Whistling Up a Storm: OSHA Finalizes Whistleblower Protection Rules for Seamen
OSHA recently finalized its rules for whistleblower protection complaints under the Seaman’s Protection Act (“the Act”). The Act, which was amended in 2010 in response to court cases holding that OSHA regulations did not generally apply to seamen on vessels,1 expands OSHA’s anti-retaliation jurisdiction to nearly all ocean-going employees.
The Act protects seamen from retaliation for a variety of activities, including providing information about a maritime safety violation to the Coast Guard or other appropriate agency; testifying in a maritime safety proceeding; notifying (or attempting to notify) the vessel owner or the Coast Guard about a work-related injury or illness; cooperating in a safety investigation; and accurately reporting hours of duty. The Act also protects a seaman who refuses to perform duties that he or she reasonably believes would result in serious injury, although the seaman must first ask his or her employer to correct the unsafe situation.
OSHA’s new regulations, which went into effect on September 15, 2016, construe the Act broadly. OSHA interprets the word “seaman” to mean any person employed in any capacity on board a ship owned by a U.S. citizen or flagged as a U.S. vessel. This includes vessels owned by corporations with majority U.S. ownership. OSHA defines “vessel” as including “every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.” This definition is broad enough to encompass drillships and potentially even jackup rigs working offshore in the Gulf of Mexico.
Like other anti-retaliation laws, “retaliation” is expansive and includes firing, demoting, denying promotion, disciplining, and reducing pay or hours. The potential liabilities for employers include back pay, attorney’s fees, and punitive damages up to $250,000. The employer’s defenses are the same as with other anti-retaliation laws; for example, showing that no protected activity occurred or that the employer would have taken the same adverse action anyway.
There is one important limitation to the Act, which OSHA acknowledges — unlike many other whistleblower laws, not all internal complaints by seamen to their superiors are protected, only reports to “the vessel owner.” However, OSHA will probably try to find other ways to protect complaints. For example, if an employee makes a safety complaint to a supervisor who is not the “vessel owner” and states that “I will contact the authorities if this is not fixed,” OSHA would view this as an employee “about to report” a violation to the government, which is protected under the Act.
Procedurally, the rule requires a seaman who believes he or she has been retaliated against to file a complaint with OSHA within 180 days of the alleged retaliatory action. The procedures governing such complaints are consistent with the other whistleblower statutes OSHA administers.
1 Donovan v. Texaco, Inc., 720 F.2d 825 (5th Cir. 1983).
This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.