OSHA’s Expanding Horizons: Whistleblower Protections For Money Laundering And Criminal Antitrust Violations

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At this point, most employers probably know that the Occupational Safety and Health Administration (“OSHA”) is charged with investigating far more than workplace safety. Indeed, OSHA has a robust Whistleblower Protection Program that oversees worker retaliation complaints pursuant to over 20 different federal whistleblower laws. Publicly traded companies will be familiar with OSHA’s authority to investigate employee whistleblower complaints under the Sarbanes-Oxley Act (“SOX”). But that list of whistleblower statutes seems to get longer with each new administration!

On February 19, 2021, the Department of Labor tasked OSHA with the investigation of whistleblower complaints under two new statutes of which employers should be aware — the Criminal Antitrust Anti-Retaliation Act of 2019 (“CAARA”) and the Anti-Money Laundering Act of 2020 (“AML Act”).

CAARA was signed into law by former President Trump in December 2020. It prohibits retaliation against a covered individual for providing information related to criminal antitrust law violations to the federal government or to their supervisors (or for assisting in a federal investigation or proceeding related to criminal antitrust law violations). The particular conduct subject to criminal antitrust prosecution under the Sherman Act, and thus the only violations that might involve whistleblower protection under CAARA, are bid-rigging, price-fixing, market or customer allocation agreements, conspiracies to restrain supply or competition, and agreements to set employee wages or allocate employees (so-called “no-poach” agreements). CAARA specifically prohibits retaliation “in the terms and conditions of employment” of the following “covered individual[s]”: “employee[s], contractor[s], subcontractor[s], or agent[s] of an employer.” Protection under the statute is not available if the whistleblower “planned or initiated” the reported misconduct. The AML Act was signed into law over former President Trump’s veto in January 2021. A lengthy statute (likely to be further interpreted by federal regulations), the goal of the AML Act is apparently to expand upon the mechanisms available to the federal government to fight money laundering and prevent terrorist financing. To that end, the AML Act expands the preexisting whistleblower and informant provisions of the Bank Secrecy Act of 1970 to extend protection to whistleblowers from their employers if they provide information to their employer or to the federal government regarding certain money laundering-related violations (or assist the Departments of Justice or Treasury in investigations or actions). Employers are prohibited from discriminating against whistleblowers in the terms and conditions of their employment or post-employment.

Similar to SOX, individuals may initiate claims under either statute by filing a complaint with OSHA. Employers should consider these statutes in conducting supervisory training and whether a review of existing employee policies or agreements is warranted in light thereof.

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