OSHA’s Whistleblower Protection Advisory Committee Discusses Planning, New Initiatives

Orrick - Employment Law and Litigation
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OSHA’s Whistleblower Protection Advisory Committee (“WPAC”) met on September 3-4, 2014. David Michaels, Assistant Secretary of Labor, OSHA, addressed the Committee and discussed recent results and initiatives of OSHA’s whistleblower program. Some highlights:

-OSHA’s merit determinations have more than doubled from FY2009-FY2013 from 450 to 934. These merit figures include settlements, which comprise over 90% of the merit determinations.

-OSHA is seeking to add 27 full time employees to its whistleblower program in FY2015, pending approval of its requested budget.

-OSHA is working on a new policy memo clarifying the burden of proof in whistleblower investigations as based on a “reasonable cause” rather than a “preponderance of the evidence.” The latter is the standard before ALJs, the ARB, and in court.

-Michaels requested WPAC’s assistance in helping employers achieve a “culture of ethics and compliance” by providing and showcasing industry best practices that encourage employers to establish effective anti-retaliation reporting programs in their workplaces. Time will tell whether this initiative will gain traction.

In our experience handling SOX complaints with the agency, OSHA’S processing of SOX cases has slowed dramatically in the last two years. A staff increase for the whistleblower program may help to ease this backlog.

Michaels’ complete prepared remarks can be found here.

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