Employers beware. U.S. Department of Labor Occupational Health and Safety Administration (OSHA) is testing a new “Expedited Case Processing Pilot” program in its Western Region that it hopes will make it even easier for whistleblowers to extort big settlements or recover big judgements by bringing whistleblower complaints under the Occupational Health and Safety Act (Act).
OSHA enforces the whistleblower provisions of 22 statutes protecting employees who report violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health care reform, nuclear, pipeline, worker safety, public transportation agency, railroad, maritime and securities laws.
OSHA acknowledges that OSHA’s investigation process can take time, and complainants may be able to receive a determination more quickly without losing their rights to a hearing by electing to expedite OSHA’s processing of their claims.
The “Expedited Case Processing Pilot” allows a complainant covered by certain statutes to get their claim into court faster by asking OSHA to cease its investigation and issue findings for the department’s Office of Administrative Law Judges to consider. The move is possible only if the case meets certain criteria. Administrative law judges may order the same remedies as OSHA, including back pay, compensatory damages, punitive damages where authorized, attorneys’ fees and reinstatement.
Barbara Goto, OSHA’s regional administrator in San Francisco says the “ultimate goal” of the program is to bring about “quicker resolution for whistleblowers and their employers regarding claims of retaliation for reporting safety and other concerns on the job.”
Once a complainant requests expedited processing, the case will be assessed for the following criteria:
- The claim is filed under a statute that allows for de novo review by an administrative law judge.
- Depending on the statute, 30 or 60 days have passed from the date the complainant first filed with the claim with OSHA.
- OSHA has interviewed the complainant.
- Federal investigators have evaluated the complaint and the complainant’s interview to determine if the basic elements of a retaliation claim exist.
- Both the complainant and the respondent have had the opportunity to submit written responses, meet with an OSHA investigator and present statements from witnesses.
- The complainant has received a copy of the respondent’s submissions and had an opportunity to respond.
Once OSHA officials determine that these criteria are met, they will evaluate the claim to determine – based on the information gathered up to the date of the complainant’s request for expedited processing – whether reasonable cause exists to believe that a violation of the statute occurred. OSHA officials will then take one of three actions: dismiss the claim and inform the complainant of the right to proceed before an administrative law judge; issue merit findings as expeditiously as possible; or deny the request.
The effect will be bad news for employers. It will allow whistleblowers to move their claims against employers quicker and more cost effectively forward and make it harder for employers to stop unreasonable claims using the administrative process. As a result, the already huge threat employers face from OSHA whistleblower claims will be even bigger.
Employers concerned with these risks should both ungraded their safety, employee discipline and other risk management and compliance efforts AND communicate their opposition to the pilot to OSHA and Congress.
About The Author
Cynthia Marcotte Stamer is a noted Texas-based management lawyer and consultant, author, lecture and policy advocate, recognized for her nearly 30-years of cutting edge management work as among the “Top Rated Labor & Employment Lawyers in Texas” by LexisNexis® Martindale-Hubbell® and as among the “Best Lawyers In Dallas” for her work in the field of “Tax: Erisa & Employee Benefits” and “Health Care” by D Magazine.
Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, a Fellow in the American College of Employee Benefit Counsel, past Chair and current committee Co-Chair of the American Bar Association (ABA) RPTE Section Employee Benefits Group, Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee, former Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, a former ABA Joint Committee on Employee Benefits Council Representative and , Ms. Stamer helps management manage.
Ms. Stamer’s legal and management consulting work throughout her nearly 30-year career has focused on helping organizations and their management use the law and process to manage people, process, compliance, operations and risk. Highly valued for her rare ability to find pragmatic client-centric solutions by combining her detailed legal and operational knowledge and experience with her talent for creative problem-solving, Ms. Stamer helps public and private, domestic and international businesses, governments, and other organizations and their leaders manage their employees, vendors and suppliers, and other workforce members, customers and other’ performance, compliance, compensation and benefits, operations, risks and liabilities, as well as to prevent, stabilize and cleanup workforce and other legal and operational crises large and small that arise in the course of operations.
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