The Occupational Safety and Health Administration (OSHA), which is charged with enforcing the whistleblower protection provisions in 22 separate statutes – ranging from Section 806 of the Sarbanes-Oxley Act of 2002 to environmental statutes to the Safety Transportation Assistance Act – will pilot a new conflict resolution program for whistleblower claims. OSHA Directive 12-01 (CPL 02), describing this program, was issued on October 1, 2012.
OSHA’s alternative dispute resolution (ADR) pilot program is voluntary and will be tested for one year for whistleblower complaints filed with the Chicago office (covering Illinois, Indiana, Michigan, Minnesota, Wisconsin, and Ohio) and the San Francisco office (covering Arizona, California, Hawaii and Nevada, as well as various Pacific Islands including the commonwealth of the Northern Mariana Islands, Guam and American Samoa).
Here are the key features of OSHA’s ADR Program:
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Early Resolution – Before beginning an investigation, OSHA offer the parties the option to resolve their dispute quickly and informally with the assistance of an OSHA representative. After receiving a notice from OSHA that the case has been opened, the parties will have 10 business days to opt for “early resolution.” If both parties opt for early resolution, the time for the respondent to submit a position statement is not stayed or extended, and the parties must enter into a settlement agreement (which may be drafted by OSHA or the parties) within 20 business days of receipt of the opening letter. Any settlement agreement must by approved by OSHA.
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Mediation – OSHA is permitting each region to conduct up to 15 mediation sessions each with the Federal Mediation and Conciliation Service, and will allow the regions to offer unlimited early resolution, defined as “a voluntary process in which the parties to a dispute (whistleblower complaint) attempt to resolve the dispute (whistleblower complaint) prior to OSHA launching an investigation. OSHA states that it will “strive to accommodate such requests, but does not guarantee that it will be able to provide a mediator in every case.”
OSHA’s ADR pilot program is not surprising when considered in context. Indeed, employee whistleblower claims have continued to proliferate and are clogging the U.S. Department of Labor’s adjudicative system. Viewed in broader context, when considering why this program was created, it is worth noting that in 2000, the Equal Employment Opportunity Commission required all federal agencies to establish or make available an ADR program during the pre-complaint and formal complaint stages of the EEO process.
Employers are encouraged to monitor the results of this program and we will stay on the lookout for data showing the number of cases that are submitted to this program; the percentage of cases that are settled through it; and the speed with which the program results in settlements.
This program may evolve into a viable, cost-effective tool to resolve whistleblower cases at an early stage. It is expected that the first few rounds of cases that will be submitted to this program will involve issues of relatively low complexity and exposure, and that employers will continue to explore private mediation for complex cases implicating sensitive compliance issues.
