January 26, 2018
- MEMORANDUM FOR:
- REGIONAL ADMINISTRATORS
WHISTLEBLOWER PROGRAM MANAGERS
- LOREN SWEATT
Acting Assistant Secretary
- FRANCIS YEBESI, Acting Director
Directorate of Whistleblower Protection Programs
- Clarification of Procedures for Closing Investigations Based on a "Kick-Out" to Federal District Court
This memorandum clarifies the procedures that whistleblower investigators must follow after receiving notification that a complainant intends to exercise their right to "kick-out" their complaint to Federal District Court, as afforded under several whistleblower statutes enforced by OSHA.
Eleven of OSHA's 22 whistleblower statutes contain a "kick-out" provision that allows a complainant to file his or her retaliation claim in Federal District Court if the Secretary of Labor has not issued a final decision within the prescribed number of days of the filing of the complaint, and any delay in the process was not due to the bad faith of the complainant. A final decision means a decision by the Administrative Review Board (ARB), or either an Administrative Law Judge (ALJ) decision or a Secretary's Findings that has not been appealed. The time periods for the complainant to "kick-out" under these statutes are as follows:
Prior to 2011, the rules applicable to statutes that included a "kick-out" provision stated that "…[f]ifteen days in advance of filing a complaint in federal court, a complainant must file with the Assistant Secretary, the ALJ, or the ARB, depending upon where the proceeding is pending, a notice of his or her intention to file such complaint."3 Upon receiving that notice, OSHA dismissed the whistleblower complaint that was under investigation.
Beginning in 2011, OSHA revised the applicable rules providing that "…[w]ithin 7 days after filing a complaint in federal court, a complainant must file with the Assistant Secretary, the ALJ, or the ARB, depending upon where the proceeding is pending, a copy of the file-stamped complaint."4
This change was made in response to a public comment that the fifteen-day advance notice requirement improperly limited complainants' right to file a complaint in Federal District Court. The purpose of the change was to ensure that the Secretary receives prompt notice that a case was actually filed in federal court indicating that the complainant no longer wishes to pursue the matter before the Secretary.5
Even after the change to the rules, complainants or their representatives often inform OSHA of their intention to file in Federal District Court before exercising their rights under the "kick-out" provisions. In such instances, the agency's closure of the case prior to the complainant filing his or her case in district court, can lead to confusion and unnecessary litigation for the parties and the courts over whether the district court has jurisdiction to hear the complainant's claims.6
When a complainant or a complainant's representative informs OSHA of their intent to file a claim in Federal District Court pursuant to a "kick-out" provision and the requisite number of days have passed under the relevant whistleblower statute, the case should not be closed until OSHA receives a file-stamped copy of the complaint, 7 confirming that the complaint was actually filed in Federal District Court. OSHA must inform the complainant or their representative, as well as the respondent, in writing, that OSHA will suspend the investigation and remind the complainant to submit a file-stamped copy of the district court complaint within seven days of the court filing date in order for OSHA to close the case. This communication should be documented in the case file. Attachment 1 is a template letter that can be used to inform the parties that the investigation is being suspended. This information may also be communicated to the parties through email.
If OSHA does not receive a file-stamped copy of complainant's district court complaint within a reasonable amount of time, such as 30 days, the whistleblower investigator should follow up with the complainant or complainant's representative to ensure that he/she still intends to pursue the claim in Federal District Court. If the complainant no longer intends to "kick-out," OSHA should resume its investigation. Otherwise, OSHA should continue to suspend the investigation and communicate with complainant regularly to ensure that there are no changes in their plans to "kick-out." If the investigator is unsuccessful in contacting the complainant or complainant's representative after following the Whistleblowers Investigation Manual's guidelines for inability to locate a complainant or if they are not responsive to the investigator's requests for updates on the status of the district court filing, OSHA may consider dismissing the case for lack of cooperation.
Upon receiving a file-stamped copy of the complainant's Federal District Court complaint, OSHA will close the case in IMIS, and notify the complainant, respondent, and the relevant partner agencies that OSHA has closed the case because the complainant has "kicked-out" the complaint to Federal District Court. The file-stamped Federal District Court complaint may be provided to OSHA electronically by sending it to the investigator. Documentation of these communications should be preserved in the case file. Attachments 2 and 3 are template letters that can be used to inform the parties of OSHA's closure of its case due to complainant exercising his/her "kick-out" rights. This information may also be communicated to the parties through email.
If a Complainant "kicks-out" after OSHA has completed its investigation but before the ALJ or ARB rendered their decision, the rules require the complainant to send OSHA a courtesy copy of the file-stamped Federal District Court complaint. Upon receipt of this complaint filing, OSHA must update IMIS accordingly.
1. Sarbanes-Oxley Act (SOX), Surface Transportation Assistance Act (STAA), Seaman's Protection Act (SPA), Federal Railroad Safety Act (FRSA), National Transportation Safety and Security Act (NTSSA), Moving Ahead for Progress in the 21st Century Act (MAP-21), Consumer Product Safety Improvement Act (CPSIA), Food Safety Modernization Act (FSMA), Consumer Financial Protection Act (CFPA), Affordable Care Act (ACA), and Energy Reorganization Act (ERA).
2. CPSIA, ACA, CFPA and FSMA also provide that a complainant may "kick-out" within 90 days of OSHA's issuance of findings. However, in such cases, the complainant may need to file objections to OSHA's findings in order to preserve the ability to "kick-out." See Procedures for Handling Retaliation Complaints under Section 219 of the Consumer Product Safety Improvement Act of 2008, 77 Fed. Reg. 40494, 40502 (July 10, 2012) (Explaining the relationship between CPSIA's "kick-out" provision and the requirement to object to OSHA's findings).
3. See, e.g., 29 CFR 1982.114(b) (2010).
4. See, e.g., 29 CFR 1980.114(c) (2011); 29 CFR 1982.114(c) (2016).
5. See Procedures for Handling Retaliation Complaints under Section 219 of the Consumer Product Safety Improvement Act of 2008, 77 Fed. Reg. 40494, 40502 (July 10, 2012).
6. See, e.g., Glista v. Norfolk Southern Co., Civil Action No. 13–04668, 2014 WL 1123374 (Mar. 21, 2014) (adjudicating railroad's motion to dismiss a federal court complaint because of the ALJ's order dismissing the complaint after being notified of complainant's intention to kick-out).
7. If a complaint includes multiple claims under different statutes or is amended to add new respondents or new adverse actions, the complainant is responsible for calculating the time periods for each claim and each respondent for "kick-out" purposes. However, if there are questions regarding whether the complainant has exhausted administrative remedies in a particular case, OSHA may consult with the Regional Solicitor's Office.