This document summarizes procedures for seamen to file whistleblower complaints under the Seaman's Protection Act (SPA). It outlines that: - The SPA prohibits retaliation against seamen who report violations of maritime safety laws. It protects seamen who provide information to authorities about violations or refuse unsafe duties. - Seamen can file complaints with OSHA within 180 days of facing adverse actions like firing or demotion for protected whistleblowing. - If OSHA finds merit to a complaint, and a settlement cannot be reached, it will issue an order requiring remedies like reinstatement, back pay, and damages against the employer. Employers can appeal such orders.

2. Filing Whistleblower Complaints under the
Seaman’s Protection Act
Seamen are protected from retaliation for reporting alleged violations of maritime
safety laws or regulations.
Covered Employees
The Seaman’s Protection Act (SPA) prohibits persons
from retaliating against seamen for engaging in
certain protected activities pertaining to compliance
with maritime safety laws and regulations.
A seaman is any individual engaged or employed
in any capacity on board a U.S.-flag vessel or
any other vessel owned by a citizen of the United
States. For a definition of “citizen of the United
States” you should refer to 29 CFR 1986.101(d).
Protected Activity
A person may not discharge or in any other manner
retaliate against a seaman because the seaman:
• Provided information relating to a violation of
maritime safety laws or regulations to the U.S.
Coast Guard or other appropriate Federal agency
or department; refused to lie to the Government
about such matters; was about to provide such
information (including situations in which the
seaman provides information to the employer and
says he or she plans to report to the authorities or
when he or she has a history of such reporting);
or sought the correction of a condition which he
or she reasonably believes could result in serious
injury or serious impairment of health;
• Testified in a proceeding brought to enforce
a maritime safety law or regulation, including
making an internal complaint, such as to a
master, captain, or other supervisor, relating to a
violation of a maritime safety law or regulation;
• Refused to perform duties ordered because of
a reasonable apprehension of serious injury or
serious impairment of health to the seaman,
other seaman, or the public, if the seaman has
first requested that the employer correct the
dangerous condition;
• Notified or attempted to notify the vessel owner
or the U.S. Coast Guard of a work-related injury
or illness of a seaman;
• Cooperated with a safety investigation
by the U.S. Coast Guard or the National
Transportation Safety Board;
• Furnished information to any public official
relating to any marine casualty where there is
death, injury or damage to property, occurring in
connection with vessel transportation; or
• Accurately reported hours of duty under
Part A, Subtitle II, Title 46 of the Code of
Federal Regulations.
Unfavorable Employment Actions
A person may be found to have violated
SPA if the seaman’s protected activity was a
contributing factor in the person’s decision to
take an unfavorable employment action against
the seaman. An unfavorable employment action
(“adverse action”) is any action taken by an
employer which would dissuade a reasonable
employee from engaging in protected activity.
Such actions may include:
• Firing or laying off
• Blacklisting
• Demoting
• Denying overtime or promotion
• Disciplining
• Denying benefits
• Failure to hire or rehire
• Intimidation
• Making threats
• Reassignment affecting prospects for promotion
• Reducing pay or hours
Deadline for Filing Complaints
Complaints must be filed within 180 days after
the alleged unfavorable employment action
occurs (that is, when the seaman is notified of the
retaliatory action).
How to File a SPA Complaint
A seaman, or representative of a seaman, who
believes he or she has been retaliated against in
violation of SPA, may file a complaint with OSHA.
Complaints may be filed verbally with OSHA by
visiting or calling the local OSHA office at 1-800-
321-OSHA (6742), or may be filed in writing by
FactSheet

3. sending a written complaint to the closest OSHA
regional or area office, or filing a complaint online
at www.whistleblowers.gov/complaint_page.html.
Written complaints may be filed by facsimile,
electronic communication, hand delivery during
normal business hours, U.S. mail (confirmation
services recommended), or other third-party
commercial carrier.
The date of the postmark, facsimile, electronic
communication, telephone call, hand delivery,
delivery to a third-party commercial carrier, or
in-person filing at an OSHA office is considered
the date filed. No particular form is required and
complaints may be submitted in any language.
To file a complaint electronically, please visit
www.osha.gov/whistleblower/WBComplaint.html.
To contact OSHA to file a complaint, please call
1-800-321-OSHA (6742) and they will connect you
to the closest office; or visit www.osha.gov/html/
RAmap.html.
Upon receipt, OSHA will review the complaint to
determine whether it is appropriate to conduct
a fact-finding investigation (e.g., whether the
complaint was filed within 180 days; whether the
allegation is covered by SPA). All complaints are
investigated according to statutory requirements
explained in 29 CFR 1986.104.
Results of the Investigation
If the evidence supports a seaman’s claim of
retaliation and a voluntary settlement cannot
be reached, OSHA will issue an order requiring
reinstatement, as well as other possible relief to
make the seaman whole, including:
• Payment of back pay with interest.
• Compensation for special damages, to include
attorney’s fees, and other expenses the seaman
may have incurred as a result of the violation.
• Punitive damages of up to $250,000.
OSHA’s findings and order become a final order of
the Secretary of Labor unless either party objects to
the findings within 30 days. An order to reinstate is
effective immediately, regardless of any objection.
After OSHA issues the findings and order,
either party may request a full hearing before a
Department of Labor (DOL) Administrative Law
Judge (ALJ). If OSHA has issued merit findings,
OSHA (represented by a DOL attorney) will
ordinarily prosecute the case, but the parties retain
their rights to litigate. Any party, including OSHA,
may petition for review of the ALJ decision by
the Department’s Administrative Review Board
(ARB). Decisions of the ARB, as well as unreviewed
decisions of ALJs, may be appealed to the
appropriate United States Court of Appeals.
If a final agency order is not issued within 210
days from the date the seaman’s complaint is
filed with OSHA, then the seaman may be able to
file a civil action in the appropriate United States
District Court.
To Get Further Information
For a copy of the Seaman’s Protection Act (46 U.S.C.
§2114), the regulations (29 CFR 1986), and other
information, go to www.whistleblowers.gov.
OSHA’s Whistleblower Protection Program
enforces the whistleblower provisions of more
than twenty federal whistleblower laws. To
learn more about the whistleblower statutes
which OSHA enforces, view our “Whistleblower
Statutes Desk Aid” at www.whistleblowers.gov/
whistleblower_acts-desk_reference.pdf.
For information on the Office of Administrative
Law Judges procedures and case law research
materials, go to www.oalj.dol.gov and click on the
link for “Whistleblower Collection.”
For information on maritime safety laws and
regulations, visit the U.S. Coast Guard’s website
at www.uscg.mil and the Bureau of Safety and
Environmental Enforcement’s (BSEE) website at
www.bsee.gov.
If you have questions or need more information,
visit our website at www.whistleblowers.gov or
call OSHA at 1-800-321-6742.
Under the Occupational Safety and Health
Act of 1970, employers are responsible for
providing safe and healthful workplaces for
their employees. OSHA’s role is to help ensure
these conditions for America’s working men and
women by setting and enforcing standards, and
providing training, education, and assistance. For
more information, visit www.osha.gov.
DWPP FS-3762 08/2018
This is one in a series of informational fact sheets highlighting OSHA programs, policies or standards.
It does not impose any new compliance requirements. For a comprehensive list of compliance
requirements of OSHA standards or regulations, refer to Title 29 of the Code of Federal Regulations.
This information will be made available to sensory-impaired individuals upon request. The voice phone
is (202) 693-1999; teletypewriter (TTY) number: 1-877-889-5627.

4. FindLaw Caselaw United States US 11th Cir.
HARLEY MARINE SERVICES INC v. DEPARTMENT OF LABOR ADMINISTRATIVE REVIEW BOARD JOSEPH DADY
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HARLEY MARINE SERVICES INC v. DEPARTMENT OF
LABOR ADMINISTRATIVE REVIEW BOARD JOSEPH
DADY
United States Court of Appeals, Eleventh Circuit.
HARLEY MARINE SERVICES, INC., Petitioner, v. U.S. DEPARTMENT OF LABOR,
ADMINISTRATIVE REVIEW BOARD, JOSEPH D. DADY, Captain, Respondents.
No. 15-14110
Decided: January 26, 2017
Before WILSON and JULIE CARNES, Circuit Judges, and TREADWELL, * District Judge.
Pursuant to 49 U.S.C. § 31105(d), Harley Marine Services, Inc. (Harley) seeks review of the Secretary of Labor's
final order that Harley terminated the employment of Captain Joseph Dady in violation of the Seaman's
Protection Act (SPA), 46 U.S.C. § 2114. After thorough review and with the benefit of oral argument, the
Secretary's determination is affirmed.
I.
Dady was a tug captain for Harley.1 On October 12, 2010, Dady's mate ran the barge they were towing into a
dock, an allision in maritime terminology,2 while Dady was asleep and off-watch. The mate, as well as the rest
of Dady's crew, then failed to timely report the allision to Dady or Harley. When Dady later towed the now oil-
laden barge out to sea, the barge began to take on water due to a puncture from the allision. This is when Dady
first learned of the allision. Dady followed procedure upon learning of the allision, and the barge was saved.
Harley sent an investigator, Captain Graham, to determine the reason the allision had not been timely
reported. Graham determined that even though Dady was asleep and off-watch, he should be held responsible
for the failure to report and should be discharged, which Harley promptly did.
Dady filed a whistleblower complaint with the Occupational Safety and Health Administration, alleging that he
had been terminated in retaliation for engaging in activities protected by the SPA. OSHA disagreed, and Dady
filed an objection and requested a hearing before an administrative law judge. After a three-day evidentiary
hearing, the ALJ agreed with Dady and ordered his reinstatement. Harley appealed to the Administrative
Review Board (ARB), which affirmed.
On appeal, Harley argues that the ARB erred in concluding that: (1) substantial evidence supported the ALJ's
finding that Harley knew that Dady engaged in protected activity; (2) substantial evidence supported the ALJ's
finding that protected activity contributed to the termination of Dady's employment; (3) substantial evidence
supported the ALJ's finding that Harley did not prove by clear and convincing evidence that it would have fired
Dady regardless of the protected activity; and (4) that reinstatement was an appropriate remedy.
II.
Under the Administrative Procedure Act, we review whether the Secretary's “action[s], findings, and
conclusions” are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5
U.S.C. § 706(2)(A). On an appeal following an evidentiary hearing, this means “[w]e conduct de novo review of
the Secretary of Labor's legal conclusions, but we test the Secretary's factual findings for substantial evidence”
in the agency record. Stone & Webster Const., Inc. v. U.S. Dep't of Labor, 684 F.3d 1127, 1132 (11th Cir. 2012);
see 5 U.S.C. § 706(2)(E); see also Atlanta Gas Light Co. v. FERC, 140 F.3d 1392, 1397 (11th Cir. 1998) (noting
that the substantial evidence standard “is no more than a recitation of the application of the ‘arbitrary and
capricious' standard to factual findings” (quoting Md. People's Counsel v. FERC, 761 F.2d 768, 774 (D.C. Cir.
1985))); Ass'n of Data Processing Serv. Orgs., Inc. v. Bd. of Governors of the Fed. Reserve Sys., 745 F.2d 677,
684 (D.C. Cir. 1984) (“The distinctive function of paragraph (E)—what it achieves that paragraph (A) does
not—is to require substantial evidence to be found within the record of closed-record proceedings to which it
exclusively applies.”).
Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Thus, substantial evidence exists even when two
inconsistent conclusions can be drawn from the same evidence. The substantial evidence standard limits the
reviewing court from “deciding the facts anew, making credibility determinations, or re-weighing the
evidence.”
Stone & Webster Const., Inc., 684 F.3d at 1133 (citations omitted).
III.
There are four elements to Dady's SPA retaliation claim: (1) Dady engaged in protected activity; (2) Harley
knew of the protected activity; (3) Dady suffered an adverse employment action; and (4) the protected activity
contributed to the adverse employment action. See 46 U.S.C. § 2114; 49 U.S.C. §§ 31105(b), 42121(b).3 An
employer can defeat an SPA claim by demonstrating by clear and convincing evidence that the employer would
have taken the same personnel action in the absence of the protected activity. Id.
IV.
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5. A. Harley's Stipulation of Protected Activity
Harley stipulated before the ALJ that Dady engaged in protected activity. As the ALJ explained in his order:
[Harley] stipulated that it does not contest the issue of protected activity. [Harley] listed, at RX 24 (Corrected),
the only protected activity it understood [Dady] to be alleging: (1) [Dady]'s direct complaint in January 2009 to
the U.S. Coast Guard that [Harley] dumped raw sewerage in New York Harbor; (2) steering failure in April
2010; (3) report regarding issues with QMs in May 2010; (4) and [Dady]'s request to a local union
representative to complain to the Coast Guard in Seattle about inadequate crewing of [Harley]'s vessel. I accept
that the four activities above constitute protected activity. [Dady] clarified, at the hearing, that the subject
matter of the fourth protected activity stipulated to—improper crewing—includes both improper lookout and
violations of the 12-hour work rule. See Tr. at 215. [Harley's New York General Manager] testified that it was
his understanding that improper lookout is a subset of the manning issue. Id. at 746.
ALJ Decision at 30, HMS App. Vol. I.
In its post-trial briefing, Harley appeared to back away from its stipulation of protected activity, an effort the
ALJ noted and rejected:
[Harley] repeatedly raises the question of whether the protected activities actually took place (e.g., “Captain
Dady appeared to testify that he reported [the incident related to sewage] to the Coast Guard at some unknown
time, but the record contains no other proof in this regard.” Post-trial Brief at 10-12 (emphasis in original)).
However, since [Harley] stipulated to the protected activities, they will be presumed to have taken place for the
purpose of analyzing employer knowledge.
Id. at 30 n.4.
Harley seems to resurrect this strategy on appeal, arguing in its briefs that it “stipulated only that element (1)
was satisfied – that [Dady] engaged in protected activity,” but that “[w]ith respect to [Dady]'s allegations of
protected activity, [Harley] did not stipulate to any ‘assertions made therein.’ ” HMS Opening Brief at 14.
Indeed, many of Harley's arguments in its briefs and at oral argument weave in assertions that Dady did not
engage in the stipulated protected activities, subtly challenging the ALJ's interpretation of the stipulation. At
oral argument, when asked to explain its position on this issue, Harley maintained that the ALJ abused his
discretion when, for example, he concluded that Harley had stipulated that Dady's protected activity included
complaining to the Coast Guard about improper or inadequate crewing on Harley's boats. The Court disagrees.
In a letter dated February 20, 2013, Harley stipulated: “For purposes of this matter only, ․ that element ‘(1)
Protected Activity’ is satisfied, meaning that it will not challenge that element (that the complainant engaged in
protected activity). By so stipulating [Harley] is not affirming that any of the alleged protected activity was
correct in any assertions made therein, or otherwise even occurred for purposes outside this matter.”
Stipulation Letter, HMS App. Vol. I (emphasis added). Harley offered no clarification when it entered the
stipulation on the record at trial. See ALJ Tr. 14:13-19, HMS App. Vol. I.
The ALJ reasonably interpreted Harley's stipulation. Indeed, no other interpretation makes sense. Harley
stipulated in “this matter” that Dady engaged in protected activity, thus relieving Dady of his burden to prove
that he had. Thus, when the ALJ moved to the second element of Dady's claim, employer knowledge, the
question the ALJ addressed was whether Harley had knowledge of the stipulated protected activity. Under the
interpretation of the stipulation urged by Harley, Dady, to prove employer knowledge, would have to first
prove that he had engaged in the same protected activity that Harley had stipulated to for the purpose of the
first element of Dady's claim. Clearly, this interpretation renders the stipulation meaningless. In short,
Harley's stipulation that Dady engaged in his “alleged protected activity” in “this matter” established exactly
that.
B. Employer Knowledge and Contributing Factor
Given that the ALJ properly interpreted Harley's stipulation of protected activity, the question of whether Dady
established the remaining elements of his claim is straightforward. Substantial evidence supports the
Secretary's conclusion that Harley knew of Dady's stipulated protected activities, most particularly, Dady's
inadequate crewing complaints to the Transportation Safety Advisory Committee. As noted by the ALJ, Dady
made numerous internal complaints about his inadequate crewing concerns and followed up on them
internally. Much to Harley's chagrin, Dady even mentioned his inadequate lookout concerns to the media.4
Harley's management was aware of Dady's previous official reporting of sewage-runoff and steering-failure
violations, and thus was aware of Dady's propensity to file official reports. Dady's official-reporting propensity
and persistence in addressing his inadequate crewing concerns, internally and with the public, is substantial
circumstantial evidence that Harley decision-makers knew that Dady had officially reported or would report
the issues he had raised.
Similarly, substantial evidence supports the Secretary's determination that Dady's protected activities were a
contributing factor in Dady's discharge. Dady worked for Harley for a little over three years. Over the course of
his employment, he engaged in a course of protected activities, and these activities drew animus from Harley
officials. For example, the operations engineer for Harley's New York operation expressed displeasure that
Dady had reported the steering failure to the Coast Guard, referring to him as “a pain in the ass.” OSHA Tr.
46:15-24, HMS App. Vol. III. Also, other employees who reported problems were labeled as being “as bad as
Dady.” Id. at 46:24-47:3.5
It appears that the “last straw” occurred shortly before the allision, when Dady discussed his inadequate
lookout concerns with the media. Substantial evidence supports the ALJ's finding that Harley Franco or his
sister Deborah Franco, Harley's two top-ranking executives, near the end of September, 2010, conveyed their
displeasure and their desire to fire Dady regarding his discussions with the media. The ALJ painstakingly
details substantial evidence that the allision investigation was a witch-hunt to support Dady's predetermined
termination. Under these facts, the ALJ reasonably concluded that the allision, a month after the threat to fire
Dady for his media contacts, was simply the first excuse Harley found to terminate Dady. Similarly, the ALJ
reasonably concluded that because Dady would not drop his crewing concerns (but rather was following up on
them internally, with the media, and through official reporting), Harley fired him. While Dady's going public
with the concerns may have been the last straw, the ALJ reasonably concluded that Dady's official reporting
was another, overlapping straw; in other words, it was a contributing factor.
Accordingly, substantial evidence supports the ALJ's conclusion that Harley knew that Dady was officially
reporting his inadequate crewing concerns, and that this knowledge was a contributing factor in Harley's
decision to fire Dady.
C. Harley's Asserted Independent Nondiscriminatory Reasons
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6. It follows that Harley did not show by clear and convincing evidence that it would have fired Dady even if he
had not engaged in the stipulated protected activities. Aside from emphasizing the integrity of its own
investigation in the face of the numerous shortcomings detailed by the ALJ, Harley offers its internal
procedure manual and the termination of another tug captain, as a supposed comparable employee scenario,
to prove that it would have fired Dady regardless of his protected activities. But substantial evidence supports
the ALJ's finding that Harley's internal manual did not unambiguously require Dady's termination. And the
termination of the other tug captain is easily distinguishable: that captain actually caused a collision and then
lied about it in his report; Dady, on the other hand, did not cause the allision and truthfully reported as soon as
he knew about it.
D. The Order of Reinstatement
Harley argues that the ALJ and ARB erred in ordering Dady's reinstatement. The ALJ reasoned that
reinstatement is a presumptive remedy under applicable regulations and found that the evidence presented at
trial did not overcome that presumption.6 Because the remedy is presumptive and automatic, we reject
Harley's contention that a party waives his right to reinstatement when he requests, as Dady did, front pay
instead of reinstatement. Similarly, we reject Harley's due-process argument; because reinstatement is the
presumptive remedy, Harley was on notice that it had to overcome this presumption to prevent Dady's
reinstatement.
V.
In conclusion, Harley has failed to demonstrate that the Secretary's determination—that Harley terminated
Dady in violation of the SPA and that Dady should be reinstated—was “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law” or “unsupported by substantial evidence.”
AFFIRMED.
FOOTNOTES
1. The facts are taken from the Administrative Law Judge's decision. ALJ Decision, HMS App. Vol. I. They
are supported by substantial evidence.
2. An “allision” is “[t]he contact of a vessel with a stationary object such as an anchored vessel or a pier.”
Allision, Black's Law Dictionary (10th ed. 2014).
3. In relevant part, 46 U.S.C. § 2114 provides:A person may not discharge or in any manner discriminate
against a seaman because ․ the seaman in good faith has reported or is about to report to the Coast Guard or
other appropriate Federal agency or department that the seaman believes that a violation of a maritime safety
law or regulation prescribed under that law or regulation has occurred[.]․A seaman alleging discharge or
discrimination in violation of subsection (a) of this section, or another person at the seaman's request, may file
a complaint with respect to such allegation in the same manner as a complaint may be filed under subsection
(b) of section 31105 of title 49. Such complaint shall be subject to the procedures, requirements, and rights
described in that section, including with respect to the right to file an objection, the right of a person to file for
a petition for review under subsection (c) of that section, and the requirement to bring a civil action under
subsection (d) of that section.46 U.S.C. § 2114(a)(1)(A), (b).
4. Dady's media contacts followed an incident that did not involve Harley's boats, and were not included in
the stipulation of protected activity. But contrary to Harley's argument, the ALJ did not find that this
constituted protected activity. Rather, the ALJ reasoned that Harley's dissatisfaction with Dady's complaints to
the media about inadequate lookouts in that situation provided indirect evidence that Harley knew Dady was,
as stipulated, reporting his concerns about inadequate lookouts on Harley's boats to the Coast Guard, which
contributed to his discharge. ALJ Decision at 35-36, 41, HMS App. Vol. I.
5. Harley mischaracterizes the “as bad as Dady” quip as “a complete red herring” relating to the “mechanic's
group teasing Capt. Dady for having equipment breakdowns,” “not whistleblowing activity.” HMS Reply Brief
at 16-17. The ALJ found that these statements related chiefly to Dady's reputation for reporting safety concerns
(ALJ Decision at 50, HMS App. Vol. I), and this finding is supported by the record (ALJ Tr. at 565:11-17, HMS
Sup. App. to Reply Brief; OSHA Tr. 46:13-47:7, HMS App. Vol. III).
6. The ALJ relied on regulations that were promulgated under the Surface Transportation Assistance Act
(STAA), apparently as applicable under 46 U.S.C. § 2114(b)'s incorporation of “procedures, requirements, and
rights described in” designated sections of the STAA. ALJ Decision at 45, HMS App. Vol. I. The ARB, on the
other hand, relied on the new SPA counterpart regulation—29 C.F.R. § 1986.109—promulgated as an interim
rule in early 2013. ARB Decision at 5, HMS App. Vol. I; see also Procedures for the Handling of Retaliation
Complaints under the Employee Protection Provision of the Seaman's Protection Act (SPA), as Amended, 78
FR 8390 (February 6, 2013). The ARB decision did not recognize that 29 C.F.R. § 1986.109 was not relied on
by the ALJ and was not promulgated until after Dady filed his complaint. Regardless, Harley did not challenge
on appeal that, under these regulations, reinstatement was Dady's presumptive remedy in this action, and even
cites 29 C.F.R. § 1986.109(d) as controlling, arguing that under these facts, reinstatement is not “appropriate”
within the meaning of the regulations. See HMS Opening Brief at 30; HMS Reply Brief at 28-29.
PER CURIAM:
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