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New OSHA whistleblower pilot program provides insight into possible future changes

August 30th, 2016 by Dakota Software Staff Industry News

New OSHA whistleblower pilot program provides insight into possible future changes

The U.S. Department of Labor and the Occupational Safety and Health Administration recently launched a pilot whistleblower program in OSHA's western region, meaning some or all elements of the new initiative may eventually make their way into the agency's regular rules and policies. According to a press release from the federal health and safety regulator, the pilot whistleblower process is an expedited one. Specifically, complainants who meet certain criteria can ask OSHA to cease its investigation after a certain point and issue findings for its administrative law judges to review. This approach reduces the time required to complete an investigation, which can offer benefits to whistleblowers in some situations.

A specific process
The pilot program isn't as simple as allowing any complainant that has an open investigation with OSHA to tell the federal regulator to issue findings to its administrative law judges. There are a number of criteria that must be met for the organization to expedite the issuance, including:

  • The specific claim falls under a statute that allows for de novo review by an administrative law judge.
  • Depending on the specific statute invoked, either 30 or 60 days have passed since the whistleblower first filed a complaint with OSHA.
  • The complainant has already gone through an interview with local OSHA authorities.
  • Federal investigators have reviewed both the information surrounding the case and the interview with the whistleblower to decide if the necessary elements of a claim of retaliation exist.
  • Both parties involved in the claim have received the opportunity to provide written responses to OSHA, meet with an agency investigator and introduce relevant statements from witnesses.
  • The complainant had an opportunity to review the materials submitted by the respondent and was offered the opportunity to respond, regardless of whether or not they actually did so.

Once OSHA evaluates these criteria and determines if a specific case meets them, it will then make one of three decisions. The federal health and safety regulator may dismiss the claim and tell the complainant he or she can move on to an administrative law judge, issue merit findings related to the case as quickly as it can or deny the request entirely.

These criteria make the program more complicated than a blanket allowance of expedition, but they are necessary to balance legal concerns and the motivation behind allowing expedited claims in the first place. OSHA wants to offer a path to a quick resolution in cases where that is preferable to allowing the full investigation to proceed at its regular pace, a sentiment shared by area director Barbara Goto.

"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," Goto said in the OSHA press release.

As the National Law Review pointed out, businesses should pay attention to the progress of the pilot program to make sure whistleblowers' interests in a speedy process don't infringe on a business's right to provide OSHA with a full and complete record.

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