OSHA Introduces Early Resolution Whistle Blower Program

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.”

(SHRM website)

Online Complaint Forms for OSHA Whistle-blowers

OSHA Whistle-blowers Can File Complaints Online

Whistle-blowers covered by one of 22 statutes administered by the U.S. Department of Labor's Occupational Safety and Health Administration are able to file complaints online. The online form provides workers who have been retaliated against an additional way to reach out for OSHA assistance online.

"The ability of workers to speak out and exercise their rights without fear of retaliation provides the backbone for some of American workers' most essential protections," said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. "Whistle-blower laws protect not only workers, but also the public at large and now workers will have an additional avenue available to file a complaint with OSHA."

Workers can make complaints to OSHA by filing a written complaint or by calling the agency's 1-800-321-OSHA (6742) number or an OSHA regional or area office. Workers are also able to electronically submit a whistle-blower complaint to OSHA by visiting www.osha.gov/whistleblower/WBComplaint.html.

The online form prompts the worker to include basic whistle-blower complaint information so they can be easily contacted for follow-up. Complaints are automatically routed to the appropriate regional whistle-blower investigators. In addition, the complaint form can also be downloaded and submitted to the agency in hard-copy format by fax, mail or hand-delivery. The paper version is identical to the electronic version and requests the same information necessary to initiate a whistle-blower investigation.

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, public transportation, workplace safety and health, and consumer protection laws. Detailed information on employee whistle-blower rights, including fact sheets and instructions on how to submit the form in hard-copy format, is available online at www.whistleblowers.gov.

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 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.