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OSHA Tests New Program to Expedite Whistleblower Claims

By Nickole C. Winnett
  • August 25, 2016

In an effort to speed up claims under the Occupational Safety and Health Administration’s Whistleblower Protection Program, the Labor Department’s San Francisco region has launched a new process, called the “Expedited Case Processing Pilot.” Under the new process, OSHA may halt certain whistleblower investigations at the complainant’s request and issue findings for the department’s Office of Administrative Law Judges to issue a final ruling.

Under the Whistleblower Protection Program, employees who believe they have been retaliated against for engaging in protected conduct may file a complaint with the Secretary of Labor to request an investigation.

Administrative law judges may order the same remedies as OSHA, including back pay, compensatory damages, authorized punitive damages, attorney fees, and reinstatement. Effective August 1, the pilot covers the agency’s San Francisco region, which includes Arizona, California, Hawaii, Nevada, and the islands of American Samoa, CNMI, and Guam.

Barbara Goto, OSHA’s regional administrator in San Francisco, said, “The ultimate goal is to bring about quicker resolution for whistleblowers and their employers regarding claims of retaliation for reporting safety and other concerns on the job.”

To qualify for expedited processing, a claim must be filed under a statute that allows for de novo review by an administrative law judge. Depending on the statute, 30 days or 60 days must have passed from the date the complainant first filed the claim with OSHA.  OSHA also must have interviewed the complainant and determined that the complaint contains the basic elements of a retaliation claim. Further, the complainant and the respondent must be given the opportunity to submit written responses, meet with an OSHA investigator, and present witness statements. Finally, the complainant must receive a copy of the respondent’s submissions and an opportunity to reply.

If the criteria are satisfied, OSHA officials will evaluate the claim to determine whether reasonable cause exists to believe there was a violation of the statute and either (1) dismiss the claim and notify the complainant of the right to continue before an administrative law judge, (2) issue merit findings as quickly as possible, or (3) deny the request.

OSHA enforces the whistleblower provisions of 22 statutes protecting employees who report violations of 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.

Please contact Jackson Lewis with any questions about this and other workplace developments.

©2016 Jackson Lewis P.C. This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between Jackson Lewis and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. Reproduction in whole or in part is prohibited without the express written consent of Jackson Lewis.

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