Some employees who file whistle-blower complaints with the Occupational Safety and Health Administration's (OSHA's) western regional office may now have a judge review their claims a little faster.
OSHA rolled out an "expedited case processing pilot" on Aug. 1 in its western region, which includes American Samoa, Arizona, California, Guam, Hawaii, Nevada and the Northern Mariana Islands.
The program will allow employees who have filed a whistle-blower complaint under certain statutes to request that OSHA stop its investigation and issue findings for a Department of Labor (DOL) administrative law judge to review.
OSHA has received more and more whistle-blower complaints, and its case load has only grown, said Daniel Davis, an attorney with Proskauer in Washington, D.C. This is a way to streamline procedures, he said.
"The ultimate goal is to bring about quicker resolution for whistle-blowers and their employers regarding claims of retaliation for reporting safety and other concerns on the job," Barbara Goto said in an Aug. 16 statement. Goto is OSHA's regional administrator in San Francisco.
More Retaliation Claims
"When we think of OSHA, we tend to think about workplace safety and health compliance, but OSHA also has a group of investigators that work on whistle-blower claims brought under 22 different statutes," said Patrick Miller, an attorney with Sherman & Howard in Denver, in an interview with SHRM Online.
The relevant statutes protect "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," according to a DOL statement.
If an employee feels that he or she has been discriminated against and files a claim with OSHA, the agency will perform an investigation and issue findings, Miller explained. Depending on the findings, OSHA may award back pay and other damages or issue a "no cause" finding.
Both the employer and the employee have the right to appeal that decision and have it heard by an administrative law judge, Miller added. The pilot program expedites this process while OSHA is investigating by giving the employee an opportunity to go directly to the administrative law judge in some circumstances.
"Administrative law judges may order the same remedies as OSHA, including back pay, compensatory damages, punitive damages where authorized, attorney fees and reinstatement," the DOL noted.
Criteria to Expedite
The DOL said the following criteria must be met to expedite review of the claim:
- The claim is filed under a statute that allows for new review by an administrative law judge.
- Depending on the statute, 30 or 60 days have passed from the date the employee first filed the claim with OSHA.
- OSHA has interviewed the employee.
- Federal investigators have evaluated the complaint and the employee's interview to determine if the basic elements of a retaliation claim exist.
- Both the employee and the employer have had the opportunity to submit written responses, meet with an OSHA investigator and present statements from witnesses.
- The employee has received a copy of the employer's submissions and had an opportunity to respond.
If these criteria are met, OSHA will evaluate whether there is reasonable cause to believe the statute was violated. Thereafter, the agency will 1) dismiss the claim and let the individual know he or she may proceed with the claim before an administrative law judge, 2) issue merit findings or 3) deny the request.
Minimal Impact on Employers
Employers—particularly those with cases pending in the western region—should be aware of the program and an employee's ability to expedite the process, Davis said.
He said the program shows that OSHA is interested in handling its workload efficiently and expeditiously.
The pilot program isn't likely to have a huge impact on employers, Miller noted, except that they may get to a hearing before an administrative law judge sooner than they normally would.
Although the pilot won't affect workplace safety and health programs, it serves as a reminder that employers should have strong anti-retaliation policies in place and should adhere to those provisions, Miller noted.