U.S. DEPARTMENT OF LABOR
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION

WHISTLEBLOWER PROTECTION ADVISORY COMMITTEE

Monday, April 20, 2015
1:03 p.m.

Frances Perkins Building
200 Constitution Avenue, N.W., Room N-4437
Washington, D.C.

PRESENT:

Emily Spieler, Chair
Dr. David Michaels
Rob Swick
Anthony Rosa
Louise Betts
Jon Brock
Eric Frumin
Kenneth Wengert
Jennifer "J.J." Rosenbaum
Gregory Keating
Robert Miller
Rina Tucker-Harris
Christine Dougherty
Ava Barbour
Richard Moberly
Marcia Narine
Nancy Lessin
Eric Harbin
Megan Guenther
Tom Devine

A G E N D A

EXHIBITS

  1. OSHA whistleblower investigation data
  2. Investigation data
  3. OSHA memorandum for regional administrators
  4. 4/1/15 public comment letter
  5. 5-A Know Your Rights, English

    5-B Know Your Rights, Spanish

  6. NBC news report

P R O C E E D I N G S  [1:03 p.m.]

WELCOME AND INTRODUCTIONS

CHAIR SPIELER:  This is the Whistleblower Protection Advisory Committee, and I'm Emily Spieler. I'm honored to chair this committee.

Before we get started, I'd like to ask -- I think it's Rob --

MR. SWICK:  Right here.

CHAIR SPIELER:  Okay.  Is going to give us the required safety and other instructions.

MR. SWICK:  Thank you, Emily.

Welcome everyone to this gorgeous spring day in the Nation's Capital.  I hope you get the opportunity to take in some of the foliage.  It's most beautiful.

I'm Rob Swick, the director of the Whistleblower Protection Programs, and I welcome you all here today.

Just a few words about safety and related events.

Most importantly, the bathrooms -- you can go either direction, pretty much in any direction, you'll be able to find one with a water fountain and so forth and so on.

Now, there's two types of an emergency event in this building, something called a shelter in place and then the call to exit.

In a shelter in place situation, we're good. We're right where we need to be.  You stay put.

In the event of an evacuation, we'll be going out this back door here and straight out that stairway, all the way out and just follow the herd, and we'll, you know, try to work it out there.

There is a snack bar on this floor, on this corridor over here.  There is a cafeteria that runs till 3:00 o'clock, I believe, on the sixth floor, and there's various vending machines throughout.  I dare you to find them.

Also, I remind everyone please to silence your phones and, you know, put them on quiet, and if you have any questions, see me or Megan Smith or any member of DWPP.  DWPP people will give you a hand.

With that, thank you, Emily.

CHAIR SPIELER:  Okay.  Thank you.

As I think most of you know, this committee was chartered and then recently re-chartered for a second two-year term, and our members were appointed for staggered terms.

We're delighted to welcome one new member from the labor side, Jennifer "J.J." Rosenbaum.

And as you also know, this committee is broadly charged to make recommendations regarding the policies and implementation of whistleblower investigations in the Department of Labor and specifically in OSHA, I guess, in the end, to help improve the situation for whistleblowers, with the long-term goal of allowing people to come forward regarding concerns without any fear of retaliation, and when retaliation occurs, to be able to rely on OSHA to help people out.

Some of you have not been to one of these committee meetings before, but as you know, it's our custom to have everyone in the room introduce themselves before we get started with the committee business, and then we will move on to the committee's business, and as you know, we will be meeting this afternoon and tomorrow.

Today, we will be hearing from Dr. David Michaels and from the Whistleblower Directorate before our break, and after the break, we will also be discussing the current clarification of the investigation standard for whistleblower investigations, and finally, today, hearing public comment, and we do have some public comments that we will be receiving.

We will then adjourn until tomorrow, and our primary agenda item for tomorrow is to review, discuss, and hopefully transmit to OSHA the recommendations of the Working Group on Best Practices in Industry.

We will close our meeting tomorrow with a discussion of our next steps as a committee.

So, with that, I'm going to turn to Louise at my left -- actually, why don’t we do it this way?  We will first have the members of the committee introduce themselves, and if you could say what your role is on the committee, that would be helpful.

We will then turn to the people who work for OSHA, starting with Dr. Michaels, and then we will ask the rest of you in the room to introduce yourselves.

It's my understanding that the ARAs from around the country are here joining us, and I particularly -- we always do have everyone introduce themselves, but I am particularly interested to learn who you are and hope that our work will be of assistance in the work you do on a continuing basis.

So, why don’t we start with John?

MR. BROCK:  John Brock.  I'm a public member of the committee and a member of the Best Practices Working Group.

MR. FRUMIN:  Eric Frumin, labor rep from the Labor Union Federation Change To Win.

MR. WENGERT:  Ken Wengert.  I am one of the management representatives with Kraft Foods out of Chicago.

MS. ROSENBAUM:  J.J. Rosenbaum.  I'm one of the labor representatives with the National Guest Worker Alliance.

MR. KEATING:  I'm Greg Keating.  I'm a management rep from Littler in Boston, and I'm on the Best Practices Committee.

MR. MILLER:  I'm Bob Miller.  I'm with the U.S. Department of Transportation, Federal Motor Carrier Safety Administration, and I'm the Federal Government rep.

MS. TUCKER-HARRIS:  Good afternoon.  I'm Rina Tucker-Harris.  I'm with the Consumer Financial Protection Bureau, and I'm also a Federal representative.

MS. DOUGHERTY:  Christine Dougherty.  I represent the State Plan states.

MS. BARBOUR:  Ava Barbour.  I'm a labor representative from the United Auto Workers Union.

MR. MOBERLY:  I'm Richard Moberly.  I'm a law professor at the University of Nebraska College of Law, and I'm a public representative.

MS. NARINE:  Marcia Narine, law professor at St. Thomas University, and I also consult corporations on corporate governance.  I'm a management representative.

MS. LESSIN:  I'm Nancy Lessin.  I'm a labor representative.  I'm with the United Steelworkers and Tony Mazzocchi Center.

DR. MICHAELS:  We'll go through the OSHA members here.

My name is David Michaels.  I'm Assistant Secretary of Labor for OSHA.

MR. HARBIN:  My name is Eric Harbin.  I'm the Acting Director for the Directorate of Whistleblower Protections Programs.

MR. ROSA:  Good afternoon.  I'm Anthony Rosa. I'm the Deputy Director for the Directorate of Whistleblower Protection Programs, and I'm also the designated Federal official for WPAC.

MS. BETTS:  I'm Louise Betts with the Office of the Solicitor, and I'm counsel to the WPAC.

CHAIR SPIELER:  So, Rob, if you could carry the mike back to people --

MR. ROLFSEN:  I'm Bruce Rolfsen.  I'm a writer, Bloomberg BNA, occupational safety and health reporter.

MS. ABRAMS:  Good afternoon.  Adele Abrams representing American Society of Safety Engineers.

MR. LUNDEGREN:  Bruce Lundegren, Office of Advocacy, U.S. Small Business Administration.

MS. SMITH:  Meghan Smith, Directorate of Whistleblower Protection Programs, WPAC liaison, and I'd like to remind everyone who's observing to please sign your name in the back of the room.  Thank you.

MS. BERKOWITZ:  Debbie Berkowitz, OSHA.

MS. JOHNSON:  Marisa Johnson, Whistleblower Directorate.

MS. GARAHAN:  Mary Ann Garahan.  I'm the newly selected director of the Directorate of the Whistleblower Protection Program.

MR. ERSKINE:  Jeff Erskine, Acting Assistant Regional Administrator for the Whistleblower Protection Program, Region I, Boston.

MR. MABEE:  Michael Mabee.  I'm a supervisory investigator for the Whistleblower Protection in Region I.

MR. MENDELSON:  Rich Mendelson.  I'm the Deputy Regional Administrator in OSHA, Region II, New York, and I'm a member of the Whistleblower Executive Steering Committee for OSHA.

MS. WIGGER:  Hi.  Teri Wigger.  I'm the Assistant Regional Administrator in Region II, New York.

MS. LOREK:  Hi.  I'm Karena Lorek.  I'm Assistant Regional Administrator in region VII, Kansas City.

MR. CROUSE:  Tim Crouse, supervisory investigator, representing Region V, Chicago.

MR. ZUCKERMAN:  Hi.  My name is Jason Zuckerman, and I represent employees in private practice.

MR. Robinson:  Hello.  Antione Robinson, Assistant Regional Administrator, Region IV, Atlanta.

MR. RUDZKI:  Good afternoon.  Jack Rudzki, regional supervisory investigator in Region III, Philadelphia.

MR. GOSSMAN:  I am Steve Gossman, the ARA in Region X.

MR. WILSON:  Hello.  Cory Wilson, ARA, Region VIII, Denver.

MR. Paul:  Hello.  Josh Paul, Acting ARA, Region IX in San Francisco.

MR. FAIRCHILD:  Cleveland Fairchild, program analyst with the Director of Whistleblower Protection Programs.

MS. STEWART:  Christine Stewart, acting division -- policy division chief, DWPP.

MR. Lerner:  Mark Lerner, Office of the Solicitor, Division of Occupational Safety and Health.

MS. GUENTHER:  Megan Guenther, Office of the Solicitor, Fair Labor Standards Division.

MR. BARAB:  Jordan Barab, Deputy Assistant Secretary, OSHA.

MS. SWANN:  Gail Swann, management analyst, DWPP.

MR. LY:  Viet Ly, program analyst, DWPP.

MR. BLANCATO:  Phil Blancato, investigative specialist, DWPP.

MS. DARBY:  Kimberly Darby, OSHA's Office of Communications.

MS. GIVENS:  Laura Givens.  I'm with DWPP.

MS. FALK:  Sara Falk.  I'm with DWPP.

MR. BARRETT:  Otis Barrett, DWPP.

MR. BROECKER:  Brian Broecker, DWPP.

MS. SEEMAN:  And to carry on the chain here, I'm Laura Seeman, Division Chief for Field Operations, DWPP.

MR. HOLCOMB:  And I'll stop it.  I'm Sid Holcomb, OSHA Office of Communications.

MR. CHARTIER:  I'm George Chartier, OSHA Communications.

MR. SWICK:  One more best practice, Emily, for the group, just a reminder that this meeting is on the record.  So, if you spare our folks, try to talk one at a time, no cross talk, and again, remember to sign in if you haven’t.

Thank you, Emily.

CHAIR SPIELER:  Okay.  So, I actually was going to echo that, remembering that this is a public meeting, and we actually, as a committee, are very committed to full transparency. 

Detailed minutes are prepared after this meetings, and subcommittee meetings and all informal meetings of the work groups are all open to the public, and there are notices posted for those meetings.

So, as we go forward and we discuss work after this meeting that the committee or work groups will be taking up, you will have the opportunity to usually listen in, frankly, since often it's done by telephone conference call, if you would like, and that is something we feel very comfortable about.

We're very interested in having input from the public where that seems appropriate.

And with that, I'm going to turn this over to Dr. Michaels.

WELCOME

DR. MICHAELS:  Good afternoon.  Thank you so much.  It's really my pleasure to be with you today.

Let me also begin with some thanks, first to thank all of you.  This is a very important committee, and it's a very well-functioning committee that really has made a big contribution to our work, and we're grateful.

I'd like to welcome J.J. and Bob.  I think this is the first meeting for the two of you, and we're really pleased that you could join us, and we look forward to your contribution.

I want to thank everybody who has worked so hard on the subcommittees and the three chairs of the subcommittees, Dave Eherts, who is not here, who chaired the 11-C committee; Eric Frumin, who chaired the Transportation Industry Work Group; and Jonathan Brock.  Jon has done a tremendous job on the Best Practice Committee.  I think we'll be hearing a lot more about that today.

This is also a nice opportunity for me, though, to thank the staff of OSHA and the Solicitor's Office, who have worked so hard on these whistleblower issues, and because in the audience today we have so many people from the national office and from our regions who really spend, you know, all their time and they are dedicated, committed, persevere on some very tough issues and really make a big difference, and so, I want to just express my gratitude to all of them, as well, since they're in the room today.  It's a nice opportunity to do that.

So, I want to take a few minutes to just give you an update on what OSHA has done in a couple of different areas and, in particular, around whistleblower protection, and then, obviously, I'm happy to take your questions and comments, though I won't be here for the whole meeting, but I'll also get a full report from both our staff and from your chairperson on discussions that went on today, rest assured.

So, first I want to just discuss briefly with you a report that we issued a month ago or so, in case you hadn’t seen it. 

It's called Adding Inequality to Injury:  The Costs of Failing to Protect Workers on the Job, and that’s on our website, and I think it's very much connected to the work that we do on whistleblower protection and the connection it has to preventing injuries and illnesses.

So, to put it in some context, what's often forgotten about sort of the toll of workplace injuries and illnesses in the United States is the Bureau of Labor Statistics reports or estimates that there are 3 million injuries a year, more than 3 million serious injuries a year in the American workplace, and we know that’s an undercount, but employers record more than 3 million injuries a year, and we call them serious meaning that they are beyond just first aid.  That's a very, very large number, and we take it for granted that it's sort of acceptable that there are 3 million or more injuries a year.  We don’t think it's acceptable at all.

We don’t have any statistics on the number of illnesses that occur in American workplaces.  Employers record a small number of illnesses, but those are ones that are quite obvious to them. 

But we know that large numbers of people are sick now based on exposures that occurred in the past, from asbestos, from benzene, exposures that hopefully are not occurring at all or not occurring very much in workplaces today. 

But we don’t really know much about workplace illnesses.

But we do know that when workers are either injured or made sick on the job, the biggest impact is on them, and the systems that are supposed to take care of them really are not doing very well.

We know from numerous studies that the cost of those injuries primarily are borne by workers and their families, and the estimates by a number of different economists are sort of in the range of 60 percent or more of the costs are actually borne by the workers themselves or their families.

Workers comp picks up a substantial portion, maybe 20 percent, and the remainder is picked up by the taxpayer through state programs and federal programs, which is really a cost shift onto the American taxpayer and endangers some of the important programs that the government provides, like the Social Security Disability Insurance Program, which, as many people know, is facing significant financial challenges right now, and part of the challenge they face is picking up costs of injured workers that should be paid by workers compensation.

So, essentially we're seeing two things.  Because of the way -- the experience of injured workers and the fact that they, themselves, are picking up most of the costs, essentially, for some employers, there is much less incentive to abate hazards, because they aren’t paying the true cost of the illnesses and the injuries.

         

We know that, for many employers, they see what the real costs are injuries and they do everything, again, to abate those hazards and prevent injuries from occurring, but far too many don’t do that, because we wouldn’t be seeing 3 million or more injuries a year if there was that -- the committed approach to preventing injuries from occurring.

So, essentially you have a system that essentially doesn’t incentivize employers to abate hazards, because they're not picking up the true costs, and you've got a cost shift to the taxpayer, who are subsidizing unsafe employers.

So, we've issued this report, really, to raise these issues and talk about the importance of prevention. 

The best way to address this problem, of course, is to ensure that workers aren’t injured, that they're not made sick, and we'd like to encourage that conversation to take place in the United States today.

Certainly, protecting the voice of workers who raise concerns is a part of that conversation, and we're grateful for your work on that.

In focusing directly on the Whistleblower Protection Program, just to recap, this is -- since the current OSHA leadership arrived -- and you've met Jordan Barab and Debbie Berkowitz here -- this is our sixth year of being in OSHA leadership.

I think we've made significant progress in building a more effective Whistleblower Protection Program.  We've worked very hard on increasing the staff. 

We've elevated the office to a directorate in the national office, led by a senior executive, which I think will make a very big difference to this. 

We've developed our own budget line for the Whistleblower Protection Program.  Before that, it had no specific budget line.  We've made the program a major priority in the Department of Labor.

We've also developed a much closer working relationship with the Solicitor of Labor, because everything we do is jointly with the Solicitor of Labor, and we're grateful for Louise, who is actually taking on more and more responsibilities in the Solicitor's office and she's maintained this involvement in this committee, as well, because her input is always very important to this, and actively, we collaborate on addressing whistleblower cases, no matter the small size or the large size of the monetary awards involved.

And I think, as a result of all this, the whistleblower program is clearly getting stronger.  We face big challenges, though.  The number of new whistleblower retaliation cases filed with Federal OSHA grows steadily every year.

In fiscal year 2014, we received 7,400 new complaints and documented more than 1,000 new cases for investigation.

So, even though we're receiving more cases than ever, our investigative staff is working very hard to help us keep pace. 

In fiscal year '14, we completed 3,150 cases, essentially just keeping up with the cases that are coming in, awarding more than $35 million to whistleblower complainants and reinstating 69 workers through merit determinations and settlement agreements.

Now, in December 2013, we launched a new online whistleblower complaint form, and that provides workers with additional avenues for filing whistleblower complaints.  So, not surprisingly, the online complaint form has proved extremely popular with the public, and it's increased the number of complaints that we've gotten.

From December 2013 through September 2014, OSHA received approximately 3,000 online filed complaints, over 40 percent of the new complaints received during the fiscal year '14.

So far this fiscal year, from October 1st to April 13th, we received an additional 1,800 online complaints.

So, we will continue to get more complaints. We don’t want to discourage workers from filing complaints, and that will continue to be a challenge to us, and we have to address that issue, but we certainly don’t want to discourage workers from filing complaints with us.

So, we've come a long way in the last six years, but we know that we still have quite a bit of work in front of us. 

This is how we think about this.

We're focused on improving both the efficiency and the quality of our investigation.  We realize we have to do both.

We need to get more complaints in, if they're valid, and we have to deal with them quickly and fairly.

Focusing on improving the investigative process, we've emphasized an attentive caseload management, we've eliminated burdensome paperwork procedures, and we have restructured the regional whistleblower programs to strengthen oversight of investigative teams, and actually, the ARAs who are in the room are spearheading that effort, and we're very pleased that we have this new structure to make that happen.

We're increasing the training and skill levels of our investigators.

Now, because OSHA's improved investigatory efficiency has allowed it to serve more whistleblower parties, whistleblower complainants have received more damages or been awarded more damages through merit findings and settlement awards than before the backlog reduction campaign began in fiscal year 2012.

From fiscal years 2012 through '14, whistleblower complainants were awarded an average of about $30 million per year in merit findings and settlements, compared with an average of $14 million per year in the preceding 3 fiscal years.

For example, in fiscal year '14, whistleblower complainants were awarded about $36 million, more than double the $15 million that was awarded to complainants in 2011, before we started this campaign to catch up with the backlog.

More whistleblower complainants were also reinstated through merit findings and settlements in the past three years. 

An average of 76 complainants were reinstated each year from fiscal year '12 through '14, including a record 86 reinstatements in fiscal year '13, while an average of 63 complainants were reinstated each year from fiscal year 2009 through '11.

We have also issued a higher number of merit findings during the past 3 years, issuing an average of 62 merit findings per year in those last three years, including a record 75 merit findings in fiscal year '13, compared to an average of 50 merit findings each year in the previous 3 years.

So, I've tried to make this very clear to our entire staff across the country.  Our goal is to improve both efficiency and quality for all of our whistleblower protection activities.  We can't sacrifice one for the other.

But we also understand that these cases are not just numbers.  Each one represents and directly affects people's lives. 

That’s why we are continuing to take steps to ensure we have consistent and thorough investigations throughout the country, and all of our assistant regional administrators are in town here to both observe this meeting and then we'll be meeting with them to address issues of consistency and to make sure everybody is on the same page and learn from each other and some of the best practices that each of the regions has developed.

We also have some updates in personnel. 

As you've heard already, Mary Ann Garahan -- I chose Mary Ann Garahan to be the Director of the Directorate for Whistleblower Protection Programs.  I'm extremely pleased that Mary Ann agreed to do this.

She is currently Regional Administrator for Region II, Philadelphia, previously was in the national office, has been a valuable member of the OSHA team for 25 years, and it think everybody will see she is quite a skilled manager with extensive technical experience in all of the OSHA programs.

She'll come back to Washington and begin her new role as Director of the Directorate for Whistleblower Protection Programs next month. 

I am confident that Mary Ann will be an effective leader in whistleblower protection and will continue to build and strengthen this very important program.

Thank you for agreeing to do this, Mary Ann.

I think you'll get a chance to spend some time with her over the next day-and-a-half.

You also met very briefly Eric Harbin.  He is the Acting Director.  He has come in from the Dallas office, where he is Deputy Regional Administrator.  We're very grateful that Eric has spent several months with us, helping to manage the program until Mary Ann gets here.

And you've also met and we're very grateful for the work of Anthony Rosa.  Anthony Rosa is our permanent Deputy Director of the Whistleblower Protection Program, has made a huge difference since coming.

I can't tell you -- the number of ways that he's helped this program, I can't count.  I mean, it's really -- it's terrific.

I'm very grateful that you joined us, and it's a pleasure to have you as part of our team here.

Now, I want to let you know that we'll be seeking to fill six positions on this advisory panel, as people's terms end and then start again.  They’ll be vacant in December, December 1st, and we issued a Federal Register notice on March 17th with details.

So, nominations, including people who want to be re-nominated and other nominations have to be submitted to OSHA by May 18th of this year.

So, please let us know your thoughts, and other people we'd like to encourage to apply, as well, or to be nominated.

So, I referred to earlier -- and I'll talk a little bit about this -- we're currently expanding all of our regional programs -- we're expanding into our regional programs what we think is a highly successful management structure where we have a dedicated assistant regional administrator, or ARA, who would oversee each regional whistleblower program, and this is essentially a promotion, a higher-level position in every regional office to supervise all of the whistleblower activities.

The ARA either will or already does report to our regional leadership, so that it elevates the program in the field in much the same way we've elevated the whistleblower program in the national office.

This new position, the ARA, allows for direct caseload management and oversight of whistleblower investigations by subject matter experts, which we believe will result in more efficient and effective investigations under all the statutes that we cover.

Now, the regions that have already implemented this management structure tell us that both regional supervisors and investigators benefit under this new plan.

We've been working for more than a year to overhaul and expand our basic educational offerings, our training offerings for whistleblower investigators, and we're current designing and developing new curriculum for advanced training courses.

These courses will help build investigator skills as they gain more experience and grow during their careers.

In addition to these new courses, which will be rolled out next year -- Eric Harbin is going to fill you in on more of these -- we also developed some webinars which will educate our staff on the new statutes and regulations, along with other topics that we really need to address.

Recently, for example, the directorate issued a webinars focusing on the Fairfax memo, which is the OSHA policy on incentive programs.  That’s a very important issue to the field.  We just did a webinar specifically on that.

That webinar is actually the first step in responding to the recommendations from the 11-C work group of your advisory committee that we received in September 2014 on educational practices for our staff.

We are also continuing to improve our work with our partner agencies and the whistleblower provisions we enforce, and that's why I'm very grateful we have representatives from a couple of different Federal agencies on this panel.

Currently, we're reviewing a memorandum of understanding with the Federal Aviation Administration.

This MOU will facilitate coordination and cooperation concerning the protection of employees who provide air safety information under the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, which we call the Air 21 act.

So, we want to do this more with all of our Federal partners to make sure we work closely with them. 

We have to do that because the increasing number of whistleblower cases filed each year under all these different statutes requires this close coordination.

And this new legislation, not surprisingly, is bringing new cases.

In fiscal year '11, there were 6 cases filed under the Consumer Financial Protection Act and 17 under the FDA Food Safety Modernization Act. 

Three years later, in 2014, we have 48 cases under the Consumer Financial Protection Act and 50 cases under the FDA Food Safety Modernization Act.  Needless to say, we expect more and more cases to come under these acts.

Just last year, we received 10 cases under a new piece of legislation, MAP 21, Moving Ahead for Progress in the 21st Century. 

That statute was just passed in 2012, and so, the cases are just starting to come in, and now under the Seaman's Protection Act, we're receiving new cases.

So, we always have some new challenges to take on, to learn more and to take on cases and to reach out to other agencies to work more closely with them.

We're asking our partner agencies to add the link to our website, www.whistleblowers.gov, to their respective websites.  In turn, we're going to make sure that the OSHA website provides a hyperlink back to each partner agency.

We believe this will improve customer service and help demonstrate a strong working relationship with our Federal agency partners.

Now, as communication with these partners is enhanced, we'll be able to assure that an effective process exists for sharing complaints and investigating information so that all the concerns raised by complainants are fully addressed.

We're exploring joint outreach opportunities with our Federal partners and we’re assessing internal training needs so all of our customers are better served.

Another approach we're looking into -- we're moving forward with revising our Alternative Dispute Resolution Pilot Program, which ran through fiscal year '13, and it showed us that early resolution could be very effective in providing a viable alternative to the lengthy investigative process.

The early resolution process demonstrates that adding staff dedicated to the coordination and facilitation of early settlement negotiation provides a highly desired service to the program's customers.

So, in light of the results of this pilot, we're expanding the availability of the early resolution process to all the regions, and we've developed written instructions to establish the policies and procedures that apply to early resolution.

Something I talked about, I think, in our last meeting in September, I'm very happy to announce today that we're issuing jointly with OSHA and the Office for the Solicitor of Labor -- we have a memo clarifying the agency's position regarding investigative standards for OSHA's whistleblower investigations.

The standard that applies to our whistleblower investigations is whether OSHA has reasonable cause to believe a violation has occurred.

Because OSHA makes its reasonable cause determinations prior to a hearing, the reasonable cause standard is somewhat lower than the preponderance of evidence standard that applies following a hearing, and we've scheduled a presentation later today to explain this clarification in greater detail and answer your questions.

You are very fortunate that Megan Guenther, who is with the Solicitor of Labor, who has worked very hard on this, will be presenting this in more detail, and I'm very pleased you can do that.

We've also made improvements with our 11-C appeals program.  Over the last year, the directorate eliminated its backlog of pending reviews and has dramatically reduced the time taken to complete our reviews.

Complex cases are referred to our solicitors for further review and legal analysis, and if and when additional investigative work is needed, the case is remanded back to the field for further investigation.

So, we're working on this.  We're developing ways to better track this for the public, and we'll keep you posted, but I really wanted to thank the Solicitor's office and everybody in that for their work on both these issues. 

It's really been a great collaboration, and so, I'm very pleased with how it's going.

Now, we've also been working on the comprehensive written outreach plan for the Directorate of Whistleblower Protection Program, and we've also developed a bunch of new materials which will be part of that outreach.

Fourteen fact sheets are currently available on our website, in both English and Spanish, and more are on the way. 

We've developed what we call a Quick Card on 11-C, both English and Spanish, to quickly provide program information to the public, and we've redesigned our website, whistleblowers.gov, to enhance navigability and user-friendliness.

So, as you can see, the whistleblower staff and the solicitors have been very busy.  We've really made protecting workers from retaliation for exercising their rights a major priority for OSHA, and we're grateful everybody has pitched in to make this happen.

The department's FY '16 budget request -- actually, the President's FY '16 budget request for whistleblower programs reflects our commitment to continuing to build the program.

The $22.6 million request would support a total of 157 full-time employees.  That’s an increase of 22 positions over our current FTE level of 135.

Now, as everybody in this room knows, we cover a range of types of workplaces, and we enforce whistleblower provisions for 22 different statutes.  So, I want to just share with you some of our recent successes.

As many of you know, we've been dealing with several 11-C investigations involving AT&T. 

In multiple regions around the country, we've filed District Court cases against subsidiaries of AT&T on behalf of workers who suffered discipline after reporting workplace injuries.

In each instance, the company alleged that the employee violated a corporate workplace safety standard, but OSHA's investigation concluded that the safety standards were being used as a pretext for disciplining workers who reported injuries.

Our efforts are making a difference.

In Region V -- that’s the Chicago region, covering Ohio west to Illinois -- after we filed in District Court, the company made all of the workers whole.  They removed the discipline procedures and compensated the workers fully.

Now, this is still in litigation, and as it develops, we will keep everybody apprised.

In October 2014, the Kansas City Regional Office found that the Burlington Northern Santa Fe Railroad, BNSF, violated the Federal Railroad Safety Act when it retaliated against an apprentice electrician after he reported a shoulder injury.

The company terminated the employee after he suffered the injury, which required him to be transported to an emergency room and medically restricted from returning to work.

OSHA ordered the company to pay the apprentice electrician $225,000, including $150,000 in punitive damage, remove disciplinary information from the employee’s personnel records, and provide whistleblower rights information to all of its employees.

In December 2014, our Boston Regional Office found the Metro North Railroad violated the Federal Railroad Safety Act when it retaliated against a coach cleaner after he reported a knee injury.

While driving the injured employee to the hospital, a Metro North supervisor intimidated the worker and threatened that reporting the injury would kill his chances for career advancement in the company.

Region I ordered Metro North to pay the employee a total of $250,000 in punitive damage.  That’s the highest allowed, and I don’t believe we had ever done that amount previously, because of the nature of this particular event, plus $10,000 in compensatory damage and to cover his attorneys’ fees.

Jeff Erskine and Mike Mabee from Hartford worked very hard on this case, and I'm very grateful for their work on this.  So, thank you both.

Just a few weeks ago, in February, we won a Section 11-C case in court, in Seattle, against the United States Postal Service, who had retaliated against an employee who helped a coworker file an OSHA complaint.

The District Court judge reinstated the employee to a management level position, awarded him almost $230,000 in compensatory damages and expunged his disciplinary record.

The judge found the Postal Service to be so hostile to OSHA and its employees' protected activities that the court permanently enjoined the Postal Service's Seattle facilities from violating 11-C of the OSHA act.

This month, our New York Regional Office found that a Bronx hair salon violated Section 11-C of the OSHA act when it retaliated against an employee who warned her coworkers about formaldehyde in hair straightening products and potential respiratory damage from exposure.

The salon was later inspected and cited for lack of a hazard communication program and improperly training its employees.  We are now in court pursuing 11-C charges in District Court in New York.

And we also won an 11-C case against a Boston dentist who had retaliated against an employee who helped a coworker file an OSHA complaint regarding needle stick hazards.  The District Court judge ordered the dentist and his office to pay the worker more than $50,000 in back wages and $333,000 in compensatory damage.

So, again, to the OSHA regional staff who worked on all these cases, thank you so much for the work that you've done on them.

But I have to tell you, we still face huge challenges.  Just last week, in Alabama, we had to go to court to obtain a temporary restraining order, and we did obtain it from a Federal judge, against the Lear Corporation, which is an auto parts manufacturer.

A worker there complained about hazardous conditions, and what did Lear do?  They fired that worker and they went to court and sued that worker.

We were outraged.  We recently had completed an investigation at that site.  We issued monetary penalties against Lear because of the hazards there, and then when the worker raised concerns, fired that worker.

There's a hearing on April 29th in court, and we expect to be in court to protect that worker's right to raise concerns, but this case underscores the need for a new attitude on the part of some employers, and it really demonstrates the importance of the work of this committee in helping us reach out to employers and talking about essentially the way you address issues raised by employees around safety and health concerns or other concerns covered by the legislation that we are given the responsibility to investigate.

So, we need your help, and that’s why you're here and we're so grateful for what you do.

I want to especially talk a little bit about the work of the Best Practices Work Group, and I know you've worked hard and I've seen many drafts of what you've done, drafting and proposing a set of recommended practices to give to this committee.

I look forward to hearing the committee's discussion on these practices and considering these recommendations and how we can get them out.

OSHA is committed to provide and showcasing these best practices that encourage employers to establish effective anti-retaliation reporting programs in their workplaces.

I know there are very good programs out there.  There are many employers who understand exactly how to do this well, and we really have to learn from them and put these best practices out there.

With your assistance in collection -- we'll call it for the moment -- recommended practices and through your recommendations to us, we can collectively effect a positive corporate culture change that encourages employees to report their concerns without fear of retaliation while realizing benefits for employers who establish these programs in their workplaces.

So, to this committee as a whole, to all of you, whether or not you are on that committee, I would appreciate your brainstorming and advice on how OSHA can best reach out to workers and to employers and to educate them about all these issues, about whistleblower rights, the benefits of these rights, and protecting these rights for employers, and how we can all work together to protect these rights.

I think this will really play a key role as we implement our national outreach plan.

I know we've had three working groups.  I appreciate your work on all of them.  I appreciate your passion, your dedication, the time that you spent.

This committee really does work hard, and we recognize that, and I know you get no pay for this, you get no great honor except to know that you've really made a very important contribution to helping workplaces function better, and we're grateful for it.

We appreciate -- we're appreciative of your interest in promoting worker safety and health and the ability of workers to voice safety and health concerns without fear of retaliation.

The bottom line is this:  Workers have to be able to report hazards without fear of reprisal.  No one benefits if workers are silenced for sounding an alarm when they see a problem that could injure, sicken, or kill someone or impact their financial future.

The country needs to make sure these workers are protected.  All this legislation says that, and we are the way to implement that. 

We all pay a price when workers are silent.

So, again, thank you so much for coming to Washington to do the work with us, and I'm happy to take your questions or comments, and we'll take it from there.

CHAIR SPIELER:  So, before we open it up for questions and comments, I just want to say that, from the time, Dr. Michaels, that you contacted me and asked me if I would chair this committee, until now, there have been enormous strides made by OSHA.

I don’t think any of us thinks that we're there yet, but just the fact that there's an ARA structure out in the regions now and that people are here and focused on this issue -- it is a sea change from the way OSHA was previously organized around these issues, and I think it really will make a difference as we go forward, and I also didn't say in my opening, which I tried really hard to keep brief, that we have been staffed incredibly well by the people in DWPP and by Louise from SOL, and I want to thank Louise and Anthony, who has been our -- who is our contact person, and Rob and Megan and the other folks in DWPP for the work that you do.

I sometimes think that advisory committees are just one more thing for Federal employees, and I know that there are lots of rules to navigate when you have a Federal advisory committee, but I do think that this is a committee that is very committed to trying to make a difference, and as we go forward, we would also appreciate any ideas that you have for issues that we should be thinking about as a committee.

And with that, I'll open it up for questions/comments from the rest of the committee.

Nancy.

MS. LESSIN:  Dr. Michaels, I know that OSHA put out a supplemental notice about the proposed rule of improving tracking of workplace injuries and illnesses, as well as that original rule.

Is there a timetable by which something might happen here or we might see what the fruits of those efforts are?

DR. MICHAELS:  I've been at OSHA long enough never to say I know exactly when regulations will come out, but I think we're on target to complete our review of it, our work on it, within the next month or two, and get it over to OIRA for their work.  So, I think we'll see it within a few months.

MS. LESSIN:  Thank you.

CHAIR SPIELER:  Just for those of you who aren’t quite focused on the inside baseball exchange there, what Nancy asked about was the record keeping rule and the rolling in of some of the issues around suppression of reporting into the record keeping requirements so that when companies have policies and practices that suppress record keeping, it would also be a violation of the record keeping rule, and the proposal also includes a component so that if someone were the subject of retaliation, as a component of that, it would also count potentially as a violation of the record keeping rule.

I know that OSHA has been considering that, and that is an issue that the advisory committee addressed in our recommendations. 

So, it is something that we have considerable interest in, in view of the fact that it does touch that place where the OSHA general enforcement issues come against the OSHA retaliation issues, which are the primary focus of this committee.

Other questions/comments for David?

Eric.

MR. FRUMIN:  I want to second Emily Spieler's comments about the progress that’s been made in the last few years on the whole whistleblower program, including the reforms at the regional level, and so, since the ARA's and other folks from the regions are in the room -- some of you I've met in the past; others, you know, maybe I'll meet now -- so, thanks for what you do every day.

You have a very hard row to hoe, and it means a lot when workers can believe that the assurances of protections that compliance officers give them during inspections, that those are meaningful, and if you weren't doing what you're doing, there would be no prayer that that would ever happen.

Having said that, there are many times when it's not a meaningful protection, for any number of reasons, the worst, of course, of which is the statute itself, and this committee has weighed in on the need to reform the statute and bring 11-C protections into the modern era so that workers don’t have to languish in the legal purgatory of an 11-C complaint for months and months or years waiting for the wheels of justice to grind on.

I want to just take this moment to thank the Solicitor's office and OSHA together for the work that was done recently in Region IV, in the south, and I appreciate the participation of people from Region IV here today, because you have a particularly difficult task.

It's a part of the country where workers have few rights that employers are bound to respect, at least in practice, and this recent incident that Dr. Michaels mentioned with the Lear Corporation speaks volumes to the innovation that’s going to be necessary until we can see the reforms in 11-C that will someday give workers the hope that that right will be meaningfully vindicated.

The fact that this company treated workers this way in the midst of an OSHA investigation is really astonishing, and you have to wonder, what were those lawyers thinking?

Did they really expect an objective party to accept a slap suit against a complainant in the middle of an OSHA investigation?

I mean, it's just kind of hard to fathom how they would think that that was legit, and I was so heartened to see the work of the Solicitor's office and the OSHA folks in taking that action very, very seriously.

We saw you do that in the mining industry a year or two ago, and this kind of message needs to go out loudly throughout the land. 

I wish penalties could have accompanied the judge's order, but maybe they're dumb enough to get into contempt.

So, thank you very much for the work that you do and for finding -- looking for practical ways to send that kind of message to employers for whom there is simply no line in the sand.

CHAIR SPIELER:  Rina.

MS. TUCKER-HARRIS:  I was just curious as to which city that was in Alabama.

DR. MICHAELS:  Selma.

There are some news reports from the local newspaper.  Maybe we'll make a copy and circulate -- and give you some background on what's going on.

CHAIR SPIELER:  Other questions or comments.

DR. MICHAELS:  I was hoping we'd actually be able to get a picture together.  This is a really august group, and we have a photographer here. 

So, we can all stand up there, take a -- if that's okay with you.  This is a good group to commemorate.

CHAIR SPIELER:  Okay.

DR. MICHAELS:  I'd like to do that.

(Off the record for photo shoot.)

CHAIR SPIELER:  Next on our agenda, we're going to have a DWPP update and report from Eric Harbin, who is currently the Acting Director.  I suspect at our next meeting we will hear from our permanent director who will be coming in, as you heard, next month.

Eric, why don't you go ahead?

DWPP UPDATE

MR. HARBIN:  Okay.  Thank you very much, Ms. Spieler.  It's a pleasure to be here. 

As mentioned before, my name is Eric Harbin, and normally I'm the Deputy Regional Administrator in Dallas, Texas, but for the past seven weeks, I've been fortunate enough to be here with the Directorate of Whistleblower Protection Program and it's been quite an honor.

But one of the things I know, as Dr. Michaels started, he really thanked everyone here, but one thing I would actually like to do is thank Dr. Michaels for his leadership not only on safety and health issues but also making sure that workers have the right to exercise their whistleblower protection rights.

So, that’s something I'm very proud of here, and I know everyone here with me, and they support Dr. Michaels in that.

I also wanted to let you know a little bit more about Ms. Garahan, Mary Ann Garahan, who was announced as the permanent director for the Director of Whistleblower Protection Programs.

As you know, she's been nearly three years the regional administrator in Philadelphia, Region III for OSHA, and during that time she's got, actually, a very remarkable record.

They have a little over 13 million covered workers in their Region III, and during her time there, they’ve led to 125 successful whistleblower settlements in favor of the complainants, that being the workers, and it put 19 of the employees back to work and recovered over $14 million for the workers.  That is a remarkable sum.

During Mary Ann's tenure as a regional administrator, she also oversaw major enforcement cases and she expanded OSHA's outreach activities and the protection of vulnerable workers in her region.

Before serving as regional administrator, Mary Ann was here in the national office for many years. 

Her last position was as the acting director of the Directorate of Technical Support and Emergency Management, and that time I actually spent a stint with her as the acting deputy for her, so I got to work with her very closely. 

I'm very thankful for that.

I also would like to thank Emily Spieler for being the Whistleblower -- WPAC -- as well as the other work groups, Dave Eherts, Jon Brock, and Eric Frumin.

Also, as we introduced ourselves earlier, I wanted to thank the DWPP staff and recognize them for all they’ve done.  Also in the audience here, we have the ARA's, the assistant regional administrators, who are a very hardworking group.

In particular, I also wanted to recognize a few people that each of you have been able to work closely with, and that’s your WPAC points of contact starting with Anthony Rosa, your designated Federal official.

Christine Stewart, who is actually here helping on loan from Region VII in Kansas City.  She's the Acting Division Director in DWPP.

Meghan Smith, who is your chief point of contact, as well Rob Swick and Marisa Johnson.

I will be here through the end of this week, and I'll just let you know that if there's anything I can do to make your time here any better, please let me know, and also, please feel free to contact me once the meeting is convened.

And of course, as I mentioned, Anthony Rosa will remain the designated Federal official, and please also let Meghan Smith know if you have any issues.

She's currently on loan from DWPP to the Office of the Executive Secretary, but we're looking forward to the day when she comes back to DWPP.

I wanted to mention to you -- give you a field update.

As much as the Directorate of Whistleblower Protection Programs does, the bulk of the work is actually done in the field, in one of OSHA's 10 regions.

As Dr. Michaels mentioned earlier, we have several pilot programs that were used. 

There are a couple that were extremely successful, and the agency as a whole has decided to implement those programs, one being the assistant regional administrator for Whistleblower Protection Programs.

It was filled in Regions V and IV, had overwhelmingly positive results, and as Dr. Michaels mentioned, we have expanded to all regions, and all of the regions have either filled the position or are in the process of filling the position for the assistant regional administrator.   

One of the key things it really does is, just like -- in the regional structure, typically, up until now, you had three assistant regional administrators, one for enforcement programs, one for cooperative and state programs, and one for administrative programs.

What this does is this elevates the level of the whistleblower program in each of the 10 regions.

So, now we actually have four assistant regional administrators in each of the regions.  We're in the process of filling all four positions.

What it does is it lowers the supervisor to investigator ratio.  I'll give you an example.

In Region VI, where I'm from, in Dallas, previously we had one regional supervisory investigator supervising 11 investigators and 1 admin staff, and now we actually have reduced -- it made it difficult to manage all of the investigators, but now we've actually reduced the ratio of supervisors to investigators.  It's now in the range of five to one.  It makes it much more manageable.

It provides subject matter expertise, and it actually copies what is in place in the Directorate of Enforcement Programs and throughout the regions.

So, another thing that was piloted and we are actually continuing it, as well, is the Alternative Dispute Resolution Initiative.  Some of you may be aware that it was piloted in Regions V and IX.  It was very successful.  It was overwhelmingly successful.

We have decided to expand that.  This will call, typically, for a new position, an alternative dispute resolution coordinator.

Currently, DWPP is in the process of getting through the directive to help give guidance to the fields, to each of the 10 regions, on how to utilize the alternative dispute resolution position.

Leading up to this, we worked with the Federal mediation and conciliation services to develop some training for the ADR position, and with the help of the FMCS, OSHA now has the training materials in place that will allow us to do our own in-house training for the ADR coordinators.

With regards to training, we also are working to establish a parallel whistleblower training track at the OSHA Training Institute. 

We currently have what we call a TED in place for our safety and health people, and soon we'll have it in place for our whistleblower investigators.

We're working to explore new avenues for providing additional Federal statute and special topic training. 

As mentioned previously, Anthony Rosa gave a WebEx a few weeks ago on the incentives program regarding the Fairfax memo, and this training will be supplied on demand through our learning link.

To further ensure that we are conducting quality investigations, we are constantly improving our database system. 

By refining our data collection and reporting, we're better able to discover, analyze, and address trends occurring both in our investigations and in various industries.

As you came into the meeting today, you received a two-page sheet with investigation data for each of the regional programs and the program as a whole, and I'll hold mine up to display it.]

If yours is printed in color, there will be a yellow highlight.  It's this two-page document.

What I wanted to do is take a minute to explain it to you.

So, the data on the summary sheet is derived from the first two pages of OSHA's Investigative Data Report, which is a standard report that the Whistleblower Protection Programs use to track whistleblower data trends.

Page 1 of the summary sheet provides basic caseload monitoring measures, including the number of cases received and completed during a given timeframe, as well as a number of cases pending at the end of the timeframe.

         

So, the first three columns provide data on the cases that were completed during fiscal year 2014. You have total cases completed, and it's broken down by region as you go from the top to the bottom, Regions I through X, and then also a total, a summary at the bottom.

Percent of the cases that were completed within 90 days -- and again, it's -- as you move from the top to the bottom, it breaks it down by region, and the average days to complete the cases per region.

So, the column in the middle, new cases received, shows the total number of cases received and docketed for an investigation during the same time period, and again, it's by region.

This does not include complaints that were filed with the agency but were screened out because they were untimely or were not prima facie cases, and again, this is the new cases received.

And then the three columns to the right show the data on the cases that were pending with the agency at the end of the fiscal year, September 30, 2014,

So, it has the pending cases at the end of the fiscal year, the percent of pending cases over 90 days, and the average days pending for the cases that were pending at the end of the fiscal year.

Page 2 of the summary sheet provides data on the determinations that complainants received in the cases that were closed during the time period.

So, you know that OSHA investigations can end in one of five ways:

OSHA dismisses the case, issues a merit finding, a complainant can withdraw their complaint, or the complainant kicks out of the OSHA process by filing a complaint in District Court, or the parties resolve their dispute through a settlement.

To break it down a little further, OSHA breaks the settlements into two categories:  settled, which OSHA is a party to the settling of the case, or settled other, which refers to a private settlement to which OSHA was not a party.

OSHA calls these six categories of case resolutions determinations.

In the second page of the summary sheet, it shows the number of determinations that were issued to complaints under the six determination types, and again, as I mentioned, it's broken down by region.

One thing I want to point out, when you compare the total number of determinations issued in the fiscal year to the number of cases completed on the first page, you'll see the determinations total is larger, and this is because determinations counts the resolution received by each individual complainant, while the cases completed measure counts the case docket numbers that were closed during the time period.

Because OSHA occasionally lists more than one complainant on the same case number, there will be more complainant determinations than there will be case numbers closed.

Next to each total number of determinations, the table shows the percentage of total determinations issued that each determination type accounted for.

For example, the 809 total merits determinations issued in the fiscal year 2014 report accounts for 25 percent of all determinations.

On the right-hand side of the table, two columns provide data on the remedies received by complainants in the merit determinations, settlements and merit findings that were issued during the timeframe.

The damages column shows total monetary damages provided to complainants in merit findings or settlement agreements during the timeframe, and then the reinstated column shows the number of complainants that were reinstated.

Now, on Friday, each of you received an email from the designated Federal official, Anthony Rosa, and it was a four-page document, and I think we're in the process of getting printed copies for you if you don’t already have it.

Is that correct?

MR. ROSA:  That is correct.

MR. HARBIN:  A lot of the information is very similar, but there's a couple of things I wanted to point out.

There's one row that’s labeled EPA.  This refers to all six of the environmental statutes that OSHA enforces.  I think you may still only have it in an electronic copy at the moment.

And likewise, on the second page, it corresponds to the second page of the summary, which I just covered briefly with you.

And the third and fourth pages provide data on which type of protected activity was alleged by complainants who received a determination during the time period, and this goes through each of the statutes that OSHA covers.

And then page 4 expresses the totals listed on page 3 in terms of percentages.  Page 3 will be just numbers, raw numbers of complainants or the particular statute that was referenced, and then page 4 breaks it down into percentages.

One of the things Dr. Michaels referenced earlier was the DWPP administrative review forum.  It was called a DWPP review or appeals process.

One of the things that DWPP has done is they have meetings -- we have -- the administrative forum meetings have been a success.

At these meetings, staff members discuss cases that may need more investigation or might need to go to the full Administrative Review Committee.

The full committee consists of members from DWPP and the national Solicitor's office.

Through these discussions, DWPP has been able to identify areas for improvement in OSHA's 11-C investigations and have meaningful discussions on policy issues.

One thing I just really wanted to make clear for all of you is this is not a rubberstamp process.  We have actually sent cases back to the field for further clarification or investigation.

As Dr. Michaels mentioned, we have posted online, back in December of 2013, the online whistleblower complaint form.  We have received over 3,000 online filed complaints during FY 2014, which is a remarkable number.

Dr. Michaels mentioned our Spanish language web page and updated fact sheets.  We're also working to make information more accessible to the public.

About two weeks ago, the Spanish language whistleblower web page was launched.

We're also in the process of issuing mini-fact sheets on each of our statutes and updating our older fact sheets.

Last week, for example, we issued fact sheets on the Clean Air Act, the Federal Water Pollution Act, and the Safe Drinking Water Act.  About a month prior, we issued a fact sheet on the Seaman's Protection Act.

DWPP has worked with OSHA's Director of Enforcement Programs to draft and publish a bulletin regarding whistleblower rights and responsibilities for the agency's temporary worker initiative.

The bulletins were issued under the initiative outlining how joint employers share responsibilities in protecting the safety and health of their workers.

The bulletin was publish in March and is posted on OSHA's temporary worker web page, and a copy of that bulletin is in your package.

The Directorate of Whistleblower Protection Programs is responsible for promulgating regulations specifying the procedures for the handling of retaliation complaints filed under the 22 statutes OSHA administers.

Since the September 2014 meeting, OSHA has published a final rule and continued work on several other whistleblower rulemakings.

On March 5th of 2015, OSHA published a final SOX rule.

In addition, the agency is continuing its work on final whistleblower regulations under several other statutes, responding to public comments received on previously published interim final rules, including the Food Safety Modernization Act, the Affordable Care Act, the Seaman's Protection Act, the Consumer Financial Protection Act, the National Transit System Security Act, and the Federal Railroad Safety Act.

Finally, the agency is continuing its work on an interim rule for the Moving Ahead, or MAP 21 Act.

We continue to strengthen our interagency relations.  Since so much of our work and statutes address non-OSHA issues, it's critical that we strengthen interagency relationships.

We've begun to meet regularly with our various partner agencies.  Last month, for example, we met with the FAA to ensure smooth coordination in the handling of whistleblower complaints between our agency and theirs.

Our whistleblower investigations manual continues to be an item that we've worked hard to improve on.  We continue to update chapters to make it more consistent for our investigators.

As Dr. Michaels mentioned, around 11:00 o'clock today, we issued -- OSHA and the Solicitor of Labor drafted a new policy memo that clarified that the standard that applies to OSHA's whistleblower investigations is whether OSHA has reasonable cause to believe a violation occurred.

In other words, OSHA's policy is to issue merit findings in whistleblower cases that provide for ALJ hearings when it has a reasonable cause to believe that a violation occurred, which is a lower standard that the preponderance of the evidence standard that applies at a hearing before an administrative law judge.

In cases under Section 11-C, OSHA should be consulting with the Solicitor of Labor regarding whether a case is suitable for litigation no later than when we, OSHA, recognize that there is a reasonable cause to believe that a violation occurred.

As mentioned previously, Megan Guenther from the Solicitor's office will be presenting that this afternoon.

Now, during the last few meetings of the Whistleblower Protection Advisory Committee, there were some recommendations that came from WPAC. 

One of those recommendations was that OSHA develop and offer statute-specific periodic training to transportation and other industries subject to whistleblower laws.

In response to that, OSHA is actively engaged in a nationwide outreach plan which will include fact sheets, wallet cards, and other information and materials for all industries under its jurisdiction, including the transportation industry.

OSHA also looks forward to WPAC's Best Practices Work Group recommendations regarding recommended practices for employers, which will be tomorrow.

A second recommendation from WPAC was regarding punitive damages, that OSHA should work with the Office of the Solicitor to achieve better coordination between OSHA investigators and the Office of the Solicitor regarding the appropriateness of punitive damages in particular cases.

And in response to that, I wanted to let you know that OSHA enjoys an excellent working relationship with the Office of the Solicitor and continually works with this office on all meritorious determinations.

During these discussions, OSHA continues to seek, where appropriate and applicable, the imposition of punitive damages, and we intend to continue this process in all future merit determinations.

A third recommendation from WPAC was the development of outreach with regard to incentive programs, specifically the Fairfax memo of March 12, 2012, and in response, OSHA, in March 2015, conducted an internal webinar on the incentives/disincentives from the Fairfax memo.

More than 400 OSHA employees participated in the webinar, and the feedback was very positive.

In addition, OSHA is actively engaged in a nationwide outreach plan which will include, among other items, outreach information and materials including the Fairfax memo, as well as its possible implications under 29 CFR 1904, OSHA's record keeping rule.

As mentioned previously, the agency is currently seeking public comment on a proposed rule to change its existing regulation with regards to record keeping.

A fourth item that WPAC recommended was that OSHA lobby to expand protections.  For example, longer statutes of limitations for some of the regulations from 30 to 180 days.

OSHA is well aware of the limitations of Section 11-C of the OSHA act.  In fact, as Assistant Secretary David Michaels testified in April of 2014 before the Senate Health Committee regarding the very same recommendations presented by WPAC.

However, until Congress enacts any amendments to the act, OSHA is limited in its authority and ability to make any changes.

One of the older recommendations from the March of 2014 WPAC meeting was for greater transparency in OSHA's investigations.

OSHA has modified its initial opening letters, what we call notification letters, and asked the parties to share each other's position statements and rebuttals during the beginning of investigations.

However, OSHA has and will continue to share one party's documentation with the other party as part of the agency's nonpublic disclosure policy, as outlined in our manual.

In addition OSHA issued a memo in June to its field offices regarding the importance of cross referrals between the whistleblower and compliance teams in instances where both a retaliation allegation and an ongoing safety and health hazard may be present.

The last item that we have as a recommendation from WPAC that’s open is consistency in application and WPAC recommended that OSHA take steps such as internal training programs to improve consistency in the application of laws, regulations, and statutes subject to OSHA's jurisdiction.

In response, OSHA has been diligently working on overhauling its whistleblower training program. 

A work group comprised of regional and national whistleblower managers was convened. 

A new whistleblower competency model was developed, along with a training directive and the clearance process, mirror that of the safety and health, or CSHO, side of the house.

OSHA's overhauled training program increased the number of mandatory courses from two to five within three years of hiring new whistleblower investigators.

In addition, OSHA will develop statute-based webinars and have them available on demand in its internal training database, or Learning Link, as we call it.

With that, I complete my update from the Whistleblower Protection Programs, and I'll be happy to answer any questions you may have.

CHAIR SPIELER:  Thank you.

I have to say that you have certainly been responsive -- the directorate has certainly been responsive not only to the formal recommendations of this committee but also to the areas in which there has been obvious consensus in the conversations without any formal recommendation, and I think we are very aware of that, and I think it is really terrific that we can bring to the agency, through our conversations, concerns, and that they have been heard and that you have thought about them and, in certain cases, acted on them and always acted on them appropriately, and it does make us feel like it's worth coming.

So, thank you for that.

Marcia?

MS. NARINE:  Thanks.  That was very helpful, but I do have a couple of questions.

The first one is, I wasn't sure that I understood what you were saying about WPAC's recommendation about punitive damages.

I didn't understand whether you were saying that -- you were clarifying what you already did or that something changed.

That’s question number one.

And the second question -- I may have more after I see the other pages -- relates to the big disparity in results between the regions, because I can't see, just glancing at it, necessarily a reason.

Is it because of staffing issues, or is there some other explanation that might show why there's some disparities in terms of -- especially when I'm looking at the average days pending, average days to complete, that kind of thing.

MR. HARBIN:  Okay.  If I may, I'll take on the first question, and then I'll circle back around to the second question.

So, the first question was regard to punitive damages. 

There was a recommendation of WPAC that -- and I'll read more about it to you -- OSHA should work with the Department of Labor's Office of the Solicitor to develop consistent, articulable standards regarding the circumstances when punitive damages would be appropriate in an OSHA Act Section 11-C retaliation case, whether based on the standards set forth in the whistleblower investigations manual or some other standard.

WPAC further recommended that OSHA work with the Offices of the Solicitor to achieve between coordination between OSHA investigators and the Office of the Solicitor on the appropriateness of punitive damages in particular cases.

And finally, WPAC recommended that OSHA apply these consistent, articulable standards and seek punitive damages in appropriate cases in order to more fully remedy and deter egregious conduct.

MS. NARINE:  I remember all of those, because I was here when we made all those recommendations.  So, my question was, were you explain -- were you clarifying what you're already doing or were you saying that something has changed?

MR. HARBIN:  Clarifying what we were already doing.

MS. NARINE:  Okay.  Thank you.

CHAIR SPIELER:  Let me just interrupt for one second.  This is housekeeping.

We need to label things as exhibits for the meeting, and so, the first will be the initial two-page printout of the investigation data determinations and remedies, and the second exhibit will be the investigative data by statute of all regions, four pages.

(Exhibit Nos. 1 and 2 were marked for identification.)

CHAIR SPIELER:  I'm wondering if it would be useful to divide this conversation between the data questions that maybe we could do all together and other issues.  Clearly, punitives was another issue, but why don’t we do this?

Questions and comments about everything other than the data first and then questions and comments about the data, and that way -- we've handed out the summary data on allegations under statutes and -- actually, the statute-based data, four pages, and you can take a minute, if you haven’t already looked at it.

We did receive it by email last Friday.  So, you may have already looked at it in the meantime.

Eric.

MR. FRUMIN:  Thanks.

So, you mentioned the recommendation for upgrading your training and outreach efforts, which was actually one that came from the Transportation Work Group, and so, the committee -- the full committee, when it accepted that recommendation and referred it to you, was very interested in both the parameters and the content of such training.

We actually amended the report to say that we wanted to look at that ourselves.  So, whatever the appropriate way would be for you to share with us that information, it would be in the -- continuing in the spirit of the recommendation that we made to you.

Obviously, there's a lot that you need to do internally and decide what aspects of it are appropriate, but I can tell you that the only way we made that recommendation in the first place was -- the only way we were able to come to consensus on it was with a shared understanding on our side that we would have some ability to have some influence in what those materials, that outreach would look like, for a whole host of reasons.

I don’t want to belabor the situation now but just to say that a number of the people in that discussion in the work group and then this full committee felt that that -- felt that we could provide a useful role there.

So, I'll leave it at that, however you think would be appropriate, but we would very much appreciate that opportunity before the ink is dry,

MR. HARBIN:  Okay.  Thank you.

CHAIR SPIELER:  Other non-data questions or comments?

Ken.

MR. WENGERT:  Thank you for the update.

I guess I'm more interested in your thoughts as you're transitioning out, what your thoughts are for opportunities for improvement.  Where do you see it going?

MR. HARBIN:  With regards to --

MR. WENGERT:  -- the entire program.  Where do you see the biggest opportunities?

MR. HARBIN:  That’s actually a difficult question to answer, cause that’s probably a little above my pay grade.  That might be more for Dr. Michaels.

But I tell you one of the great things is to see that the program was elevated.  As I mentioned, the change in the structure where the assistant regional administrators were put out into the field.

         

I'm actually -- I did spend two years here in OSHA's national office, but I actually spent my other -- I started in '97, so doing the math here -- the other 16 years I spent in the field, and I really heartens me to see how much Dr. Michaels and the rest of the leadership in OSHA have put into strengthening -- kind of leveling the playing field, if you will, between the whistleblower programs and the other enforcement programs that we have in the agency.  It really brings it forward.

And then the -- I can remember a time when the strength for the whistleblower program out in the field was very, very low, and to see us up now -- I think the latest data puts us in the 135 or so people across the agency that are involved in the Whistleblower Protection Program.

It really bolsters the standing of the program.

So, to me, coming from the field, that’s one of the things that I really see moving the program in the right direction,

CHAIR SPIELER:  Greg.

MR. KEATING:  Can I just ask a quick question about the ADR pilot that you mentioned?  You mentioned that it's been overwhelmingly positive.  You worked with FMCS and OSHA is now training its own people.  Practically, how does it work, though, if you could just give a little bit more meat on the bone.

MR. HARBIN:  We actually have the directive that really gives the guidance to the field on how the ADR program is going to work, but generally speaking, early on, it will be offered to the -- basically you have the complainant, the worker, and the respondent, the employer -- will be offered the opportunity to participate in this alternative dispute resolution.

This will be very, very early on, once the complaint is filed, and both parties will have to agree to participate in it, and at that time, the investigation -- if both agree to participate in it, the investigation will stop for about three weeks, roughly, and allow for this process to proceed.

That’s kind of the gist of it.  If you want a little deeper explanation, Mr. Rosa might be able to help us out on that.

MR. KEATING:  Well, specifically, Anthony, what I'm interested in is who would then do the mediation?  How is it paid for?  That kind of thing.

MR. ROSA:  The mediation will be done in-house by a dedicated, full-time employee of OSHA that is no longer involved in the enforcement side of the house. 

That is, a person that has been trained, either from FMCS or internally through the documents that we received, cause what we did with FMCS, Federal Mediation Conciliation Service, was asked them to provide a train-the-trainer course for us so that our field people that came in here to the national officer can then train the rest of the staff but also develop training modules and training materials for us so that we can use those in-house.

So, it will be done by a dedicated person that is no longer doing enforcement activity.  That is, a person that’s dedicated to complaint resolution.

CHAIR SPIELER:  Richard.

MR. MOBERLY:  Thanks again for coming here.

One of the things I heard you say was that a recommendation was greater transparency in OSHA investigations, and then I missed or didn't hear what was being done in response to that recommendation, if you could just tell me a little bit more about that.

MR. HARBIN:  So, OSHA has modified its initial opening letters, our notification letters, and asked the parties to share each other's position statements or rebuttals, the parties being the complainants and the respondents.

MR. MOBERLY:  That’s a new requirement?

MR. HARBIN:  The new issue is that we have modified the opening letters and asked that they -- asked them to share each other's positions.  So, that’s just a change -- I believe "change" would be the right word.

MR. MOBERLY:  Right.  What we have done in our initial notification letters to the parties, that we have encouraged them to share their responses with the other party. 

That would expedite the review process by the other side, and it would also show a good faith effort from one party sharing it with the other party, but it would also save us our resources of having us go ahead and sending it out.

We still send it out to the other party.  We do have to provide -- we do have to review it and provide certain redactions that need to be made under, you know, nonpublic disclosure or FOIA act, but if the other party shares it directly, that saves a lot of time and they can expedite the process, and it creates greater transparency between the two.

But we are still committed -- if one party does not share with the other party, we are still committed to making that copy available to them.

MR. HARBIN:  Another thing that I mentioned is that when OSHA has reason to believe that there is a safety and health complaint and a whistleblower investigation ongoing, both investigations will proceed at the same time and together, to the extent possible.

CHAIR SPIELER:  Just as clarification, does that mean a referral from a whistleblower investigator to a safety CSHO would sort of count as a complaint, the equivalent of a complaint?

MR. HARBIN:  A referral is pretty similar to a complaint.

CHAIR SPIELER:  Okay.

MR. HARBIN:  A complaint would be something from an active worker, a current employee of that worksite, and then a referral is made by someone who is not an employee but has a very good understanding that that condition may exist at the moment.

CHAIR SPIELER:  Okay.

MR. ROSA:  And we would clarify with the person calling that he or she is willing to file both complaints.  We want to make sure that they understand the difference between a safety and health complaint and a whistleblower complaint.

But when a complaint comes in and they're alleging both issues, we want to capture all the information and share it with both sides of the house.

CHAIR SPIELER:  Jon.

MR. BROCK:  I had a further question about the mediation program, two questions.

One is, what types of cases are going into that?  Are there certain categories of cases or profiles that tend to make their way into it?

And secondly, what's done to ensure that it's a level playing field?  And in particular, what sort of support does the worker get for coming in there and participating?

MR. HARBIN:  With regards to the first question, I don’t think we've had the process in place long enough to characterize any particular kind of cases that might be going into the ADR program.

And with regards to the second case, the alternative dispute resolution approach, it's just -- from OSHA's standpoint, we only would have one person -- that would be the ADR coordinator -- involved in it.

MR. ROSA:  Correct.  And like I indicated, both parties need to request it, and that information is maintained separate from the investigative file, which means whatever happens during those negotiations are not shared with an investigator if the mediation fails.

So, it stays separate, under the ADRA.  It has to be maintained separate and not part of the record in terms of the investigative file.

So, that gives the parties greater opportunity to discuss anything they wish to discuss that they may not have wanted to discuss if the case was ongoing investigation.

MR. KEATING:  Does each region have a dedicated ADR coordinator?

MR. ROSA:  We are in the process of working on that.

MS. LESSIN:  If both parties agree, then it proceeds, but I would -- I think the selling point, if I'm not mistake, is, for example, with 11-C, the average time it would take to resolve a complaint is a year.

So, the ADR would be, here, we can do it quicker, right?

So, my question is, has there been an analysis when -- when you said there were two regional pilots and it was working very well and we're going to expand it, have you looked at the settlement that came out of ADR -- clearly, it happened quicker, but what the settlement was versus what a settlement is likely to be going through the non-alternative dispute resolution process?

What does the worker get?  You know, is it equal and one is just shorter days, or do they lose something going through?  So, that’s the first question.

MR. HARBIN:  Well, the answer to that would be, no, we have not looked at it.  It would be hard to determine, because as you might imagine, during the investigative process, a lot of times things turn up that no one was expecting, and it would really alter the outcome of the investigation, and the ADR, the alternative dispute resolution, as you mentioned, it allows for a very fast resolution of the case and some permanency to the closing of the case, so -- but we have not gathered any data with regards to differences between what was settled upon and what the final outcome might have been otherwise.

MS. LESSIN:  So, what would be of concern to me is the decision that says it's working so we're going to expand it.  What does "working" mean?

MR. ROSA:  Well, there's one thing I wanted to add on to what Eric had mentioned. 

There will be one possible difference, and that would be in the amount of back pay, because if you settle it sooner, you have less back pay, but OSHA is still committed to ensuring that non-monetary relief is there from the beginning or throughout the investigation, whatever the case may be.

So, again, we don’t have all that specific data, but we do maintain that anything that would be part of the settlement, provided that a full investigation had taken place -- it's still there in an early resolution phase, albeit being a smaller back pay -- a smaller back pay award.

MS. LESSIN:  Can we get that data?  Is that data knowable?  Is it something that we can get?  And also, I'll just add on my other question about which types of cases went to ADR, and you said we can't characterize.

Well, clearly, in the two regions where this had been going on, you should be able to characterize that.  Is that correct?  I mean, you know which cases went into ADR.  So, we could look at that data, at least.

So, those are two data sets that, you know, I would very much like to see.

MR. BROCK:  Can we get the guidelines for the program that you provide to the parties and the investigator?

MR. HARBIN:  Sure.  We should have the directive -- the directive is in the clearance process, in the final stages of clearance, and when it is completed, we will get a copy of it to the members of WPAC.

MR. BROCK:  Thank you.

CHAIR SPIELER:  Marcia.

MS. NARINE:  I have another data/ADR type question, and that relates to -- I'm very familiar with the ADR process with the EEOC, where the agency recommends very quickly and people tend to take it up, for a variety of reasons.

Employers may be just in it for completely different reasons than the workers.

I'm wondering if you have any data, anecdotal or otherwise -- obviously both sides have to agree to it, but do you know which side tends to ask for it first?  Do you see it more coming from the employer's side, from the worker's side?

And then, what feedback have you been getting -- since you said it's very popular and successful -- from both the workers and the employers, and has any of that feedback been used to maybe make some tweaks to the program going forward?

MR. HARBIN:  At this point, we do not have any of the data responsive to your question, but we will certainly take that into consideration going forward.  Those are very good points to make.

CHAIR SPIELER:  I would make one final point, which is -- I'm trying to imagine how this works, particularly given the number of workers who are likely to be un-represented when they go into this process and the number of employers who may have legal representation.

And maybe this is a conversation for our next meeting, because it would be useful, I think, to see the directive and talk about it, because it isn’t clear to me that workers necessarily know the full range of what they can expect, short- or long-term, and it is -- if you have only your mediator there with them and there's some -- I wouldn’t say pressure, but a goal of settlement, then it may not be as balanced a playing field as perhaps we would like it to be.

And so, I hope, in looking at the directive, that you think about those issues, and I suspect you have, since you are generally attentive to those issues, but I think after we see the directive, it might be useful to have a further conversation about this at our next meeting.

And if you can put data together, that would actually be useful, because the question of what do you mean when you say it worked well is always a question that I think you'll hear from members of this committee.

And each of us, I bet, could tell you anecdotes about conversations about working well.

Are there other questions or comments?

J.J.

MS. ROSENBAUM:  Just two more pieces on the data set, if they're available.

One would be if limited English-proficient workers are participating at the same rate as other workers and how those issues are being dealt with.

And also, if claims involving temporary staffing agencies for particular sectors are coming up more or being chosen more to participate.

MR. HARBIN:  Thank you.

CHAIR SPIELER:  Okay.

So, I asked you to segment off comments and questions about the data set, and I'm going to open it up now for questions or comments about the data.

MS. NARINE:  If you could answer, to start off with, the one I'd asked originally about the disparities in the --

CHAIR SPIELER:  So, disparities among the regions --

MS. NARINE:  Is it really a staffing issue, or is there something else going on?

MR. HARBIN:  I was actually curious about exactly what you meant by disparities between the regions.

MS. NARINE:  I'm looking at some that have a much -- I'm trying to understand why there's such a disparity in average days to complete, average days pending, because if I look at the number of cases that some of the regions have, I can't get my mind around a specific correlation, so -- and maybe if I spent a lot of time looking at this document, I might be able to figure that out, but if you know something right off the top of your head, that might be helpful.

MR. HARBIN:  Mr. Rosa spends a lot of time analyzing the data, and I'm going to defer to him on this.

MR. ROSA:  I can give you a little history behind this, cause I was the ARA in Region IV, before I came here, and I was one of the two pilots, and as you see the numbers from Region IV, I can at least provide what my experience is.

The numbers are -- you can see like average days pending is pretty low and average days to complete is pretty low.  It wasn't like that.  It was different.

So, what's happened is that, as we mentioned earlier, Dr. Michaels mentioned it and so did Eric Harbin mentioned that two regions had piloted this ARA structure and developed some initial strategies of how to do caseload management, and that caseload management had increased in the efficiency of getting the cases completed without affecting the outcome, because you see the outcome in those two regions, that it didn't affect the outcome.

That's been implemented in all the other regions, and you will see, for example, Region VII has done a significant increase, Region VI has done it, and I don’t want to name -- cause all my colleagues are here, but each region is working on it, one by one.

CHAIR SPIELER:  He wouldn’t even if you weren't here.

MR. ROSA:  To be quite honest with you, it takes time, because when I started this initiative -- we called it the backlog initiative, and I started this in 2010.

It actually took two years for the numbers to get worse before they got better, because we needed to tackle the underlying issue of what was going on with how we were doing our investigation and how it was being supervised and reviewed.

So, you're going to see trends that is going to take some time for the rest of the other regions to fall in line, and there could be other variables.

There could be a staffing issue.  There could be, you know, a small region that has two or three people that are out for whatever reason that can cause some effect.

So, there could be other variables that we can't necessarily control, but the average that you will see is where the regions are moving in that -- kind of that same direction.

MS. NARINE:  Thank you.  That’s very helpful.

CHAIR SPIELER:  Nancy.

MS. LESSIN:  I just want to make sure that I'm looking at this correctly, and I'm looking at -- page 3 is -- the data set on page 3 for FY 2014, and I'm looking at the subset of complaints coming in alleging retaliation for participating in safety and health activities versus complaints coming in alleging retaliation for reporting accidents and injuries, and in particular, I'm looking at FRSA and OSHA 11-C, and it appears to me, once again, in this most recent Federal fiscal year, that there are more complaints coming in for workers alleging retaliation for reporting injuries than for participating in safety and health activities, and I want to make sure that that is what I'm seeing.

MR. HARBIN:  That is correct.  That is what you're seeing.

CHAIR SPIELER:  And particularly under FRSA.

MS. LESSIN:  Okay.  And what is complaint management?  What is that?  What is that category?

MR. ROSA:  That’s when they file a safety and health complaint internally to management.

MR. KEATING:  So, complaint management is where there is alleged retaliation because I complained to management.

MR. ROSA:  Correct.

CHAIR SPIELER:  Yes, Christine.

MS. DOUGHERTY:  I just want to add, as a person that goes in a state plan state and checks the boxes for, you know, reporting this stuff, is that these categories is what you consider to be the primary complaint of the employees.

So, they might have --

MR. ROSA:  That’s correct.

MS. DOUGHERTY:  They night have made a complaint to management.  They might have participated in safety and health.  They might have also reported an injury.  So, the individual person doing the intake is deciding which one is the primary category.

MR. ROSA:  Thank you for raising that.

CHAIR SPIELER:  EOC data has the same problems.

MR. ROSA:  Yeah.  And we mentioned that at the last meeting when I gave the data overview, that certain fields only allow us to do one entry. 

So we're in the process of -- and we actually have it in our schedule -- some data changes and upgrades we want to do as resources permit that’s going to allow us to check multiple boxes.

CHAIR SPIELER:  It can lead to different data problems.

MR. ROSA:  Correct.

CHAIR SPIELER:  Eric.

MR. HARBIN:  One thing I wanted to point out to Ms. Lessin is that, if you look at complaint management and you follow it down to OSHA, the number is actually higher than participation in safety and health activities and higher than reporting accidents and injuries combined.

MS. LESSIN:  Correct.  I saw that.  I just wanted to parse the two that I talked about.

MR. FRUMIN:  So, these data, by statute, are very helpful in understanding -- in giving outsiders like us a little clearer focus on the different aspects of the program, because obviously the -- if you look at the top three statutes -- OSHA, FRISA, and STA -- together they account for, you know, like 90 percent of the whole program.

So, whatever is going on under SOX or, you know, environmental statutes, your basic meat and potatoes practices are going to be driven by those, and so, the relationship of what happens under the OSHA act itself to these cases, to me, is particularly important.

So, when looking at Marcia's point, you know -- well, here I'm looking at these disparities among the regions, and I'm saying, wow, Region II -- this is my home region.  I love Region II.  Rich Mendelson will tell you I love Region II.

But they have 778 days to complete.  Why is that?  That’s crazy.  That's off the charts.  And then I know that Region II also has, I think, like the highest rate of employer contests.

It's not just the whistleblower program which may suffer from, shall we say, employer intransigence and dragging things out or people hiring too many lawyers or whatever you want to say it is.

I mean, so I'm speculating here -- this is speculation, but it would be -- it just points to -- the first lesson of this, to me, is that -- is that even though we're looking at however many different statutes, the relationship to the enforcement and compliance program, particularly under OSHA, is -- it's very important to take that into account.

The other thing is that, if it were possible to look at the statute data in a more malleable form, that would give us a chance to use our own imaginations here and follow some leads.  That would be helpful.

So, I don't know if that is possible, particularly that would include the regional data, so we could compare --

CHAIR SPIELER:  Could you explain what you mean by "malleable"?

MR. FRUMIN:  Well, these are PDFs of Excel files.  So, getting Excel files instead of PDFs would be cool.

I spent the last half-hour transposing a PDF document numbers into an Excel spreadsheet on my computer here so I could even run some numbers while we're talking.

So, that's one, but particularly the allegation data, to me, are really important, what we're talking about here.

Granted, we're dealing with primary allegation not the allegation summaries that we know are so important.  We had some experience in the transportation group with looking at the allegation summary information, and that was extremely helpful, as well.

So, in whatever form that you eventually feel comfortable sharing that data, it would be -- it would make it easier for us to provide you some more thoughtful feedback.

MR. HARBIN:  Thank you very much.

We continue to look at our data and what's available to us.  We do have certain limitations on what we're able to get out of the data.

As mentioned by Ms. Dougherty, we're relying on the one person who is entering the information, and so, it makes it a little difficult, but we will continue to look at how we get our data in, what we can -- what we're able to share with you.

MR. FRUMIN:  I appreciate that.

MR. HARBIN:  Thank you.

CHAIR SPIELER:  Richard.

MR. MOBERLY:  We've talked about several different issues related to settlement. So, one of the things I noticed on this, there's "settled," and it has some sort of OSHA as a party, and then there's "settled other."

Does that incorporate some of the ADR programs that we've been talking about?  What does it mean when OSHA is a party?  Cause I know, under some statutes, like SOX, they have to approve the settlement agreement.

Does that mean they're a party or is that -- they do that for all --

MR. ROSA:  Well, under the OSHA "settled" or the one that says just simply "settled" means that the parties agreed to the standard OSHA settlement language, which we means we have -- in the whistleblower manual, we have standard language.'

If it says "settled other," that means that that was most likely a third-party settlement, a private settlement to which OSHA received a copy and then approved it.

So, it's not necessarily OSHA standard approved language, but OSHA would have to approve it anyway, but that’s the difference between those two columns.

MR. MOBERLY:  So, it wouldn’t say which of these were actually as part of the ADR program.

MR. ROSA:  It does not say that, no.

MR. MOBERLY:  What were the regions of the ADR program?

MR. ROSA:  It was piloted in Region V and VIII.

MR. MOBERLY:  Thank you.

MR. HARBIN:  Chicago and San Francisco.

MR. MOBERLY:  Thanks.

CHAIR SPIELER:  Christine.

MS. DOUGHERTY:  The data on the four-page Exhibit 2, again, it's Federal data that’s showing 338 OSHA complaints.  We've got 25 state plan states that do nothing but the 11-C, and those numbers aren’t reflected here.

So, we're even looking at more in the 11-C area that are filed nationally than just 338.

MR. HARBIN:  That’s a good point.  That carries true not only for our whistleblower program but also on the safety and health side.  We separate the Federal between the -- from the state plan.

CHAIR SPIELER:  I actually have just a couple of comments and questions, and then, unless there are other people burning to ask questions, we'll take a break.  We're running a bit behind.

On the first exhibit, do you have -- there's a column for "reinstated."  Do you have any idea how many of these involve preliminary reinstatement?

MR. HARBIN:  No.

CHAIR SPIELER:  Do you keep any data on preliminary reinstatement?

MR. HARBIN:  No, we do not keep data on preliminary reinstatements.

MR. ROSA:  Our database currently just has one box that says "reinstated."

CHAIR SPIELER:  I really urge you to --

MR. ROSA:  In fact, another thing that we have been looking at is whether we can -- how we -- how many cases were offered reinstatement to how many accepted reinstatement.  So, we're also looking to that, as well.

CHAIR SPIELER:  And on Exhibit 2 -- do you know how many -- which cases go on to ALJ hearings and which ones don’t, and whether it's reflected by a particular outcome at the OSHA level, or is that just completely sort of not opaque in the data?

Because you have the kicked out, but we don’t really know which ones have gone to ALJ.  Obviously not 11-C but under the other statutes.

MR. ROSA:  Some of the things that may be affected by an ALJ decision could be the total amount of money and/or the reinstatement, cause that amount is constantly changing.

We don’t have a field that says initial -- you know, initial relief order and current relief order.  We just have one column that says how much was ordered relief and whether the person was reinstated or not.

CHAIR SPIELER:  So, that includes ALJ relief ordered?

MR. ROSA:  If, for example, we issued a merit case and the ALJ reversed it, we have to go back to the system and modify that record.

CHAIR SPIELER:  Right.  But what if you issue a non-merit and then it goes on to an ALJ and an ALJ awards --

MR. ROSA:  Correct.

CHAIR SPIELER:  -- damages?  Then how does it show up here?

MR. ROSA:  What we do is we go back to the system and -- we don’t mark it as an agency merit.  This is the merit done outside of our agency.

CHAIR SPIELER:  Right.

MR. ROSA:  But we do have to go into the database and update any monetary amount and whether the judge ordered reinstatement.

CHAIR SPIELER:  Okay.  But we don’t know how many went to ALJ.

MR. ROSA:  No.

CHAIR SPIELER:  Okay.  I, by the way, do think it's really interesting that $20.3 million of the total amount of damages that were ordered, of the $35 million total, was in SOX cases, and given the small number of SOX cases in the system, and it speaks to perhaps their importance in the system from other points of view, but it certainly -- by combining them, it creates a kind of odd total picture that I think, as an advisory committee, we should think about.

MR. ROSA:  And that all pretty much also depends on what types of settlements occurred that year.  You may have a case that may have settled for a significant amount of money and not necessarily have settlements that have that much money.

So, some years, you may find, depending what the settlement amounts occurred within that particular fiscal year, you know, those numbers may fluctuate, but traditionally, SOX usually does have a high settlement amount.

MR. FRUMIN:  In 2012, based on some data you gave us then, or last year, the SOX money was 5.5 million.

MR. ROSA:  Right.

MR. FRUMIN:  So, it does fluctuate quite a bit, and in that year, FRISA was higher --

MR. FRUMIN:  -- was 8 million.  So --

MR. ROSA:  Right.

MR. FRUMIN:  -- hence, longitudinal data, longitudinal series of the same case data, as well as a more detailed -- ability to look at more detail would also be helpful when you're thinking what you can provide to us.

CHAIR SPIELER:  I want to make clear that it isn’t so much that the advisory committee needs data as that I think we have a shared view that, in order to do the kind of planning and strategic thinking that you need to do in the directorate and the ARA's need to do in the regions, that the data we're talking about would be very useful to you.

We actually also understand the huge impediments within the agency for both changing data sets and for obtaining data, and I think every member of the committee would join me in saying any way we can be helpful in that process, we would be more than willing to do that.

And with that, let's take a somewhat belated break, 10 minutes.

(Recess.)

CHAIR SPIELER:  Next on the agenda is Megan Guenther to talk to us about the clarification regarding investigative standards for whistleblower claims.

CLARIFICATION OF THE INVESTIGATIVE STANDARD FOR OSHA WHISTLEBLOWER INVESTIGATIONS

MS. GUENTHER:  Good afternoon.  My name is Megan Guenther.  I am the counsel for whistleblower programs in the Fair Labor Standards Division in the Solicitor's office. 

I advise OSHA's national office on a variety of the statutes, mostly the ones that go -- entirely the ones that go to ALJ hearings, with the exception of the Surface Transportation Act and the Seaman's Protection Act.

Most of my work is under the Federal Railroad Safety and the Sarbanes-Oxley Act.  I also don’t work on Section 11-C.

So, to the extent that you have questions about how this guidance works in the context of Section 11-C, I may need to defer to Louise, who works in the OSH Division and has dealt with that statute.

Dr. Michaels asked me to come and present today about the guidance that we put out this morning clarifying that the standard for whistleblower investigations under the OSHA whistleblower statutes is -- whether there's reasonable cause to believe that a violation has occurred.

CHAIR SPIELER:  Let me just interrupt you for one second.  That guidance is in your packets and should be marked as Exhibit 3 for the meeting.

(Exhibit No. 3 was marked for identification.)

MS. GUENTHER:  Dr. Michaels had last reported to you on this back in September, and Louise and I and others in the OSHA and FLS divisions have worked with OSHA on issuing the guidance.

The point of it is really to clarify and reinforce what is the standard, what is the standard in many, many of the statutes that say that the objective of OSHA's whistleblower investigation is to determine whether there's reasonable cause or reason to believe that a violation of the statute has occurred.

This means in cases that provide for ALJ hearings, OSHA should be issuing merit findings when it believes there's reasonable cause to believe there's a violation, which is a somewhat lower standard than the standard that applies at a whistleblower trial before an administrative law judge.

Under Section 11-C of the OSH Act, the memo clarifies that OSHA, if it has not already done so -- and we're going to emphasize this, because OSHA and the Solicitor's office have a very fluid relationship.

They consult early.  The Solicitor's office has an open door to OSHA when questions arise during an investigation.

But OSHA has not already, the latest point at which it should start talking with the Solicitor's office about whether an 11-C or other case that goes to District Court litigation is appropriate for litigation is when OSHA has reasonable cause to believe there's a violation.

And we thought that this clarification would be helpful, because while that is the standard in the statutes, it's standard in the regulations, there are parts of OSHA's manual that could be read as applying a higher standard, and we just wanted to put this out to make sure that whistleblower investigators are on the same page, that there's consistency through the program about what the investigative standard is, what the role of the investigator is.

This would -- by focusing on the appropriate investigative standard that is whether there's reasonable cause or reason to believe a violation has occurred, it may help with avoiding prematurely dismissing cases that could potential be meritorious.

It can promote consistency, and in some circumstances, it may also help OSHA reach a merit finding more quickly, because they are looking at whether the person could succeed based on the evidence gathered in the investigation.

They're not looking for an absolute level of certainty that the whistleblower will succeed in a hearing.

Just to kind of say what -- reiterate what the memo says about what reasonable cause means, it's not that you, as an investigator, believe everything the complainant says nor do you believe everything the respondent says.

It's also not that you don’t conduct an investigation.

Based on everything that’s submitted and gathered during the investigation -- and there's no change in how the investigations are conducted in terms of which side gets what documentation.  OSHA still will engage in all of its information-sharing between the parties.

But based on all of what's gathered or submitted during the investigation, does OSHA believe that a reasonable judge could find the complaint has merit?  Could the person win at trial?

And if OSHA believes that a reasonable person could succeed, then it should be issuing a merit finding in those cases that provide for findings, that go to ALJ hearings, and under 11-C, if it hasn’t already started working with the Solicitor's office, it should begin working with the Solicitor's office.

And I think that is all I have prepared to say about the clarification, but I'm definitely available to answer questions if folks have questions for me.

CHAIR SPIELER:  Questions?

MS. LESSIN:  What changes do you anticipate seeing as a result of this memo, if any?

MS. GUENTHER:  Probably the changes will be at the margins, because I think that a lot of folks in the program already will -- had internalized that the reasonable cause standard is the standard that applies, that an investigator steps back a little bit.

But you know, to the extent that we may have implied there was a higher standard, now we've been explicit that investigators should be looking at this "could succeed on the merits" standard, rather than kind of a higher, definitely the whistleblower will be successful.

CHAIR SPIELER:  I could be wrong, and I feel like I should know the answer to this by now, but in those -- under those statutes where people can take their case to an ALJ, does OSHA have to close its investigation before they can proceed to an ALJ?

MS. GUENTHER:  Yes.

CHAIR SPIELER:  Can they request that it be closed in some way at the point at which the time period for an investigation has passed in order to move more quickly to the ALJ?

MS. GUENTHER:  No, not under the rules as they currently are.

CHAIR SPIELER:  So, presumably this clarification would speed up that process, but I'm wondering about your thoughts about this -- and maybe it's off-topic, but it does seem to me that if a complainant is represented by counsel and intends to take a case forward to an ALJ if there isn’t a quick settlement during the investigative process, that speeding them along might make a lot of sense from both OSHA's standpoint and the parties' standpoint.

Is there any way to imagine that OSHA could move toward that, or is that beyond what you can discuss?

MS. NARINE:  I had a similar question.  Are you trying to analogize to requesting an immediate notice of right to sue at the EOC?

CHAIR SPIELER:  Like that.

MS. NARINE:  I was going to ask the same question.

MS. GUENTHER:  You know, that’s off-topic.  There was -- there was an item on OSHA's operating plan a couple of years ago -- maybe it was even last year -- not pursued kind of very actively lately -- that was kind of along those lines.

CHAIR SPIELER:  But presumably what we're talking about right now may help to move cases more quickly through the process.

MS. GUENTHER:  Correct.

MR. KEATING:  As everyone on the committee knows, I represent management, and I will also acknowledge that my large area of focus as I litigate these cases around the country is more in the SOX-related cases.

So, with those caveats, I can also tell you that one of the things that is frustrating for employers that I represent is that there are really four bites at the apple in these cases.

There's the investigative stage.  Then there's the ALJ stage, which is de novo, as I understand it.

MS. GUENTHER:  Uh-huh. 

MR. KEATING:  Then there's the ARB, which is again de novo, and even if the ARB has heard and fully been briefed on the case but it hasn’t gone to a final determination, they can still kick out and go to Federal court, again de novo.

And there are circumstances where these cases go on for years and can take a lot of time and money and expense to defend from an employer's standpoint, and while I understand lowering the standard at the investigative level on one hand to make it faster and essentially take a first glimpse and then if there's really no reasonable cause to believe that anything exists, only then kick it out, I would jus note that, if that’s going to be the determination, then I can find a lot of employers being frustrated that they then have to go through an ALJ trial de novo when an investigator has found that there's not even reasonable cause to think this would prevail.

MS. GUENTHER:  The ARB reviews the ALJ for substantial evidence.  So, it's not de novo.

MR. KEATING:  Okay.

MS. GUENTHER:  Your other question, as I understand it, was employers will be frustrated if the -- if OSHA finds reasonable cause --

MR. KEATING:  If the investigator finds that there is no reasonable cause to believe a violation exists, which is a lower standard than even what an ALJ would have to decided, and yet they then have to go before an ALJ, de novo, and start all over again.

MS. GUENTHER:  But that’s the way it currently is, as well.

CHAIR SPIELER:  Isn't that statutory?

MS. GUENTHER:  That’s statutory, right.  So, right now, when you get a non-merit finding out of OSHA -- what you get under this memo will resemble in many ways what you get now, which is it will say there was no reasonable cause.  It will say, if you're getting a dismissal, this is why.

You know, if there is reasonable cause, it will say there is reasonable cause and this is why, and then it will have an order which you need to object to or else the order will become a final order of the Secretary.

Those two basic things have not changed, and either way, before and now, either party can object and ask for a de novo review.

So, that kind of -- you know, the kind of four bites at the apple that you're talking about doesn’t change with this.  You have the same bites you had before.

MR. KEATING:  So, then I guess I'd ask, then, what was the compelling reason to go and undertake this exercise to create the memo clarifying the standard?

         

MS. GUENTHER:  Part of it's that the standard is statutory, and the OSHA investigation is supposed to -- some of the statutes say 60 days is the amount of time an investigation should take.  It's not -- under the statute -- you know, meant to be a 778-day process for the investigation.  OSHA's role is kind of a screening role and toward a preliminary reinstatement, help flesh out the issues.

And to the extent we can make clear what the appropriate investigative standard is and apply that consistently and accurately across the country, it will help with the process more generally.

CHAIR SPIELER:  Thank you, Megan.

We're going to move now to the public comment part of this meeting.  I know we have at least one person who has asked to speak, but before we do that, I know the agency has received one comment that was sent in electronically and anonymously, and in order to make sure it's part of our record, I have asked Anthony Rosa to read it to the committee members.

MR. ROSA:  All right.  It was sent to us on April 1, 2015, to the Whistleblower Protection Advisory Committee, WPAC, Occupational Safety and Health Administration, OSHA, Washington, DC.

To Whom It May Concern:  I am writing to call your attention to a critical issue in the investigatory process of whistleblower retaliation complaints that I believe is having a significantly harmful impact on actual whistleblowers that have suffered retaliatory discharge and a chilling effect on potential whistleblowers.

Specifically, I want to call to your attention what I believe to be either a lack of awareness among OSHA staff concerning deadlines contained in OSHA's whistleblower rules related to issuing of an order of preliminary reinstatement of a wrongfully discharged employee or a routine lack of compliance with such deadlines due possibly to a lack of OSHA staff resources or inadequate internal policies and procedures.

By way of background, certain of OSHA's rules for investigating claims of retaliation require OSHA to order preliminary reinstatement of a discharged employee within 60 days after the filing of such employee's complaint with OSHA if OSHA has reasonable cause to believe that the employee engaged in protected activity, the employer was aware of such protected activity, the employee suffered adverse employment action, and the employee's protected activity was a contributing factor in employer's decision to take adverse employment action.

For example, 29 CFR 1980.105 and 29 CFR 1985.105.

Additionally, such rules set forth specific timeframes for employers to respond to a complaint of retaliation, presumably to enable OSHA sufficient time to issue an order of preliminary reinstatement with the 60-day period where warranted.

Yet, based on my personal knowledge and prior comments to and discussed of the WPAC, it appears that these deadlines are routinely ignored and that wrongfully discharged whistleblowers are suffering extreme financial hardship for months or even years while OSHA conducts its investigation.

Such financial hardship can lead to severe emotional distress, foreclosure or repossession of homes or other property, substantial reputational harm, adverse credit standing, physical ailments cause by the emotional distress, diminished ability to obtain new employment due to adverse credit standings, etcetera, and these harms may be sustained not only by the whistleblower individual but also the whistleblower's spouse, children, and other dependents.

The anti-retaliatory statutes of OSHA's own whistleblower rules require preliminary reinstatement within 60 days of the filing of an employee's complaint with OSHA presumably are designed to mitigate the damages sustained by an employee that was potentially wrongfully discharged by placing the financial burden on the employer during the pendency of OSHA's full investigation.

Stated differently, OSHA's rules require the preliminary order of reinstatement to be issued within 60 days of the filing of the employee's complaint, presumably to avoid placing an undue hardship on the employee during the pendency of OSHA's full investigation, where OSHA, based on the information gathered within the initial 60-day period, has reasonable cause to believe retaliation and violation of law has occurred.

If potential whistleblowers come to believe that they may have to wait months or even years to be reinstated if wrongfully discharged, such employees may simply conclude that it is not worth it to come forward.

By failing to comply with its own rules concerning the deadlines for issuing an order of preliminary reinstatement, I'm concerned that OSHA is inadvertently creating a significant disincentive to potential whistleblowers and is undermining the goals that the anti-retaliation statutes enacted by Congress were designed to achieve.

Accordingly, I respectfully request that the WPAC evaluate and discuss:

(1) OSHA's process for issuing an order of preliminary reinstatement.

(2) OSHA's compliance with its own rules requiring that preliminary reinstatement be ordered within 60 days of the filing of a complaint of wrongful retaliatory discharge.

(3) The awareness among OSHA staff of the 60-day deadline for ordering preliminary reinstatement on the applicable OSHA rules and anti-retaliation statutes.

Thank you in advance for your attention to this important issue affecting America's employees that are committed to doing what is right even when doing so exposes them to a risk of retaliation and the attendant consequences of such retaliation.

And by the way, this was an anonymous complaint filed.

CHAIR SPIELER:  I think maybe the right thing to do is to mark that as Exhibit 4 for the meeting record, and we can return to those issues tomorrow when we talk about the sort of next topics that the WPAC would like to address.

MS. NARINE:  Do we get a copy of that letter?

PARTICIPANT:  Sure, we can get you a copy.

CHAIR SPIELER:  Thank you.

(Exhibit No. 4 was marked for identification.)

CHAIR SPIELER:  While we're marking exhibits, I'd like to mark as Exhibits 5-A and B the "Know Your Rights," one in English -- "A" in English, "B" in Spanish, and hand them out to the committee members.

(Exhibit Nos. 5-A and 5-B were marked for identification.)

CHAIR SPIELER:  And 6 is the NBC news report on the TRO in Alabama.

(Exhibit No. 6 was marked for identification.)

CHAIR SPIELER:  Is Tom Devine here?  I know that you requested the opportunity to address the committee, and you're on.

MR. DEVINE:  Thank you for accepting my participation in today's program.  I'm sorry that I couldn’t be here for the full meeting.  I just had schedule conflicts with my clients.

But I made sure that they would be cancelled in order to find time to participate, because the stakes and the issue I'm speaking about are extremely high.

The Government Accountability Project and the Zuckerman Law Firm have presented a petition to the Department to tighten up its policy that shields whistleblowers from gag orders that would directly or indirectly restrict or chill protected activity under the statutes the Department is charged with enforcing.

We recognize that the Department has had a policy since the 1980s that’s consistent with the objectives that we're seeking, but we believe that it has become outdated over time and it needs a makeover in order to keep pace with the corporate tactics that are restricting the flow of protected information.

I'll start by just giving kind of a menu of some of the common tactics that are current very common and prevalent but do not necessary find themselves being restricted under the current Department of Labor policies.

I'll say in overview that my analysis is actually consistent with one of the members of the advisory committee, Professor Moberly, who, along with Mr. Zuckerman and another attorney, Jordan Thomas, who specializes in SEC issues, published a Law Review article on this in the ABA Journal of Labor and Employment Law for fall of 2014.

I basically viewed these restricted into five categories.

The first one is conditions of employment that bar confidential whistleblowing to government law enforcement agencies.

Sometimes this requires an advance notice to the corporation of all the evidence that an employee is going to be providing to a government law enforcement agency.

There's two fundamental problems with this.

Number one, many people remain silent observers rather than blowing the whistle at all if they can't do it confidentially, due to fear of retaliation. 

It's why we have all these statutes.  There's a genuine fear of retaliation.

And many whistleblowers will choose to bite their tongues rather than rely upon the uncertainty of legal rights.  We will restrict the flow of information.

Second, to the extent that the corporation is guilty of misconduct, particularly if there's criminal misconduct, this is making obstruction of justice a prerequisite for employment.

It can absolutely destroy the government's law enforcement investigation if the defendant knows about all the evidence of its own alleged misconduct before the government sees it, but this is a common tactic.

The second tactic that we're concerned about is waiver of statutory benefits for whistleblowing.  This would cancel, as a condition of employment, the leverage in America's most effective anti-corruption laws, laws such as the False Claims Act, which also requires confidentiality.

These laws have skyrocketed fraud recoveries involving federal spending, and the Dodd-Frank law, which has similar incentives for whistleblowing disclosures, has led to probably the largest volume of protected activity in recent memory.

Both of these would cancel the catalyst for these disclosures and would significantly undermine law enforcement.

The third is simply imposing blanket prior restraint on the corporate labor force, that they couldn’t say nothing to nobody without advance notice and permission. 

Prior restraint is the primary obstacle or challenge for freedom of speech, and the corporate whistleblower laws are designed to protect corporate freedom of speech when there's a public interest stake.

They cannot coexist with blanket prior restraint, and that’s why the Federal Whistleblower Protection Enhancement Act has two provisions in it that outlaw gag orders which would conflict with its protections.

It makes trying to issue or implement or enforce those gag orders a violation of the Whistleblower Protection Act per se, because it cuts off the flow of information.  It's not even necessary to retaliate.  The information never gets out of the box.

We don’t need to wait, however, for statutory reforms.  The Department can do this through regulations.

A fourth common tactic is to declare/require as a exit condition for the employee to receive severance or benefits and avoid future problems that they sign a declaration that the corporation is innocent of any wrongdoing under Federal law.

To the extent that the employee is aware of any wrongdoing, again, this triggers all the same prejudices that will open the door, then, for an investigation of what the employee is aware of so that it can be cleaned up before the government becomes aware of it.

And finally, a very significant indirect restraint on speech is slap suits against employees for violating these provisions.

Very frequently, the provisions themselves are void as a matter of public policy or they're defective on numerous grounds, some of which I've covered in this summary, but the employees are sued for breach of contract, they're referred for criminal investigation and prosecution, they are the subject of unrestrained legal attacks on them because they have provided evidence to relevant law enforcement authorities.

Unemployed whistleblowers cannot afford to call the legal bluff that many of these lawsuits pose, represent, and it means merely by having the money to file them, the companies can frustrate the purpose of the corporate whistleblower laws.

These are just five highlighted examples of the type of tactics which are making the current Department of Labor anti-gag system just a little bit out of date.  It needs to be modernized.

Our petition is fairly straightforward.  We're petitioning the Department to say that it violates the whistleblower protection statutes and DOL is charged with enforcing if a company issues, implements, or tries to enforce one of these nondisclosure de facto gag orders, nondisclosure policies, forms, or agreements.

This would sweep everything out from confronting the employee at the initial job interview with these demands to filing a lawsuit against them that was contrary to the DOL rule.

That itself would be retaliation, illegal retaliation.

The second thing that we're petitioning is for systematic fact-finding on the scope of this phenomenon.  The Department needs to be aware of it in order to keep pace with the tactics and to keep pace with new developments and evolutions of these tactics. They're limited only by the imagination.

Finally, proactive guidance to help prevent these practices from recurring and to provide warnings to the industry.

These proposals are not particular bold or creative. 

As I stated, they mirror provisions of the Whistleblower Protection Enhancement Act, and actually, they mirror appropriations restrictions that have existed on Federal spending that could undercut whistleblowing since 1988, since fiscal year 1988.

They are consistent with a similar petition that the Labaton Law Firm and Jordan Thomas have filed with the Securities & Exchange Commission, and are being taken very seriously.

We're meeting with the Commission staff next week to follow through on their enforcement, and they're starting to take enforcement actions against firms which engage in these practices.

But the Securities & Exchange Commission and even the Whistleblower Protection Act programs are a very tiny fraction of the labor force compared to the workers who are protected by the Department of Labor statutes which you're advising on.

So, our plea is for the Department of Labor to catch up and for you folks to help the Department do it.

Thank you.

CHAIR SPIELER:  Thank you, Mr. Devine.

I'm wondering if members of the committee have discrete questions for clarification, would you be willing to respond to them?

MR. DEVINE:  Oh, absolutely.

CHAIR SPIELER:  Are there questions for Mr. Devine?

MS. TUCKER-HARRIS:  You stated that the way currently it works is that the whistleblowers are subject to legal prosecution?  Could you please explain that?

MR. DEVINE:  Yeah.  There haven’t really been any restraints on the scope of legal counterattacks.

The most common is suits for damages for breach of contract, but there have been tortes filed for theft of company property, misappropriation of company property, for failing to honor responsibilities to protect the company's process by sharing it with law enforcement officials.

There have been referrals for criminal prosecutions.  There are suits against the lawyers who represent the whistleblowers who make disclosures to the government, bar actions that are attempted against them.

The scope of the counterattacks has been limited only by the imagination.

MS. TUCKER-HARRIS:  Thank you.

CHAIR SPIELER:  Nancy.

MS. LESSIN:  You can determine whether this is clarification, but in order to do the things that you're asking, who needs to do what?  Is this something that can be done internally?  Is this something that is a new regulation?  Is this something that -- can you just describe a little bit about what it would take to do what you're asking?

MR. DEVINE:  Well, the Secretary of Labor, presumably through the assistant secretary, could issue a policy that guides enforcement to challenge these types of practices as violations.  That would be the most expeditious way to start neutralizing the practice.

It could also be done through proposed regulations that have more legal authority, but frankly, in my opinion, aren’t necessary to guide the Department's exercise of discretionary authority.

MR. KEATING:  I don’t have so much a question as a comment.

CHAIR SPIELER:  I think you should save it, then, cause we'll have a conversation about this in terms of whether we want to take it up at all, and we'll do that tomorrow.

So, what I had hoped was that we could get any clarifications we needed now from Mr. Devine and not engage in a full conversation about it until later, if that’s okay.

MS. NARINE:  Then I'm not sure if I should ask my question.

MR. KEATING:  The only problem with that, Emily, is that I don’t think Mr. Devine will be here to hear the comment, as opposed to --

CHAIR SPIELER:  But I'm not sure -- with all due respect to Mr. Devine, do we need him here to hear your comment?

MR. KEATING:  As long as what we're going to say is going to be on the record in response to some of his representations.

CHAIR SPIELER:  Actually, what I'm specifically trying to avoid here is a back-and-forth with Mr. Devine on the substance. 

I think that we can talk among ourselves with the assistance from the OSHA staff about what he's presented, and I wanted to make sure that we understood what was presented in order to have that conversation, but I don’t think we need to respond to it on the record at this point in order to make the record clear.

MR. KEATING:  Okay.  Then I would like to make one comment for the WPAC, not in response, necessarily, to Mr. Devine, but as you know, I have worked with John and the best practices committee for a year-plus now trying to come up with some clear guidance for employers, because in my view, as I've said from the first meeting, there are two ways that we can try and change behavior and protect whistleblowers.

One is through enhanced enforcement initiatives, and another is through providing clear guidance so that employers know what is the right thing to do, and one of the things that has happened in very recent weeks is the stepped-up enforcement, led first by the SEC in its now somewhat famous 135,000 --

CHAIR SPIELER:  I think we just had a miscommunication that I want to clarify.  This is exactly the conversation I think we should have tomorrow.

MR. KEATING:  All I was saying is I think it would be helpful for the best practices initiative if we could tomorrow talk about how we can expand the emphasis on that area.

CHAIR SPIELER:  We absolutely, I think, should include that in our conversation about best practices, and in fact, I believe, from conversations I've had with some other members of the committee that there are other areas in which we may want to suggest expansions or modifications of the current report that’s come to the full committee, and we'll talk about this tomorrow, but what I am hoping we can do is add those concerns to the report we then send on to OSHA, hopefully by the end of the day tomorrow, and I absolutely agree that it should be added to the discussion.

MR. KEATING:  Okay.

MS. NARINE:  I don't know if you were reading from a document.  I have a number of questions on some of the points that you raised, but if you were summarizing from something that you were reading and that document could be provided to us, it would be helpful, so I wouldn’t have to ask any questions.

CHAIR SPIELER:  So, the petition has been filed --

MS. NARINE:  Okay.

CHAIR SPIELER:  -- and I believe it's a -- it's certainly a public document.

MR. DEVINE:  I'm glad to share it.  I only brought one.

MS. NARINE:  Then you won't get it back.

CHAIR SPIELER:  So, I'm not sure we can really discuss it in depth at this meeting, and it may require us to bring it back to the committee later, but is it posted anywhere, Tom?

MR. DEVINE:  I'm assuming that it's posted on Mr. Zuckerman's -- yes, it is.

CHAIR SPIELER:  Okay.  We'll make sure that it's available to the full committee, and if it would be helpful to have it before tomorrow, we probably could do that, but my suggestion is that -- we will circulate the link to the document to the committee immediately after closing today, and it will be available to you.

MR. DEVINE:  I'm glad to email a copy, too, but I think you folks have it.

CHAIR SPIELER:  Yeah, I think so, too.  And to the extent possible, we will roll it into our conversation tomorrow about best practices, which is not necessarily completely relevant to the petition that’s -- in terms of the OSHA processes, but may be relevant to the recommendations we make with regard to best practices.

Further comments or questions for Mr. Devine?

(No response.)

CHAIR SPIELER:  If not, I want to thank you for bringing this to our attention and for spending the time with us this afternoon.

MR. DEVINE:  Thank you.

CHAIR SPIELER:  I believe that concludes the agenda for this afternoon.  We will convene again in this room at 9:00 o'clock tomorrow morning. 

The agenda for tomorrow, as you know, is that we will be -- for the lion's share of the day, we will be discussing the best practices proposal.

John will be making an initial presentation, in the order of an hour, and then we will work our way through the proposal.

Just for you to think about, I have a couple of suggestions about this. 

One is that we not vote on it along the way but that we vote as a package at the end to transmit it forward, or presumably not, and the second is that we be able to articulate either things that we believe are missing and should be added or things that you have concerns about, and we will transmit it with those comments to OSHA so that the final document -- rather than trying to wordsmith what is a lengthy and complex document tomorrow, I have been specifically asked by the Assistant Secretary for us to make every effort to turn this over to OSHA at the close of this meeting so that they can begin to work on it internally, and so, what I hope we can do is forward it with our comments and thoughts to OSHA for them to get to work on it.

We will then, at the close of the day, discuss next steps for WPAC, some of which may involve some of the issues that have been raised to us today, and anything else that you want to discuss.

My plan is to meet with the new Director of DWPP after she finds her balance and make sure that we're in concert and can plan our next work with her.

So, I will be doing that over the next couple of months, but I think any conversation we can have about our future work tomorrow would very much inform that process.

Marcia.

MS. NARINE:  I have a concern, then, if there is an attempt to try to bring the last proposal into the best practices work that you want to turn in tomorrow, because that could be a whole three-day conversation in itself, and that’s what my concern would be.

CHAIR SPIELER:  And it may be that we will choose to hold that back.  That is, I think, one option for things that are newly raised, would be to say here's as far as we got, here's some issues that we've decided need further conversation by the committee, and that we want to make sure that OSHA understands that it's not yet a complete document.

MS. NARINE:  We spent a year just haggling over sentences in this document.

CHAIR SPIELER:  I absolutely do not want tomorrow's meeting to be a wordsmithing meeting, because at the end of the day, the wordsmithing is going to be done by OSHA.

So, my goal as chair is going to be to try to keep us on track in order to transmit to OSHA a usable document that they could get to work on.

MS. NARINE:  That was my concern, to say we recommend you think about this, but we haven’t had a chance to fully flesh out all of the issues.

CHAIR SPIELER:  Yeah.

MS. NARINE:  Okay.

CHAIR SPIELER:  So, that essentially shapes tomorrow, and with that, we will adjourn until tomorrow morning at 9:00 o'clock.

(Whereupon, at 3:56 p.m., the committee adjourned, to reconvene Tuesday, April 21, 2015, at 9:00 a.m.)

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