An Early Resolution Program for Whistle-Blower Claims
In an attempt to save money and time, the federal Occupational Safety and Health Administration (OSHA) has introduced an early resolution program for whistle-blowers and employers to settle disputes without investigations and litigation. State OSHA plans are strongly encouraged to also adopt the process.
The early resolution process offers whistle-blower parties the opportunity to negotiate a settlement with the assistance of a neutral, confidential OSHA representative with subject matter expertise in whistle-blower investigations, the agency said. It’s an expansion of a pilot program that’s been in place in selected OSHA regions since late 2012.
OSHA enforces the whistle-blower provisions of 22 statutes protecting employees who report violations of various securities laws; trucking, airline, nuclear power, pipeline, environmental, rail, maritime, health care, workplace safety and health regulations; and consumer product safety laws.
“The number of retaliation claims filed under the various statutes has risen steadily each year and the cost of investigating them has placed a tremendous strain on OSHA’s fiscal and physical resources,” said Valerie Butera, a labor and employment attorney. OSHA accepted 3,060 new whistle-blower cases in fiscal year 2014.
The pilot of the early resolution process proved to be a very effective and viable alternative to the investigative process, and an invaluable asset to OSHA’s whistle-blower protection programs, the agency said. “The process demonstrated that adding staff dedicated to the coordination and facilitation of settlement negotiations provides valuable relief to OSHA’s whistle-blower investigative staff, and provides a highly desired service.”
Workers or employers from the targeted regions made 289 requests to attempt to reach a settlement using the early resolution process during 2013, the first fiscal year it was available, according to OSHA. Both parties agreed to attempt a settlement in 87 of those cases. In the end, 54 cases were settled.
The directive does not prohibit OSHA whistle-blower offices from offering complainants and respondents other alternative dispute-resolution processes, such as third-party mediation.
The process involved in the early resolution program is outlined below.
● Upon receiving a timely complaint—within 30 days of the retaliatory act—OSHA will send opening letters to both the respondent and the complainant informing the parties about OSHA’s early resolution program and the option to use it.
● If both parties agree to seek early resolution at any time after an investigation begins, the investigation will be suspended and the case handed over to the regional alternative dispute-resolution coordinator. The coordinator will work with the parties to explore whether there is common ground for settlement but will not judge the merits of the complaint.
● OSHA can terminate the process if either party violates the ground rules for participation, including engaging in abusive behavior or failing to participate in good faith, or if the parties cannot come to an agreement within a reasonable amount of time. “Parties must come to the process fully prepared to discuss resolution of the whistle-blower complaint and have full authority to settle the dispute,” Butera said.
● Either party can also end the process, as participation is voluntary.
● If the parties agree upon a framework for settlement, the coordinator may draft a proposed settlement agreement or the parties may draft and submit an agreement for OSHA’s approval. After the agency approves and both parties sign the settlement agreement, OSHA will close its investigation. If a settlement is not reached, the investigation will resume.
Butera advised employers to consider these core concepts:
● The early resolution process is confidential. The coordinator will not discuss the merits of the complaint or the content of the early resolution discussions with OSHA’s investigators, but “keep in mind, however, that the terms of an OSHA whistle-blower settlement agreement, whether agreed upon during the early resolution process or by other means, will be disclosed to OSHA and may be made public by OSHA in response to a [Freedom of Information Act] request or otherwise,” Butera said.
● Early resolution may significantly reduce the cost of responding to a whistle-blower complaint. “An investigation may disrupt your business, affecting productivity, and can lead to full-blown federal litigation,” Butera said. “It costs nothing to attempt to agree upon a resolution that satisfies the parties. OSHA even offers early resolution conferences by telephone in the event that travel to attempt early resolution would be too costly or create hardship for either party.”