Key Takeaways:

• OSHA has proposed an interim rule that establishes procedures for handling retaliation complaints under the Criminal Antitrust Anti-Retaliation Act.
• Under the rule, employees and contractors are protected from retaliation for providing information regarding violations of federal antitrust and related criminal laws or participating or assisting in an investigation or proceeding relating to such violations.
• OSHA is accepting comments on the new interim rule until April 11, 2023.

The Occupational Safety and Health Administration (“OSHA”) of the U.S. Department of Labor has released a new rule that will give antitrust whistleblowers added protection against retaliation. The new rule establishes procedures and timeframes for workers to file retaliation complaints under the Criminal Antitrust Anti-Retaliation Act (“CAARA”). CAARA, enacted in December 2020, prohibits employers from retaliating against their employees, contractors, or agents for reporting violations of Sherman Antitrust Act ("Sherman Act") or violations of other criminal laws committed in conjunction with the Sherman Act violations. The new interim rule will enforce the whistleblower provisions of CAARA.

The interim final rule prohibits employers from retaliating against covered individuals for providing information to the Federal Government, to supervisors, or to any employee who has authority to investigate misconduct regarding a violation of the antitrust laws or another criminal law committed in conjunction with a potential violation of the antitrust laws. It also prohibits employers from retaliating against covered individuals that participate in or assist in a Federal Government investigation or proceeding relating to a violation of the antitrust laws, or any act the covered individual reasonably believes to be a violation of the antitrust laws, or another criminal law committed in conjunction with a potential violation of the antitrust laws. The interim rule defines “covered individuals” to include employees, contractors, subcontractors, or agents of an employer.

Under the new rule, covered individuals who believe they have been discharged or otherwise retaliated against by an employer in violation of CAARA can file, or have filed on their behalf, a complaint with their regional OSHA office. The complaint must be filed within 180 days of the alleged retaliatory conduct. There is no particular form required for the complaint – it may be filed orally or in writing.

Within 60 days of the complaint being filed with OSHA, OSHA will issue written findings as to whether there is reasonable cause to believe that the employer retaliated against the complainant and, if reasonable cause is found, issue a preliminary order providing relief to the complainant. Relief can include reinstatement without loss of the employee’s seniority status; back pay with interest; and compensation for any special damages sustained from the retaliation -- including litigation costs, expert witness fees, and reasonable attorney fees. If OSHA does not issue a final decision within 180 days of the complaint being filed and there is no showing that the complainant has caused a delay in bad faith, the complainant may bring an action in the U.S. district court that has jurisdiction over the action.

In light of the new rule, and the Biden administration’s stated intention to increase enforcement of antitrust violations, employers should review their internal reporting procedures to ensure that employees have a mechanism to report possible antitrust violations internally. Further, employers should be sure that supervisory employees are adequately trained on how to address protected employee complaints to avoid potential claims of retaliation in violation of CAARA.

OSHA is accepting comments on the new interim rule until April 11, 2023. We continue to monitor the implementation of the new rule.