A directive to establish nationwide policies and procedures aimed at speeding up the resolution of “whistleblower” complaints handled by the Occupational Safety and Health Administration (OSHA) was issued on August 19, 2015.
OSHA enforces the anti-retaliation/whistleblower provisions of 22 federal statutes, including the Occupational Safety and Health Act, Dodd-Frank, the Affordable Care Act, various environmental and consumer product safety laws, and a host of others including those regulating the trucking, airline, nuclear power, rail, and maritime industries.
Reflecting the surge in retaliation claims across the country at the administrative level and in the state and federal courts, the number of whistleblower complaints to OSHA has increased steadily in recent years. OSHA now receives more than 3,000 annually and many expect that number to continue to increase. In response, OSHA has looked for ways to resolve these cases more efficiently and expeditiously.
The directive outlines an “early resolution” process, to be used as part of its Alternative Dispute Resolution (ADR) program. OSHA piloted the process in two of its regional offices, and concluded that it assisted parties in reaching mutual and voluntary resolutions in many cases. That success prompted OSHA to expand the process to all regions.
The process is an alternative to the statutorily required investigation of each complaint, and is intended to provide parties with the opportunity to explore settlement with the assistance of a neutral, confidential OSHA representative having subject-matter expertise in whistleblower investigations. Although OSHA encourages use of the entirely voluntary process before it commences an investigation, parties may choose ADR at any time.
The process is entirely separate from the investigative procedure, and information disclosed during ADR will not be shared with the OSHA investigator if the matter is not resolved and returns to the investigative stage. The ADR coordinator will not offer judgment on the merits, but may give the parties an “objective perspective” on the strengths and weaknesses of their respective positions. OSHA may terminate the process under certain circumstances (for example, in the event it believes a party is not acting in good faith), and is required to terminate the process upon the request of either party.
ADR case files are generally confidential and exempt from disclosure under the Freedom of Information Act (FOIA). Approved settlement agreements, however, are placed in the investigative case file, and, as a result, may be subject to disclosure in response to an FOIA request. Therefore, while the early resolution process may prove useful in resolving whistleblower complaints quickly and efficiently, employers should exercise caution and consult with counsel before participating in this process.
