OSHA Announces Alternative Dispute Resolution Pilot for Whistle-Blower Complaints

By Roy Maurer Oct 5, 2012

The Occupational Safety and Health Administration (OSHA) announced Oct. 2, 2012, the launch of an alternative dispute resolution pilot program for complaints filed with the agency’s Whistleblower Protection Program.

Alternative dispute resolution (ADR) can assist complainants and employers in early resolution and mediation of their disputes in a cooperative and voluntary manner by means other than binding decisions made by courts.

“This is good news for employers,” said Mike Billok, a labor and employment law attorney at Bond, Schoeneck & King, based in Albany, N.Y. “In many cases, ADR has the potential to save both OSHA and the employer the cost of a long investigation,” he told SHRM Online.

The program will offer two voluntary methods of ADR: early resolution and mediation. When a whistle-blower complaint is filed with OSHA in one of the pilot regions, the parties will be notified of their ADR options and may work through an OSHA regional ADR coordinator to use these methods.

If the parties elect to pursue early resolution, an OSHA regional ADR coordinator may help the parties reach a settlement agreement before the respondent provides a response to the complaint. The focus of early resolution is a quick resolution of the dispute rather than an investigation to determine the validity of the charge, pretext or potential violations. Should the parties elect to pursue early resolution but fail to enter into a settlement agreement within the specified time frame, the case will be assigned to an investigator to investigate the complaint.

The program will be implemented in two OSHA regions headquartered in Chicago and San Francisco. The Chicago Regional Office is responsible for whistle-blower investigations filed with OSHA in Illinois, Indiana, Michigan, Minnesota, Ohio and Wisconsin. The San Francisco Regional Office is responsible for whistle-blower investigations filed with OSHA in Arizona, California, Hawaii and Nevada, as well as various Pacific Islands including the commonwealth of the Northern Mariana Islands, Guam and American Samoa.

For the duration of the pilot, both regions are authorized to conduct up to 15 mediation sessions each, and may continue to offer unlimited early resolution, OSHA said. For its mediation sessions, the agency has chosen the Federal Mediation and Conciliation Service to serve as the neutral third-party mediator.

The pilot will be evaluated after 120 days.

“I think it’s likely this will get past the pilot stage and become a nationwide program, not unlike the [Equal Employment Opportunity Commission]’s ADR program,” said Billok. “The only thing that might trip it up is if, during the pilot phase, there are few or no cases that are resolved through the program. They need to show at least some evidence that the program is effective in achieving early resolution in order for it to go forward.”

OSHA is charged with enforcing the whistle-blower provisions in 22 separate statutes, including the Dodd-Frank Wall Street Reform and Consumer Protection Act, the Sarbanes-Oxley Act, the Patient Protection and Affordable Care Act, and the Occupational Safety and Health Act. OSHA reported that it receives approximately 2,500 whistle-blower complaints each year.

Roy Maurer is an online editor/manager for SHRM.

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