OSHA enforces the whistleblower provisions of 22 separate statutes.  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.  Searching for a way to reduce the costly and time consuming process of an investigation and litigation, OSHA conducted pilot Alternative Dispute Resolution (ADR) programs in two of its regions from October 2012 to September 2013.  The pilot programs were well received by employers and whistleblowers alike, allowing for quick resolutions of disputes without the need of enduring a lengthy and burdensome OSHA investigation.  These pilot programs were such a success that on August 19, 2015, OSHA published CPL 02-03-006, Alternative Dispute Resolution (ADR) Processes for Whistleblower Protection Program, which affords all OSHA regions with the option of adopting an ADR program at the discretion of each Regional Administrator.

In what OSHA is calling its “early resolution” process, the parties to a whistleblower complaint agree to attempt to resolve the whistleblower complaint with the assistance of a neutral, confidential OSHA representative who will not be involved in the investigation if the ADR is unsuccessful.  The early resolution process can be elected either before a case has been assigned for an investigation or at any point during an ongoing investigation.  The investigation will be stayed while the parties pursue the ADR.  The goal of the program is to achieve a quick, voluntary resolution of a whistleblower dispute rather than undertaking an investigation to determine the validity of the complaint and potential statutory violations.  A settlement may be reached at any time after the filing of the complaint and prior to the issuance of the Secretary’s findings or the Secretary’s filing of a complaint in federal district court.  If the parties elect to pursue early resolution but fail to enter into a settlement agreement within a reasonable period of time, the case will be transferred to an OSHA whistleblower investigator to start or resume investigation of the complaint.

Parties in whistleblower cases also have the option of settling their whistleblower complaint independently or with the assistance of an investigator or other ADR service during the OSHA investigation.  So how do employers determine whether the early resolution process is right for them?  Employers should consider these core concepts:

  • The early resolution process is entirely voluntary. Both parties must mutually agree to participate, and either may choose to terminate the process and return the case to the investigatory process for any reason.
  • OSHA will assign a Regional ADR coordinator (RADRC) to assist the parties in resolving a whistleblower complaint by mutual agreement. RADRCs are completely neutral and have no decision-making authority. Although the RADRC may give the parties an objective view on the strengths and weaknesses of their positions, he or she may not offer judgment on the merits of the case.
  • OSHA demands that the parties participate in the early resolution process in good faith, treating one another and the RADRC with respect throughout the process. Parties must come to the process fully prepared to discuss resolution of the whistleblower complaint and have full authority to settle the dispute. If OSHA determines that one or both of the parties are not participating in the early resolution process in good faith, the RADRC may terminate the effort and return the case to investigators.
  • The early resolution process is confidential. The RADRC will not discuss the merits of the complaint or the content of the early resolution discussions with OSHA’s investigators. ADR case files will be kept separate from investigation files and their content is generally exempt from disclosure under FOIA. Keep in mind, however, that the terms of an OSHA whistleblower 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 FOIA request or otherwise.
  • This option may significantly reduce the cost of responding to a whistleblower complaint. An investigation may disrupt your business affecting productivity and can lead to full blown federal litigation. 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.
  • And employers must also evaluate many of the same risks and benefits they would assess in considering ADR and settlement versus litigation generally: What are the risks and costs in litigating the case versus settling? What precedent could litigating the case create? How much time will litigating the case and possibly appealing the verdict consume versus the quick finality of reaching a settlement?

 

To register for this webinar, please click here.

Join Valerie Butera, Member of the Firm in the Labor and Employment practice on Wednesday, December 10, 2014 at 1:00 p.m. EST for a 60-minute webinar.

This webinar will delve deeper into OSHA issues that will impact a wider range of industries in 2015.   In addition to a greater focus on enforcements and inspections, changes will occur for recording injuries and illnesses in the OSHA 300 Injury and Illness Recordkeeping log as well as reporting changes of severe injuries or illnesses.

Topics will include:

  • Where we are now and the direction of OSHA in 2015
  • Recording and recordkeeping requirements
  • Whistleblowing and its impact on your business
  • Preparing for increased OSHA inspections of incidents
  • Rulemaking and potential changes in current programs
  • Ebola and other infectious diseases

Registration is complimentary.   To register for this webinar, please click here.

By Valerie Butera

OSHA requires employers to provide safe jobs and workplaces for their employees. And generally employers can rely upon established OSHA standards to guide them in reaching that goal. But faced with employers’ numerous questions and concerns regarding Ebola hemorrhagic fever (Ebola) now that several patients with Ebola have been treated in the United States, OSHA has been slow to provide answers.

To date, OSHA has advised employers that certain established standards may apply in the event of possible worker exposure to Ebola. The agency has also issued a Fact Sheet providing guidance for workers and employers in non-healthcare/non-laboratory settings on cleaning and decontamination of Ebola on surfaces. In addition, OSHA has made clear that the so-called “General Duty Clause,” which requires employers to keep their workplaces free of recognized hazards that can cause death or serious harm to workers may be used to fill any gaps that existing OSHA standards do not cover, enabling OSHA to issue citations to employers that it determines have not taken every appropriate precaution to protect its employees.

In the absence of more specific guidance from OSHA, employers can take several steps now to reduce the risk of receiving an OSHA citation and, more importantly, help protect their employees from exposure to Ebola:

  • Conduct a risk assessment at your workplace, documenting your findings and actions taken to address the any identified issues.
  • Provide additional training necessary to protect employees from any risks identified in the risk assessment.
  • Inform employees if any of their job activities may put them at risk for exposure to Ebola.
  • Ensure that your employees have been provided with all of the personal protective equipment (PPE) needed for them to safely do their jobs.
  • Ensure that employees fully understand how to use the PPE by providing training on its use and conducting practice sessions using the equipment.
  • Establish a policy requiring supervisors to provide updated Ebola-related information as to employees as it develops.
  • Establish a point of contact for employees to address any questions they may have related to Ebola.

Above all, employers must keep open lines of communication with their employees. Employees may be fearful about their work conditions right now and need to know that their employers are on top of the situation and doing everything possible to ensure employee health and safety. This will not only improve employee morale – it will also reduce the likelihood of an unhappy employee filing a whistleblowing complaint with OSHA.

On May 21, 2014, the National Labor Relations Board (NLRB) published a memorandum discussing a new agreement between NLRB and OSHA regarding a backdoor route for employees to file safety related whistleblower claims that are too stale to be filed with OSHA.  The NLRB memo directs OSHA representatives to “notify all complainants who file an untimely [OSHA] whistleblower charge of their right to file a charge with the NLRB.”  As a result of this agreement, employers should expect an increase in the number of unfair labor practice claims filed by employees alleging retaliation for protected safety related whistleblower activity.

Section 11(c) of the Occupational Safety and Health Act of 1970 (Section 11(c)) requires employees to file complaints alleging retaliation for protected safety related whistleblower activities within thirty days of the triggering adverse employment action.  The Assistant Secretary of Labor for OSHA, Dr. David Michaels, recently testified before the Senate, Labor and Pensions Subcommittee on Employee and Workplace Safety about OSHA’s whistleblower program.  One of the key points of his testimony was that between 300 and 600 Section 11(c) complaints per year (roughly 10%) were filed beyond the 30-day deadline.  Dr. Michaels added that at least 100 of these complaints barely missed the deadline — by less than a month.

The National Labor Relations Act (NLRA), on the other hand, addresses different types of claims and also provides for a much longer statute of limitations.  Section 7 of the NLRA provide: “Employees shall have the right to. . . engage in concerted activities for the purpose of collective bargaining or other mutual air or protection.”  Section 8 prohibits unfair labor practices that “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.”  The NLRA has a 6-month statute of limitations for claims of unfair labor practices.

Because the NLRA’s statute of limitations is six months longer than the OSH Act’s, OSHA agents will now advise employees who file an untimely Section 11(c) claim that their claims may qualify as unfair labor practices under the NLRA, and explain their rights to file such claims with the NLRB, where their claims could be timely.  For a claim to qualify for protection as an unfair labor practice, however, the claim must involve “concerted activities.”  Thus, not every employee who was unable to file a timely Section 11(c) complaint will have a viable unfair labor practice claim, even if it would be timely under the NLRA.

The NLRB has provided a set of talking points to OSHA to help the OHSA agents discuss these rights with employees:

  • OSHA recommends that you contact the NLRB as soon as possible, to inquire about filing a charge
    alleging unfair labor practices.
  • The time limit to file a charge with the NLRB is 6 months from the unfair labor practice.
  • The NLRB is responsible for enforcing employee rights under the NLRA. The NLRA protects employee rights to act together to try to improve working conditions, including safety and health conditions, even if the employees aren’t in a union.
  • OSHA may not determine whether you are covered by the NLRA. Please contact the NLRB to discuss your rights under the NLRA.

OSHA also plans to include this information when it sends letters alerting employees that their 11(c) claims are being closed as untimely.

Neither the NLRB nor OSHA has addressed the legal issues posed by this agreement.  Congress intended that employees must file safety related whistleblower complaints very quickly, which is why it set such a short limitations period.  The short deadline for such claims makes sense because safety and health issues pose special risks; i.e., it is not a matter of fairness at stake, it is potentially a matter of life and death, where delays in reporting such issues could have grave consequences.  Creating a loophole or backdoor to extend the filing deadline for claims that could have been timely pursued as 11(c) claims by treating them as NLRA violations could discourage timely reporting under the OSH Act. Continue Reading OSHA and NLRB Create Loophole for Stale Safety Whistleblower Claims

James S. Frank, a Member in the Health Care and Life Sciences and Labor and Employment practices, and Serra J. Schlanger, an Associate in the Health Care and Life Sciences practice, co-authored an article for the American Health Lawyers Association (AHLA) entitled “Hospitals’ Heavy Lifting:  Understanding OSHA’s New Hospital Worker and Patient Safety Guidance.”

The article, published in AHLA’s Spring 2014 Labor & Employment publication, summarizes OSHA’s new web-based “Worker Safety in Hospitals” guidance, explains how the guidance relates to OSHA’s existing regulatory framework, and details what OSHA considers necessary for an effective Safe Patient Handling Systems as well as an effective Safety and Health Management System.

The article goes on to forecast what OSHA’s Hospital Safety guidance will mean in the future for employers in the healthcare industry, including:

  1. More Whistleblower Complaints;
  2. Heavier enforcement by OSHA;
  3. Increased enforcement by the Joint Commission; and
  4. Greater interest in safety and health related legislation.

 

Finally, the article provides recommendations for what hospital and health system employers can do now to prepare for these developments, including:

  1. Reviewing and digesting the new OSHA hospital patient and employee safety resource;
  2. Work with employees and/or contractors to improve Safe Patient Handling Programs and/or a Safety and Health Management Systems; and
  3. Prepare for more safety-related whistleblower complaints by setting up effective processes to quickly investigate and address complaints and employee injuries and illnesses.

 

Below are some excerpts from the article:

On January 15, 2014 the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) launched a new online resource to address both worker and patient safety in hospitals.

According to OSHA, a hospital is one of the most dangerous places to work, as employees can face numerous serious hazards from lifting and moving patients, to exposure to chemical hazards and infectious diseases, to potential slips, trips, falls, and potential violence by patients—all in a dynamic and ever-changing environment. . . . Continue Reading Hospitals’ Heavy Lifting: Understanding OSHA’s New Hospital Worker and Patient Safety Guidance

By John F. Fullerton

On April 29, 2014, the Assistant Secretary of Labor for OSHA, Dr. David Michaels, recently testified before the Senate Education, Labor and Pensions Subcommittee on Employee and Workplace Safety to seek a number of changes to the whistleblower protection provisions of Section 11(c) of the Occupational Safety and Health Act (“OSH Act”) so it would track provisions of other, more recent whistleblower protection laws.  Here is a link to Dr. Michael’s testimony.

The provisions at issue are intended to protect employees from retaliation by their employers for bringing to OSHA’s attention potential violations by the employers of the OSH Act.  These whistleblower provisions have not been updated since the law was passed in 1970, and OSHA is now seeking to strengthen them.

In his testimony on the Hill, Dr. Michaels expressed that:

“The antiretaliation statutes that Congress has enacted since the OSH Act was passed provide greater protections and stronger remedies for workers who have been retaliated against.  To give 11(c) the teeth it needs to be as effective, it must be updated to improve procedures for filing, investigating and resolving complaints.”

To “modernize” the OSH Act whistleblower provisions, Dr. Michaels proposed the following recommendations:

  1. Expanding the current 30-day statute of limitations to 180 days, so that it is the same as other more recently passed laws, such as the Dodd-Frank amendments to the Sarbanes-Oxley Act.  Michaels explained that OSHA cannot address more than 200 OSH Act whistleblower allegations annually because employees do learn of the employer’s retaliatory motive until more than 30 days after the adverse employment action.
  2. Authorizing OSHA to order the “immediate preliminary reinstatement” of employees whom the agency believes have been wrongly discharged for reporting possible safety issues.
  3. Including “individual right of action” provisions that would allow whistleblowers to pursue actions in directly in federal court after a certain length of time if the agency has not acted, as permitted under the Sarbanes-Oxley Act.

In addition, he reported that OSHA’s advisory committee on whistleblower protection, created in 2012 and comprised of employment attorneys, law professors, labor union representatives and others, is planning to devise a set of concrete recommendations for employers who want to improve their compliance with the Act’s whistleblower provisions, saying:

“We know that some employers are only impacted by fear of inspections. There are lots of other employers who want to do the right thing, and we have to help them . . .  Right now, our message is simply, ‘Don’t retaliate against whistleblowers.’ We have to do better than that — we have to say, ‘Here is the program, here is the management system that will help you learn what your workers’ concerns are and how you can address them best.’”

It remains to be seen whether Congress will act on Michaels’ proposals, and what concrete recommendations the advisory committee develops.  As always, any important developments will be reported here on this blog.