BREAKING BAD: RECENT DEVELOPMENTS IN OSHA

WHISTLEBLOWER ENFORCEMENT

December 10, 2013

Jeff Jackson, Esq.

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Whistleblower Developments

• Trends impacting Whistleblower claims

• Elements of a Whistleblower case

• Recent developments

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Trends

• OSHA has beefed up their Whistleblower

Office under the current administration

• Expansion of scope of statute

• Greater public awareness of Whistleblower

protections

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Changes to OSHA Whistleblower Program

• GAO and internal audits between 2010 and

2012 resulting in:

– Whistleblower office reporting change

– Uptick in training

– Investigators added

• New position created in 2012

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The New York Times (@nytimes)

Published: October 1, 2012

Whistle-Blower Lawyers Donate to Obama

Campaign nyti.ms/QGyu7p

A Legal Circle Reaches Deep to Aid Obama

By ERIC LIPTON

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Dr. David Michaels, Assistant Secretary of Labor

for Occupational Safety and Health

OSHA Staff Speech

February 6, 2012

“ACCOMPLISHMENTS IN FY 2011

• “For the first time in many years, we brought together

our whistleblower investigators to refocus our efforts

and provide new training. We issued a new

investigation manual. We launched important pilot

programs. “

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Whistleblower Statutes

• Occupational Safety and

Health Act (OSHA)

• Asbestos Hazard

Emergency Response Act

(AHERA)

• International Safe

Container Act (ISCA)

• Surface Transportation

Assistance Act (STAA)

• Clean Air Act (CAA)

• Comprehensive

Environmental Response,

Compensation, and Liability

Act (CERCLA)

• Federal Water Pollution

Control Act (FWPCA)

• Safe Drinking Water Act

(SDWA)

• Solid Waste Disposal Act

(SWDA)

• Toxic Substances Control

Act (TSCA)

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• Federal Railroad Safety Act

(FRSA)

• Pipeline Safety

Improvement Act (PSIA)

• National Transit Systems

Security Act (NTSSA)

• Consumer Product Safety

Improvement Act (CPSIA)

• Affordable Care Act (ACA)

• Consumer Financial

Protection Act of 2010

(CFPA)

• Seaman’s Protection Act

(SPA)

• FDA Food Safety

Modernization Act (FSMA)

• Sarbanes-Oxley Act (SOX)

• Wendell H. Ford Aviation

Investment and Reform Act

for the 21st Century

(AIR21)

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Elements of a Whistleblower Claim

1. Employee engaged in protected activity;

2. Company knew or suspected the employee was involved

in protected activity;

3. Company subjected employee to an adverse

employment action;

4. Employee’s protected activity was a “contributing factor”

to the adverse action.

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Elements of a Whistleblower Claim

1. Employee engaged in protected activity;

2. Company knew or suspected the employee was involved

in protected activity;

3. Company subjected employee to an adverse

employment action;

4. Employee’s protected activity was a “contributing factor”

to the adverse action.

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“Protected Activity”

1. Report a hazardous safety condition.

2. Reporting a violation of any statute with a

whistleblower provision.

3. Furnish information to any regulatory/law

enforcement agency.

4. Refuse to violate and federal law/rule/regulation.

5. Refuse to work under hazardous safety/security

conditions.

6. Filing a whistleblower complaint.

7. Testifying in a whistleblower proceeding.

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OSHA

• Complaints to Union, OSHA, or government

agency about workplace safety or health

hazards

• Participation in OSHA inspections, hearings, or other

OSHA activities

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Sarbanes-Oxley

• Complaints of violations of SEC rules/regulations

• Complaints of violations of any federal law relating to

shareholder fraud

• Complaints of violations of federal mail, wire, bank or

securities fraud statutes

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Environmental Statutes

• Reports of violations of environmental regulations:

– Solid Waste Disposal Act

– Safe Drinking Water Act

– Federal Water Pollution Control Act

– Clean Air Act

– Toxic Substances Control Act

– CERCLA

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Elements of a Whistleblower Claim

1. Employee engaged in protected activity;

2. Company knew or suspected the employee was involved

in protected activity;

3. Company subjected employee to an adverse

employment action;

4. Employee’s protected activity was a “contributing factor”

to the adverse action.

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“Adverse Employment Action”

• Discharge

• Demote

• Suspend

• Threaten

• Harass

• Discriminate

• Reduce pay

• Reduce hours

• Fail to rehire

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Elements of a Whistleblower Claim

1. Employee engaged in protected activity;

2. Company knew or suspected the employee was involved

in protected activity;

3. Company subjected employee to an adverse

employment action;

4. Employee’s protected activity was a “contributing

factor” to the adverse action.

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“Contributing Factor”

• More likely than not

• Burden then shifts to company to establish protected

activity was not a factor by “clear and convincing

evidence”.

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Remedies

• Reinstatement with same seniority and benefits

• Back pay with interest

• Special damages

– Mental distress and suffering

– Any economic losses stemming from railroad’s actions

• Attorney’s fees

• Litigation costs

– Expert witness fees

• Punitive damages (capped at $250,000 per violation)

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OSHA Investigation • OSHA will review initial complaint for:

– Appropriate coverage

– Timeliness

– Prima facie allegation

• Case is opened for investigation

• Investigator assigned in region where complainant

and witnesses are located

• Respondent sent a copy of Complaint and requested

to submit written position statement

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OSHA Investigation

• OSHA investigator will review for other investigations

involving parties

– Prior or current retaliation claims by complainant

– Prior current retaliation claims involving respondent

– Coordination with other agencies

– Current or pending legal actions involving parties

• OSHA generally conducts site visit to interview

witnesses and review documents

• Interviews can take place off-site as well

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• Investigator obtains documents in complainant’s

possession relevant to case

– Termination, reprimands, warnings, or personnel

actions

– Performance appraisals

– Earnings and benefits statements

– Grievances

– Unemployment benefits, claims and determinations

– Job position descriptions

– Company employee and policy handbooks

– Charges or claims filed with other agencies

– Collective bargaining agreements

– Arbitration agreements

– Medical records

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Witness Interviews

• Interview of complainant preferably done face-to-face

• “Highly desirable” to get signed interview statement

from complainant

• Interviews can be recorded

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Witness Interviews

• Management employees: respondent has a right to

have a representative sit in on interview

• With non-management employee, no right for

respondent to be represented

• Interviews conducted in private and frequently at

time/place unknown to respondent

• Witness can request an attorney or other designated

representative be present

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OSHA Whistleblowers Investigation Manual

• In looking at whether there is a link between protected

activity and adverse action, OSHA investigators will

look at:

– Did railroad follow its own disciplinary procedures as

explained in internal policies, CBA, or employee

handbook?

– Was there a change in plaintiff’s productivity, attitude

or actions after protected activity

– Did railroad discipline other employees for same

infraction and to same degree as plaintiff

• Interviews

• Personnel files

• Inspection records of other enforcement agencies

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OSHA Investigation

• Respondent can submit a position paper to OSHA

which can include supporting documentation

• OSHA will not consider assertions in the position

paper evidence

• OSHA will generally still want to test respondent’s

stated defense

– Review records

– Interview witnesses

– Obtain documentary evidence

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OSHA Investigation

• OSHA will attempt to interview all company officials

with direct involvement in protected activity and

retaliation

• Investigator will also try to obtain evidence of

disparate treatment of other employees who engaged

in same conduct as complainant

• After all the evidence is gathered, the investigator

then evaluated the evidence and applies the relevant

law in reaching a decision

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OSHA Investigation

• Investigator issues a Report of Investigation (ROI)

summarizing the findings of the investigation including

– Chronology of events

– Witness log

– Citations to specific exhibits

• OSHA supervisor reviews investigator’s finding and

signs off on determination

• Secretary’s Findings including a Preliminary Order is

issued and sent to both parties

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Appeal from OSHA Determination

• Either party can then file objections which are then

heard de novo in front of a Department of Labor

Administrative Law Judge (ALJ)

– ALJ will only rely upon evidence presented at

hearing

• OSHA generally will not participate at the hearing

• Either party can appeal the decision of the ALJ to the

Administrative Review Board (ARB)

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Appeal from OSHA Determination

• The ARB does not take testimony or hear the case

again, but rather determines whether the ALJ applied

the law correctly to the facts

• Decision of the ARB can be appealed to the United

States Circuit Court Appeals

• Appeal from US Circuit Court of Appeals is to United

States Supreme Court

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Recent Developments

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Whistleblower Protection Advisory

Committee (WPAC)

• Established on May 17, 2012

• Comprised of 12 voting members:

– Four drawn from Management in covered industries

– Four from Labor in those industries

– One representing State OSH Plan states

– Three from public with “extensive knowledge and

expertise on whistleblower statutes and issues”

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• Purpose:

– Advise, consult with and make

recommendations to Secretary of Labor and

Assistant Secretary of Occupational Safety

and Health

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Whistleblower Protection Advisory

Committee Meeting – January 29, 2013

• Four public comment speakers at meeting

– Lawyer Representing Plaintiffs in Whistleblower Cases

– Rep. from AFL-CIO

– Two other union representatives

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Whistleblower Protection Advisory

Committee Meeting – January 29, 2013

• “Equally, and commonly, we see pizza parties at the

end of the week. I find it hard to believe someone's

going to work differently on Tuesday, because of pizza

on Friday. But at the same time, if you have situation

where there's peer pressure on workers not to report,

because someone's not going to get a reward, we

think that's problematic, and it can be a…violation.”

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Whistleblower Protection Advisory

Committee Meeting – January 29, 2013

• “As of last month, we have provided training to all field

Whistleblower Investigators. We have made training

of the Whistleblowers one of our highest priorities.

That's really part of a larger initiative of the Obama

Administration, to revitalize this Whistleblower

Protection Program. We've made this a very high

priority.”

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OSHA Budget and Whistleblower

Investigative Staff • 2011 OSHA Budget (WB):

– 25 new investigators

• 2012 OSHA Budget (WB):

– 10 new investigators

• Total of 96 Whistleblower Investigators at end of 2012

• 2014 Budget Proposal (April 2013)

– Slight decrease in overall OSHA budget (cuts 33

employees)

– 5.9m increase in Whistleblower Budget

– 47 new staff members for Whistleblower Office

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Online Filing is Here!

• https://www.osha.gov/whistleblower/WBComplaint.ht

ml

• Starting December 5, 2013, individuals can file

whistleblower complaints online

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• November 2013 November 19 [Region 5 News Release] -2013 -

11/19/2013 - Judge orders North Canton-based Star Air, Akron Reserve

Ammunition, owner to pay more than $300,000 to 2 terminated Ohio

truck drivers

• November 13 [Region 4 News Release] - 2013 - 11/13/2013 - US

Department of Labor orders Gaines Motor Lines Inc. and two officials to

reinstate whistleblowers and pay more than $1 million in damages

• October 2013 October 29 [Region 10 News Release] -2013 -

10/29/2013 - US Labor Department seeks more than $300,000 for Idaho

whistleblower

• October 23 [Region 1 News Release] - 2013 - 10/23/2013 - US

Department of Labor's OSHA orders Connecticut trucking company and

owner to withdraw retaliatory lawsuit, pay $60,000 to former workers

• October 21 [Region 4 News Release] - 2013 - 10/21/2013 - US Labor

Department's OSHA wins jury trial regarding whistleblower violations by

Manatee School for the Arts in Palmetto, Fla.

• September 2013 September 30 [Region 1 News Release] -2013 -

09/30/2013 - US Labor Department's OSHA orders Clean Diesel

Technologies Inc. to pay over $1.9 million to former CFO fired for

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What Not to Do

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General Guidance

• Develop and publicize policies that prohibit retaliation

for reporting violations of laws, regulations and

company policies

• Maintain good records of employee performance

• Train managers, HR, and other employees

• Promptly investigate claims and remind participants in

investigations of policies

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General Guidance

• Develop procedures for reporting violations of

company procedures, laws, and regulations

• Avoid suggesting employee may experience adverse

consequences for reporting/complaining about work

conditions or company activities.

• Prohibit retaliation for reporting of misconduct

• Designate a high level manager/counsel/HR to handle

retaliation claims

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Training

• Train managers/HR to recognize “protected activities”

• Train managers on proper response to employee

complaints

• Train employees and managers to promptly report

wrongdoing to legal/compliance/HR

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Complaint Investigation/Response

• Have standard investigative procedure

• Develop enforcement guidelines

• Reiterate anti-retaliation policies during investigations

• Follow up with complaining employee at conclusion of

investigation

• Thoroughly document the process and each

investigation

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Questions?

Jeff Jackson

Burns White LLC

4 North Shore

106 Isabella Street

Pittsburgh, PA 15143

412.995.3056 (p)

jajackson@burnswhite.com

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