EHS Administration, Enforcement and Inspection

OSHA Orders ExxonMobil to Reinstate Terminated Employees

The Occupational Safety and Health Administration (OSHA) ordered ExxonMobil Corp. to reinstate two illegally terminated employees when the company suspected the two leaked information to The Wall Street Journal, the agency announced October 7. OSHA ordered the employees’ reinstatement following a whistleblower investigation under the Sarbanes-Oxley Act and ordered the company to reinstate the employees immediately and pay them more than $800,000 in back wages, interest, and compensatory damages.

“ExxonMobil’s actions are unacceptable. The integrity of the U.S. financial system relies on companies to report their financial condition and assets accurately,” Assistant Secretary for Occupational Safety and Health Doug Parker said in an agency statement. “Whistleblower protection is integral to ensuring that financial disclosure laws work. As was the case in this instance, OSHA will aggressively protect the rights of employees who raise concerns related to financial improprieties or potential fraud against shareholders.”

The Wall Street Journal alleged in a September 2020 news story that ExxonMobil may have inflated its production estimates and the reported value of oil and gas wells in the Texas Permian Basin. The newspaper reported that ExxonMobil’s assumption that drilling speed would increase substantially in the next 5 years may have been inaccurate. Assumptions about the wells’ production were included in 2019 company filings with the U.S. Securities and Exchange Commission.

OSHA’s whistleblower investigation found that ExxonMobil fired two computational scientists who raised concerns in late 2020 about the company’s use of the assumptions. The company claimed it terminated one of the scientists for mishandling proprietary company information and the second for having a “negative attitude,” looking for other jobs, and losing the confidence of company management.

The agency learned that ExxonMobil knew that one of the scientists was a relative of a source quoted in The Wall Street Journal article and had access to the leaked information. The investigation determined that the communication with the newspaper—related to the company’s alleged violations—is a protected activity under the Sarbanes-Oxley Act.

OSHA investigates whistleblower complaints under Sarbanes-Oxley and some 20 other federal statutes. The agency’s whistleblower authority was first established in the antiretaliation provisions (Section 11(c)) of the Occupational Safety and Health Act of 1970. Since then, OSHA has become responsible for whistleblower protections in aviation, commercial motor carrier, consumer product, food, motor vehicle, nuclear, and pipeline safety, as well as anti-money laundering, criminal antitrust, environmental, financial reform, health insurance reform, maritime, public transportation, railroad, securities, and tax laws.

Firing and laying off whistleblowers qualify as retaliation, as do demotion; denying employee benefits, overtime, or promotion; intimidation or harassment; failing to hire or rehire; making threats; reassignment to a less desirable position; reducing pay or hours; isolating, ostracizing, mocking, or falsely accusing an employee of poor performance; blacklisting; making working conditions intolerable to the point that an employee quits; and reporting an employee to the police or immigration authorities.

In June, a federal jury awarded $650,000 in damages in a case in which an employer’s retaliation led to two employees’ detention by U.S. Immigration and Customs Enforcement.

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