' fees, and the action is brought in State Supreme Court.[8] Section 191 itself states no filing period for the retaliation action.
Safety complaints: OSHA § 11(c)
Section 11(c) of the federal Occupational Safety and Health Act says no person may discharge or discriminate against an employee because the employee filed a complaint, started or testified in a proceeding under the Act, or exercised a right the Act affords.[1] An employee who believes this happened may file a complaint with the Secretary of Labor within 30 days after the violation occurs.[1]
If, after investigation, the Secretary determines the provision was violated, the Secretary brings an action in federal district court, and the Secretary is to notify the complainant of the determination within 90 days.[1]
How a complaint is filed
Under the Department of Labor's regulation, a § 11(c) complaint may be filed by the employee or by an authorized representative, and no particular form of complaint is required.[5] OSHA states that a whistleblower complaint may be filed online, by fax, mail or email, by telephone, or in person, and that it accepts complaints in any language.[9] OSHA's instructions are on its How to File a Whistleblower Complaint page.[9]
OSHA also states that a whistleblower complaint cannot be filed anonymously, and that if it proceeds with an investigation it notifies the employer of the complaint.[9]
The 30 days, and what does not extend them
Not every OSHA whistleblower complaint has the same time limit. OSHA administers more than 20 whistleblower statutes with varying time limits, and it lists § 11(c) under 30 days and Sarbanes-Oxley under 180 days.[9] OSHA states that the time begins when the adverse action, such as a firing, occurs and is communicated to the employee.[9]
Under the federal regulation, complaints not filed within 30 days of an alleged violation will ordinarily be presumed untimely.[5] The regulation allows for tolling on recognized equitable principles or in strongly extenuating circumstances, for example where the employer concealed or misled the employee about the grounds for the action.[5] It also says that a pending grievance or arbitration, or a filing with another agency, does not justify tolling the 30-day period.[5]
Public employees in New York are covered by a State provision. Under New York State Labor Law § 27-a(10), a public employee who believes they were disciplined or discriminated against for a safety and health complaint may file a complaint with the State Labor Commissioner within thirty days after the violation.[10]
Fraud on the government: the False Claims Acts
The federal False Claims Act protects any employee, contractor or agent who is discharged, demoted, suspended, threatened, harassed or otherwise discriminated against in the terms and conditions of employment because of lawful acts done in furtherance of an action under the Act or other efforts to stop one or more violations of it.[7] The protected acts may be those of the employee, contractor or agent "or associated others."[7]
The federal statute provides that the retaliation action may be brought in the appropriate federal district court.[7] The action may not be brought more than 3 years after the date the retaliation occurred.[3] The New York State statute, State Finance Law § 191, names harm by a prospective employer as well as by an employer.[8]
Securities and shareholder fraud: Sarbanes-Oxley and Dodd-Frank
These two federal laws overlap but work differently.
| Sarbanes-Oxley (federal) | Dodd-Frank (federal) | |
|---|---|---|
| Who is covered | Employees of publicly traded companies and of their subsidiaries, contractors, subcontractors and agents.[2] | A "whistleblower," defined as an individual who provides information relating to a securities-law violation to the SEC.[4] |
| Is an internal report enough? | The statute protects providing information to a person with supervisory authority over the employee, as well as to a federal agency or Congress.[2] | No. The provision does not extend to an individual who has not reported a securities-law violation to the SEC.[4] |
| First step | A complaint to the Secretary of Labor within 180 days.[2] | A suit directly in federal district court.[6] |
| Back pay | The amount of back pay, with interest.[2] | 2 times the amount of back pay otherwise owed, with interest.[4] |
A party to a Sarbanes-Oxley action in federal district court is entitled to a jury trial.[2] Sarbanes-Oxley also limits what an employer can do by contract. The rights and remedies of the section may not be waived by any agreement, policy form or condition of employment, including a predispute arbitration agreement, and no predispute arbitration agreement is valid or enforceable if it requires arbitration of a dispute arising under the section.[11] For arbitration generally, see arbitration agreements in New York employment.
How New York State's whistleblower laws fit in
New York State Labor Law § 740 protects an employee who discloses or threatens to disclose, to a supervisor or a public body, a practice the employee reasonably believes violates a law, rule or regulation or poses a substantial and specific danger to public health or safety.[12] "Law, rule or regulation" in § 740 includes any duly enacted federal, state or local statute.[13]
Section 740 applies to any employer with one or more employees, and its civil action is to be started within two years after the alleged retaliatory action.[14][15] It states that nothing in it diminishes an employee's rights under any other law.[16] Sarbanes-Oxley, a federal law, states that nothing in its whistleblower section diminishes an employee's rights under any federal or State law or collective bargaining agreement.[11]
The State guides go deeper:
- New York's whistleblower law, Labor Law § 740
- health care whistleblowers under Labor Law § 741
- public employee whistleblowers under Civil Service Law § 75-b
- retaliation for wage complaints under Labor Law § 215
- talking about pay and working conditions with coworkers, which covers the National Labor Relations Act and its six-month charge period[17]
Two more things people get wrong
- "Dodd-Frank protects anyone who reports securities fraud to a boss." The Supreme Court held that it does not extend to a person who has not reported to the SEC.[4]
- "Filing with one agency protects my other claims." For a § 11(c) complaint, the federal regulation says a filing with another agency does not justify tolling the 30-day period.[5]
Practical notes
- Write down the date you made the report, to whom, and what you said, and then the date of each thing that happened afterward. The time limits on this page range from 30 days to several years, so the dates decide which routes are still open.[1][4]
- Note what kind of problem you reported: a safety hazard, a false bill to a government program, or misleading financial information. The subject of the report is what points to one law or another.
- Employers and compliance staff: record the business reason for a personnel decision at the time it is made.
For every retaliation time limit in one place, see retaliation deadlines compared.
Common questions
How long do I have to file an OSHA retaliation complaint?
Under federal law, 30 days after the violation occurs for a complaint under section 11(c) of the Occupational Safety and Health Act.[1] OSHA states that the time for filing begins when the adverse action occurs and is communicated to the employee.[9] Under the Department of Labor's regulation, complaints not filed within 30 days will ordinarily be presumed untimely.[5] The 180-day period people sometimes quote belongs to other statutes OSHA administers, such as Sarbanes-Oxley.[9]
Does Dodd-Frank protect me if I only reported the problem inside my company?
Not under Dodd-Frank. The Supreme Court held that Dodd-Frank's anti-retaliation provision does not extend to an individual who has not reported a securities-law violation to the SEC.[4] Sarbanes-Oxley is worded differently: it protects providing information to a person with supervisory authority over the employee, as well as to a federal agency or Congress.[2]
Do I file a False Claims Act retaliation claim with an agency first?
The federal False Claims Act's retaliation subsection provides for a civil action in the appropriate federal district court, and says that action may not be brought more than 3 years after the date the retaliation occurred.[7][3] New York State has its own False Claims Act, State Finance Law § 191, with a retaliation action brought in State Supreme Court.[8]
Can I file an OSHA whistleblower complaint anonymously?
No. OSHA states that a whistleblower complaint filed with it cannot be filed anonymously, and that if it proceeds with an investigation it will notify the employer of the complaint and give the employer an opportunity to respond.[9] That is a statement about retaliation complaints under the federal whistleblower laws OSHA administers.[9]
Can New York State's whistleblower law apply to the same events as a federal law?
New York State Labor Law § 740 protects an employee who discloses an employer practice the employee reasonably believes violates a law, rule or regulation, and it defines that phrase to include federal statutes.[12][13] Section 740 says nothing in it diminishes an employee's rights under any other law, and a § 740 action is to be started within two years after the retaliatory action.[16][15]
Sources
- 29 U.S.C. § 660(c)(1)–(3) — Legal Information Institute, Cornell Law School
- 18 U.S.C. § 1514A(a), (b)(1), (b)(2)(D)–(E), (c) — Legal Information Institute, Cornell Law School
- 31 U.S.C. § 3730(h)(1)–(3) — Legal Information Institute, Cornell Law School
- Digital Realty Trust, Inc. v. Somers, 583 U.S. 149 (2018); 15 U.S.C. § 78u-6(a)(6), (h)(1)(B)(iii), (h)(1)(C) — Legal Information Institute, Cornell Law School
- 29 C.F.R. § 1977.15(a), (b), (d) — Legal Information Institute, Cornell Law School
- 15 U.S.C. § 78u-6(h)(1)(A), (B)(i) — Legal Information Institute, Cornell Law School
- 31 U.S.C. § 3730(h)(1)–(2) — Legal Information Institute, Cornell Law School
- N.Y. State Fin. Law § 191(1), (3) — New York State Senate, Laws of New York
- OSHA, Whistleblower Protection Program, "How to File a Whistleblower Complaint" — whistleblowers.gov
- N.Y. Lab. Law § 27-a(10)(a)–(c) — New York State Senate, Laws of New York
- 18 U.S.C. § 1514A(d), (e) — Legal Information Institute, Cornell Law School
- N.Y. Lab. Law § 740(2)(a) — New York State Senate, Laws of New York
- N.Y. Lab. Law § 740(1)(c)–(d) — New York State Senate, Laws of New York
- N.Y. Lab. Law § 740(1)(b) — New York State Senate, Laws of New York
- N.Y. Lab. Law § 740(4)(a) — New York State Senate, Laws of New York
- N.Y. Lab. Law § 740(7) — New York State Senate, Laws of New York
- 29 U.S.C. § 160(b) — Legal Information Institute, Cornell Law School