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OSHA Affirms Whistleblower Protection For Non-Complainant Witnesses

On June 1, 2012, the Occupational Safety and Health Administration (OSHA) made it clear that the identities of non-complainant individuals who cooperate in the Whistleblower complaint process shall remain confidential. In a letter to the Vice President and General Counsel of the Burlington Northern Santa Fe Railroad, Charles W. Shewmake, David Michaels, Ph.D., Assistant Secretary for OSHA, indicated as follows:

“. . . the FRSA’s governing regulations explicitly state that “[i]nvestigations will be conducted in a manner that protects the confidentiality of any person who provides information on a confidential basis, other than the complainant” 29 C.F.R. 1982.104(d). Moreover, OSHA’s Whistleblower Investigations Manual (2011), available at, expressly provides for the confidentiality of non-management witness interviews and states that such interviews are to be conducted in private.”

More importantly, Dr. Michaels made it clear that non-complainant witnesses are covered by Whistleblower protection once they cooperate in an investigation. Regarding that protection, he stated in his letter as follows:

“We also wish to remind you that it is violation of the employee protections of FRSA to discharge, demote, suspend, reprimand, or in any other way retaliate against an employee who provides information to OSHA or otherwise assists OSHA in an investigation of a FRSA whistleblower complaint. OSHA takes allegations of such retaliation extremely seriously and will not tolerate retaliation against witnesses who cooperate in FRSA whistleblower protections.”

By Matt Darby

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