OSHA has now issued its final regulations (29 CFR Part 1986) governing the employee protection (whistleblower) provisions of the Seaman’s Protection Act (SPA or the Act), as amended by section 611 of the Coast Guard Authorization Act of 2010. This final rule is effective on September 15, 2016.
By way of background, Congress passed SPA in response to Donovan v. Texaco, 720 F.2d 825 (5th Cir. 1983), in which the Fifth Circuit held that the whistleblower provision of the Occupational Safety and Health Act did not cover a seaman who had been demoted and/or discharged from his position because he reported a possible safety violation to the U.S. Coast Guard.
OSHA is promulgating this final regulation (29 CFR Part 1986) to establish procedures for the handling of whistleblower protection complaints under SPA and to address certain interpretative issues raised by the statute. Section 31105 of title 49 is the whistleblower protection provision of the Surface Transportation Assistance Act (STAA).
Filing of SPA Complaints
A seaman, or another person at the seaman’s request, alleging a violation of SPA, may file a complaint with the Secretary (Department of Labor) no later than 180 days after the alleged retaliation.
Legal Burdens of Proof for SPA Complaints
A violation may be found only if the complainant demonstrates that protected activity was a contributing factor in the adverse action described in the complaint. Relief is unavailable if the employer demonstrates by clear and convincing evidence that it would have taken the same adverse action in the absence of the protected activity.
Written Notice of Complaint and Findings
Upon receipt of the complaint, the Secretary must provide written notice of the filing of the complaint to the person or persons alleged in the complaint to have violated the Act (respondent). Within 60 days of receipt of the complaint, the Secretary must conduct an investigation of the allegations, decide whether it is reasonable to believe the complaint has merit, and provide written notification to the complainant and the respondent of the investigative findings.
If the Secretary decides it is reasonable to believe a violation occurred, the Secretary shall include with the findings a preliminary order for the relief provided for under 49 U.S.C. 31105(b)(3). This order shall require the respondent to take affirmative action to abate the violation; reinstate the complainant to the former position with the same pay and terms and privileges of employment; and pay compensatory damages, including back pay with interest and compensation for any special damages sustained as a result of the discrimination, including litigation costs, expert witness fees, and reasonable attorney fees. Additionally, if the Secretary issues a preliminary order and the complainant so requests, the Secretary may assess against the respondent the costs, including attorney fees, reasonably incurred by the complainant in bringing the complaint. Punitive damages of up to $250,000.00 are also available.
49 U.S.C. 31105(b) specifically provides that the complainant and the respondent have 30 days after the date of the Secretary’s notification in which to file objections to the findings and/or preliminary order and request a hearing. The filing of objections does not stay a reinstatement ordered in the preliminary order. If a hearing is not requested within 30 days, the preliminary order becomes final and is not subject to judicial review. If a hearing is held, it is to be conducted expeditiously. The Secretary shall issue a final order within 120 days after the conclusion of any hearing. The final order may provide appropriate relief or deny the complaint. Until the Secretary’s final order is issued, the Secretary, the complainant, and the respondent may enter into a settlement agreement that terminates the proceeding.
De Novo Review
The regulation provides for de novo review of a whistleblower claim by a United States district court in the event that the Secretary has not issued a final decision within 210 days after the filing of a complaint and the delay is not due to the complainant’s bad faith. 49 U.S.C. 31105(c). The provision states that the court will have jurisdiction over the action without regard to the amount in controversy and that the case will be tried before a jury at the request of either party.
Within 60 days of the issuance of the Secretary’s final order following a hearing, any person adversely affected or aggrieved by the Secretary’s final order may file an appeal with the United States Court of Appeals for the circuit in which the violation occurred or the circuit where the complainant resided on the date of the violation. 49 U.S.C. 31105(d).
Civil Actions To Enforce
The regulation provides that if a person fails to comply with an order issued by the Secretary under 49 U.S.C. 31105(b) the Secretary of Labor, ‘‘shall bring a civil action to enforce the order in the district court of the United States for the judicial district in which the violation occurred.’’ 49 U.S.C. 31105(e).
The regulation clarifies that nothing in the statute preempts or diminishes any other safeguards against discrimination provided by Federal or State law. 49 U.S.C. 31105(f).
STAA states that nothing in STAA shall be deemed to diminish the rights, privileges, or remedies of any employee under any Federal or State law or under any collective bargaining agreement. 49 U.S.C. 31105(g). It further states that rights and remedies under 49 U.S.C. 31105, ‘‘may not be waived by any agreement, policy, form, or condition of employment.’’
Note the Broad Definition of Seaman Under These Regulations
The final rule adopts the broader definition of ‘‘seaman’’ as clarified in the legislative history of SPA. The regulation incorporates the language of the Senate report to define ‘‘seaman’’ insofar as the term includes, ‘‘any individual engaged or employed in any capacity on board’’ certain types of vessels. As indicated in the report, and consistent with the remedial purposes of whistleblower protection statutes like SPA, OSHA intends that the regulatory language be construed broadly. Workers who are seamen for purposes of the Jones Act or general maritime law, see, e.g., Chandris, Inc. v. Latsis, 515 U.S. 347, 355 (1995), are covered by the definition, as are land-based workers, if they are, ‘‘engaged or employed . . . on board a vessel’’ for some part of their duties. H. Rep. No. 111–303, pt. 1, at 119 (2009) (noting that SPA extends protections to ‘‘maritime workers’’). Finally, there is an additional sentence indicating that former seamen and applicants are included in the definition.
Section 1986.102 Obligations and Prohibited Acts
This section describes the activities that are protected under SPA and the conduct that is prohibited in response to any protected activities. These protected activities are set out in the statute. Consistent with OSHA’s interpretation of other anti-retaliation provisions, the prohibited conduct includes any form of retaliation, including, but not limited to: discharging, demoting, suspending, harassing, intimidating, threatening, restraining, coercing, blacklisting, or disciplining a seaman. OSHA will interpret each of the seven types of protected activity listed in the Act broadly.
The statute first prohibits retaliation because, ‘‘the seaman in good faith has reported or is about to report to the Coast Guard or other appropriate Federal agency or department that the seaman believes that a violation of a maritime safety law or regulation prescribed under that law or regulation has occurred.’’
The Act also protects the seaman against discrimination when, ‘‘the seaman has refused to perform duties ordered by the seaman’s employer because the seaman has a reasonable apprehension or expectation that performing such duties would result in serious injury to the seaman, other seamen, or the public.’’ 46 U.S.C. 2114(a)(1)(B). To qualify for this protection, the seaman, ‘‘must have sought from the employer, and been unable to obtain, correction of the unsafe condition.”