Will GM’s Car Recalls Encourage Whistleblower Claims?


During this week’s discussion about GM’s auto recalls, OSHA also released a Fact Sheet and guidance on “Filing Whistleblower Complaints Under The Moving Ahead For Progress In The 21st Century Act (MAP21).”  I’m willing to bet that most of you have never heard of this relatively new retaliation law, and when I recently polled a number of my competitors, as well as various OSHA retaliation supervisors, I learned that most of them had not yet seen complaints under this retaliation law.

However, now that OSHA has put out a Fact Sheet on how to file a complaint, it will presumably publicize filing MAP21 claims, as it has aggressively promoted other whistleblower claims.

Like many of the 20+ retaliation laws investigated by OSHA, MAP21 focuses on a particular industry; in this case, “motor vehicle manufacturers, part suppliers, and dealerships.”  The law prohibits these employers from retaliating against their employees for undertaking any of the following activities:


  • Providing information relating to any motor vehicle defect or alleged violations of . . . NHTSA vehicle safety standards and the Federal reporting requirements for auto manufacturers, to:


–      his or her employer (including auto manufacturers, part suppliers and dealerships), or


–      to the U.S. Dept. of Transportation.


  • Filing, testifying, assisting or participating in a proceeding concerning any motor vehicle defect or alleged violation of Chapter 301, including NHTSA vehicle safety standards and the Federal reporting requirements for auto manufacturers, or


  • Objecting to or refusing to participate in any activity that he or she reasonably believed to be in violation of Chapter 301 or any order, rule, regulation, standard, or ban under Chapter 301.

There have not yet been any reported cases and the last time I checked, OSHA and the Solicitor’s Office had not developed internal guidelines.  Therefore, your guess is as good as mine as to what conduct that would constitute protected activity under the above definitions.  As an example, how broadly will the term “information” provided to your employer be defined?”  Information relating to any motor vehicle defect or alleged violation of Chapter 301 or any order, rule, regulation or standard or the Federal reporting requirements for auto manufacturers” or “ban under 301” could encompass most communications in a manufacturing or other setting.  Quite vague and broad ….

Given the ongoing publicity about auto recalls and penalties accessed against auto manufacturers, motor vehicle and parts manufacturers and dealerships should be careful not to take adverse action against an employee who may later argue that they have engaged in protected conduct.  Carefully document actions taken to show that any alleged protected actions were not the cause of the adverse action.


About mavity2012

I am a Senior Partner operating out of the Atlanta office of Fisher & Phillips LLP, one of the Nation’s oldest and largest management employment and labor firms. My practice is national and keeps me on the road or in one of our 28 offices about 50 percent of the time. I created and co-chair the Firm's Workplace Safety and Catastrophe Management Practice Group. I have almost 29 years of experience as a labor lawyer, but rely even more heavily on the experience I gained in working in my family's various businesses, and through dealing with practical client issues. Employers tell me that they seldom meet an attorney who delivers on his promise to provide practical guidance and to be a business partner. As a result, some executives probably use different terms than “practical” to describe my fellow travelers in the profession. I don't enjoy the luxury of being impractical because I spend much of my time on shop floors and construction sites dealing with safety, union and related issues which are driven by real world processes and the need to protect and get the most out of one's most important business assets ... its employees. That's one of the reasons that I view safety compliance as a way to also manage problem employees, reduce litigation and develop the type of work environment that makes unions unnecessary. Starting out dealing with union-management challenges and a stint in the NLRB have better equipped me to see the interrelationship of legal and workplace factors. I am proud also of my experience at Fisher & Phillips, where providing “practical advice” is second only to legal excellence among the Firm’s values. Our website lists me as having provided counsel for over 225 occasions of union activity, guided unionized companies, and as having managed approximately 450 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. I have coordinated complex inspections involving multi-employer sites, corporate-wide compliance, and issues involving criminal referral. As a full labor lawyer, I oversee audits of corporate labor, HR, and safety compliance. I have responded to virtually every type of day-to-day workplace inquiry, and have handled cases before the EEOC, OFCCP, NLRB, and numerous other state and federal agencies. At F & P, all of us seek to spot issues and then rely upon attorneys in the Firm who concentrate on those areas. No tunnel vision. I teach or speak around 50 times per year to business associations, bar and professional groups, and to individual businesses. I serve on safety committees at three states’ AGC Chapters, teach at the AGC ASMTC
This entry was posted in discipline and discharge, discrimination, manufacturing, OSHA, whistleblower/retaliation and tagged , , , , . Bookmark the permalink.

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