UNITED STATES DEPARTMENT OF LABOR
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION

Meeting of the
Whistleblower Protection Advisory Committee
(WPAC)

Tuesday, April 21, 2015
9:00 a.m.

Room S-4215 A-C
U.S. Department of Labor
200 Constitution Avenue N.W.
Washington, DC

Diversified Reporting Services, Inc.
(202) 467-9200

MEMBERS:

Public Representatives
Emily Spieler, Chair, Northeastern University School of Law
Jonathan Brock, Emeritus Faculty Member (Retired) University of Washington
Richard Moberly, University of Nebraska College of Law

Labor Representatives
Ava Barbour, United Auto Workers
Eric Frumin, Change to Win
Nancy Lessin, Steelworkers' Charitable and Educational Organization
Jennifer J. (J.J.) Rosenbaum, National Guestworker Alliance

Management Representatives
David Eherts, Actavis Pharmaceuticals
Gregory Keating, Littler Mendelson, P.C.
Marcia Narine, St. Thomas University School of Law
Kenneth Wengert, Kraft Goods Group

State Plan Representative
Christine Dougherty, State of Minnesota

Federal Agency Representatives
Rina Tucker Harris, Consumer Financial Protection Bureau
Robert W. Miller, Federal Motor Carrier Safety Administration

Committee Contacts
Anthony Rosa
Louise Betts

C O N T E N T S

P R O C E E D I N G S

WELCOME AND REMARKS

MS. SPIELER:  Good morning.  This is the second day of the meeting of the Whistleblower Protection Advisory Committee.  I would like to welcome all of you here.

Rather than going through a full set of introductions this morning, I would like to ask anyone who was not here yesterday, and anyone in the audience who was not directly associated with OSHA, to introduce themselves, so we know -- I know there are a bunch of ARAs in the room, and we are really delighted to have you.  Rob said one of you wasn't here yesterday, and I wonder if you could introduce yourself.

MR. INCRISTI:  My name is Anthony Incristi.  I am the ARA for the whistleblower program for Dallas, Region 6.

MS. SPIELER:  Thank you, and welcome.

MR. INCRISTI:  Thank you.

MS. SPIELER:  And those of you who are not OSHA employees?

MR. ESLCELSEN:  I am Grant Eslcelsen, I am an attorney with Morgan Lewis and Bockius, here in D.C.

MS. SPIELER:  Bruce?

PARTICIPANT:  He is right there.

MS. SPIELER:  I know we think of you as B

PARTICIPANT:  He is always here, so B

MS. SPIELER:  Yeah.

MR. ROLFSEN:  I am Bruce Rolfsen, I am a writer at Bloomberg BNA, Occupational Safety and Health Report B

MS. SPIELER:  Okay, thank you.  Anyone else?  Great.

The agenda today looks short, but I think involves some very complex areas.  We are going to be talking about the committee's recommendations -- or, actually, the subcommittee's recommendations to this committee regarding best practices for industry in the area of whistleblowing and retaliation.  The subcommittee has worked extremely hard on this.  And we now have a quite thorough document.  The subcommittee was chaired by Jon Brock.  And when he begins to speak I am going to ask him to introduce the people who were on the subcommittee.

What we will -- what I have asked Jon to do is spend up to an hour this morning summarizing the committee -- the subcommittee's recommendations.  We will then begin a discussion -- there are six sections, plus an introduction of this recommendation.  We will begin a discussion, then, of each section in turn. 

When we complete that, if there are things within those sections that should be added or deleted or changed, we will discuss it while we are discussing the section of the document.  If there -- at the end, if there are additional issues or concerns that members of the committee have, we will discuss those.  And then we will formulate how we will vote on the document, plus comments in terms of forward it on to OSHA.

I am pushing ahead with this.  I want it to be clear to both the committee members and everyone else in the room.  The subcommittee has worked incredibly hard on this document.  Arguably, we should take the comments of the committee and send it back to the subcommittee and have them work on it.  But the staff of OSHA have -- including people in the front office -- have really encouraged me to try to get a draft to them quickly, so that they can begin working on it.

So, we will transmit, I hope, something to OSHA by the end of this meeting.  At that point, if there are specific subareas within it that we feel the committee could give further advice on, we will likely refer them back to the subcommittee and take them up at our next meeting.

I am hoping -- but not convinced -- that we can finish our first run-through of the document before lunch.  We will see.  And then reconvene for a broader conversation.  I want to make sure that we have an hour at the end of our meeting today before we adjourn to discuss next steps for the committee.  So, in terms of sort of the absolute ending point of a discussion of this document, it would have to be before 3:00, so we can vote on it and transmit it.

With that, I am going to turn this over to Jon Brock, a member of our committee since we were first established, and who has considerable prior experience on this issue of best practices, and brought that -- and brought together quite a few people, including external people, to discuss this before the document was finalized by the subcommittee.

So, Jon?

PARTICIPANT:  And we should mark this.

MS. SPIELER:  Oh.

PARTICIPANT:  Exhibit No. 7.

MS. SPIELER:  Yes, we should mark the subcommittee's recommendation to the committee as Exhibit No. 7 for the meeting.

And let me just say that the various exhibits -- and I think, ultimately, the minutes -- for this meeting will be -- can be found on regulations.gov.  It is OSHA-2014-0028, if people want to find the various elements of the meeting after the meeting.

Go ahead, Jon.

PRESENTATION OF SUBCOMMITTEE RECOMMENDATIONS

MR. BROCK:  Thank you.  Can everyone hear me?  Good.

As our chair suggested, I want very much to introduce the members of the working group who have put in enormous effort through meetings in this building and many, many conference calls.  And I think it is to everyone's enormous credit, the degree to which they brought their experience, which was substantial, as all of you know, knowing the quality of appointments on the committee.  And everyone also, besides their experience, brought their best listening skills.  And we listened to each other, we challenged each other's assumptions.  We went outside to get other expertise and other knowledge, and we were able, through, essentially, about a year of effort, to find common ground and to come up with what you have here, as a summary, but a very specific and structured way of presenting a program on best practices, guidance on best practices.

And Emily was nice to say I have background in this.  The real background comes from the others, and it was my honor to knit it together, and be sure that I did my best to listen to them, and try to capture it on paper.  And, in addition to their other qualities, they have enormous patience with the writing skills of a retired professor.  So I greatly appreciate that patience.

It would be easy to slip into crediting each of them with specific contributions, but that would take all morning.  So I will identify them for you here, and I am sure you will, later in the morning, hear lots from them, and their contributions and expertise will be evident in specific ways.

On this working group were Nancy Lessin; Marcia Narine; not-present-today Billie Garde; Dave Eherts; J.J. Rosenbaum, who had either the good fortune or the misfortune to have joined our group in about December, and his -- extremely cooperative and patient, and I am sure she will make contributions from her background as we go along.  Pleased to have her on board.  Ken Wengert, Greg Keating, and I named Dave already.  All of them brought things from their perspective, and have listened carefully, as I said, to the other perspectives presented.

So, what we have for you here is a comprehensive and integrated program for anti-retaliation program.  This is a program for organizations that are willing to do a program like this, that are interested in doing a program like this.  Nothing in here will coerce an unwilling organization.  Perhaps the availability of knowledge like this will, we hope, bring organizations who have previously not had effective anti-retaliation programs into the fold because there is capacity shown here, but we will not be able to coerce anybody into it.  This is for those who have decided that they are willing to have robust anti-retaliation program, and this provides the guidance.

It was said during our discussions that this was something that could serve as a refresher for organizations that were already putting forth a constructive program, and that it would provide the information needed to organizations that were not doing so, or had not had access to information, resources, or guidance that would allow them to do so to now pick up this type of information, seek out the resources and the expertise that they needed, and to go ahead and make that kind of progress.

The way we have constructed this, it is aimed at the range of organizations:  public, private, and non-profit.  It is constructed in a generic way, not specific to any statute, but hoped that, in this formulation, that under -- in most industries, in most segments of the economy, and in -- under most of the whistleblower statutes, that with the appropriate adjustments for those differences, including size, characteristics, history, that an organization could use this as guidance for constructing or beginning to evaluate the system that they have.

You will see in the format there are placeholders for adjustments for small business.  There is a placeholder also for statute-specific or industry-specific characteristics.  We did not attempt to detail those out.  It was a substantial-enough task, of course, to put together the generic program and take care that we did so in a way that crossed all those boundaries.

As far as we were able to determine, you would not find a compendium like this useful in the United States for putting together a comprehensive, anti-retaliation program.  There are a number of books, there are a number of articles.  There are -- there is lots of information on ethics programs.  Bu we did not find, and it did not exist in the experience of those on the subcommittee, any other comprehensive summary.  You could go to individual organizations seen to be in the forefront, and certainly some of those were represented on our group, or part of the experience of people on our group, but something that a general business owner, non-profit leader, a person in government or other types of organizations couldn't easily go to the places we normally go to the web elsewhere, to their professional organizations, and find this kind of product.

So, we are hopeful that, with this product, something very useful will become available and introduced to those who have obligations to provide a retaliation-free environment.

We divided this up into six categories.  And I won't tell you how many hours were spent in determining what the proper categories were.  And certainly one could organize this in a different way.  But we were able to come up with a structure that made sense to us, and we believe it would make sense to those -- and we try to think about it this way -- if someone were handed whatever piece of paper we would ultimately produce, and ultimately would find its way through the committee process, could they turn it over to a chief compliance officer, or to the appropriate senior person in the organization, and could they then see what components they needed to work on, put together and construct?

So, the categories are described in the pages here, named on the first page.  First is leadership commitment, important for many reasons that we will discuss.  But, to summarize it, very important because the kinds of behaviors, the kinds of skills, the kinds of programs that appear to be necessary for an effective anti-retaliation program are not things that are intuitive or natural in many, if not most, organizations that have not already made the investments and set up the structure to support anti-retaliatory behavior and related protections.

So, it takes a leadership commitment to call forth those behaviors, to say that those behaviors are the right ones, to put in the systems that support those behaviors, that train people on them.  And, at the times when short-term economics -- my term -- take over, schedule pressures, and other things that cause people often to do things that result in retaliation and suppressing employee reporting, it takes leadership to step in, not only in setting up the systems, but to step in in individual situations and know that those who are investigating, or supervisors who are supposed to respond, will, in fact, be backed up when they respond in protecting people from retaliation, and ensuring that issues can be brought forward by employees of the organization.  So, that leadership commitment flows not only in the up-front investments, but also in making sure that things happen.  And it also comes up later in this structure.

Second, we talk about a true speak-up culture that is the basis of a prevention-oriented program.  This was actually not intuitive, even to our group that spent so much time on this.  But it became evident that the first place one had to invest was in making sure that people could bring issues forward.  This is prevention of the conditions that might lead to retaliation.  So anti-retaliation really starts with making sure that people can come forward with issues, and that the issues will be handled in fair and effective ways.

Third, then, is the specific anti-retaliation program in steps.  If, when people bring forth issues, that they are not actually able to do that successfully, either in general or in specific instances, then the organization must have a separate set of channels, much more oriented towards confidentiality, and protective ways of dealing with the employees that claim retaliation, so that the retaliation allegations can be properly assessed and investigated in an independent way that doesn't carry any of the old myths, either about that employee, those issues, or any defensiveness that might have grown up.  So that is your backstop, if your issue resolution program does not work.

Because the skills to do this are not intuitive, because so much of what causes retaliation comes from other kinds of pressures in an organization, where it is culture, the way things are measured, incentives that are there, or natural human defensiveness.  When someone criticizes something that you are doing, or that you stand for, or that you have created or made a central goal of your enterprise, people naturally react defensively.  Supervisors will naturally react defensively. 

And so, specific training, so that everyone knows what the rights of whistleblowers are, and knows the skills and processes necessary to protect people and to overcome those, and also things like how to simply respond to issues properly and not defensively.  And those in the organization have to know what systems have been set up, and how they access them.  So there is a really important training component to this, to work against what tends to be instinctive and natural in many organizations, particularly if they haven't had these kinds of practices or these kinds of ethics.

Fifth, monitoring and measurement.  This will probably not surprise many of you, but its importance at least surprised me in the way that it came to us.  It turns out that many of the very common measures used in organizations in our economy tend to actually -- if not encourage, certainly allow retaliation and work against people's being able to report.  In a nutshell  -- we will talk about it a bit more later -- it turns out that if an organization has as an important measure of management performance that -- say their safety incident numbers, recordables, are low, if managers get bonuses for that, if employee groups get bonuses for that, or get some sort of a reward for that, guess what happens?  Those numbers tend to be under-reported, and go down.

Besides the experience of people on our committee, we brought in one of the best-known researchers in the country that looks at reporting of safety and health issues, and other expertise, and the more we look the clearer it became that many of the common kinds of measures actually suppress reporting.  If you suppress reporting, you sow the seeds of retaliation.  So that connects back to why prevention, and having robust issue reporting and resolution programs and practices is so important.

But many of the common measures used in our organizations interfere with that.  There is some new approaches to that that are starting to come out, less established, perhaps, than we like.  But it certainly looks like the proper direction.  And I will summarize that later, and many of the members of the subcommittee are very conversant in that, and I am sure can add depth to the summary that I will provide.

And, finally, the sixth area is independent auditing to see if the program actually works.  All of us are familiar with organizational policy statements and the like that say that retaliation is not appropriate, or retaliation won't be tolerated.  And even in organizations that have well-defined programs  -- you can go look, you can read all about the programs, you can actually see that people have been trained -- you will find at times that the organization as a whole, or pockets of the organization, particular facilities, particular shifts, particular supervisors perhaps, that it just isn't working, that people are, in fact, concerned to bring issues forward, especially concerned to report retaliation, and that the program isn't working.

And so, it is crucial to go back and review the program through some fairly specific ways that we were able to identify, which are also not that easy to find, but which seem quite useful and productive, to be able to independently audit your program, and see how employees really feel.

So, one of the things that -- so you take a leadership piece, point number one, and you come back to this.  The board and top leadership really need to invest in going back to check to see if the program is, in fact, working.  And that means do employees really feel that they can come forward with issues, and not be fearful of retaliation.  So that became the last piece, the last brick in this structure.

So, now, if we go to the pages following -- I will try to put a little bit more meat on this, but you will hear more from my colleagues later with some of the real nuances in this, and how this tracks with their much greater experience.

There are a lot of reasons why leadership should look at this.  It is the law, it is the right thing to do, and so on.  There is also plenty of risk, plenty of liability.  Not just direct costs; lots of indirect costs in goodwill, bad publicity.  Do people want to come work here?  All kinds of things that should make organizational leadership want to protect people from

retaliation.  In some businesses it becomes more important as a matter of strategy than others, but it should be important all around.  The growing number of laws -- and we have many experts on the committee who can talk about that -- create many kinds of liability besides the direct business risks that can be talked about.

There is also a great deal of belief among a lot of business leaders that this can be good for business, good for the success of the enterprise.  And those benefits can also be talked about.  There are some specific methods that we learned about for assessing particular kinds of programs, particular kinds of investments in anti-retaliation, safety, ethics, and other things.

And to gain any of these benefits, whichever of them that a business thinks are there -- and different businesses will see this in different ways at different times -- to gain the benefits -- if you look at the last sentence in this blue box there -- I don't know if your copy is in color or not -- yes, I guess it is -- to gain the benefits the organization needs to move from defense and reaction to proactive programs to hear and resolve issues and to otherwise prevent retaliation, that really goes to the common occurrence -- it is not everywhere. 

But the common occurrence is that when someone raises an issue in an organization, raises allegations of retaliation, and particularly when they file a complaint with OSHA or in some other fairly formal way, the wagons -- common reaction is for the wagons to circle, to hand this over to a function in the organization, often the legal department.  Not only that, to take a defensive position, and not really look into the problem, see what caused it, see if it might be causing other problems.  And that defensive approach only increases the risks, only increases the costs, and only increases the unwillingness of employees to come forward and report, and only contributes to interfering, therefore, with rights.

So, we are really talking about a mind shift for at least many organizations -- or at least for me -- of the common beliefs that surround listening to employees, or protecting them from retaliation.

Some of the statements, then, in the next area, which list some of the way we have set this up, which lists some of the features of the programs, you know, some of it is evident.  Managers at all levels should be held accountable.  This also means that in performance evaluations, performance contracts, any of those kinds of things, that anti-retaliation needs to be a part of the expectations for management and supervision.

We also identified that leadership has an important job to do two things relative to the knowledge.  One is they have to learn it themselves.  It is somewhat surprising to see how many people at high levels don't know the definitions of retaliation.  Lots of retaliation, as all of you know, because you work in this area, is not simply firing people because they raised issues.  There are all kinds of subtle things that go on:  ostracizing people, not inviting them to meetings, taking away job duties, which then leads to other things, maybe discipline, and so on.

And leadership at all levels really needs to understand those definitions, so they know what they are liable for, and they know what they are looking for, and that behaviors that sometimes are excused as horseplay or natural workplace kinds of ribbing often are really classified as retaliation and often are pernicious and erode the trust of people in the organization and in each other.  So those definitions are awfully important, and if senior management doesn't know them, they won't be able to carry out the kinds of programs and responsibilities that they need to do.

At the higher levels, board members -- and I want to call your attention to the asterisk at the bottom of that box -- if you hear me say terms like "board" or "CEO" or "company," we are really talking about public, non-profit, and other organizations, so we mean the highest-ranking leadership in whatever the relevant oversight board would be -- oversight governing board would be for that organization.

So certainly, in the corporate sector -- and I will just defer to our attorney friends here today -- the board members themselves have risks and obligations under Sarbanes-Oxley, other statutes.  They need to understand that to help them see why they should take up this responsibility.  These kinds of programs often falter because the responsibilities are split up and there is not coordination. 

We think that a chief compliance officer needs to be designated, needs to have general oversight for the ethics programs and anti-retaliation programs, and should have some sort of a direct pipeline to that highest governing board, in the event that there are issues and problems that senior management is not willing to pay attention to, or not willing to deal with.  And there were plenty of examples brought up from among the members and from some of the speakers we had, where it would have been very valuable if employees and managers could break through to the CEO and to the board when other people were suppressing information or retaliation, or simply not understanding their obligations.

I have already mentioned performance reviews.  I want to emphasize in the leadership category -- and you will see it come up throughout here -- the importance of consulting with your bargaining unit leadership.  Or, if it is not an organized workplace, to find employee leaders or advocates, worker centers, someplace where you can get that employee perspective, because even very well-informed, well-intentioned management working hard at this will find themselves often missing an important piece of perspective on how a policy will affect the workforce, how it will be perceived, whether a mechanism is likely to be seen as trustworthy, and simply to understand the experience of a worker who is not being listened to, or is experiencing retaliation.  It is a difficult thing to understand if you haven't been in those shoes, especially very recently.

So, in every aspect of this, getting that perspective will be so important.  I have myself sat at tables, as all of you have, where some of the most compassionate and fair-minded management folks thought a policy was working, or would work.  And when the employee perspective was really brought out, they began to think about it differently and in a much more subtle way.  And it is not a perspective you want to miss when it comes to anti-retaliation and things that can become very personal and very painful in the workplace.

What you see here, below that box with the check marks, is a category of dos and don'ts that we created.  And I think you could say this is -- this contains reminders about common failings, common myths, and things that just turn out to be very valuable to do:   train the board, regular updates to the board.  And in the don't category, as I said earlier, don't shield the board or senior leaders from employees who have issues that are not getting resolved.  We don't want every employee going to the board, but when mechanisms are not working, you want to be sure that they can get somewhere where the issue can be addressed.

In the lower right-hand corner, just to underscore that, don't assume that policy statements -- policies and policy statements are enough.  It never is.

Okay.  So, on to prevention.  So leadership has a big role.  The rest of this won't happen without leadership investment at the beginning, and leadership attention throughout.

Prevention, fostering a speak-up culture, as we have called it.  There was a tremendous amount of insight around our subcommittee table on this.  And one way to distill that wisdom unfairly into a sentence is that you have to -- to have an anti-retaliation program work is the organization has to foster a real belief that something will be done.  A number of our members and some of the outside speakers that we had made the point that, in surveys that they have seen or performed, or in their own experience, the number-one reason why employees don't bring issues up is not because they are afraid of retaliation -- which comes up as the number-two reason in many of the surveys -- but the number-one reason is they think nothing will be done about it.

So, making it clear, by the policies and by actions, that something will be done if you raise an issue, something will be done timely, something will be done fairly, you won't have consequences for doing so, that is the most important thing to do.  And that is why you need programs in training and so on, to be sure that people can get issues raised and handled fairly.  It doesn't mean that they will always agree with the resolution, but they should agree that it was handled fairly, and they had a good shot at getting it to the right people, and that they did not suffer any consequences while doing so.

Among the insights were that employees usually report first to their supervisor, and they will often report the same issue to their supervisor more than once if they don't get any action.  Or they will report it elsewhere if they don't get any action.  So it becomes terribly important that the first-line supervisors know what to do with issues.  And so, the training for those people, the support for those people, and the accountability for those people is really a central feature, because that is where issues usually go first.

Sometimes, as we all know, employees don't have a good relationship with their supervisor for other reasons, and they will take it elsewhere.  And that argues for multiple channels.  It argues for having a separate employee concerns program, ombudsman, other kinds of mechanisms appropriate to your organization and its culture to work through safety reps or other employee representatives, but to have multiple channels that everyone knows about and are accessible.

Some people feel more comfortable or tend to know about one set of channels, some people tend to know about others.  Typically, it is not good enough to say, "Well, they had this one channel, they could have gone here, they should have known about it."  Maybe they didn't trust that person, maybe they didn't trust that channel.  Maybe it is not easy for them to learn about.  Maybe it is downtown, not near where they work.  So multiple channels, very important.

Having early channels, non-threatening channels, which somebody can raise an issue before it is some kind of an emergency, before they are stopping work on some -- at some major stage of a project.  We heard some very useful and interesting programs described where there were ways to ask questions, ways to ask questions by email of people elsewhere in the organization besides your reporting line, where employees who didn't really want to put their head up too much could get an issue out there to be addressed, rather than letting it fester until the project was along, and somebody remembered that there was a wrench left, you know, in the fuselage or somewhere.  So, early, non-emergency options.

Some of the most important issues, it is believed, come up anonymously, because people are so concerned about reporting them, and the consequences, because it is such a fundamental issue to the organization, or because it is so threatening to a particular manager, or some set of management judgments.  So, if you really want to catch the issues, it appears that having an anonymous channel is important.

So we heard about hotlines, we heard about 800 numbers, we heard about a lot of different ways of doing this.  It depends on the organizational culture, it depends on how spread out the organization is.  But to have ways people can be -- can report confidentiality and anonymously.  It is not that easy to process a concern anonymously, but it is also not good enough to say, "Oh, we are not going to process it, because the person wouldn't come forward, or tell us."  If it really matters, you want to have the capacity for them to come forward in that way.

One of the most pernicious things we came across, and you heard about it yesterday when Dr. Michaels briefed us, we have heard about it at other times when employees have joined our subcommittee conference calls, you have heard it when employees have been here, and many of you have seen it in your experience, there are many instances where employees are punished for reporting issues.  Sometimes that seems to be -- and has been proven to be -- a specific policy to discourage reporting.  Reporting is discouraged for lots of reasons.  It affects the schedule, it affects perceptions of costs, all kinds of things. 

But the employers who were doing a good job on this were being proactive, have taken steps to be sure that people are not punished for reporting incidents or reporting concerns, and this can be -- this kind of punishment can be done in all sorts of subtle ways, hard to see, hard to find.  And so it really needs attention.  It certainly should not be a policy, but even when it is not a policy it can become a practice.  It needs, really, to be guarded against because it really will discourage, as you can easily see the people coming forward.

And it will silence other people.  This is not just about -- all these programs are not just about the individual.  These programs are about the effect on the work group and their belief and whether they can bring forward issues when they see the need or the opportunity.

When someone decides to come forward, particularly on an issue that might be very meaningful to others in the organization, could be meaningful to other workers, or meaningful to management because it would delay work or affect bonuses or profits or something, it is a really, as you know, difficult decision.  And we have seen many people who make that decision lose their jobs.  You heard the letter read to us yesterday from the input that came over email.

And so, having ways for employees to get accurate and confidential advice about how to bring an issue forward -- many times you can bring an issue forward in certain ways and be sure to get reactions that will affect you and maybe scare you, but there are other -- sometimes other ways to do it.  There is support sometimes available.  Organizations should make that available, maybe through an EAP program.  Certainly that is something that is frequently -- advice can come from bargaining unit leaders on their other organizations, sometimes outside that serve as advocates, but helping be sure that, if you are serious about a speak-up culture, helping people know how to navigate that and deal with the inherent risk, because even in an organization that is doing a pretty good job, that is a resource worth having.

And, of course, as all of you know who work in this field, that employees still have rights to raise issues, even if they are wrong, even if they are unpleasant.  They still have a right to be protected if they raise issues.  This is frequently overlooked, frequently not realized.  This is part of the training, part of the management commitment, and part of not being unduly defensive, and part of making a judgment about the issues, not about your opinion of the person or some past experience with the person.

The dos and don'ts cover many of these things.  Top left-hand corner, "Safe" and "Structured" are two words there I will point out.  People need to know what the process will be if they raise an issue.  They need to know who is going to be involved, which functions in the organization are going to be involved. 

Are they going to be organizations that might have a conflict of interest in this issue, because they were the ones that called me out on it to begin with?  So putting together something that people believe will be safe, this is why you have got to consult with your bargaining unit leadership and other employee leadership.  How will people perceive it if we set up these mechanisms this way?  Easy to miss some things that might be perceived negatively, so it has to be known, has to be safe.

Talked about the low key.  Want to emphasize in the third point down, in the dos, to be ready to deal confidentially and to protect people that are coming forward to report.

Down the bottom of the do column, start with a blank page.  So that means if somebody has brought forward an issue, and a couple of layers of folks have said, "Well, no, it is not really an issue," it could be that they think that person is not credible.  Could be that the issue wasn't investigated by people with the right expertise.  So be ready to start with a blank page.  And your system should have some trap doors for things to be started with a blank page.

It is also common that somebody that is bringing up issues gets surrounded by a false narrative about them and their motivations.  So starting with a blank page can be awfully important.

Top of the don't column, don't rely on having told people to speak up; you actually have to follow through.  You have to follow through on the issues.  We had described to us an instance where one of the members of the committee was faced with something like ice in the parking lot, or something in the parking lot that somebody viewed as a hazard, and how quickly they got on that issue and got it resolved in a matter of days, and made it a priority because a lot of people -- because it was important to do so, a lot of people knew about it. 

And when asked, "Why did you make such a big deal about that," it was, "I made a big deal about that because I wanted people to know that we are serious and that we follow up on anything that an employee thinks is serious, and we don't leave it alone and make judgments for any other reason, except whatever the facts are."  So it is extremely important, with the issues, to follow up.

So, if something slips through your issue reporting system, if a supervisor doesn't respond appropriately, if the investigation maybe doesn't work as well as you hoped, or if maybe the employee didn't express the issue sufficiently at first and it was misunderstood, any number of reasons, you may have -- the issue may be unheard.  It could be there was a breakdown in the system.  It could be on the backshift there is a supervisor who has got a different attitude.  It could be that some scheduling incentives or bonus incentives got in the way, and the issue wasn't listened to, wasn't attended to the way that the policies intended, the way that top leadership might have preferred.  So then we need the backstop of a robust, anti-retaliation system.

And the system for the retaliation response needs to have characteristics of protection and confidentiality in much different and elevated ways than an issue reporting system, which, you know, may be much more transparent, because people need to learn from those issues, and so on.  Many people have to be involved in resolving those issues.

When someone reports retaliation, they -- in many organizations, not all -- may have reasons to be worried about what happens to their status in the organization, even their employment.  And so, protecting them with confidentiality, not allowing rumors to spread, not allowing people to lobby on the case, not having people involved in judging the retaliation who may have been involved at an earlier point, not assigning this to offices that will take a defensive posture, all become extremely important to guaranteeing that the evaluation of the retaliation allegation will be fair and objective, and that the employee won't somehow suffer.

And I think it is important to point out that peer groups can often be very cruel about retaliation.  Peer groups that are interested in meeting the schedule, they think someone is a crybaby, that has any -- you know, any number of traditions, the peer group can often be a part of that.  And so it is important that that employee be protected, not only from management, but also from any sort of ridicule from their peers, because that can also serve to discourage reporting of others in the future.

Sometimes -- you want to have internal programs to deal with anti-retaliation, but you also want to have the possibility for someone to go outside, or for the organization to organize some much more independent process, maybe a standing process.  I am part of a standing process that lives outside of several companies that use it.  There are other examples.  Or you may want to contract for some sort of a special investigation so you can get that true independence.

Talked earlier about starting with a blank page, so that previous assumptions about the employee or about the issues don't color the evaluation of retaliation allegations.  Here, once again, very important:  discipline.  You find in many cases employees who are alleging retaliation have been disciplined for raising issues, or discipline sometimes arises as a form of retaliation.  And it is really crucial that the organization's policies and practices don't permit this, and that this is carefully policed.

If you see discipline on an employee, if you don't already have it in an organization, it is probably very important to look at the employee's record of reporting issues.  Did they report any safety issues, any ethics issues, any integrity issues?  And can we see a relationship?  Will others see a relationship in the fact that they are now being disciplined for something apparently unrelated, but maybe -- just maybe -- it traces back to who was not happy with them for raising that issue?  This is not unheard of.  Doesn't happen every day.  Some organizations it happens every day, but it is certainly something that has to be watched out for.  And having that kind of review being explicit seems to be an extremely important safeguard.

         

It is common, when somebody files with OSHA or files outside -- I said this earlier in the introduction -- that the organization defaults to a defensive posture.  As, really, everyone on this subcommittee noted, that is the wrong response.  Be proactive, try to get to the bottom of it, find out what the underlying issues were, and find out what kinds of behaviors may have been triggered, might still be common in the organization, that could have resulted in retaliation or a feeling that one was retaliated against.

I have mentioned conflict of interest.  Crucial to only have people who can look at the retaliation circumstance objectively, fairly, openly.  I have talked earlier about employees having the unrestricted ability to elevate, elevate outside the chain of command, elevate outside levels where they normally operate.  And they should not have to go through prescribed steps before they can elevate, if they think that things were blocked.  They should be able to elevate it.  If the organization is well positioned to respond, they will be able to respond at higher levels and not be threatened by it.

We have talked about rumor control.  There is a lot of lobbying that goes on around these cases within organizations.  People show up and say, "Oh, I know about that guy," or try to protect other friends in the organization.  So very important to take that retaliation case and put it in a cocoon.

And you may need to protect that person years afterwards.  Sometimes the retaliation comes later, in other forms. 

And on the question of multiple channels and anonymity and so on, we heard one story -- maybe it will be told today -- about senior manager getting on a plane, going a few continents away to meet an employee who said in kind of a deep throat, Woodward and Bernstein sort of way, "I have got an issue, I am afraid to raise it."  Well, this didn't come up through any of the standard programs, but a manager found a way to learn about it and deal with it.  And you don't always get plane tickets to foreign countries to deal with this, but you should be prepared to go to some lengths to make sure you hear the issues.

In the dos and don'ts, I think things are -- I pretty well covered the items in the dos and don'ts.  One thing, second from the bottom on the don'ts, don't rely solely on a strong chance of prevailing in court, or that the issues go away with a win in court.  If the issue goes to court, more often than not -- and I will let my colleagues more experienced than I talk more about this -- everyone loses.  It may be that you have a good case.  It could be that the whistleblower actually is wrong about the issue.  It could be they are wrong about retaliation.  But if you can't find a better way, a more constructive way, a more problem-solving way of dealing with it than simply saying, "Well, we are going to win in court, let's go there," at least try to do it in other ways.

You have got people doing depositions, speaking negatively about each other.  You have got coworkers testifying against each other.  And you have got all kinds of other costs that make it a lot harder for people to come forward, and which have other impacts on your culture.  So it is not really a win if you win.  You win if you resolve it, if you find underlying problems, if you can promote the sense of fairness in your organization.

On the training, it should be evident at this point that people need to be trained in order to deal with these very subtle kinds of problems and issues and conflicts, and conflicts that involve not just one person and supervisor, but that sometimes involve lots and lots of interests in the organization, and which may challenge a variety of policies, and the people who put them in place.

So, in this list, we have identified some of the specific elements of training that seem to be important.  Certainly one could name others.  And the  -- what we are trying to do here, really, is to create new habits, to work against those instincts that make people defensive, that make people maybe want to shun someone who is a little bit different than the others, who is raising issues that are a little bit unpleasant, to give people the skills, the courage, the knowledge, the awareness of the consequences, if they don't respond well to issues being brought up, and if they don't respond well to retaliation.  We are trying to create new habits.

I talked earlier in the introduction about the importance of management, but also employees:  knowing what constitutes retaliation.  As I said, it is not just firing someone, or imposing some major employment status discipline.  But it is all the subtle behaviors that also are retaliation, and that have the same kinds of destructive effects, and also are in, most instances, illegal, and exposes the organization to liability.

And this is about training both employees and managers, and knowing the definitions, knowing the rights, knowing the obligations and then, in training managers, on the skills to respond, and training both on the systems that are available, and the systems that they should be using.

So, I talked about definitions, teaching and response.  And for supervisors to know how to diffuse.  I have seen supervisors who didn't really know how to go to a workgroup and say, "Hey, everyone, cut it out.  What you are doing is illegal.  What you are doing is against our ethics, our code of conduct.  You need to cut it out."  And, besides saying cut it out, what kinds of consequences are there for people who are engaging in the work group of supervisors, engaging in that kind of behavior?  And that takes skills, and it takes knowing your organization will back you up.

I have talked about knowing the elements of the system that is in place, so that you can make use of it, that you can direct people to it.  Talked about the laws. 

Knowing what constitutes notice.  A lot of managers put their organizations at risk because they don't understand that a certain kind of reporting has now put the organization on notice.  And it is required that they respond in a constructive way to deal with the allegations of retaliation.

And an important skill not easy to learn, not easy to carry out, particularly under pressure, is to separate behavior that a supervisor might find annoying, or perhaps is, indeed, inappropriate, to separate that from the report itself, and the obligation to act on the report in the interest of product quality, of integrity, of safety, and then dealing with the behavior, otherwise, if the behavior was not appropriate, but also staying away from using punishment inappropriately, which sometimes is a response.

And assuming the employee's motive -- I think is worth pointing out -- in raising an issue tends to cloud the evaluation of the issue, and how to handle it.  The dos and don'ts are pretty short here, but don't assume that people intuitively know what constitutes retaliation, or know what to do to prevent it.  You must teach them the skills.

Number five, monitoring progress.  I will rely on some of my colleagues on the committee, particularly those who operate and operate within the measurement and incentive systems.  But we got some very clear feedback from the members of the committee, of the subcommittee, and from a number of the speakers that we brought in that the message that we, in fact, promoted -- heavily promoted by the health and safety community a couple of decades ago to measure management, to measure organizations based on getting low -- to encourage getting low numbers of reporting. 

And you could probably translate this -- and I will again defer to others -- in other industries, in finance, and other places:  You don't want to have a lot of complaints.  So if you are a manager, you have a lot of complaints, you don't maybe get your bonus.  If you have low injury reporting, you get your bonus.  We heard from a lot of people, very knowledgeable, very experienced, some of whom have worked in OSHA, some of whom have worked in senior safety and health positions, senior compliance positions, to say it turns out that doesn't work very well, because it is easy to manipulate those numbers.  There are all kinds of organizational informal norms that can discourage reporting, to discourage how we report.  Those of you who work in the field must see this at times.

And so, a number of organizations -- and some of our colleagues can perhaps talk about it -- have actually severed the link between those traditional reporting numbers and compensation for their management and incentives for employees.  And, of course, there are lots of incentive programs where employees are encouraged to have X-many work days without reported injury.  Well, you know, people behave in funny ways when they are going to miss out on the trip, the group bonus, the management incentive.

So, there is a movement, in industry at least, to get away from those measurements, which they are calling lagging indicators.  It is not exactly an accurate term, in the way that is understood in economics, but it is a useful way to distinguish it from what they are calling leading indicators, which are the inputs to creating a safe environment, a high-integrity environment, and to encourage people to come forward and to report and to deal effectively in anti-retaliation ways and in retaliation response. 

And it is possible, I am told -- it is not something I am an expert in, but it was very persuasive to us all -- that you can measure management actions that contribute to encouraging people to report, encouraging people to feel protected, to put actual protections in place, if you measure a manager based on how well they respond to issues, how well employees react to the way they responded, how well they respond to retaliation, how much -- how well they intervene.  You can measure those things, rather than, "Did you get low numbers reported?"

And so, this is not well established, but it is emerging, it is being used.  There is experiments with it, and it seems to be the direction.  So getting the weight away from "Give me lower reporting numbers" seems to be very important, because that can overcome many -- much of the training, and many of the policy statements and so forth.

So, it is important that the board see some of these numbers, and not only get summaries, and understand what is really going on, and to understand that if you put in -- if you really start -- if you try to start a speak-up culture, if you haven't had one, you are likely to get more incidents reported, instead of less, and to recognize that that is an opportunity to address issues, not a reflection of a lack of interest, necessarily.  So, carefully measured, it should be looked at not in the traditional ways, but in a more creative and a more comprehensive way.

Number six, independent audits and program improvement.  I said at the beginning this begins to close the leadership circle.  So leaders say we have new and better policies, we have clearer statements about protecting employees, about the importance of coming forward with issues, about our philosophy, our ethics.  We have established programs, we have trained people.  Does it actually work?  Do you really know if your employees are willing to come forward?

So, I will give you an example that impressed me a lot.  And others on the committee may have their own examples.  We had the opportunity here from at least a couple of people that spend a lot of time on this kind of auditing and measuring.  And when a survey is done  -- I will call this a typical survey -- a typical survey gets sent out to a broad range of employees, a big sample maybe to everyone in the organization, and, "Will you raise an issue if you think it is threatening to your health and safety, or that of coworkers?" 

Something in the 90 percent plus, 95 percent, maybe 97 percent, say, "Yes, I would report that," and then sometimes the person who did the survey comes up and says, "Oh, this is really great.  Everyone is willing to report.  We have no fear here of retaliation."

When the in-depth audit is done, when the in-depth audit is done and part of that audit is interviews with focus groups of employees done by an independent, outside players, and not someone who is -- employees will see as reporting that back to their supervisor or anything else they might be fearful of, and that is dug into, "Well, have you ever reported an issue?"  "No."  "Do you know anybody" -- or, "Have you ever feared retaliation?"  "No."  "Do you know anybody else who has?"  And you start to dig down, those numbers can drop.  If the program is not working, those numbers can drop.  If the program is working, those second and third and fourth-tier numbers will also be strong and endorse the program. 

But they are -- but you can find out how strong it really is by employing some of these methods.  There is an organization that we had the opportunity to hear from through their executive director.  It is the Ethics Resources Center.  They do a national survey.  It is a large survey, thousands of people across the economy.  And they had some really interesting data from this survey, from their national surveys, that suggest that those top-line numbers are not always reliable, that it is important to dig down.  And they were able to display that, and that was consistent with the experience of at least one of our committee members who is active in doing these kinds of assessments in organizations.

So, we have here in the checkmark area the -- some of the features.  So, for those of you more familiar with the safety and health area, you are used to safety systems audits.  Common practices, especially in large organizations.  This has certain parallels with that, but does some other things.  So you can think of it that way.  Safety systems audit, as I understand it, you are going to do direct audits of your program data.  Have people been trained?  You know, what is being reported?  Response times, things like that, done typically from people outside the immediate business unit being evaluated.

But you also need this layer of independent surveys, confidential interviews, so you can really see what, in fact, is going on.  You need to structure these audits and surveys in ways that reflect the organization structure, where the facilities are located, how they relate to each other, and so on.

And, here again, as in all these categories, in putting together that audit, and understanding the results of that audit, crucial to talk to your bargaining unit leadership when you put together the samples of employees.  Whatever you are doing, there is an enormous amount of information and insight that you need to get from your bargaining unit leadership.  And, again, if it is not an organized workplace, you have got to do other outreach so you get that perspective and can understand your numbers and results.

Also very interesting is to cross-check what is reported about incidents and what is reported about retaliation with other sources.  Even exit interviews, grievances, workers comp.  We heard -- we had a summary of a pretty significant multi-state study where firms in the area were not reporting -- were reporting incidents at a certain level, and workers comp data from that area showed a much higher level of incidents in injury. 

And so, there are ways to, depending on the investment that an organization is prepared to make, there are ways to check the data that is being reported inside your company in the official channels with either unofficial or alternative channels.  I found the exit interviews and grievance data some of the easiest to access, and sometimes yielding very useful insights through such cross-checks.

There is also the issue, down towards the bottom of the checkmarks, if you change policies, change programs, change the way you measure things, change incentives, there should be some requirement to say, "Will this have an impact on reporting?  Will this have an impact on retaliation?"  Particularly because we have seen so much impact by traditional measuring systems, traditional incentive systems, unintentionally causing those impacts.  Intentional things are for the people that are not willing.  But for those who are trying, their efforts and their trying can often be thwarted by measures and incentives that run in the wrong direction.

And so, down at the bottom, the dos and don'ts, I will just take you to the last box on the bottom right.  Don't restrict the board to cursory information.  This is where you close the leadership circle.  The board and top leadership need to know if these programs are really working, and pay attention to what the get-well plan is.

So, if you flip back to the first page, you look down at the bottom, you look at the six points, what we have, then, is a six-part program.  We are now in violent agreement that these are exactly the right six categories, there couldn't be any others, but six categories of common-sense, integrated, hang-together ways of caring about anti-retaliation, recognizing that it doesn't start with anti-retaliation, it starts with making sure people can report issues, making sure that management responds timely and fairly. 

It means leadership is taking the proactive, let's-get-it-right, let's-learn-from-it approach that  -- you need that backstop in a protected, confidential way, to take care of allegations of retaliation, and really run them to ground in the specific anti -- the specific conflict of interest and protective dimensions of that, supporting people as they go through that, which is, you know, probably a hard thing for an organization to want to do, because sometimes it is not that natural to support that.  But organizations that do support that get much better results.

The crucial dimension of training and teaching new habits, overcoming some of the natural tendencies that come from performance pressures and some natural human reactions, getting the measurements not to interfere with your efforts in creating counter-incentives and sewing seeds for suppression, and the importance of independently determining whether or not your programs actually work.

That is where we ended up.  We commend it to your attention, and I turn it over to the chair to take us further.

DISCUSSION OF SUBCOMMITTEE RECOMMENDATIONS

MS. SPIELER:  Thank you.  That was terrific, and a terrific report.

So, here is my suggestion.  There are 12 of you plus me on this committee, and many of you have been involved in this, but some of you haven't.  I don't think we should have a wordsmithing conversation here.  What I would like to do is focus in on issues.  Are there things here that you disagree with?  Are there issues that have not been addressed?

So, the way I would suggest we do it -- I think I have said this already -- is to work our way through the six areas in the document, and then, if there are issues that are outside those six that you think we need to discuss, we will move on to those.

I am disinclined -- unless someone really jumps up and down right now -- to have a conversation about the introductory section.  And the reason is that I think the substance is in the six areas, and, much as we may be wedded to this document, I am quite certain that staff at OSHA will be rewriting much of it, anyway.  And so, I think we should not spend our committee time on introductory issues that are not part of the substance of the document.

So, unless someone wants to overrule the chair on that, what I would like to do is turn to the role of leadership, focus on that issue for the next period of time.  I know that some of you -- Greg and Nancy and Marcia -- had particular roles in the development of this.  If there are members of the committee that would -- who -- and some others.  If there are particular things you would first like to add to Jon's summary, I would like to invite you to do that.  And then let's have a more general conversation about this first section, what is here, what is not here, whether there are things that we need to think about, as a committee.

So, Greg?

MR. KEATING:  Thank you, Emily.  I just wanted to say three quick things.  The first is that he is incredibly reserved, and doesn't like to take credit for what he does, but Jon really and truly did an unbelievable job in pulling all this together, staying on the committee, pulling -- summarizing extensive notes, and then putting this together.  And so I just  -- I think it is really important that we recognize the leadership and hard work of Jon.

Second, I think this is a really, really terrific initiative, and I hope we can get around it.  Because I know that, from my -- from where I stand, employers are clamoring for guidance.  They really want to know, not just conceptually, but -- what I love about these recommendations is they get pretty granular, and they really give some specifics.

And then the last just broad-brush thing I want to note that the committee grappled with -- and I think Nancy will acknowledge this -- is one of the challenges of putting together this document -- and it reflects the broad brush that OSHA has of 21 statutes and a very, very significant body of whistleblower protections to look out for -- is that there is a difference in how we approach the safety retaliation and the -- what I will call white collar fraud and other.

And that was a challenge, I think, for us.  I think Jon, everyone on the committee will acknowledge that.  I think we came out in the right place, but it just is an issue.  And I think the full committee would probably already recognize that.  But it is something we grappled with, and I thought that was a relevant background to have.

MS. SPIELER:  Thank you.  Nancy, Marcia, anyone else on the committee want to add anything here?

MS. NARINE:  Not yet.

         

MS. SPIELER:  Not yet?  You mean not on Section 1?

MS. NARINE:  If something comes up that I want to respond to, I have B

MS. SPIELER:  Okay.

MS. NARINE:  He basically said everything I would have said.

MS. SPIELER:  Okay, okay.  So, opening this up more broadly, comments, concerns, things that are not here that should be here? 

Eric?

MR. FRUMIN:  So, first, thank you all for doing this.  You know, I got all the emails, and studiously avoided diving into it until I got the last one.  And so I have read it carefully, I have marked it all up.

[Laughter.]

MR. FRUMIN:  And only have one issue that I think needs to be addressed in some explicit way to add as a comment to what you have done.  That is a lot fewer than I thought I was going to have.  So I really appreciate the way that -- as Greg said, you have managed to put together a generic document that is pretty granular across a broad spectrum of issues.

The thing that concerns me that is lacking here is a granular discussion of accountability in management.  And we, in the transport working group, has this very sharp conflict over the concept of the -- how to evaluate the effectiveness of management training.  And it made it very difficult for us to put forward a recommendation on training to the full committee. 

And Marcia and I and the others labored at length, and we had really party-line labor management votes.  And, you know, what does it mean to know that a management policy and initiative to implement the policy, a training program as part of that initiative, an evaluation process to see if it is working, a practice to assure that the implementation is as promised, that it actually is working?

And, on the labor side, we felt pretty strongly that if the managers who were involved in the retaliation walked away from it with no discernable consequence, that the program would be viewed as, basically, a failure.  And that was a key test of the effectiveness of the training.

If a manager was trained, nonetheless engaged in retaliation, the subsequent investigation demonstrated that, and there was no apparent consequence for that manager -- talk about people feeling like why bother reporting, you know?  These are very serious issues for the workers who are working under that supervisor. 

Jon's report alluded to the sensitivity of the supervisor-employee relationship.  And I am using the term "supervisor" more broadly than just the front-line supervisor, the immediate supervisor.  Sometimes those supervisors have a real independent ability to make judgments about discipline.  Sometimes they can't do squat without getting the approval of someone a level or two above them.  So there are often levels of management that are implicated in a decision by a supervisor to discipline or otherwise, you know, take action against someone who is reporting something.

And so, the question of accountability for a "supervisor" can actually, you know, make its way fairly -- several levels up in the organization, and pose all sorts of problems for the politics in that particular line of authority.  Because this supervisor happened to be a long-time friend of this manager, who, you know, has been there for 10 years, and is relied upon by the division head to get the production numbers out.  And if, all of a sudden, this manager is being asked by the division head to throw the supervisor under the bus, all hell is going to break loose at the next manager's meeting.

And, you know, this is not unique to corporations or OSHA or labor unions, for that matter.  You know, we all go through these kinds of -- or law firms.  We all go through these -- or universities.  We all go through these kinds of politics.  So I am just trying to be very concrete about the importance of this question of accountability for supervisors, not just a broad statement of accountability all the way up to the board of directors.  It is fine to talk about that, I agree.  If I didn't say that, then it would be an obvious failure.

Now, the document talks about accountability in a number of places.  It talks about consequences in a number of places.  And I think, if we just go back and look at those, do a word search and look at those two terms, you will see a few places where, without modifying it, it would be -- OSHA could then take this concept into account in however it decides to work with this. 

So that was my only concern about an omission.  It didn't really capture the concept of accountability or consequences in this kind of operational way that makes a real difference to both the workers who are considering -- or reporting problems and, you know, trying to judge retaliation.  And, secondly, the organization's ability to come to grips with a retaliation threat.

I had another issue about not an omission, but just some questions about some of the terms in the leadership section, but I will B

MS. SPIELER:  Let's talk about that point you are making, which clearly is within this leadership section, in terms of the holding accountable and the performance reviews.  And I saw some hands up from members of the subcommittee, so I would like -- I think we should hear from them.

MS. NARINE:  I actually agree.  I think it needs to be a little bit stronger here.  I know, during some of the conversations -- and I have to do a word search to see if it is reflected someplace else.

We did have the statement about the performance reviews should support anti-retaliation behavior.  But I think what doesn't come across -- and, again, if it is in here someplace else, and I missed it, I apologize -- is we had talked about specific -- whether it is financial or other kinds of penalties -- you know, termination, suspension, et cetera, you know, clawback of bonuses, whatever it could be -- for retaliatory behavior when it comes to supervisors, because I think that is what employees will know happens.  And that is really -- it could be a deterrent effect.

So, to the extent that there is some way to capture not just rewarding you went to the compliance training, you put up the poster, you had a speak-up culture, but actual penalties -- financial and otherwise -- for managers that engage in retaliatory behavior.  I think that is important.  Because I think I gave the example of I have personally been involved in ensuring that someone in very high level was terminated when it came out that they had -- and it was known throughout the organization that somebody at that level could be terminated for engaging in retaliatory behavior -- that was more than any of the training that I could actually do, is that one statement. 

So, I think something that is in here that says it a little bit more strongly would be valuable.

MS. SPIELER:  Nancy?

MS. LESSIN:  And I agree, as well, and want to throw it back to you, Eric, as having thought about this. 

Do you have -- I mean it does appear, the issue of accountability, and the leadership, there are several other places where it is talked about.  Do you have a specific suggestion of the -- how to frame the concept that needs to be added?

MR. FRUMIN:  Well, I could write something -- yes.  There are a few places where we could add -- fill out -- add a phrase or two to the word "consequences," where it talks about consequences, that I think would capture that.  So I could do that and get back to you  -- I don't want to try to do it instantly, but I could do it this morning.

MS. LESSIN:  That would be great.

MR. FRUMIN:  If you want to actually consider wordsmithing, but that B

(Laughter.)

MS. SPIELER:  I don't know that we want wordsmithing, but I think, to the extent that we want to amend the document, that we pass through having some level of specificity about it -- it doesn't have to be exact, but I think -- that gives the committee a sense of what it is the amendment entails would be very helpful.

But, first, let me ask.  Is there anyone who wants to speak against this, who has concerns about it that should be aired now, so that, if Eric goes off and thinks about it, they can be -- those concerns can be addressed?

MR. KEATING:  I don't have any concerns.  I just would note that I do think it is reflective in this document.  I mean there are a number of places where it is very clear that, whether it is the CEO and the board or managers, they are to be expected, under these best practices, to, you know, walk the walk.  And, if they don't, they will be held accountable.

So, I mean, whatever you want to do to suggest some sort of stronger language, I am certainly willing to look at it.  But I think it is B

MS. SPIELER:  Okay.  Other comments, concerns, additions to, number one, the role of leadership?

(No response.)

MR. FRUMIN:  Okay.

MS. SPIELER:  Okay.

MR. FRUMIN:  So it, thankfully, does talk about identifying employee leadership.  And in this section it refers to bargaining unit leaders.  In other sections it refers to the identification of leaders in non-union situations.  And so, for the 95 percent of the private-sector workforce that is not in a union, working our way towards 96, probably, as we sit here B

(Laughter.)

MR. FRUMIN:  This is a really critical question for anybody who is actually taking this subject seriously.  And we are sitting here at an advisory committee to OSHA, which has to come to grips with this issue.  No, it doesn't have to.  It sometimes thinks about this issue, but often doesn't, avoids it like the plague.  

So, I think it is worth trying to clarify the intent.  I don't think anyone has got a decent answer under prevailing American labor law for a concrete mechanism that identifies employee leadership in an operational way in any representational capacity for hearing from employees and then, in the words of the National Labor Relations Act, dealing with them on these issues.  We have, instead, the opposite.  We have prohibitions against -- thank goodness, useful prohibitions against employers dealing with employees on important workplace issues under most conditions that would go on.  I mean there are a few that might pass muster, but most of them won't.

And that is -- I am being very obtuse here, but this is a real operational problem for large, non-union organizations.  So I think it is fine to talk about an intent, to seek out employee leaders on this vital, vital, vital issue of protecting people against retaliation in an at-will environment, thank you very much.  But how the hell you do it is a really tough question.

And if we like the intent, but we go into this with our eyes wide open, that it is an extremely difficult thing to operationalize, then I think it is worth saying so, because I don't think there should be any illusions about the difficulty that an organization will have in seeking out employee leadership. 

That doesn't mean you can't have a strong anti-retaliation program in a non-union environment.  You certainly can.  But seeking to identify employee leaders to help design the program, monitor the program, implement it, that is a different question, entirely, and I think it is worth noting the obstacles in our law about it.  And, for that reason, to take -- to recognize the special urgency in non-union environments for a really strong anti-retaliation program, because there are not good opportunities for legal solicitation of worker leadership.  They go on illegally, but that is a different matter.

MR. WENGERT:  Can I say something?

MS. SPIELER:  Sure go ahead.

MR. WENGERT:  Eric, thank you for raising that point.  It is probably obvious, from your read of this, that at least I struggled with language to try -- right?  I mean I am not as well-versed as you and any other here in the little nuances.  But it was very difficult to find language that would identify that this was important to do in a non-union environment, you know, to get that perspective.  So, while we are not wordsmithing here, better words or more consistent words to describe it might be valuable.

But it was just interesting to note there was a general sense -- I don't know if you could find dispositive statistics -- that people are more likely to raise issues if they felt protected, and that tended to be -- if they were in a unionized environment, they had something to fall back on.  And so, you know, that just is something I will just note.  But it was not particularly easy for me to find some language to try to make this point.  So it is B

MR. FRUMIN:  You and several courts of appeal.  I mean, really, it is B

(Laughter.)

MR. FRUMIN:  This is a tough question.

MR. WENGERT:  Well, I am sure I am about to be appointed to a court of appeals.

Anyway, so I don't know how to resolve it, but it is a B

MS. SPIELER:  Nancy?

MS. LESSIN:  In the leadership section, we have the wording about, you know, with represented employees, bargaining unit leaders can also play a valuable role.

But if you look at the monitoring progress in the last checkmark, we went a little further.  And whether -- you know, I don't -- we used different words.  I think your issue about how in the world does this really happen remains.  But the wording that we have is "bargaining unit leaders should be involved in development and review of measures in non-represented workplaces, consult other employee leaders, worker centers, advocates." 

I think it kind of points -- direction that says without a bargaining unit there are other things you have to do.  What that is, how that is done, who does that, how to stay within, you know, legal frameworks, I think, are real questions.  But I think that was our attempt to try to say there are some real issues here.

If there are things that can be added to assist in that, I would certainly be open to hearing them.  Because I think the reality of the situation is exactly as you laid out.  The bargaining unit piece is much smaller, and this other entity of non-represented workers is huge.

MS. SPIELER:  Greg?

MR. KEATING:  I would just note also, Eric, that in the second section preventing -- prevention and fostering a speak-up culture, the second-to-last bullet talks about to help gain a real speak-up culture, seek the input and involvement of workers and union leaders in design and operation of reporting channels and anti-retaliation programs.

So I think there is at least an attempt to flag what you are talking about.

MR. FRUMIN:  Yes, it is here in multiple ways.  I am not saying that any of the language there is bad. But it is good.  And both of those are good sections.

The problem is that it punts on the severe obstacles that a compliant HR department would face in trying to identify worker leaders in a non-union environment.

MS. SPIELER:  So let me make a suggestion here, because I am not sure we can, as a group -- I am not sure any of us individually, nor could we, as a group, craft something that sort of navigated that difficult pathway.

So -- but I do think we can add in our transmission to OSHA an alert that we have concerns about this, and urge them to address it in whatever the -- to the extent they think it is possible in the final document.  And I think the solicitor's office, and possibly in consultation with lawyers and other parts of the government, might be able to come up with some language that they felt comfortable with, ultimately.

Yes, Richard?

MR. MOBERLY:  I am just going to -- Eric, was going to express my ignorance here, which I don't like doing publicly, but I am going to do it, in case anyone else is with me.

So, can you just describe the difficulties of B

MR. FRUMIN:  So B

MR. MOBERLY:  -- identifying workers in non-union B

MR. FRUMIN:  Yes.  Real short, Section 8(a)2 of the NLR reg prohibits company unions.  A committee established by an employer of workers intended -- where those workers are intended to represent other workers, not just themselves, and with whom the employer deals  -- that is, takes suggestions, comes back to the groups, gets their feedback, says, "We did X, you wanted Y," or, "We did A&B, you wanted A, B, and C."  That is "dealing with."  

That is prohibited under the National Labor Relations Act in a non-union environment, when that committee depends on the employer to pick the people, set the time for the meeting, pay them, run the committee B

MS. SPIELER:  It is even true if they allow the employees to elect their representatives.

MR. FRUMIN:  Right, because it depends on the employer.  It is a company union.  And we prohibited that, thankfully, in 1937.  But today that is still a live issue.  So -- there was a famous case, it was on quality issues, wasn't about safety, but they got into problems.  DuPont ran into problems in the unionized environment running a safety committee outside the union.  So this is -- and there are multiple state laws requiring safety committees.  In non-union environments, I would say 99 percent of those safety committees violate the National Labor Relations Act.  And no one pays attention.

So, does any of this matter?  We have been going on for decades with this law, with these practices.  It doesn't really matter.  Well, it does matter, because this agency has night-and-day different practices regarding worker leadership and worker involvement in the enforcement process between unionized and non-union environments. 

And are there walk-around reps in unionized workplaces?  Most of the time.  Are there walkaround reps in non-union worksites?  Next to goddamn never.  Does the -- does OSHA -- do OSHA's regulations take that into account?  Not really.  Is there an opportunity, as the agency is trying to come to grips with the issue of worker involvement in reporting non-compliance, and participating in enforcement?  Is there an opportunity to try to figure out a way around that?  Yes.

So, if we were just doing this in an academic setting, you know, okay, it would be a footnote.  But we are doing it in the U.S. Labor Department, where these issues matter, and where these ideas may show up in a settlement agreement, they may show up in agency practice, they may show up in lots of places.  We have ARAs here, listening to us, and wondering, "Well, why does this make a difference, in terms of the compliance stuff?"  Well, it does, because we don't have effective worker involvement in fighting retaliation in an OSHA enforcement setting, never mind other settings.  You know, in non-union environments, people are kind of on their own.

So, we get passionate about this, you know, those of us who do this work, because the stakes are really high, in terms of just seeing the OSHA Act enforced with worker involvement.

MS. SPIELER:  So let me just B

MR. MOBERLY:  I just wanted to make sure that was clear.

MS. SPIELER:  Thank you, Richard.  And I have to say that it is definitely clear that OSHA has been grappling with these issues, and at least has issued one memo that specifically addresses the employee representative walk-around rights that says -- allows for non-bargaining agent representation.

So, this is not -- just to add to the background, it is very clearly an issue that OSHA is grappling with.  It is not something that they have ignored.  And I think it -- and grappling with, also, in the context of the work that OSHA is doing around temporary work, and staffing agencies.

So, it is a problem.  And I think -- I do think the committee, as a whole, when we transmit this, can certainly alert OSHA to the concern.

Marcia?

MS. NARINE:  So I don't know if this makes it better or worse.  And Greg and Eric might have something to say about it.

There is a possibility to maybe just put in a parenthetical the -- seeking the feedback of certain affinity groups that exists within organizations.  Might be the gay and lesbian organization, it might be the black workers -- it is not going to be called black workers, but you know what I mean?  The women's -- whatever it is. 

Because those groups, some of them tend to be more high -- upper management than others.  But sometimes it is a broad cross-section.  And even though they aren't unions, and those are voluntary, and the company does not set them up, you know, in some -- you know, in -- depending on who your perspective is, so from a management perspective B

MR. FRUMIN:  Right.

MS. NARINE:  -- worst came scenario, sometimes act like unions, and they will come forward with a list of demands and say, "We want these things done."  But if there is a way to channel that, and a way to say, you know, "We are actually looking to try to find a way to make this better," you know, you can -- you know, you don't have to represent all women in the organization, or all people in the affinity group. 

But if you have suggestions that can help us, that you are hearing from your membership when you have your normal meetings -- because, obviously, people will meet to plan, you know, this event, that event, this initiative.  But at any given time people will talk about what they are unhappy with in the workplace, because that is just a given, when you have more than two people sitting down to talk to each other.

So, to the extent that groups are comfortable providing that kind of input, and it is not going to be something that is forced, you are not going to ask for names, that might be something where we can kind of help fill, in part, a little bit of that gap.  Now, whether there is going to be other legal issues that come from that is a whole other issue.  So I don't know if Greg or Eric have any thoughts on that.

MR. FRUMIN:  No, that is fine.

MS. SPIELER:  Jon?

MR. BROCK:  Just a quick point.  Nancy, I think, really described the -- what we were attempting to do, and acknowledged the difficulty.  I think if we are looking -- if we want to say, "OSHA, think about language," we should pull from the transcript what she said about -- you know, there are places you can go to try to get the employee perspective. 

And what we are really talking about is, if you miss that perspective, you are likely to misdesign this, you are likely to not understand the impact of certain efforts or failures.  So you really want to make an effort to get that perspective.  And the world is changing, and there are these kinds of organizations.

We heard from Government Accountability Project.  You know, whistleblowers go to places like that and say -- you know, well, employers can go to places like that and say, "Take a look at this."  So we want to get that perspective, and I think she introduced -- she laid out the effort necessary, and then we have these examples.

I don't know if that helps, but B

MR. FRUMIN:  No, I think that is exactly the point.  That is exactly the point that you need to stress, which is there is at least the opportunity for one way -- for solicitation of one-way communications by employers from workers to get that input.  If you try to go -- as a manager, try to go beyond that, and establish a two-way line of communication, then that turns into a committee, and you are dealing with requests and back and forth.  Then you run into all kinds of trouble.

But there is no prohibition under the NLRA from soliciting employee input.  And if there is a systematic way to do that in the design of the program, great.  In the monitoring of the program?  Great.  That is a good concept to talk about here, as you have.  Soliciting input about it to try to make sure you are  -- you know, at least at that level, that you are not getting problems.  And I am just noting that it -- doing that well is even more urgent in a non-union environment, where to go beyond that runs afoul of the law.

MR. BROCK:  And it could be that the term "leaders" kind of messes it up.

MR. FRUMIN:  Yes.  Well, yes and no.  It depends on the situation.

MS. SPIELER:  Okay.  So B

MR. BROCK:  Sorry, didn't mean to say a word.

MS. SPIELER:  Yes.  I think we do collectively understand the issue.  And we will figure out a way to tack it on to our transmission to OSHA as a concern.

Nancy?

MS. LESSIN:  Can I just -- I think there are two issues here, actually.  And one is the, you know, consulting -- you know, getting advice from.  It is not two-way, it is that.

The other is more of a discussion.  And I do think we can flag that there are organizations, there are worker centers in many, many locations.  There is the, you know, Government Accountability -- you know, there is a list of organizations that deal with employee concerns, right, that are out there, that could actually read something over and give some feedback, and it could be more two-way.  And so, I think both of those things should be part of what OSHA can look at.

MS. SPIELER:  I think this is really useful.  Okay.  So, other issues and concerns regarding the part one?

(No response.)

MS. SPIELER:  So, it is almost a quarter to 11:00, which is when our break was supposed to be.  Why don't we take a 15-minute break, and we will reconvene to talk about two?

(A brief recess was taken.)

MS. SPIELER:  By the way, earlier, Dave Eherts is traveling in Asia.  Originally thought that he might call in for the meeting, and concluded that was really not doable, something that I totally second. 

So, he isn't with us, but he was -- and Jon and others can attest to this -- an incredibly strong participant in this subcommittee.  In particular, because of the kind of work he has done, is very attuned to issues of monitoring and questions of how to act pro-actively.  And so, his participation on the subcommittee was invaluable, I think, and his absence is clearly noted.

Okay.  So, we are going to move on to the second section:  prevention, fostering a speak-up culture.  We will have this conversation in the same way.  We have already had a summary of it.  So, again, not wordsmithing, but concerns that you have about what is here, or issues that you think need to be here that are not here, or issues that are not adequately addressed.  The floor is open.

Richard?

MR. MOBERLY:  So this is actually in combination with the next section, too.  You have done a nice job, I think, in some ways, of separating out the report of the underlying wrongdoing, and then a report of retaliation for reporting the underlying wrongdoing.  But in some ways there is differences in language that I don't know if it is intentional or not.

So, on the number -- on part two you talk about giving a timely response to the report of underlying wrongdoing.  And when you talk about a retaliation response system, you talk about de novo independent investigation, and then they get proper closure with the issue. 

And you know, one of the problems when you report an underlying wrongdoing is employees don't know what happened to the underlying -- complaint about the underlying wrongdoing.  And that, I think, discourages other employees from coming forward.  They think nothing was done about it, necessarily, unless there is something open and obvious.

And even if the underlying report is -- turns out to be invalid, I think there is value in coming back to employees and saying, "You know, we looked into this, and it is not actually what you think.  You didn't have all the information," or whatever.

So, in some ways, by separating those two types of reports out, I think we lost something.  And then, also, it seems to me like some -- a lot of these reports become intertwined in reality, that, you know, you make a report about underlying wrongdoing to the supervisor, and you get retaliated against, and then -- so you go up a level, or you go outside, and now you have a report about the underlying wrongdoing and the retaliation.  And so, I think we need to kind of recognize and deal with that intertwined nature of those reports.

You know, in OSHA -- and we have talked about this before -- OSHA often is dealing with both, in the safety and health issues, the underlying wrongdoing and the retaliation.  But in other statutes under Sarbanes Oxley, you know, they kind of have to go to the SEC to look at the underlying wrongdoing.  And so I think this is a problem in the statutes and in the way OSHA has to deal with some of these issues.  They are separate, but they are also intertwined.

And so, I didn't know if there was some way we could at least acknowledge that throughout -- when we submit this report.

MS. SPIELER:  Response?  Discussion?  Jon?

MR. BROCK:  I can add something.  It is a good point.  We struggled with this a lot.  And in some earlier draft, these two sections were sort of the same section, and there were some differences, and we separated them, which I think was necessary.  Because the issue and response -- it is a different kind of -- should be semi-routine, sometimes runs into problems, and it is the pre-requisite.

It is really in the retaliation response that the de novo stuff becomes really important.  You clearly have to tell the -- you clearly have to tell someone, "Here is what we did with your issue.  We investigated it."  Or you might have involved them in the investigation.  Whatever you did, "Here is what happened.  For all the reasons that you said it was important, it is important."

In retaliation it comes back a little bit to what Eric was talking about, about management accountability.  Well, if somebody didn't respond to you properly, or retaliated against you, well, there are some privacy issues involved in what I now say to the person.  We probably need to do something that has some symmetry, that says, "Well, these wrong things happened, and bad things happened.  We have addressed them, and it is your right to know about that."  And other people should be able to see aspects of it.

But it is in retaliation area that -- your point is really right -- you have to go back and look at the underlying problem.  Otherwise, you are bound to get that again, or you are bound to get the repression of that again.  And so, you leave the retaliation ingredients in place, unless you go back to that.

So I think that you are raising a very useful point.  Emily and I were talking about it just before the meeting started.  I didn't quite editorially pry them apart, and then get them to touch at the right places.  So I think it is -- there is some useful comment we can make, going forward, that responds to that.

MS. SPIELER:  Yes, I think it was one of the things the committee, I recall, was really grappling with when you met in person here in D.C., I think, a couple of meetings ago.  And that sort of where do they touch and where are they different has been an ongoing challenge, I think, for the subcommittee.

Ken, did you have your hand up?

MR. WENGERT:  No, but you are absolutely correct in your recollection of that discussion.

(Laughter.)

MS. LESSIN:  I guess, for Richard, the same kind of question. 

Having thought about this, do you have some guidance for either something that can be added, or would this be a comment to OSHA when we give this to them?  Is there something in here that could be constructed to cover that and/or would this be some guidance where we say, you know, "There is this issue"?

MR. MOBERLY:  You know, as I said, I think it makes sense to pull them apart.  And, obviously, you all had this long discussion about it, so I don't want to revisit that issue at all.  I think some parallel language, though, where -- particularly on the investigation, and the response, and getting back to the employee might be worthwhile, or at least note -- I could go either way on it, to be honest with you.

And again, I don't want to wordsmith.  So I think we could give guidance to OSHA to, you know, "Don't forget about the underlying concern, don't forget about the underlying wrongdoing, and the importance of responding to employees about that to help foster a speak-up culture."

MS. LESSIN:  I am just wondering if, you know, Eric has his assignment to, you know, bring back a concept.  Would you be -- is this something that -- again, having thought about this in, you know, a sentence or two that we could look at?  Because I think it is an important point, and if there is something we can do in this document that we all feel good about -- not the dotting of the I's and the crossing of the T's, but the concept -- then I would love for it to be in here.

MS. SPIELER:  I am wondering, just as a -- I am going to leap in and try to be helpful here -- so it seems to me, in number two, there should be a clear "do" that says, "Do investigate reports of issues promptly, thoroughly, transparently, and report back to the person who brought them forward," an additional "do." 

And then, maybe, the other question comes up in the next section, where the issue is, "and also look at the underlying problem."  Is that -- does that get at  -- Richard, at your concerns?

MR. MOBERLY:  Yes, yes.

MS. SPIELER:  All right.

MR. BROCK:  Emily, say that again.  I want to capture it, so B

MS. SPIELER:  I have got it.

MR. MOBERLY:  Okay.  Tell me later.  Tell me later.

MS. SPIELER:  Yes.  Marcia?

MS. NARINE:  So, I really hadn't focused on this as much when we were talking about it for months and months.  It is possibly because I spent so much of my former life dealing with our company hotline that it seemed like we got so many calls -- and every company feels they get a lot of calls -- but, in fact, only about three percent of employees ever actually use an employee hotline.  And I think we need to add something so -- it brings up a number of things, as I go back and look at this.  And I think all of us have -- "We should have done this."  So this is one of those, "We should have thought about this more." 

And so, statistics also show that, pretty much, the companies that are tracking this see maybe 1.3 calls or reports for every 100 employees.  So it is not a huge amount.  So if you are in a company and you see hundreds of hotline calls, you think that is a lot.  But it is really not the way that most companies learn of anything that is going on.

So, we talk about a issue of reporting to -- and we know that 46 percent of the time they -- employees go to their supervisor first and higher management, say, 29 percent.  I just did a report on whistleblowers, so I have a whole PowerPoint I am looking at from all my statistics, none of which I gave you the two years we were discussing all this.

(Laughter.)

MS. NARINE:  So I apologize.  But one of the things I am thinking about is, do we need -- we say that we need to talk to managers on how to constructively respond.  But I don't really know that that is clear enough, because -- so if you go through a hotline, typically the supervisor is not conducting any kind of an investigation. 

Typically, it is some other people that, best case scenario, are trained to conduct an investigation.  But what guidance can OSHA give, as to what it means to constructively respond when they are first told of this report?  Does this mean, okay, thank you, and then pass it on to somebody else?  Because I think most managers would be very happy if that is all they had to do. 

And, obviously, we are telling them not to retaliate, but what does that mean?  Do they engage in any kind of preliminary investigation?  Are they performing an intake function, where they are getting the facts?

So I think we need to provide a little bit more meat on what that means to constructively respond, other than pass it on to somebody else and don't retaliate.  Because if that manager is the person -- if the employee goes to that supervisor, then you have to assume the employee trusts that supervisor and, more importantly, as was just said, thinks that something is going to be done.  They don't know how something is going to happen, but they want something to happen. 

And if they are going to go back to their supervisor and say, "I told you about this six months ago, nothing has happened," you know, it has got to be a little bit more transparent as to, "Okay, now I have got this, I got to give this to our head of safety, or our internal audit, or HR," et cetera.  "I am not going to be involved any more, but if you have more facts and you are comfortable talking to me, then let me know," but just some kind of guidance, I think, that we need to give to managers about what it means to constructively respond, because, in the hotline area, even though a lot of employees don't find a lot of satisfaction, most companies do have some kind of infrastructure that is meant to handle that. 

But what is a manager supposed to do, other than not retaliate?  So just a little bit more flesh on that.

MS. SPIELER:  Discussion on that point?

MR. FRUMIN:  No, it is good.

MS. SPIELER:  Okay.  Yes, Eric?

MR. FRUMIN:  So, on the fourth bullet from the bottom, checkmark there, it says, "Yes, policy on no punishment, but be alert also to punishments for unrelated reasons."  So, this is a great concept.  I was trying to think how could a company operationally be on the alert. 

How could HR -- if that is part of their function, monitoring supervisors or managers, HR practices, how do they flag cases that -- actions which are not punishments, but actually might, on review, turn out to have been -- a bad call by a supervisor out of resentment for an employee having done something?  And it led me to think about the other kinds of decisions that supervisors are going to make which are then going to skirt under the now-official radar for retaliation, which will effectively communicate the message to their underlings, you know, "You do this, you are going to end up with something you don't want."

So, I am thinking that punishments is not the only thing that should be looked at here, but changes in employee status.  And in the new contingent work relationship world, we have people working variable hours, and changing -- especially in the non-union environment, you know, where you are imposing changes in hours, scheduling, where people are desperate to get -- taking away overtime opportunities, and so forth.  So changes in employee status could be, effectively, a punishment without calling it that.  It flies under the radar, and then that turns into, you know, three of those, and all of a sudden someone has got a retaliation claim.

And then, the other thing that I thought was interesting for comparison sake is the emerging anti-coercion rule that DoT is working on under -- per the congressional mandate.  So Bob tells me that it is going to be out very soon, and I think it is useful for OSHA to -- and others -- or us, certainly -- to take note of that.  This is an effort to identify other kinds of management imperatives, which are not punishments, but they involve a form of B

MR. WENGERT:  Discouragements.

MR. FRUMIN:  Pardon?

MR. WENGERT:  Discouragements.

MR. FRUMIN:  Yes.  They involve affirmative actions by employers that will get sort of the same results that they were trying to get by threatening retaliation if someone didn't do it.

So, you know, a classic case of truck drivers -- you know, you don't want to drive these hours or whatever, we are going to do something else to you.  Not terminate you, but you are not going to get the next load that you want -- will allow you to get home that night, or whatever it is.

So, we will see what that rule looks like.  It is a really fascinating concept.  I don't know whether another one exists in the federal anti-retaliation law.  Right.  Bob is shaking his head.  Probably not.  And I think it does open up a really interesting window on what a proactive anti-retaliation program would look like.  So I would just look at anti-coercion broadly, as another aspect of expanding the what is it we are looking for here, not just changes in employee status, but other kinds of coercive actions by supervisors.

Now, none of that needs to change this.  I am just putting it in the record.  I am not saying we need to change B

MR. BROCK:  Yes, and I think we certainly discussed those kinds of things, and tried to subsume it, although we didn't address it as specifically.

MS. SPIELER:  Yes, Marcia?

MS. NARINE:  So I am wondering if this might address Eric's concern.  And, obviously, it is going to be very different, depending on company size.  So some companies won't have an HR, internal HR infrastructure.  They might actually outsource a lot of their HR work and just call some HR consultant if there is an issue.

But one thing you can think about, assuming that the person is named, and not an anonymous person, however -- whatever kind of infrastructure a company sets up -- and it is going to have to be very, you know, case-specific -- it might be something that maybe there is one person in HR that is tasked with knowing this person has raised a certain issue.  And that may be a matter of -- so if this person gets fired, demoted, they are put in a RRIF list, et cetera, someone is going to have to go back and double-check the documentation to make sure it is correct.

In an anonymous case, that is going to be more difficult, obviously.  And a situation where there is no internal HR infrastructure, that is going to be more difficult.  For the -- there is also the thought of, you know, the employees typically know the basics of what retaliation is, and they believe that other things are retaliation, which really are, but other people don't know.

         

So, for example, you know, I used to get my Christmas vacation for those two weeks, and everybody knows I got it, but all of a sudden now I am working every day, and every holiday, et cetera.  That is retaliation of the employee.

PARTICIPANT:  Right, right.

MS. NARINE:  The supervisor may not think it is retaliation, although they are actually doing the retaliation.  But maybe some kind of a list -- and you are typically going to see it in the employee handbook that everybody is clear on this is what the company believes is retaliation.  That might be very different than what is legally retaliation.

PARTICIPANT:  Right, right.

MS. NARINE:  So, obviously, in-house counsel and outside counsel and others will craft what that language looks like, but so that there is something that is very clear that these are things that, if you have made a complaint, this is what you should feel free to come forward with, so the anonymous person could then go to HR and says, "I was Complainant 12345 on the hotline," or "in that letter that was sent to you guys," and now all of a sudden this is happening. 

Whether or not it is going to be easy to prove that there is a causal relation is something totally different.  But often times, as we know, you know, supervisors will start to try to investigate who the whistleblower was.  And so that would be something that HR would have to sit there and go through, or legal, or somebody else would go through and investigate.

But I think, number one, if there is some kind of clear pronouncement, whether it is in the handbook or other places, about what the company considers retaliation, what is legal retaliation -- because, again, those might be two different things -- so that the employee knows that when they go to HR or somebody else, they can say, "This happened to me," and so that is there.

And then the second is some kind of system to flag.  I know, in the past, if there was a person that made any kind of charge, whether to OSHA, to EEOC, to other things, I have advised that some entity basically have some kind of asterisk next to that person's name, so that there is a double-check before B

PARTICIPANT:  Right.

MS. NARINE:  -- certain kinds of what might be considered adverse employment actions are taken to this person.  So it doesn't mean that they have a golden halo of protection B

PARTICIPANT:  Right.

MS. NARINE:  -- and have to stab somebody on videotape before they get fired.

(Laughter.)

MS. NARINE:  But it does mean there is going to be a lot of looking and a lot of questioning before -- and, by the way, if this person did -- was on their final warning, had done a number of things, and, you know -- then, if the termination is to take place, then it needs to take place.  But it is going to be an extra layer of checking.

PARTICIPANT:  Yes, right.

MS. NARINE:  So, I think if there is a way to reflect something a little bit more robust B

MR. KEATING:  It is already -- I think it is already in the document, though.  I mean if you look at number three, there is a whole section in there on, you know, discipline, though not the only form of retaliation, should not be imposed in response to any employee action to report an issue, to report against retaliatory discipline.  An independent review with a pre-established process should review any proposed discipline, and apply just culture principles, and ask questions like one, two -- I mean I think the B

MS. NARINE:  But I think it is a matter of just something that is a little bit more proactive and preemptive before it gets to that.

MS. SPIELER:  Nancy?

MS. LESSIN:  So I am remembering something that I think OSHA already has that talks about adverse employee action, or employer actions, that include -- you know, and I am trying to remember what it might be in, whether it is an old B

MS. NARINE:  It was a long list.

MS. LESSIN:  -- something, but it is -- it is like changing hours, and changing lunch breaks, and, you know, different kinds of things.  I think it already exists in OSHA and could be just dumped here.  Yes.

MS. NARINE:  So, yes, I agree.  So I think maybe then combine what we have already here with maybe that as an appendix, to say, "These are the kinds of things that you need to be looking for," because every company is going to have their own definition of what they think is retaliation.  So, say, these are some things that you know are going to be issues under OSHA, these might be issues under various other laws. 

But when you have this process, this independent review by somebody who is trained and has no conflict of interest, which is the definition of independent, then at least everybody is on the same page, in terms of what they are actually looking at.

MR. KEATING:  I mean it is -- obviously, we do have the whole day.  So I think we can have some robust dialogue here.  But I would be remiss, from the management perspective, if I didn't make a point of my own, which is, you know, I acknowledge that the standard for what is an adverse action has evolved, as it should, because I acknowledge that there are circumstances under which, for example, a single mother who is taking care of two kids and has to rely on that schedule, if it is changed, is going to be truly adverse to her, and it is going to be a bad thing.  Okay?  And it will be retaliatory.

But I also see many examples when an individual who happens to be a poor performer, but it was never documented because he or she had a weak supervisor, and a new supervisor comes in and says, "All of these things are going on, you are not doing this, you are not doing that," and the individual senses the ice is cracking underneath them. 

And so, what do they do?  They run into either HR or compliance, and complain about some sort of perceived problem in the company, thereby wrapping themself in some form of a bubble, such that no action can be taken against them because it will be deemed retaliation.  And the broader we make any operational change that an employer cannot do, the more we tie up their ability to do their -- to run their business. 

I mean it is a slippery -- it is a bit of a juggling act, and I think we have to at least acknowledge that employers have a right to schedule, transfer people around, and, you know, if in fact there is a -- I think the way to solve this one is we need to have the right system in place, so that if someone complains, and then a supervisor says, "I want to transfer them to so-and-so job," there has to be a discussion around is that possibly retaliatory as to this individual.

I don't think it is fair to say that you can never take these actions, never transfer, reassign, change the times of their work --

MS. SPIELER:  I actually don't hear anyone suggesting that.  I mean I think the problem here is when there isn't a history of good supervision.  So, clearly, when there is a history of poor performance, and someone comes forward, and -- or there is a history of disciplining people for violating legitimate safety rules, and then someone is legitimately disciplined for violating the safety rule post-injury, the question is what the history is, I think.  And it is a question for -- on both the individual and on the -- and for the group.

But I -- but we are not going to solve the problem where there isn't the -- supervision has, for some reason, been weak, and the history doesn't exist, and then you have a whistleblower problem in this group.  Those, I think, do end up often in litigation, as a result of the disagreement, and I don't see how we can solve that here.

But I do think that those are legitimate issues, to some extent are already embedded in this document, and those concerns -- the set of concerns around the legitimacy of changes in status for employees is one that OSHA should be aware of when they draft a final document.

MS. NARINE:  I will just say I -- you know, obviously, a management person, I completely agree with everything that Greg has said.  When I used to do our training in-house, I used to tell people, "Fire early and fire often," you know?  Don't wait for somebody to have their fifteenth thing to happen before you give them a first warning, because all employees will see that.  And you start firing people, people will get the message.  People will start to act right.  And then you don't have these issues. 

Because when you do have the issues, which not only go to OSHA and -- that is how we got our litigation rates down by 50 percent in 2 years.  I started going around the country, giving people permission to fire people.  Because the problem is some managers don't want to fire people, but B

MS. SPIELER:  It is hard to fire people.

MS. NARINE:  But -- it is unpleasant.  But some people deserve to be fired.  And other employees see that.  And when people don't -- and what you have is the inconsistent application.  So, the person that is liked by the manager is the one who does not get fired, and the person

who is not liked is the person that gets fired, and that person files the OSHA complaint, the EEOC charge, et cetera. 

So, at some point it is in the company's interest to be consistent.  And for employees, fair means consistent.  Fair doesn't necessarily mean be nice to me, it just means consistent, and treat everybody the same way.  So, as we are talking about no one could be fired, I don't think that is the case. 

But I think the employer has to bear the risk that, if they don't choose to put the right supervisors in place, and don't train those people as to effective discipline, and if they choose not to discipline people, and not put records in place of poor performance, poor safety issues, there is going to be a legal risk that is going to come.  Because when they fire the person who has never been disciplined, it is going to be a problem.  That doesn't mean they shouldn't take that risk, but it is something that they need to be aware of.

So, I just think, to the extent that we have some kind of process, like you said, that says, "These are the kinds of things that are going to put you at risk for retaliatory discharge, you need to be aware of them, you need to be able to kind of watch the person."  Again, no golden halo, they don't get a Get Out of Jail Free card, but there is going to be some additional level of scrutiny if you don't have the documentation in place to make whatever it is that is going to be perceived as a retaliatory action.

MS. SPIELER:  Richard?

MR. MOBERLY:  So there are two things here that are not legally required that I wanted to ask about when you think about building a different type of culture.  And I just was wondering if they were discussed.

So, the first one is whether you all discussed encouraging any sort of positive encouragement for speaking up beyond "We are not going to retaliate and we are going to give you a pathway to speak up."  Was there any discussion about the rewards, or anything like that?

MS. SPIELER:  Go ahead, Jon.

MR. BROCK:  I can say yes, there was.  And in the -- it is probably -- it may not be explicit enough in the measurements part.  We certainly did talk about incentives.  Ken, I think, talked about -- and Dave talked about programs where managers had incentives for responding well to it, encouraging that in the beginnings of some other kinds of recognition programs for that. 

Ken, is there anything there that you B

MR. WENGERT:  It was.  In this particular section I think we just left it very generic, with the first bullet point B

MR. MOBERLY:  Right.  But I do see it.  It is in -- the second one on number five, monitoring progress, incentives to reward employee behaviors.

MR. BROCK:  Should reward employee and management behavior, yes.

PARTICIPANT:  It is in the first of the dos under the dos and don'ts in the same B

MR. MOBERLY:  Oh, number five, right.  Okay.

PARTICIPANT:  Preventative activities.

MR. MOBERLY:  Right.  The other thing I wanted to ask about was, Jon, when you introduced all this you said on number four, for anti-retaliation training, it was important for managers to have skills for defusing situations, and you kind of mentioned peer group pressure and retaliation.  And it seems to me that that is not explicit in this number two.  A speak-up culture would deal with kind of peer group pressures on not to speak up. 

I often tell the story that I have a colleague who, whenever he asks me about my research on whistleblowers, asks me about how my research on snitches is doing.  Right?

(Laughter.)

MR. MOBERLY:  I mean that is the reality of culture.  And it is not just a management-driven culture, it can be a peer group-driven culture.  And so, there is -- I didn't know if that could be more explicit in here, as we submit this, to think about how you can change the culture, not just from a management -- top-down, but from a education of employees, generally.

MS. SPIELER:  So, how about -- this is actually -- I was looking at root out formal and informal incentives and value systems that encourage or allow retaliation.  But, really, you want to add to that, "or discourage reporting," it seems to me.  And those peer systems are part of that.  Does that make sense? 

If you look at the dos on number two, and you go down one, two, three, four, five, six, maybe it should say, "Root out formal and informal incentives, and value systems that encourage or allow retaliation, or discourage reporting."

MR. MOBERLY:  That is great, thank you.

MS. NARINE:  I want to add one more thing to the conversation about incentives.  We did have some discussion very early on about what kind of incentives could be provided for employees who come forward.  And part of the conversation -- I remember thinking we thought about something to the effect of what does that incentive look like?  Is it a monetary incentive, is it a recognition incentive? 

And then, are you saying, if you say we are going to reward you for coming forward on safety issues, that that is more important than sexual harassment or environmental issues or fraud issues, because there is not necessarily some kind of monetary or other kind of reward for coming forward on those? 

And maybe there is, maybe there isn't, but I think, as OSHA looks at what that might look like, if there is any more specificity to providing incentives or rewards for people to come forward internally, there has to be a recognition that there is a wide range of laws that employees might want to raise that aren't covered by OSHA's purview.

And is there -- because I remember, for example, when there was issues about Dodd-Frank whistleblower, which is not under our purview, but there were a lot of companies that were saying, "Should we offer some kind of money to make somebody come forward to us, as opposed to go to the SEC?" 

And I said, "Well, how much money can you possibly give somebody that is not up to $100,000, and in which case, is it really" -- don't you want companies -- don't you want employees to come forward because they are trying to do the right thing for the company?  So there is a whole lot of issues that come out with what you are talking about, providing incentives. 

So, clearly, you want to reward good behavior by managers and employees, but what does that look like, and just some sensitivity to the fact that there is a range of other things that aren't in OSHA's purview, and you don't want to make it look like you think something is more important than the other, unless you do, in which case we just need to be sensitive to that.

MS. SPIELER:  Jon?

MR. BROCK:  A couple of comments.  As we think about things that would be clarifying and good to have, there are certainly clarifications that are just probably pretty crucial that are being pointed out.

We had contemplated -- and I took it out, except for I missed one place here -- we had in here the word "link" in a lot of places where you could go to an existing list of "here are forms of harassment and retaliation that are not specific employment adverse actions," and we had that word probably in here in about 30 places.  And I actually couldn't fit the document into this format if I left that word in.  So  -- you know what 35-letter words does to your spacing?

(Laughter.)

MR. BROCK:  So we took that out.  But there is a list of examples that we created -- we didn't -- we took it out a while ago, so we didn't vet it particularly carefully. 

But a lot of these details would be very valuable in referring to sources where they exist, because you get kind of lopsided here.  So I just -- I wanted to bring that back into the conversation.

MS. SPIELER:  It is certainly true that OSHA could add in links, as appropriate.  And they often do, on these kinds of documents.

MR. FRUMIN:  And one other comment on this section, which is it doesn't discuss the question of preventing retaliation by employees in other closely-related business entities:  contractors, staffing agencies, clients, the other workers who are a pretty integral part of the employer's B the host employer's business in, you know, a whole range of ways.  And if the -- if there is no acknowledgment of the potential for retaliation by those entities, and the employers try to run a prevention program solely within their own four walls, you know, they might miss something. 

And, whether it is a report from a contractor or employee who is telling something that -- to the host employer that the host employer really needs to know, but the supervisor, the boss, doesn't want to let on to about, you know, potential failure in a critical safety system to, you know, a host of other things, you know, all of a sudden the employer is now on the hook -- the host employer is on the hook as a joint employer for a lot of problems that they didn't think they were -- you know, that their business model didn't anticipate.

So, I don't want to belabor it, but I think the fact that related employers, clients, contractors, joint employer, you know, they have -- they should be within the purview of a prevention program.  I don't know how you would exactly deal with them as an -- part of an anti-retaliation effort.  That gets a little sensitive.  But certainly as part of a prevention program, it is worth considering something like that, too.  And I think, you know, sort of the mirror of including those employees and training and, you know, whatever -- there is lots of examples of how they are included in other kinds of things.

MS. NARINE:  I would like to echo what Eric said, and I think it is particularly important, since SOX is within our purview, that, after the loss in Supreme Court decision, the private contractors have protection.  You need to add that in, which includes auditors -- this is obviously more in the financial realm, but, you know, auditors, outside counsel, et cetera.  And there have been some filings that affect it already.

So, I think, to the extent that we want to add that in, not just in the fostering a speak-up culture  -- because, from SOX, I am not sure that people are going to be comfortable doing that -- but definitely in the anti-retaliation training, to make sure that people know, and the policies, that people know that there are others that don't directly work for you, but could have potential causes of action against you, especially in a SOX context.

MS. SPIELER:  Yeah, J.J.

MS. ROSENBAUM:  I would just say in a lot of the -- even in the same workplace you are going to have employees that look indistinguishable, but actually, one is an employee, one is a subcontractor, one is a temporary staffing agency.  If you have got another entity engaged in rampant retaliation, it is going to undermine whatever entity in there does have a good policy.

So, whether it is in this section or more broadly, it would seem to me a best practice is doing this and making sure that the subcontractor's temporary staffing agencies, et cetera, that you work with also do it, as well.  And, in fact, it is mandatory, as part of your contract.

MR. KEATING:  I just want to -- not to put Anthony on the spot, but I just had a question.  Maybe you don't have any data or intelligence on this, but flowing from what Eric raised and Marcia mentioned, just a year-and-a-half or so ago, the U.S. Supreme Court dramatically broadened the pool of companies that are now liable under SOX from, by my count, 3,000 or 4,000 publicly-traded companies to something like 6 million private employers around the U.S. 

Have you seen any type of upturn or spike in SOX complaints?

MR. ROSA:  Actually, in fact, in terms of Sarbanes-Oxley, we have seen a decrease in the filings of Sarbanes-Oxley within OSHA.  In fact, back in 2005, 2004, when SOX was first started, we received approximately -- and I'm thinking from the top of my head -- about close to 300 complaints.  Last year we received in Fiscal Year 2014 the lowest number of filed SOX complaints, at 145.

MR. KEATING:  But I predict that is going to change this year, because I think there is a lull before people start to kind of realize their rights and so forth.

I mean Emily pointed out yesterday that the SOX complaints did aggregate to $20 million in awards.

MR. ROSA:  Right, right.

MR. KEATING:  So, I think -- and I think, in the -- this is maybe speculation, and probably is speculation, but I think, in the wake of this decision, and as people start to realize their rights, you are going to see an uptick.

MR. ROSA:  I do want to point out that OSHA has always stood -- it has stood on that position, that contractors and subcontractors -- in fact, even subsidiaries.  Because before the amendments to SOX were enacted because of Dodd-Frank, OSHA had a process that we called the Integrated Employer Test, which included contractors, subcontractors, it included subsidiaries of parent companies. 

So, we always had that position.  And, actually, we are very glad to get that -- to get the Lawson decision in our favor, but that has been the agency's position all along.

MS. NARINE:  I think I agree with Greg, though.  When I sat on the panel in November, I talked about whistleblower as one of the -- a panelist was a defense lawyer who said that he is -- his office is seeing more inquiries after Lawson.  So I think it really is a matter of time.

Now, whether some things are being settled because maybe there is demand letters going out, and things are being settled very quickly, that is entirely possible.  But I think that you are going to see more or -- at least more people get B

MS. SPIELER:  Or maybe compliance is getting better.

MS. NARINE:  Maybe compliance is getting better.

MR. ROSA:  And, at the same time, under SOX B

MS. SPIELER:  That's the positive way to look at it.

MR. ROSA:  And at the same time B

MS. SPIELER:  Less retaliation.

MR. ROSA:  And at the same time, under SOX, they do have the reward program, too.

MS. NARINE:  Right.

MS. SPIELER:  Yeah.

MR. ROSA:  Through the Securities and Exchange Commission.  So there is a little bit of competition between, you know, which form are they going to file under.

MS. SPIELER:  Right.  It will be interesting to see, how -- whether the Supreme Court decision has an effect on on-the-ground behavior, not only there, but in some of the decisions that have been made under Title VII.

So -- but so far, may I say that, despite the tightening of the proof standard for retaliation under Title VII, the number of complaints of retaliation continue to rise at a rapid rate at the EEOC.

Okay.  So, we are still on two.  And this last  -- I am puzzling over this last and, I think, very important point about the related contracting relationships, and whether we have -- we can actually address that concretely, or whether we just want to request that OSHA pay attention to this issue throughout the document, in terms of -- because I think there is a lot of thought being given to this issue right now at OSHA, and I would take guidance from the committee, because I am going to try to do a summary during lunch time of where we are and -- is a general guidance suggestion fine?

MR. FRUMIN:  I think that is fine.

MS. SPIELER:  Okay.

MR. FRUMIN:  I mean it would be difficult to create a best-practice document which teases out these nuances.

MS. SPIELER:  Yeah.

MR. FRUMIN:  So I would just say, from OSHA's standpoint -- because the other ones would have to make these B

MS. SPIELER:  Yeah.

MR. FRUMIN:  -- calls on which employer we are dealing with, you know.

MS. SPIELER:  Yeah, okay.  Anything else on number two?

(No response.)

MS. SPIELER:  I guess I actually had a note here, myself, that I just want to throw out.  And what I can't figure out is if it is already here or not.  And this is just coming out of a recent observed experience, which is that it seems to me that there needs to be a don't, explicit don't, that says, "Don't turn the investigation on the whistleblower."  Is there here somewhere?

MS. NARINE:  I am sorry, can you repeat that?

MS. SPIELER:  Don't turn the investigation onto the whistleblower.  So I come forward, I raise a concern -- this is happening in my organization right now, that is why I am sort of -- it is at the top of my mind.

And then the next question is, "Tell me about this guy who came forward."

MR. FRUMIN:  I think it is the fourth B

MS. SPIELER:  Is it here?

MR. FRUMIN:  -- the fifth -- "Focus first on the employee who reported before investigating" --

MS. SPIELER:  Okay, fair enough.  I missed it.  Yes, definitely.

MR. BROCK:  And it is a great point.  And I think we also deal with it at the very bottom under the do and don't.  "Understand that there may be false scenarios to discredit the employee."

MS. SPIELER:  Yeah, okay.  Terrific.  Okay.  And then, my last question -- although I hesitate to ask this -- is the issue that came up yesterday that I promised Greg we would re-raise today.  Is that here, or do you want to have that conversation separately, about the issue of various agreements that employees are asked to sign with regard to not raising issues.

MR. KEATING:  I am happy to take it on now, or stand alone later on.  I don't really care.

MS. SPIELER:  Why don't we discuss it for the next few minutes?  Because I -- it would be helpful to me to get a sense about whether this is something that requires considerably more discussion within the committee and should be put off, or whether this is something that should be added in some way to -- in a directive to OSHA now, as we transmit this document.

So I cut you off yesterday.  I felt, frankly, somewhat bad about that.  And so, I am actually going to invite you to talk now about the issues that you were going to raise when Tom Devine was with us regarding his -- their petition for rulemaking, and how this bears on our conversation today.

MR. KEATING:  Okay.  Well, so I wanted to make a few points, but I want to start at the end, which is I actually think this is a very easy fix.  I actually think that we can probably make a recommendation and solve this problem pretty easily.  But let me get to that by a couple of comments.

First of all, with regard to this concept, or this premise that employers are out there trying to impose gag orders on individuals -- and the reason that they insist on employees signing confidentiality agreements, for example, or separation agreements, but more of the former -- because they want to muzzle the whistleblower, and that is the intent behind these agreements, I have to say that -- and I have been doing this for 25 years, and I represent employers of all shapes and sizes -- I have never seen that as the stated intent behind a separation agreement or a confidentiality agreement.

And to that point, there is a reason for the confidentiality agreements and the separation agreements that is entirely legitimate, and has been recognized by many courts for decades and decades, and that is employers have a legitimate business interest in protecting their confidential information.  I have a pricing list.  I have a marketing strategy.  I have any number of different kinds of proprietary information that this individual has worked on for five years, and it is the tabula rasa for how our business operates.  And if it gets into the hands of somebody else who is a competitor, our ship is sunk.  That is why these agreements are entered into, period end, in my opinion, and not to muzzle someone from going and talking to a third party about their, oh, allegations of unsafe environments, or fraudulent, you know, workplaces.

So, I kind of take exception with this notion that there is a desire to go out and impose a gag on everybody in the workplace by these systemically retaliatory, you know, agreements.  I think there is a legitimate reason behind them, and I don't think there is any intent to muzzle anybody.

But going to my point -- and I mentioned yesterday -- that a lot of publicity came from the SEC's recent clamp-down on a company for having a confidentiality policy that they gave everyone during an investigation.  They said, "If your -- you have to participate in this investigation, but you can't talk to anybody about it."  I would never have advised a client to give anybody that document.  The KBR general counsel is on record saying, "We never intended to muzzle anyone, we just -- we wanted to ensure that this investigation was effective, and that people didn't go talk to -- taint it."

But the simple fix is make clear at every juncture, in all of these agreements, whether it is a stand-alone confidentiality, a separation agreement, a settlement agreement, an employee handbook, an investigation protocol, make clear that nothing precludes the individual from reporting or communicating with a government agency, including but not limited to the SEC, the Department of Labor, or the EEOC.  That is the fix.  And I don't know of a single employer who has bristled against that, and I have recommended about 100 of them in the last week.

(No response.)

MS. NARINE:  So just to give some context, the old language that -- over $100,000 settlement was -- "I understand that, in order to protect the integrity of this review, I am prohibited from discussing any particulars regarding this interview and the subject matter discussed during the interview without prior authorization of the law department.  I understand unauthorized disclosure of information may be grounds for disciplinary action up to and including termination of employment."

I think that goes to what Greg was saying, that this is something that most people would consider to be standard, standing alone, because the thought is, "I don't want you going out to the press to discuss the fact that there is an investigation going on, or something is happening.  I don't want you talking to anybody about it."

That is -- so the new language that the SEC required says nothing in this confidentiality statement prohibits me from reporting possible violations of federal law or regulation to any governmental agency or entity, including but not limited to -- and then it goes DoJ, SEC, Congress, any inspector -- any agency inspector general, or making other disclosures that are protected under the whistleblower provisions of federal law, regulation.  I do not need prior authorization of the law department to make any such reports or disclosures, and I am not required to notify the company that I have made such reports or disclosures.

That is kind of where that was coming from.  So, just to give some context of what the -- so that is what they changed.  And then agreement from the settlement.

I would just add to -- you know, to the extent that the SEC is -- this was in the context of an SEC Dodd-Frank whistleblower.  I have not -- I did not have a chance -- by the time I saw the email, I had already woken up this morning, I didn't have a chance to see the petition for rulemaking.  So I apologize if I don't have the substantive -- what he specifically is asking for.

One of the things I think is concerning companies on the opposite side from the -- on the SEC whistleblower thing after this is that the SEC has been asking companies for all codes of conduct, non-disclosure agreements, severance agreements, settlement agreements, et cetera.  And so, companies do have to tighten up the language.  There is a petition for rulemaking over there that was filed last July to look at how to make this stronger.  Because the premise is we want people to come forward because we are offering financial rewards, and this language is going to say, "Don't come forward."

The question then becomes just what are the parameters.  It might be as easy a fix of you can go talk to whomever you want, as long as it is the government.  I just think that the language has to be very specific, because it also goes into the context of not just what is written -- because that is something employees signed -- but what do investigators say to people when they have the conversations.  How does that affect when an investigation is going on, and I say, "Look, you got to kind of keep this information confidential unless, by the way, you want to go to the government, and that is perfectly fine."

I think, practically, saying we are going to put this clause in agreements is a easy fix.  How it actually happens in companies, when people are in the middle of an ongoing investigation, I think, is a little bit more nuanced, and not as easy as let's put something in some document.

MS. SPIELER:  So let me just separate out two separate issues for the purposes of our conversation today.  One is the petition for rulemaking, the issue of whether OSHA should issue rules, whether anyone should issue rules on this issue, and how complex they need to be.

And the second is, in a best practices guidance, is there something this committee thinks should be included that says, generically, "Don't use codes of conduct and various individual agreements to discourage reporting"?  And B

MS. NARINE:  I think you want to say something to the effect of, "It is appropriate to have confidentiality agreements and others to protect your proprietary information, trade secret," you know, "information about employees that is governed by privacy laws," what that is, "but you don't want to" -- you know, a don't would be "don't have any language, orally or in writing, that prohibits or punishes employees from reporting possible violations of a federal law, regulation, to -- and you can actually use similar to the language that B

MS. SPIELER:  But in a best practices situation, we are trying to encourage people to come forward internally, as well as to the government.  And so, again, I am trying to separate out this sort of formal rulemaking from what might be advice from this committee about best practices.  And it may be we can't do that simply, and so we should either postpone the conversation or whatever.

But I am wondering if there is a way of getting at this B

MS. NARINE:  I think you just tell them, "Don't do this," you know, don't -- you know, you don't want people -- you want people to encourage, but don't tell people, in the context of when they are speaking to you, "By the way, you can't ever talk to the government."  I don't think it is that difficult, because I think most companies I know -- everybody -- all the companies are getting legal alerts from people like Greg and others saying, "Be careful about your language." 

But right now, for those companies that aren't paying attention, the standard language is, "You are talking to us?  You don't talk to anybody else."  So I think we have to have a don't that says something to that effect, if that is what we care to do.

MS. SPIELER:  J.J.?

MS. ROSENBAUM:  Well, I mean, on that point, what I heard Greg saying, which I think is good, is even more affirmative.  Like, "Do say that, in the context of whatever agreements you have, it does not include going to the government on something that you believe is good faith," and I think that is helpful.

What I heard Tom say yesterday -- and I didn't have a chance to read the petition, and I -- this is the first I have heard of it -- but I heard a couple of other issues in there, which I think we should just be clear about whether we are addressing or not, which go beyond confidentiality.  That was agreements that require workers to bring issues and evidence to the employer before going to the government, and also agreements at the close of employment that require you to say under oath that you have not seen anything that you have not brought forward.

There may be -- and then I guess there is something about the conduct in which you pursue people and litigation who believe they may be bringing good-faith claims forward through what he would characterize as SLAPP suits, or other things where there is a huge imbalance of finances and litigation.

So, I would say, in addition, where I think the suggestion you gave on the confidentiality agreements is pretty straightforward in helping with that, those issues to me seem a little bit different, and I think we should decide whether we are going to take them on, or whether we need more space.

MS. SPIELER:  Yeah, Eric.

MR. FRUMIN:  This raises the question of whether this document in general seeks to forestall -- I won't say prevent or discourage, but forestall the "external" complaint process.  I think that is -- from the first sentence in number one, that seems to be the purpose.  And I think it is worth addressing that presumption in some kind of a comment that we -- when we transit this, because there is a legitimate issue as to whether or not managers really want to do that.

I have seen multiple situations where corporate was very thankful that people at the local level went to, you know, a government agency, because that was the only way that corporate could get the attention of local managers about a problem that the local managers were resisting dealing with.  I mean, literally, that level of tension between corporate and a local facility.  Sometimes union's processes can have the same effect, but it depends.  Sometimes the HR function is all at the local level, delegated down there.

So, I have -- you know, just like -- it kickstarted at corporate.  Thought they knew what was going on, they didn't have a reporting system that this thing anticipates, and -- Ken is nodding.

So, I am not saying we need to change the focus of this, but we just should make that presumption explicit, and point to the possibility that there well could be best practices which actually are -- even want to promote external reporting, where employees thought that was appropriate, which isn't everywhere, and it may not be the first preference within the management system.  But sometimes, you know what?  It might be a good thing, from the standpoint of the management system, never mind the workers, the government, or whoever.

So, just -- you know, just a short comment along those lines, you know, just to accompany this, just raising the presumption.

MS. SPIELER:  Richard?

MR. MOBERLY:  So, most people probably already know this, but OSHA has, as part of its review of settlement agreements, language, standard language, that they put in there about "nothing in this agreement shall allow you to impede, interfere," et cetera.  And, you know, that is specifically for settlement agreements, but it might be noting in here that, you know, whether that could be more applicable, as part of -- you know, as Greg said, for employment agreements, and that sort of thing, not just settlement agreements.

MS. SPIELER:  Yeah, I am still a little unclear -- leaving Eric's more generic comment aside -- whether it is the interest of the committee to try to add something about this to this document at this point, because I am not hearing a full consistency about what it would be, and I am struggling over how it would be, other than to say, "This is an issue that OSHA needs to deal with as a component of this." 

Do we have additional concrete things we actually want to attempt to add to the document today?  We can decide later whether we want to continue a conversation about this issue separately.

Bob?

MR. KEATING:  I just don't see why it would be that hard to have a suggestion that, "Do ensure that in any employment agreement or policy which relates to confidentiality of information, there is a carve-out for communicating and reporting with the government."

MR. MILLER:  Right.  That is what I was going to say, Greg.  I was going to point out that perhaps a final bullet in that section, too, that would have something more affirmative that says there is nothing in these agreements that should preclude the reporting -- because you are talking about a speak-up culture.  So you want them to speak up internally, but you also don't want to prevent them from speaking up externally.  And those agreements shouldn't have that language.

And then, if we take that affirmative approach in a best practices document, you are giving guidance to people to keep them out of trouble down the road in such agreements.

MS. TUCKER-HARRIS:  I would like to say one thing.  With respect to that, if there is something included in this document with respect to reporting to the federal government, federal agencies, or any regulatory agency, it shouldn't require the whistleblower then to tell the employer that they have reported it to B

MS. SPIELER:  Oh, yeah, okay.

MS. TUCKER-HARRIS:  It has a chilling -- this has the same chilling effect.

MS. SPIELER:  So would that address your concerns, J.J.?

         

MS. ROSENBAUM:  I mean I think it is a third concern, the question of whether you can mandate going to the company first, and giving them all the evidence.  I mean I think Eric also raised this question, but there may be instances where that is not appropriate. So I think there is sort of three issues.

I guess the fourth is -- sorry, but the fourth is when you finished B

MS. SPIELER:  I am not sure I have got the three sorted out B

(Laughter.)

MS. ROSENBAUM:  When you are departing, you know, signing a document that says, "I swear under oath that there were no issues I have not reported" --

MR. KEATING:  See, I have a -- I guess I -- this is where we show that we have some disagreement, because I have no problem at all with something like that.  Maybe it is not under oath, but why shouldn't an individual, as part of -- you know, as part of our commitment to best practices, we want to know about any problems.  Why can't you say that I have flagged whatever problems I am aware of?  I don't understand how that is retaliating against you, or even B

MS. SPIELER:  Because some people leave so that they can talk.

MS. NARINE:  But they are already leaving.  So what if you do it during an exit interview?

MS. SPIELER:  Yeah, well, I don't -- anyway, I guess I have a little bit of -- about this because of something that was put in front of my son when he was leaving a job.  But let me throw out some language that I think is wider, but respectful:  "Do ensure that no employment agreement, separation agreement, or policy would discourage or prohibit reporting to the government."

MS. NARINE:  Yeah.  I would add a few more words in there, but I can send them to you during the break.  And codes of conduct, et cetera.

MS. SPIELER:  I mean I think of those as policies, but fine.

MS. ROSENBAUM:  I mean I think that what Greg suggested goes farther than that.

MS. NARINE:  Yeah, I think it is B

MS. SPIELER:  Oh, okay.

MS. ROSENBAUM:  So B

MR. KEATING:  It is just more concrete.  You know what I mean?  Because there is all sorts of what is "discourage," or, you know, I mean -- I don't know.

MS. NARINE:  And I can send you the language that SEC B

MS. SPIELER:  How about during the lunch break, if people want to take a stab at drafting something, maybe J.J., you -- and Marcia, you could work with Greg on it and come back after the lunch break and see if we have something that there is sort of consensus -- we can reach a consensus on.  Is that -- would that work?

MS. NARINE:  Yeah, I just wanted to respond to some of the stuff that J.J. said, and also part of what Greg said.  I think it is not uncommon, and I think it is appropriate for employers to be able to ask people, when they are leaving they have already quit, to say, "Can you let us know if you saw anything that is wrong that we need to take care of that you didn't already report," because it is not fair to hold companies responsible for not solving problems if we then say, "But employees don't have to tell us about them, and we will find out about it from the government." 

And I feel very strongly about this issue.  This is an issue that, when the SEC Dodd-Frank whistleblower issue came up, the reason that they have language that provides higher rewards if you go internally -- assuming there is a credible, functioning compliance program -- obviously, if there is not, then -- is because I spent time talking to the SEC, I testified before Congress on this issue.  You cannot expect to have employers solve problems if they first learn about it because they get a report from the SEC or a plaintiff's lawyer.

So, to the extent that there is an issue -- but you also have to have some kind of process where employees feel like they are doing -- so if we have this 10-page document that is best practices, and we are trying to encourage reporting internally, I think it is inconsistent if we don't address somewhere the fact that when employers -- you know, you don't have to say it is forced. 

I have never seen a, you know, blood oath.  I have typically seen, you know, in an exit interview process, you know, "Have you seen any information?"  Because if you look in the other context, by the way -- let's take FCPA.  Companies all over the world that have to respond and have to comply with the provisions ask employees and suppliers to certify that they have not seen any conduct that is illegal.  So it is not something that employees -- I mean -- and the different contexts might be different. 

But to the extent that employees, you want them to speak up, I don't think it is inappropriate to say, "Including when you are leaving, if you have seen something that you did not report," there are ways that it looks, you know, onerous and frightening, but there are ways that you can do it that is in a way to be helpful to the employer.

MR. MOBERLY:  So I think there is a nuance B

MS. SPIELER:  Richard is next, and then Nancy.

MR. MOBERLY:  There is a nuance between the two of these.  And so, what you are saying sounds correct.  But what it often bleeds over into in the provisions that I have seen are, "Affirm that you have not asserted any claim with the government about any illegal conduct that you have seen.  Affirm that you have not told the government about any illegal conduct that you have seen."  And that, to me, undermines the anonymity provisions in Dodd-Frank, and a lot of the anonymity -- either requirements or obligations under a lot of these other statutes.

So, there seems to be a difference between "Tell us whether you have seen anything illegal, because we want to do something about it," and "Tell us that you haven't told the government," or, "Tell us if you have told the government."

MS. NARINE:  And I agree with you.  So I think the first two would be problematic.  Unless I misheard, that is not the way I heard Tom Devine describe it yesterday.  And so, to the extent that there is something that says it is not inappropriate for employers to ask people if they have seen something wrong that they didn't report, you know, employees may or may not tell the truth on that, but at least to ask.

I think it would be inappropriate to say, you know, "Affirm that you didn't report anything to the government that we don't know about."  I think that is inappropriate.  And I think, in a best practices document, I think we should say something about that, and that could be done very easily, either in the affirmative -- in the dos or the don'ts section.

MS. SPIELER:  Nancy?

MS. LESSIN:  So the issue that I have is with something that can have the appearance of being threatening or coercive, because there is still a power relationship.  "I am leaving this company.  I want a job somewhere else.  And I want somebody to, you know, not give me a bad recommendation."

So, the question, "Have you seen anything," it is like -- if I say yes are you going to hate me?  And so it is just -- there is a problematic power relationship that comes up in this.  So, framing what employers can do to get information about making their, you know, workplace a better workplace where -- what are we saying -- there is a speak-up culture versus under the appearance of that, something that can be felt as coercive or threatening, I think we have to find a space in there.

MS. SPIELER:  Okay.  So, I am going to ask that the three of you -- Marcia, J.J., and Greg B

PARTICIPANT:  That is what we get for speaking up.

(Laughter.)

MS. SPIELER:  And anyone else who wants to join them over lunch, see if you can come up with something about this, again with the caveat that this is not about responding to the petition for rulemaking in all of its intricacies, especially since most of us haven't read it carefully or at all.  But rather, in thinking about this generic question of policies, programs, and agreements that may discourage people from reporting to government agencies, or reporting internally.  I mean just anything in that sort of arena.

So, with that, are we done with number two, on which I have many notes now?  But I thought it might be the most difficult, so -- we aren't scheduled to take lunch until 12:30.  I would take -- we could move ahead into number three now.  Yes?  Okay.

All right.  Number three, "Implementing a Retaliation Response System" is now open on the same ground rules.

(No response.)

MS. SPIELER:  Maybe we can race through the rest of the document.

(Laughter.)

MS. SPIELER:  Because I thought -- in a sense, what you raised initially, I think, is germane here.  But you have already taken on the task of B

MR. FRUMIN:  Yeah, I have a B

MS. SPIELER:  -- of drafting something, so B

MR. FRUMIN:  I have language I could tell you on this accountability question, which I just worked up, two different versions of it.  The first that Bob Miller, Robert Miller, suggested, which is really short, but fine, "Appropriate consequences, i.e. discipline, penalties, et cetera, should exist when acts of retaliation are confirmed."

I will just reread that.  "Appropriate consequences, i.e. discipline, penalties, et cetera, should exist when acts of retaliation are confirmed."  So it is putting a fine point on the consequences.

A little longer version says, "Accountability for retaliatory actions should be" -- then I have three qualities -- "meaningful to the parties found to have retaliated; visible to the employees and organizational units involved; and" -- thank you, Marcia -- "sufficient to serve as a deterrent to others within the organization."  So B

MS. NARINE:  I have a question about the visible part, although I said I make things visible.  Not every company is going to feel comfortable -- I am not sure that every comfortable is going to be comfortable about that. 

So what would we mean by visible?  Would we say, "Eric, the retaliator, has now gotten a clawback of his $100,000 bonus last year," or, "Just so you know, we had an instance of retaliation with a manager in the east region, and that manager has been appropriately disciplined," or something just broader that, "When we learn of retaliation, we take action"?

MR. FRUMIN:  I don't know, but I just thought if the worker who was involved never heard about it, it undermines the legitimacy of the accountability goal.  But I -- you know, it could be any range -- it could be any of those, all of the above, or something else. But B

MS. SPIELER:  Can you read it one more time?

MR. FRUMIN:  Yeah, I will read it again.  So, "Accountability for retaliatory actions should be" -- the three key words are -- "meaningful to the party who -- found to have retaliated; visible to the employees and units involved," like the other managers, and "sufficient to serve as a deterrent to others within the organization."

MR. KEATING:  I like number one.

MS. SPIELER:  What was number one?

MR. FRUMIN:  Number one was "Appropriate consequences, i.e. discipline, penalties, et cetera, should exist when acts of retaliation are confirmed."

MS. SPIELER:  So, Greg, you don't like the three-pronged approach?

MR. KEATING:  I just prefer the simpler -- I think it B

MR. MOBERLY:  Can I just ask, though?  "Exists" seems very passive to me. 

MR. FRUMIN:  Well, "should be taken"?  "Should be imposed"?  We could, you know, make it more active, rather than B

MR. MOBERLY:  I mean "imposed" --

MR. FRUMIN:  Should be imposed, yeah.  I think that is a good addition.  Don't you agree?

PARTICIPANT:  I agree.

MS. NARINE:  I guess I would vote for number one, too, because I am concerned about the public shaming, whether very vague or -- I think there needs to be -- I am just concerned that some companies are going to be very uncomfortable saying, "Eric, the retaliator, has been punished.  Everybody can be happy now."

Or, because I don't know what that might look like -- unless it is something -- so I will say, for example, we would say something like, you know, "Recently there was a violation of the policy against retaliation," you know, "and appropriate action has been taken against that person. 

We want to make sure that all employees are aware of the policy, which includes but is not limited to X, Y, Z."  That might go out in a region, that might go out -- you know, so people will sit there and say, "Where did this come from?  Something must have happened," without naming the person.  I think if the committee votes for option number two, I think we want to keep that visibility very, very high-level, so as not to cause other issues.

MR. BROCK:  Well, even if you stay with number one, to keep it simple, could you not capture that by saying penalties should be imposed and appropriately noted, or appropriately communicated? 

Because there is really a lot of value to the next person coming forward -- I mean I think it is a part of your point -- if it is known.  But making an intelligent judgment about precisely how to make that known, you know, whether it is at the 20,000-foot level, or the -- naming the person versus saying, "We took action on this," or, "We are reissuing the policy," or whatever you say.

MR. MOBERLY:  Could we take that last clause of -- the second one, the "sufficient to serve as a deterrent," because that B

MR. BROCK:  Oh, that is good.

MR. MOBERLY:  -- has some kind of vagueness about it that allows companies to -- I mean that is what you want, right?  You want the punishment to be a deterrent, and your example could be a deterrent, right?  "We took this measure, and" --

MS. NARINE:  "This is a reminder that the policy is" --

MR. MOBERLY:  A reminder, right.

MS. NARINE:  -- "X and applies to all levels of the organization," or whatever.

MR. MOBERLY:  Right.  But it doesn't get into the specifics of the public shaming, yes.  So it should be imposed and sufficient to serve as a deterrent.

MR. BROCK:  That have deterrent value.

MR. MOBERLY:  Or have deterrent value, whatever it is.

PARTICIPANT:  Add that, mm-hmm, right.

MR. BROCK:  And then you keep it simple, and you get the idea that you don't want B

MR. KEATING:  Yeah, I mean, but my only issue with that is that -- I mean it is sort of like the area of, like, sexual harassment and, you know, prompt and effective remedial action reasonably calculated to stop the harassment.  That is going to depend on the circumstances, you know?

I mean -- and the same thing with retaliation.  If you have got some rogue supervisor who has done something really nasty, you want to send a strong message, and let everyone know.  But if there is just a -- you know, a minor -- a much more minor infraction that doesn't warrant the sort of -- you know, so I don't have a problem at all with the consequences that serve an appropriate deterrent effect, under the circumstances.  But just got to realize that these situations are all going to vary, depending on what happened, what the nature of the adverse action was.

MR. BROCK:  What about B

PARTICIPANT:  Can you read the B

MR. BROCK:  What about proportionate deterrent value, somehow getting proportionality into it?  Sorry about wordsmithing.

(No response.)

MS. LESSIN:  Without that word, can you read what we have B

MR. FRUMIN:  Right.  So I added B

MS. LESSIN:  -- now?  What is the sentence?

MR. FRUMIN:  I added the deterrents to the B

MS. SPIELER:  Yeah, but read it, read it.

MS. LESSIN:  So read it.

MR. FRUMIN:  -- concept to the first one.  So, "Appropriate consequences (i.e. discipline, penalties, et cetera) should be imposed when acts of retaliation are confirmed and sufficient to serve as a deterrent."

MS. NARINE:  Can you say it one more time?

MR. FRUMIN:  Sure.

MS. SPIELER:  I think that last -- well B

MR. FRUMIN:  "Appropriate consequences (i.e. discipline, penalties, et cetera) should be imposed when acts of retaliation are confirmed and sufficient to serve as a deterrent."

MS. LESSIN:  Can you switch those?

MS. NARINE:  I was afraid to say it, because I didn't want everybody to get mad.

MR. FRUMIN:  You want to put the deterrent first, and then say B

MS. LESSIN:  Yeah, because I think it --

MS. SPIELER:  "Should be sufficient to serve as a deterrent" --

MR. FRUMIN:  They have to be imposed first.

MS. SPIELER:  Yeah, they have to be imposed first.

MS. LESSIN:  Imposed and B

MR. FRUMIN:  Imposed when their -- when it is confirmed, and B

MS. SPIELER:  Be sufficient.

MR. FRUMIN:  And it should be "be sufficient to serve as a deterrent."

PARTICIPANT:  Okay, all right.

MR. FRUMIN:  Okay?

MS. SPIELER:  So, does that go in the first part, or in part three?

MR. FRUMIN:  Well, it was -- I thought it was in leadership, the first B

MR. MILLER:  It should be the last bullet in number one.  It goes to Eric's point that he raised earlier this morning about the fact that we talk through the leadership process about being knowledgeable and accountability B

MS. SPIELER:  Okay.

MR. MILLER:  There is no B

MS. SPIELER:  Okay.

MR. MILLER:  -- you know, granular level to that mid-management accountability, and saying that, if you do find it, do something about it.

MS. SPIELER:  Fair enough.

MR. MILLER:  Not wait for OSHA or somebody else to come in and do something.

MR. FRUMIN:  When I get back into the grid, I will send this.

MS. SPIELER:  Okay.  So we were looking at number three.  There was silence, so I turned to Eric.

(Laughter.)

MR. FRUMIN:  I got a small point, which is really a question, not a -- but I just -- in the fifth bullet from the bottom, it starts with, "If a formal complaint has been filed."  The last sentence of that says, "Rights of all parties in the filing should be preserved while this assessment occurs."

So, I was thinking about what that means.  And, you know, the traditional labor management context, people suffer retaliation, they have a grievance procedure, and, theoretically, any harm they suffer from unjust discipline or discharge they recoup when they are "made whole."  They may have, you know, washed their car and suffered all sorts of horrendous personal consequences.  But too bad, American industrial relations does not presume to keep people on the job while their case is under review.

So, the issue of reinstatement is a huge issue, even though it -- we have accepted a model which is pretty horrendous in most circumstances.  On the other hand, temporary reinstatement is a big deal in these whistleblower laws.  And it is becoming a bigger deal by the day in mining and some others.  I don't know to what extent the directorate is dealing with this, as a practical question for those laws where you have that power.  But, from a worker standpoint, preserving my rights -- you know, my right to keep my car, my right to pay my medical bills, that is a pretty big right.

So, I was just wondering whether any thought was given to the issue of reinstatement when you were talking about preserving rights, or not.  I am not suggesting that we need to address that as a concept in a best practices document, because there is huge divides over that legally, ideologically, and otherwise.  But I am just wondering whether that even came up.

MR. BROCK:  I will tell you what this language was intended to do.  And there was some discussion about, you know, how to say this, and not overstate it or miss anything.

If someone files with OSHA, and a typical reaction -- not the only one -- is B

PARTICIPANT:  Files a retaliation or a compliance complaint?

MR. BROCK:  Retaliation complaint.  That -- it is common for the employer saying, "Well, now we have a case in front of OSHA," or, "There is a case in front of a court.  We" -- you know, then we just need to take our defense posture and do all the things we would do.

This is suggesting we really ought to try to work on it, really ought to try to solve it, and not just assume it is going to go off there, and all the bad things that come out of a nasty litigation will happen.  And the issue that we came across that this attempts to address -- perhaps not very artfully -- is, well, if you try to resolve it, and you ask people for candor, rather than positioning, you have a better chance of solving if you get candor.

         

You also could have someone giving away their case on either side, or, you know, somehow prejudicing the case, or missing a deadline and, therefore, losing their standing, and those types of things.

So, there -- you know, a variety of mechanisms that some of us are familiar with, and probably lots of things that all of us are not.  For example, you could have -- you could say, "Well, we are going to try to solve it.  Let's sign a mediation agreement so that what we say here doesn't violate that," or, "Let's freeze the clock on your existing claim, so you don't lose that claim."  So it had to do with that.

To the extent that reinstatement might be possible, you should have that right preserved, too, and not have that excluded.  I don't recall that we talked specifically about reinstatement.  Somebody else might remember.  I don't think we did. 

So that is why that sentence is in there.

MS. SPIELER:  Okay.  Anything else on three?

MS. NARINE:  So were you going to say it should be addressed, or not?

MR. FRUMIN:  No, I am not asking -- I mean if you want to B

MS. SPIELER:  He was curious.

MR. FRUMIN:  I was curious, was flagging it for the committee as an issue.

MS. SPIELER:  Number four, anti-retaliation training.

MR. FRUMIN:  No comment.  Already got my comments in on this one.

MS. SPIELER:  You done?

MR. FRUMIN:  I'm done.

(Laughter.)

MR. FRUMIN:  Same stuff, different section.

MR. BROCK:  That is why this is an integrated program.

MR. FRUMIN:  It is yeah.

MS. SPIELER:  Somebody had something earlier.  Richard, was it you?  Okay.

MR. KEATING:  I would just note -- because I was going to say this earlier -- but in response to something Eric said, the goal -- at least on my end -- one of the many goals of this document was that not -- these six things don't exist in silos, okay?

So, one of the things that we are trying to convey to employers is that you need to do a better job of making sure that the left hand knows what the right is doing, and that there is a circle of communication around this issue broadly, and specifically around this issue as soon as a complaint is filed.  That sets in motion a number of different things that need to happen.

And where I have seen things go awry when things -- when employers have gotten into trouble, and justifiably so, is when that left hand didn't know what the right was doing, and there was a slip-up, and, therefore, a mistake made.

And so, on training, you know, going to back making this real, Eric, is, you know, many supervisors today understandably -- because they are out there, just working in a plant, or doing a job in an accounting firm and overseeing a bunch of -- they don't know what the standard for retaliation has evolved to under applicable precedent, both at OSHA and at the U.S. Supreme Court.  And, by the way, it has changed a lot, and it is a real -- for those who don't know, I think more than 75 percent of them would answer the question wrong, if they were given a blind test, as to what is retaliation.  Okay?

And so, when we do training today -- and I have actually helped do both live training, and also help author the content for online training -- but one of the key components is educate front-line supervisors, so they know that adverse action, for example, or even the act of -- what is protected activity?  Today it is a lot different than it was 10 years ago.  And so, part of the goal here of each of these silos is, you know, so that we can create a better-integrated system.

MS. NARINE:  I think, to add to that, then, we should add a bullet point that indicates that review and revise the training periodically, as the laws of standards change, because you don't want a situation where the company is just trotting out the same training they have been using for five years, and the manager is going, "I have already heard this," whereas something has changed.

And, even if it is not in addition to the training, whether that means send out, you know, something from -- whether it is HR, or legal, or whoever does it -- say, you know, "A policy is going to change," or something, so they have to not just -- as these definitions and standards change.

MR. BROCK:  Isn't that true also of some of these other components of the program, not just training?  I am wondering if some more generic comment under number six B

MR. KEATING:  I think -- couldn't it be in the introduction, maybe?

MR. BROCK:  Introduction, or at the end, under program improvement.

MS. LESSIN:  Leadership.

MR. BROCK:  Yeah, so it covers more than one area.

MS. NARINE:  Some of it is going to be revising, but some of it is going to be reminding.  So, you know, sending something out on a periodic basis for somebody -- for people at different levels, whether it is at a supervisory level, the region level, the CEO level, because people need to hear the message B

MS. SPIELER:  So it is a form of continuous training B

MS. NARINE:  It is a continuous training and reinforcing of the existing rules.

MS. SPIELER:  Nancy?

MS. LESSIN:  It is more than that.  Somebody has to track changes at the, you know, highest leadership level, so that they are aware that there has been a new decision, there is aware (sic) that there is the Fairfax memo.  There is aware that -- you know, whatever it is.  And then they have to translate that, you know, changes in however you want to say it, and then that may impact policies and training and -- you know, so they have to update and, you know, per those things.

So, it is -- one is you have to, you know, pay attention to this.  And, second, you have to then translate it into your program

MS. NARINE:  I think, to Nancy's point, that is typically within the job description of the compliance officer, which we talk about on page two.  But to the extent that some entities don't have a chief compliance officer, or that managers basically had that as one of their 15 jobs that "By the way, you are also in charge of this," there needs to be some mechanism for when laws change, or when rules change, to disseminate that down through the organization.  And that is something that, by the way, should be conducted when there is a risk assessment.  I used to ask people, "How do you get information about when the laws change?" 

Some people might say, "I went to a trade association meeting, they talked about it there."  But it is not coming -- you know, and "I," by the way, change the policies for my group," which had nothing to do with what corporate -- so I think there is something that has to be -- some systematic, you know, accurate way, and a timely way, to get information down, whether that means -- you know, if there is always going to be, you know, a monthly meeting for the people in the district, then somebody says, "By the way, I want to remind you, I hope you guys saw that memo and disseminated it out that these rules have changed," so not just the policy goes out, but in the monitoring and auditing, it will go there, as well.  Are we monitoring and auditing how changes in policies are being communicated through the employee base?

MR. WENGERT:  I think the other -- just to build off of that, too, you also have to build in change of people.

MS. NARINE:  Yes.

MR. WENGERT:  So if you do your training on an annual basis, but I get a new front-line leader a month after I just did the training, you are not going to wait 11 months until that person gets that indicational message.  So how do you keep it current and B

MS. NARINE:  Because you are going to bring your bad habits from your old company.

MR. WENGERT:  Correct.

MS. NARINE:  That didn't read the best practices memo.

PARTICIPANT:  Been there.

PARTICIPANT:  Got that, Emily?

MS. SPIELER:  So, what I was thinking is that perhaps in the first section we need something that says something like -- this is not drafting, okay -- that employers need a mechanism to track changes in public policy and laws, and to update internal training, auditing, and other internal policies and practices.

PARTICIPANT:  Great.

PARTICIPANT:  Perfect.

MS. SPIELER:  And then, that we probably need something in the training section that addresses Ken's concern, which I have not written, that says you need to address potential turnover -- thinking about your training.

MS. NARINE:  And your first paragraph addresses the monitoring process, also?

MS. SPIELER:  Hmm?

MS. NARINE:  Your first sentence that you read had monitoring in there?

MS. SPIELER:  It had auditing.  I B

MS. NARINE:  Yeah.  That is part of it, yeah.  I just wanted to make sure that was there.

MS. SPIELER:  Anything else on training?

MR. FRUMIN:  On training or on monitoring?

MS. SPIELER:  I think I am on training. 

MR. FRUMIN:  Okay, I think I have got --

MS. SPIELER:  Yeah, I moved to monitoring.  I think it is time for lunch.

PARTICIPANT:  I found a typo.

PARTICIPANT:  Couldn't possibly be.

(Laughter.)

MR. FRUMIN:  It is on B

MS. SPIELER:  Wait, which page are you on now?

MR. FRUMIN:  The training.  Line B

MS. SPIELER:  We were not really B

MR. FRUMIN:  The third bullet from the bottom.  It starts, "What notice constitutes."

MS. SPIELER:  Where?  Wait.  Are you on training?

MR. FRUMIN:  "What constitutes notice," the third bullet from the bottom.

MS. SPIELER:  Oh, from the bottom.

MR. FRUMIN:  Yeah.  So the end of the second line there is a letter A, which is a typo.  It should say "and litigating a complaint."

PARTICIPANT:  Wow.

MS. LESSIN:  Eric read this document.

(Laughter.)

MS. SPIELER:  So are we done with number four?  Okay.  So there is a subgroup that is charged with doing some drafting over lunch.  And, otherwise, the others of you are free to have lunch as you please. 

We will reconvene at -- I think it is 1:30.  Yeah, 1:30, and at which point we will take up five and six, and review the suggestions that we have gone over before we have a vote.

And I am going to go try to make sense of my notes over the next hour.

(Whereupon, a luncheon recess was taken.)

A F T E R N O O N   S E S S I O N

MS. SPIELER:  Good afternoon.  Okay.  So, I am torn between just forging ahead and sort of pausing and finishing the work we started this morning.  And I think we should do that, because it will be fresh in your minds.

So, I have given you a series of addenda, one through four.  The first one is the things we categorized as generic concerns we would like OSHA to pay attention to.  The following three are specific language, suggestions for specific sections that we have already discussed.  And I have asked that this be marked, the set of addenda, be marked as Exhibit No. 8 for the meeting.

Again, not intended to be a wordsmithing exercise.  Obviously, I did this very fast.  But does it hit the issues that you wanted covered is the question.

So, we can start with addendum one.  And there may be additions to it as we complete our conversation.  This was merely a pause moment.

Yes, Nancy?

MS. LESSIN:  I am on addendum one, number one.  And I actually think that there is a value to there being this broad-brush document B

MS. SPIELER:  Oh, this was not to suggest they not issue a broad-brush B

MS. LESSIN:  Okay.  So that is how I read it.

MS. SPIELER:  So it should be, "We also encourage" --

MS. LESSIN:  Okay.

MS. SPIELER:  Okay, "also."

PARTICIPANT:  Additional?

MS. SPIELER:  To develop additional materials.  Sorry, Nancy, I just assumed that.

MS. NARINE:  I have a question.

MS. SPIELER:  Yeah.

MS. NARINE:  On addendum three, section two.

MS. SPIELER:  We are on addendum one now.

MS. NARINE:  Oh, I thought we finished addendum one.

(Laughter.)

MS. SPIELER:  Okay.  Anything else on addendum one?

MR. FRUMIN:  Yeah.

MS. SPIELER:  Eric?

MR. FRUMIN:  So, number two, on the non-union workplace, third line, "OSHA to think creatively and cautiously."

MS. SPIELER:  You know what?  I don't think they need to be told that.

MR. FRUMIN:  I just -- on the record, I just feel more comfortable saying that than just "think creatively," you know.  If you don't mind.

MS. SPIELER:  Okay.

MR. FRUMIN:  Thank you.

MS. BETTS:  Are we making a revision?

MS. SPIELER:  Yeah, we will -- of all people.

MS. NARINE:  The rest of the committee thought that OSHA would be acting cautiously.

(Laughter.)

MR. FRUMIN:  I heard the reverberations when I got out of here of people B

(Laughter.)

MS. SPIELER:  I am sure SOL was B

PARTICIPANT:  This is excellent, thank you.

MS. SPIELER:  Anything else on that? 

(No response.)

MS. SPIELER:  Okay.  Let's look at -- and I confess, when I got to my notes, I wasn't B

MS. SMITH:  There has been a suggestion from the -- there we go -- from the peanut gallery that, on number two, was that supposed to be affinity groups or identity groups?

MS. SPIELER:  I don't care, either way, because I was the one who said affinity groups.  But I understand identity groups to mean the same thing.

MS. SMITH:  Okay.

MS. SPIELER:  Yeah.  It could be -- okay.  Addendum two, this is language to section one of the report.  There were two.  One came up early, one came up later.  Adding two bullets, one of which would say, "Appropriate consequences (i.e. discipline, penalties, et cetera) should be imposed when acts of retaliation are confirmed, and be sufficient to serve as a deterrent."

And the second bullet that came up just before we broke for lunch, "Employers need a mechanism to track changes in public policies and laws, and to update internal training, auditing, and other internal policies and practices."

PARTICIPANT:  Emily, I thought that that bullet was supposed to be added to the third section on training, or B

MS. SPIELER:  It is also something else in training.

PARTICIPANT:  Okay.

MS. SPIELER:  But, actually, I thought I heard  -- Anthony said the same thing when I gave it to him to proof.  But I thought I heard B

PARTICIPANT:  No, you are right.

MS. SPIELER:  -- people say that it should also be here.

PARTICIPANT:  Should be?  Okay.

MS. SPIELER:  Yeah.  Anything on that?

(No response.)

MS. SPIELER:  Okay.  Addendum three, best practices.  This was, admittedly, the most complex, and I am not 100 percent sure I got it right.

In the bullet that currently reads, "Employers should have a policy of no punishment," and so on, insert in the second sentence the language, "including changes in employee status or other retaliatory actions," and then the revised bullet is set out.

Greg, you had some concerns and I, frankly, didn't get them down carefully enough, and I just want to make sure that this meets your -- those concerns.

MS. NARINE:  And if he doesn't, I have concerns, now that I have seen it in writing.

MS. SPIELER:  Oh, do you?

MS. NARINE:  Yeah.

(Laughter.)

MR. KEATING:  You go ahead, and I will B

MS. NARINE:  I think the language makes it look like these kinds of changes are per se retaliatory, when there could be legitimate business reasons for changes in hours, changes in duties, assignments, changes of vacations.  So I think we need to add in that if it is not for some legitimate -- you know, non-discriminatory, non-retaliatory, legitimate business reasons, something like that. 

Because, otherwise, it makes it look like these things are -- these are examples of what could be retaliatory behavior, but we need to make it clear that they might be perfectly legitimate reasons that -- you know, they might be staffing needs, or might be flexible changes that have to come about, so B

MR. MOBERLY:  How about just add "retaliatory" before "changes"?  "Including retaliatory changes in employee status"?

MS. SPIELER:  Marcia, I think that gets to it, I guess.

MS. NARINE:  No, I will tell you why -- the reason I like some kind of phrase of "legitimate business reason," is that that is a phrase that employers are used to in other contexts, and I think it will make it easier for them.  But, you know, I don't want us to belabor it for 20 minutes.

MS. SPIELER:  Yeah.  I don't think this should be the stumbling block to this document, frankly, so B

MS. NARINE:  I think if the word "retaliatory" is added in, I think I am okay, as long as it -- because the way it is written, it might look like B

MS. SPIELER:  I am looking at other people who haven't quite crossed that line yet.  That is why I am pausing.

Greg?  Ken?

MR. KEATING:  Yeah, I mean, one of the things I was getting at earlier is the critical important thing that employers should have is they should -- that -- not just that they should have a policy of no punishment, they -- employers should construct a framework to ensure that any changes in the terms of employment are adequately vetted and discussed, such that -- so that they are not in any way retaliatory, under the circumstances, and only motivated by legitimate -- in other words, it is not policy that there is no -- you need to do, as I said earlier, the left hand knows what the right is doing. 

When you have an individual who comes forward and engages in protected activity, before you take any action that is going to change the terms and conditions of their employment, you need to have a pause button, and everyone needs to communicate and say, "Okay, is this legitimate, or is this in any way retaliatory?"  Am I making any sense?

MS. SPIELER:  Yeah.  I am just wondering whether having a policy of no punishment for reporting concerns or incidents is inconsistent with that.

MR. KEATING:  It is not inconsistent with it, but it doesn't flag what they really should be doing, which is B

MS. SPIELER:  Okay, which B

MR. KEATING:  -- stop.

MS. SPIELER:  Yeah.

MR. KEATING:  Communicate, and B

MS. SPIELER:  Yeah, so B

MR. KEATING:  -- make sure that you B

MS. SPIELER:  So -- well, I am wondering if it is a separate bullet.

MS. BETTS:  Yeah, it sounds like suggesting B

MR. MILLER:  Or maybe amending that right before the -- "also punishment."  Say something to the effect that, "While there may be legitimate business reasons for changes in employment," whatever the phraseology would be, "be alert that these changes could be considered retaliatory, and need to document," or something B

MS. NARINE:  They need to properly document and vet it.

MR. MILLER:  To document the business reason for what you are doing.

MS. NARINE:  Might be a couple of dos or don'ts, but B

MS. SPIELER:  Yeah, I was just going to say it does seem like something -- because it is more about process.

MR. MILLER:  Right.

MS. SPIELER:  So maybe it is a separate bullet that says something about it.  I need help here.

PARTICIPANT:  Maybe in the dos and don'ts.

MS. NARINE:  Yeah, I think it would be in the dos and don'ts.  "Do ensure that there is a documented, legitimate, non-retaliatory business reason for any" --

PARTICIPANT:  Changes to terms and conditions.

MS. NARINE:  -- "for changes in terms of conditions of employment that might be perceived as retaliatory."

PARTICIPANT:  Right.

MS. SPIELER:  Okay.  So say it again.  Slowly.

(Laughter.)

MS. NARINE:  I knew you were going to say that. 

MS. SPIELER:  So this would be in the dos and don'ts.

MS. NARINE:  Yeah, I think you could put it in the dos and don'ts, because I think it flows off of the "employer should have a policy of no punishment," so it kind of supplements what is already there. 

But I guess "Do ensure" --

MR. KEATING:  That there is a procedure in place to ensure that any changes in terms and conditions of employment are B

MS. SPIELER:  Made for legitimate B

MR. KEATING:  Not retaliatory, and consistent with legitimate business reasons.

MS. NARINE:  Documented.  Legitimate business reasons.  They don't have to do it, it is a best practice.  But I think the fact that you should be able to document it and show that it existed before this person made their OSHA complaint -- or, if it happens after the OSHA complaint, but you can document, "Hey, we just lost, you know, this business, this part of the business, we can't -- we have to lay some people off," there is something that shows -- as opposed to some manager saying, "I think this is what we need to do."

MS. SPIELER:  Okay.  So I am trying to figure out procedure here, frankly.  That is the long pause.  If we add that in the do column, are we okay with the "Be alert also to punishments for unrelated reasons, including retaliatory changes in employee status"?

MS. NARINE:  Yes.

MR. KEATING:  With that word "retaliatory" in there, I am okay with it.

MS. SPIELER:  Okay.  So let me just -- in order we have a full record, when we take a break we will type out this do and pass it out, okay?  So it is an -- it will be an additional B

MR. KEATING:  I just -- sorry to belabor it B

MS. SPIELER:  No, it is fine.

MR. KEATING:  But I just don't understand why it isn't another check.  I mean B

MS. SPIELER:  It can be another check.  I don't care whether it is in dos and don'ts or a check.  I just didn't think they could be quite crammed in together.

MR. KEATING:  I agree.

MS. SPIELER:  And so it can be a check, it can be a do.  Somebody else could write it; I would be happy with that.

(Laughter.)

MS. SPIELER:  But it -- yeah, I think it is a legitimate thing to say.

I paused also because, having just read a series of cases on this where people are disciplined for safety rule violation after an injury, I want to make sure, whatever we say about the procedure -- I mean "documented business reasons" -- a violation of a safety rule is a -- technically, non-retaliatory, unless it is.  And it is retaliatory when it isn't evenly enforced.

And so, it seems to me, if you are going to talk about the legitimate business reasons, maybe you also have to say something about the, you know, legitimate reason that is consistently enforced.  And that is why I am stuck on the drafting of this.  I don't B

MR. MOBERLY:  And the other thing is, you know, under Sarbanes-Oxley on a lot of these statutes, it is a contributing factor, is this B

MS. SPIELER:  Right.

MR. MOBERLY:  -- retaliatory motive.  And so, you could have a legitimate business reason.  But if one -- another reason is in retaliation, then you are still liable for retaliation.  So it is not a but-for causation in these statutes.

MS. SPIELER:  Yeah, yeah.

MR. MOBERLY:  And so that makes that language a little bit more problematic, potentially, depending on what turns out to be B

MS. SPIELER:  Okay.  So somebody is going to have to take on the drafting of this, if you want to add it to the document.  Why don't we put it aside for just the moment, and we will come back to it?

And then, addendum four was the training piece that it should address external changes in legal, regulatory, and policy requirements, as well as staff turnover and need for refreshers.  Training must, therefore, be continuous.  That was that very last part of our conversation.

MS. LESSIN:  But did we do page four, the do list?

MS. SPIELER:  Page four?  Which page four?  Yeah, well, that was in the -- oh, I am sorry, I skipped right over it.

Okay.  So, in section two there were also suggestions about the do list, to add a new do, "Investigate reports of issues promptly, thoroughly, and with transparency, including responding to the employee who brought forward the initial concerns." 

And in the do that currently reads, "Root out formal and informal incentives and value systems that encourage or allow retaliation, to add the phrase "or discourage reporting."

And then, there was several -- there were several comments about being -- keeping in mind the intertwined nature of reports of issues and retaliation.

Any concerns about any of that?

MS. NARINE:  Then we had the new language that we drafted.  I don't know B

MS. SPIELER:  Yeah, why don't we finish this exhibit, and then we will come to yours.

MS. NARINE:  I just didn't know if it was supposed to be in here or not.

MS. SPIELER:  Yeah.  No, it would go in there.

MS. NARINE:  Okay.

MS. SPIELER:  Okay. So, now, addendum four, section four -- there were no changes proposed to section three -- to add the bullet on training.

Jon?

MR. BROCK:  I have one for that spot kind of related to no punishment.  Later is fine.

MS. SPIELER:  Okay.  So, actually, I think we are done with this document, and we have two outstanding issues, the one we were just talking about, about how to deal with legitimate business reasons for discipline and the one that -- there was a work group over lunch on, with regard to agreements that suggest that people shouldn't come forward in some way.

Why don't -- Jon, if you have language, why don't you go ahead and share it with us?

MR. BROCK:  We put out there -- I don't think it is quite there -- "Employers should have a procedure to ensure that any employment status changes are undertaken for legitimate business reasons, and not motivated by retaliation."

MS. NARINE:  Can you say that again, please?

MR. BROCK:  "Employers should have a procedure to ensure that any employment status changes are undertaken for legitimate business reasons, and not motivated by retaliation."  Close?

MS. NARINE:  Yeah, or you could say legitimate and non-discriminatory, non-retaliatory business reasons, and -- I think both of them make sense.

MS. SPIELER:  Would that meet your concerns, Greg?

MR. KEATING:  I would be all right with that.

MS. SPIELER:  Richard, does that meet your concern about B

MR. BROCK:  Marcia, so you are suggesting B

MS. NARINE:  Not retaliatory -- to say legitimate, non-discriminatory, non-retaliatory, again, because it flows with language that employers are used to, from a Title VII perspective.  So it just -- it is easy for them to build it in and flow it into their existing programs.

MR. BROCK:  Yeah, no, I am just trying to capture it, because it is not language I am as familiar with as others of you.

MS. NARINE:  So when you say B

MR. BROCK:  So changes are undertaken for legitimate business reasons B

MS. NARINE:  No, legitimate, non-discriminatory, non-retaliatory business reasons.

MS. SPIELER:  Jon, read it one more time.

MR. BROCK:  I am just going to get what she just said there.

All right.  So, "Any employment status changes are undertaken for legitimate, non-retaliatory, non-discriminatory business reasons, and" --

 

MS. SPIELER:  Period.

MR. BROCK:  Period?  Business reasons, period?

MS. SPIELER:  To ensure B

MR. BROCK:  Yeah, yeah, okay, I see.

MS. SPIELER:  The whole thing, could you read the whole thing?

MR. BROCK:  Got it.

(Laughter.)

MR. BROCK:  "Employers should have a procedure to ensure that any employment status changes are undertaken for legitimate non-retaliatory, non-discriminatory business reasons."

MS. NARINE:  Did you get to your question about the things that are consistently enforced?

MS. SPIELER:  I mean we are getting down into how the legal argument would happen.  I mean if it is non-retaliatory and non-discriminatory, presumably it is being enforced in a non-discriminatory manner.  So  -- right.  So, yeah.

MR. BROCK:  Okay.  Should I read it?

MS. SPIELER:  Okay, so we will type that up over the break and distribute it, so we have it clear in the record.

Okay, so that brings us to the language the work group was working on over lunch.

MR. KEATING:  Yeah, we came up with the following:  "Ensure that any employment agreement or policy which requires confidentiality or non-disclosure of information contains an express carve-out which makes clear that nothing precludes the individual from reporting or communicating with any government agency.  Do not require employees to disclose that they have reported or communicated with a government agency."

MS. SPIELER:  Discussion?

MR. KEATING:  That was all J.J., by the way.

(Laughter.)

MS. SPIELER:  I could hear the various voices in it, actually.

Okay, again, what I think we will try to do -- you have it on your computer.  Maybe you could send it to Anthony, and then he could print it.

(Laughter.)

MS. SPIELER:  Okay.  So then, we are ready, I think, to move on to monitoring, number five, page eight of Exhibit -- I think it was No. 7.  It was seven, the best practices report was Exhibit No. 7.

Okay.  So, under the same ground rules, concerns, suggestions, issues not addressed?

MR. FRUMIN:  Is the discussion monitoring, or B

MS. SPIELER:  Monitoring.

MR. FRUMIN:  Monitoring.  No, I am good.

MS. SPIELER:  Marcia?

MS. NARINE:  I have a suggestion.  And it is not a wordsmithing, it is substantive.

MS. SPIELER:  Okay.

MS. NARINE:  But it is going to sound like wordsmithing.

(Laughter.)

MS. SPIELER:  She said, defensively.

MS. NARINE:  But since we just went through wordsmithing, I don't feel so bad about it now.

So, in the paragraph that says, "Incentives should, instead, reward management and employee behavior that supports the right to come forward with concerns, behaviors and results that support this can be observed and tracked," so tracking, to me, sounds like monitoring.  But I think there needs to be a separate auditing, as well, of it.

So, we are tracking it kind of contemporaneously, but I think that we should be auditing how well we are doing on this.  And I don't know if that comes up separately in independent audits, and maybe it does.  But I think, to the extent that we are -- I think it is a separate thing to -- it should also be audited, instead of just tracked.  And if it is already encompassed in the auditing section, then I am fine.  But -- because when you are auditing it, you are also looking at the inconsistent behaviors and results, which we also need to make sure of.

And then I have a question.  The don't with the sharing results B

MS. SPIELER:  Well, why don't we see if there is any response, thoughts, suggestions. 

Bob?

MR. MILLER:  If you want -- I would just say observe, track, then audit it.  I think that serves the purpose B

MS. NARINE:  Right, exactly.

MR. MILLER:  This points to the next section, which is the auditing program, and make sure you are not just B

MS. LESSIN:  "Observe, track, and audited."

MS. SPIELER:  Right.

MS. NARINE:  Yeah.

MS. BETTS:  Do you want me to make those changes to Exhibit No. 7?

MS. SPIELER:  Yeah.  Yeah, I think it is close, but not over the line.

MS. NARINE:  And it was just one word, so really B

(Laughter.)

MS. NARINE:  It was a comma and two words, so B

MS. SPIELER:  Okay.  Anything else on monitoring?

MS. NARINE:  I do have a question.

MS. SPIELER:  Yes?

MS. NARINE:  On the -- so on the don't, when it says -- the third don't, "Close investigations too quickly without resolving the issues, sharing results, and ensuring that the employee is satisfied with the fairness and the handling of the outcome," I think it is more of a philosophical issue.  Because there might not be -- I don't know that you can ensure that the employee is satisfied with the outcome.

PARTICIPANT:  Yeah, I was surprised the committee B

MS. NARINE:  I don't remember those words, but I don't -- I think, substantively, if we tell employers that, "You have got to make sure that the employee is satisfied with the fairness and handling," I think sometimes they may never be satisfied, no matter how fair and" -- you know, so I think you want to ensure that it is a fair process, but I don't think that you can ensure the employee's satisfaction with the fairness and the handling of the outcome.

MR. BROCK:  So, not to wordsmith, but to knock out "and outcome" is your suggestion?

MS. SPIELER:  No, I actually think this is about communicating to the employee, instead of presuming the employee's satisfaction.

MS. NARINE:  Yeah, so I think it is the -- no, it is actually a substantive concern about -- I think you want to ensure that the employee -- that the loop is closed.  But it might be closed, and they still not be satisfied, because if they don't like the result, then they are not going to be satisfied, no matter how objectively fair the process is.

And then the second part, with sharing results, I guess I just -- it doesn't have to be changed here.  My concern with OSHA, again, would be to, as they are crafting something or looking at this, what is the level of -- what has to be shared, that an investigation occurred and appropriate action was taken?  An investigation occurred and we fired three people? 

Because some companies have very different ways about how they want to share that result.  And sometimes it might just be, "We did the investigation, we were not able to corroborate your concerns, but X, Y, Z," or something like that.  So, I think, just to be -- if it is sharing results, and I just saw that, it would make me, as an employer, concerned that I might have to share a report, you know, share internal investigation documents, et cetera.  So that is what I am concerned about there.

MS. SPIELER:  People are getting tired, I can tell.  So --

MS. NARINE:  We need more cookies, Eric.

MS. SPIELER:  Actually, that would be -- oh, cookies and milk.  That time?

Okay, so we have a suggestion on the table that we -- there be an amendment to the third don't in number five that would say something like, "and ensuring that" -- I don't know.

MS. LESSIN:  Ensuring the fairness of the handling and outcome, and so take out the employee is satisfied.

MS. NARINE:  Right, and the sharing results, if that language is kept in, I can live with it.  I just need OSHA to be aware that my concern would be employers, if they just see that language as it is, I don't want them to throw the baby out with the baby water, so "We are not going to take this suggestion at all, because it means we have got to share our investigation results, and we don't want to do that."

MR. BROCK:  I like Nancy's suggestion.  Keeps the employer sharing the results, but you are not demanding that the employee approve B

MS. SPIELER:  We took out sharing, didn't we?  Oh, sharing results, and ensuring that B

MR. BROCK:  That stays in B

MS. SPIELER:  Yeah.

MS. LESSIN:  Ensuring the fairness and handling B

MR. BROCK:  Yeah, I like that.

MS. SPIELER:  Okay.

PARTICIPANT:  So where do we B

MS. SPIELER:  That the -- and ensuring -- right, the fairness and the -- of the handling and outcome, and take -- Nancy's suggestion, take the employee out.

(Laughter.)

PARTICIPANT:  Let the record reflect that was Nancy's suggestion.  I just want the employee satisfaction B

(Laughter.)

MS. SPIELER:  Well, I think in other sections we suggested that the loop should be closed with the employees.

PARTICIPANT:  YES, yes, yes.

MS. SPIELER:  So B

PARTICIPANT:  We did.

MS. SPIELER:  This is different.  This is about monitoring.

MR. MILLER:  I think it is a legitimate concern, too.  You cannot ensure someone's satisfaction.

MS. SPIELER:  No kidding.  Talk to any lawyer and find that out.

Okay.  So on number five we have the amendment  -- two amendments.  One is on the second bullet.  It now says, "Can be observed, tracked, and audited."  And on the third don't it says, "Don't close investigations too quickly without resolving the issues, sharing results, and ensuring the fairness of the handling and outcome."

Okay, moving on to number six.  Okay.  Independent audit and program improvement.  I bet Billy was really helpful on this.

MR. FRUMIN:  Okay.  So I didn't have any particular concerns about what was here.  I think there was a typo in the bottom of the dos column, and with "as ways to also test" -- test what?  I don't know.  So maybe -- or maybe something that was -- maybe there was more words that could fit in that box, so B

MR. BROCK:  That could be.

MR. FRUMIN:  Yeah, so you have to just go back and look at the box, and see what is there.

MS. LESSIN:  What are we testing?

MR. FRUMIN:  You know B

MR. BROCK:  To test -- isn't this where it said how -- to test how systems work?

MR. FRUMIN:  All right, so it probably is -- just fell off.  It just ran out of space in the box.

PARTICIPANT:  Margins?

MR. FRUMIN:  Right.  Okay, I am assuming that is fine.

But my general frame of reference for looking at this, unfortunately, these days is the sort of trail of horrors that has emerged from the CSR audits and, you know, phony corporate audits for compliance with all sorts of labor laws, and all sorts of situations which have -- had different purposes, some of which have been potentially legit, if misguided.  Others have been told to "cover your butt."  And now it has evolved under the pressure of the -- you know, the continuing exposes about abusive conditions.  So companies who claim they had a fabulous system, you know, somehow missed the Bangladesh garment industry fire, so now they realize, you know, "Okay, gee, it might be a problem there."

And so, I am wondering whether you have given any -- you gave any thought to the lessons of the failures of well-meaning audit efforts when they were supposed to rely, at least in significant part, on interviews with workers, and all the problems of trying to do that in a either contentious environment, or an environment where a centrally-driven audit function is susceptible to massive errors, courtesy of low-level management non-cooperation, or -- you know, I mean, there has been a lot of pitfalls with audit functions that have emerged through the CSR auditing process that have been a serious problem.

So that was my main concern about this, whether any of that was taken -- because it is a real experience, and it touches pretty closely to -- on some of the issues we are dealing with her.  This is certainly in the world of worker health and safety, blue-collar jobs.  I don't know about, you know, Bangladeshi B

MS. NARINE:  Well, that is what I was going to say, because I think that can't be part of the analogy, because that is a situation where there are numerous levels of suppliers, where there is -- and so I think  -- which exists in the United States, as well.

MR. FRUMIN:  Yeah.

MS. NARINE:  But it is in the B

MR. FRUMIN:  Okay, you can take C.J. Seafood in Louisiana.

MS. NARINE:  Right, so I think B

MR. FRUMIN:  Or Wal-Mart's warehouse contractors in, you know, in Los Angeles.  So I am just talking about the failures writ large.  There is lots of places.  You don't have to go to Bangladesh B

MS. NARINE:  Right.

MR. FRUMIN:  So just asking, one, whether those failures of that pretty highly-orchestrated audit were considered here at all.  So that is a question.

The other thing -- my other concern in approaching this was the way that audits have been showing up in OSHA settlement agreements for compliance -- other, you know, settlement agreements, particularly in CSAs, for a long time.  And you know, some of those probably were productive, some of the abatement activities, the audits, were probably productive, and went a long way to helping both the employer in question and the OSHA both national and regionally, locally, to, you know, come to grips with a company that had widespread problems and, you know, where it was susceptible to an audit function to try to deal with it.

But the -- to think about -- I am just concerned that there could be a reading of this by OSHA that -- the inclusion of audits in an enterprise-wide effort -- which is a big policy from the solicitor's office and OSHA at the moment -- enterprise-wide efforts could be -- and retaliation issues -- like suppose you have a company with multiple retaliation cases.  Maybe the BNSF, you know, examples -- I don't know if there is an audit function in the BNSF agreement. 

But there could be an audit function written into these, into a broad-scale settlement agreement, which this might be seen as encouraging.  And I don't know that we should be, at least implicitly, supporting that without acknowledging whether we have seen -- whether we have looked at the lessons of audits in broad OSHA agreements.

You know, if you are dealing with a smaller employer, that is one thing, where you can sort of limit the damage that a misguided settlement agreement can cause.  But, you know, this is intended to apply to large organizations.  And if it were read by OSHA, the solicitor's office, as saying, "Well, we think the audit function really needs to be incorporated in enterprise-wide agreements on retaliation issues," you know, I would be a little concerned about whether that would be a misreading of the intent of this.

I am reading -- I am putting a lot into this that you probably never talked about, which is fine.  I just wanted it sort of on the record that there are some pitfalls to handing this off to OSHA, given the way that OSHA uses policies in settlements that could have broad, very broad, implications.

MS. NARINE:  So I have a couple of thoughts that -- because I don't think we did have this kind of discussion, but I think it is useful and helpful.  So if you want to take some lessons from -- whether it is Bangladesh or others, I think one thing that there was a concern was in terms of suppliers and contractors, and whether supplier contracts, which have labor provisions, fair work provisions, might be ILO provisions -- whatever kinds of things -- are actually being enforced, and whether or not, if people are doing certifications, there is any kind of auditing of that process.

So something to the effect of ensuring that either, number one, supplier codes of conduct and other kinds of codes which contain -- you know, either contain labor provisions, or if they do contain labor provisions, that they are actually audited and enforced, because it was clear that a number of companies knew there were issues going on in Bangladesh and other parts of the world, in the United States, but because of difficulties in supply chain issues, et cetera, either ignored it or said, "We will wait for it to get better," or relied on the word of those suppliers that things were going to change without any independent auditing.

The second issue, as we talk about independent evaluators or auditors, one of the things that also came up there and other places, as well, is that -- if you look at Apple and their issues, they have changed, you know, to other auditors -- is that there is -- perceived to be, at least by NGOs and others that look at this issue internationally, an inherit conflict of interest when the employer pays the auditor to do the audit.

And so, a number of initiatives have come about where industries will kind of put money toward a pool, and then the auditor will go out and do the audit, but it is not necessarily getting paid from, you know, Joe Smith Company or a Wal-Mart.  They are getting paid from some kind of a pool.

So, if there is -- I am not saying that that -- that is probably beyond the scope of what we are looking at.  But I think we want to indicate that there could be perceptions of conflict of interest, in terms of the auditing, even if you are hiring an independent auditor, because that may not be any more independent, if you are paying somebody $200,000 to go and audit your processes.  They, number one, they want the business again.  And, number two, they may not point -- their language in the recommendations might be softer than otherwise, because there is an inherent conflict of interest. 

And then, second, the issue with the suppliers and the third parties.  To the extent that they are managing labor or overseeing labor, to ensure that there is some kind of auditing and enforcement of what provisions already exist in those contracts.  I think, to the extent that something like that could be added in here -- I can write four sentences on that, if you want, during the break.

MS. SPIELER:  You are going to have a really busy break, I can tell. 

Yeah, J.J.?

MS. ROSENBAUM:  I would just add to the things that Marcia has said, that the other best-practice question that is coming up in these discussions is should the audit reports be public -- public-public, or should they be at least public to employees -- or at least be made available to current employees in such a way that they can assess whether they are accurate, or whether they want to engage in other conduct to further influence them B

MS. NARINE:  And that is a very big trend.  So Apple has published it, you know, Nestle is publishing some, Coca Cola are -- around the world, in terms of -- so it lets -- it shows the good, the bad, and the ugly.  And I think maybe a do from a best practice is, you know, "Be willing to publish your third-party audit of your labor practices," or something like that.

MS. SPIELER:  Okay, this is a way more complicated conversation than we have been having in the other sections.

PARTICIPANT:  Sorry.

MS. SPIELER:  No, it is -- I think it is important.

So, I think the question is what do we do with this section?  Is there some set of bullets that we could add to this that would not necessarily wordsmith it, but sort of say to OSHA, "Here are some additional concerns that need to be addressed when you are considering audits," or do we want to try to draft language for this document?  What do you think?

MR. FRUMIN:  It is a really complicated issue.  I think trying to change this document, where it wasn't part of the discussion, would be asking a lot.  And I  -- so I think it is worth coming back to separately. 

And if we were trying to get into the substance of a best practice that actually takes that into account, but rather say that this -- you know, that there are other aspects of audits that were not considered as part of this, just to put that on the record, such as the lessons of CSR auditing, the -- OSHA's experience with audits in the compliance world, both in individual agreements and CSAs, and the suitability of an audit requirement in a settlement agreement in 11(c) cases.  Or -- excuse me -- in OSHA whistleblower case.  You know B

MS. SPIELER:  Marcia, you getting all this?

MS. NARINE:  Yeah.  I have some possible bullet points.

MS. SPIELER:  Okay.

MS. NARINE:  Do ensure that B

MR. FRUMIN:  Just for context.

MS. NARINE:  Huh?

MR. FRUMIN:  Just for context.

MS. NARINE:  So, "Do ensure that proper safeguards exist to avoid perceived conflicts of interests with independent audits of labor.  Do institute and enforce labor provisions and third-party and supplier contracts and codes of conduct.  And do consider publishing results of any third-party" -- I didn't finish writing this one when you started, but "Do consider," but not -- you know, so consider publishing the results of independent third-party labor audits.

MS. SPIELER:  I think there is something else that Eric is raising, which is -- and maybe not within the bullets, but as an overall concern to OSHA, which is essentially that the WPAC is concerned about the use of audits in a variety of settings, and we want OSHA to pay attention to the lessons that have been learned in a variety of other procedures.

MR. FRUMIN:  Right.  Sort of like the general comment B

MS. SPIELER:  Yeah.

MR. FRUMIN:  -- we had in the beginning there.

MS. SPIELER:  Yeah.

MR. FRUMIN:  Right.  So, would you -- I mean should I try my hand now to write that B

MS. SPIELER:  Yeah.

MR. FRUMIN:  Okay.

MS. SPIELER:  So B

MR. FRUMIN:  I mean did any folks have any concerns about the way I laid out these kind of cautions?  Is there anything that -- before I write?  Okay. 

MR. BROCK:  I just have -- I don't have any particular concerns about it, but in terms of, you know, whatever gets drafted, I think that we did have very much in mind the importance of the independence, and that degrees of independence would depend upon the sensitivity, the circumstances, and so on.  So we did that.  But this was also aimed at the willing, right?

MR. FRUMIN:  Right.

MR. BROCK:  And so the -- a lot of the questions you are starting to talk about are not unimportant, but they are just different, the compliance situations and so on. 

But the place that is really -- lives in the middle of this that I think is -- we didn't discuss, and maybe becomes part of some different future discussions, is to the extent that OSHA would point to a document like this to say, "This is what you should be doing as part of some other set of actions that they are taking," which, you know, has not been part of our discussions or recommendations up to this point, then it is especially important to have the appropriate cautions.  And we did not discuss that.  But we were focused on the willing, and more attentive to appropriate degrees of independence, perhaps not sufficiently expressed that way.

MS. NARINE:  I think, to the extent that we are doing a best practices, and there may be -- we discussed this in the elevator -- there may be some companies -- or they are going to say, "Look at all the things we are doing.  We meet the best practices."  There is always something someone can learn, because they will sit there and say, "We have got independent auditors," but they may not be aware or attuned to the perception of possible conflicts of interest if you are paying the auditors.

PARTICIPANT:  Right.

MS. NARINE:  You know, so that -- so I think if there is some way -- I think we definitely need the general pronouncement.  But I think just saying "independent auditors, check," might be a nice way out, either for someone who just wants the way out, or someone who may not even realize that these possibilities -- so they can go back and talk to their auditors, "Let's talk about how you do this, let's make sure you are not sugar-coating any recommendations or any reports," and that kind of a thing.

MR. BROCK:  Yeah, so it seems to me that what we are saying is we want to make that clear, as a best practice.  We don't want to try to walk this document into the compliance area, or get outside the willing.  But the guidance to OSHA is, "And, by the way," this set of concerns that you raise.  But let's not confuse those.

MS. SPIELER:  I do think, though, that Marcia's suggestions belong in the document.  I think that, given that it is addressed to the willing to forestall compliance interventions, I think a lot of people who want to do the right thing actually don't understand the auditing process at all.  And so, it is important to be -- have some clarity about that.

Okay.  So we have now gone through the document.  And we have several small tweaks that we have entered on the document itself, so I don't think -- and we have discussed -- I don't think we need to necessarily revisit, but we have several things now that were kind of in drafting that it would be really good, I think, for people to have in front of them, which means that this is going to take a little longer break.

So, Greg, you have the language on the -- okay.  And it is now on flash drive. 

Jon, you have the handwritten language.

MR. BROCK:  I could put it on that flash drive, and B-

MS. SPIELER:  Okay, that would be great.

MR. BROCK:  I just have to find it.

MS. SPIELER:  Marcia, you have the line that you just read --

MS. NARINE:  Yeah.

MS. SPIELER:  -- if we could get it onto the flash drive.  And then -- are you going to write a generic thing that we can add to the general instructions?

If we get it all onto one flash drive, we can print it out, have it in front of us, and then review it and vote on the document, as a whole, okay, with the revisions.

So, why don't we -- it is a little early, but let's take a 15-minute break, and get all that done, have the copies made, and return here, and we will close out the conversation about the best practices, and move on to next steps for the committee.

(A brief recess was taken.)

DISCUSSION OF NEXT STEPS FOR THE COMMITTEE

MS. SPIELER:  Okay, we are going to get started, if people could take their seats. 

I passed out on both sides, and toward the back, the additional addenda that we just printed off that were written during the prior part of the meeting.  And I have also discussed with OSHA staff the various pieces of paper that are being entered into the record.  And they have agreed to take the changes we have made, including the addenda and the smaller changes that we agreed to during our conversations.  And, assuming that it is voted and sent to them, they will then put it all into one document and get it back to us.

So, presumably, because we have been extremely careful up here about keeping track of the changes, it should be okay.

Okay.  So, we have been through the entire document now, and we had several sections that we were going to add or tweak.  And I -- and that is what you now have.  It was taken from things that were written by Jon Brock, Eric Frumin, and Greg Keating, and J.J. and Marcia Narine.  So, hopefully, it is exactly what you think you put on the flash drive.

MS. NARINE:  I have already written, so that is why B

MS. SPIELER:  Marcia -- okay. 

So, addendum number five would be an addition to section two, the prevention section.  It was the issue that we discussed this morning and a work group worked on over lunch, that we would add the following -- and I think it was in the do column that this belonged, but if I am wrong, you should correct me. 

"Ensure that any employment agreement or policy which requires confidentiality or non-disclosure of information contains an express carve-out which makes clear that nothing precludes the individual from reporting or communicating with any government agency.  Do not require employees to disclose that they have reported or communicated with a government agency."  Does that B

MS. NARINE:  I thought that the "don't" was going to be a separate don't, because it actually separates -- it actually calls more attention to it.  Because, even if you don't have a settlement agreement, or something like that, you might -- the don't still applies.  So I think, if you are only looking at it -- I think it applies, whether or not you have a settlement agreement, employment agreement.  You just want to generally make sure that employees are not told they can't talk to B

MS. SPIELER:  Ah, they were all together, and so I didn't know that.

MR. KEATING:  My head is spinning.

MS. SPIELER:  Yeah, mine too, Greg.  Okay, I now understand what Marcia said.  So B

MS. NARINE:  Yeah.

MS. SPIELER:  In the do column it should say the first sentence.

MS. NARINE:  Right.

MS. SPIELER:  And in the don't column B

MS. NARINE:  Right.

MS. SPIELER:  -- it should say, "Do not require employees to disclose that they have reported or communicated with a government agency."

MS. NARINE:  Correct.

PARTICIPANT:  Okay.

MS. SPIELER:  Okay.  This, by the way, was marked -- the set was marked as Exhibit No. 9.  So the original document is Exhibit No. 7.  The first set of addenda are Exhibit No. 8.  And this set of addenda are Exhibit No. 9 for our records.

Okay.  So, addendum 6 to section two, add the following:  "Employees should have a procedure to ensure that any employment status changes are undertaken for legitimate, non-retaliatory, non-discriminatory business reasons."  We all okay with that?

(No response.)

MS. SPIELER:  Okay.  Addendum -- did I number -- yeah, addendum seven regarding auditing the following dos.  "Do ensure that proper safeguards exist to avoid conflicts of interest with independent auditors of labor practices."

MS. NARINE:  It should be "for," instead of "with."  That was one of my things, because I think it is not a B

MS. SPIELER:  Oh, okay.  So that is a B

MS. NARINE:  That is my fault.

MS. SPIELER:  Yeah, I know, because I just moved this onto a document.  I did not edit.  "Do ensure that proper safeguards exist to avoid conflicts of interest for independent auditors."  Yes?  Marcia?

MS. NARINE:  Yeah, I think so.  Yeah.  Yes, "for."

MS. SPIELER:  "Independent auditors of labor practices."

         

"Do institute and enforce labor provisions and third-party and supplier contracts, and codes of conduct."

"Do consider publishing any results of third-party labor audits."

Okay, and B

MR. KEATING:  I have a question, I am sorry.  I am not sure that I exactly understand -- nor will some employer looking at this, or -- what do you mean by labor provisions?  "Do institute and enforce labor provisions."

MS. NARINE:  So provisions that discuss fair treatment of workers, that kind of thing.  So we can make it more specific.  So, provisions regarding fair treatment of workers?  Would that be better?

PARTICIPANT:  No.  That is pretty narrow, actually, you know B

MS. SPIELER:  Yeah.  I think, in part, it is a kind of weird thing to say around the financial B

PARTICIPANT:  Yeah.

MS. SPIELER:  -- reporting issues, to talk about provisions B

MR. KEATING:  I guess we can leave it B

MS. SPIELER:  Well, I mean, because the conversation that we had was about -- focused in on the issues of what has gone on around labor problems.  But it may be that the language for the purposes of what we are looking at should be something different than that.  And I can understand Greg's hesitation about it.

We could just say, "Do institute and enforce provisions in third-party and supplier contracts and codes of conduct that are consistent with these principles."

MR. KEATING:  I like that.

MS. NARINE:  Yes.

MS. SPIELER:  Okay.

MR. FRUMIN:  Say that again.

MS. SPIELER:  Okay.  So take out "labor" in the second, and say, "that are consistent with these principles."

MR. FRUMIN:  At the end, right?

MS. LESSIN:  So the first one, you can just end that B

MS. SPIELER:  Yeah.

PARTICIPANT:  Right.

MS. LESSIN:  It doesn't need B

MS. SPIELER:  "Of third-party audits."

MS. NARINE:  Well, I don't know that I would -- well B

MS. SPIELER:  Well, that is -- but it is under the B

MS. NARINE:  Yes, okay.

MS. SPIELER:  -- heading of best practices in this area.  It is not -- we are not -- okay.  So, let me reread this back to you. 

"Do ensure that proper safeguards exist to avoid conflicts of interest for independent auditors." 

"Do institute and enforce provisions in third-party and supplier contracts and codes of conduct that are consistent with these principles."

MS. NARINE:  Right.

MS. SPIELER:  "Do consider publishing any results of third-party audits."

MS. NARINE:  Perfect.

MS. SPIELER:  Okay?

MS. BETTS:  Just a minute.  Okay.  So this one is not changed.  Okay.

MS. SPIELER:  Okay.  The final one is actually an addition to the very first general comments addendum.  This came from Eric.

"These recommendations were designed for willing employers, and were not intended to take into account the broad experiences of varying employers with CSR, Corporate Social Responsibility, and other audit programs for labor-related compliance.  OSHA itself has had experience with audits and monitoring and compliance settlements, including corporate-wide settlements.  These recommendations are not necessarily appropriate for inclusion in such settlements.  OSHA should proceed cautiously with the development and inclusion of audit functions and settlements in whistleblower cases, especially in cases involving large employers."

MS. NARINE:  Why do we have to say, "especially in cases with large employers"?  Why would you single those out?

MR. FRUMIN:  Because I think that the inclination at OSHA is to look at audits as particularly important in CSAs or other -- multi-unit employers.  That is the whole point.  They can't go everywhere.  And yet -- so that is the itch I think they want to scratch.  I think it is actually -- now broad settlements are now goals for OSHA and the solicitor's office. 

So it is -- that is a trend in the agency, it is clearly a policy, and we are just reflecting that this is a really early kind of development, and so we are trying to provide just a caution about moving too quickly with this terrific set of best practices.  I mean it is an off-the-shelf document.  Why wouldn't someone want to tack it on to a settlement agreement.  You know?  Seems obvious.  Well, hold on a minute B

MS. SPIELER:  Okay, Jon?

MR. BROCK:  On that point, and looking particularly at the second sentence of the second of these points under number six, I don't -- we didn't contemplate their use, and don't know if it is appropriate with certain safeguards, or never appropriate.

So, my inclination would be to have some sort of a caution, but -- that doesn't quite go this far.  Because maybe it is appropriate with B

MR. FRUMIN:  Well, not necessarily.  It doesn't say it is not appropriate, it doesn't say it is.  Just like we didn't -- we are just -- we are not packaging this as something that can be taken for granted to be appropriate.  So that is what "not necessarily" is trying to convey.

MS. NARINE:  I think when you have "such" -- I think the words "such settlements" -- maybe I am being too formalistic -- is B

MR. BROCK:  It kind of takes it off the table.

MS. NARINE:  Yeah, that is B

MR. BROCK:  I totally agree with the caution, but it seems to me to take it off the table.  Maybe it should be, we just haven't considered B

MR. FRUMIN:  I mean I don't intend to take it off the table.  Some parts of it might be good.  That is all I was trying to say.  So if you can think of another way of phrasing B

MR. BROCK:  Okay.

MR. FRUMIN:  -- phrasing that, fine.  I just thought "not necessarily" gave that kind of leeway.  But if I am misconstruing that phrase, then, you know, get out a smith and start wording it, or whatever.

(Laughter.)

MS. NARINE:  I don't want to be that smith.  But I read it the same way that Jon read it, and maybe because I am not as familiar with the area.

MR. FRUMIN:  How about, "Recommendations might, but are -- not necessarily be appropriate."  Might be, but are not B

MR. BROCK:  You said these recommendations in compliance and other settings should be carefully considered.

MS. NARINE:  Or should be considered on a case-by-case basis, or something like that, so that it is -- Yeah.

MR. BROCK:  Okay, so it is sort of like B

MR. MOBERLY:  It is an issue, but we didn't reach any conclusion about it.

MR. BROCK:  Right.

MS. SPIELER:  You could take out the second paragraph, and just leave the first and third paragraphs, perhaps.

MR. FRUMIN:  Well, but then -- my concern here is that this nice package B

MR. BROCK:  The temptation will be there.

MR. FRUMIN:  It certainly will, you know.

MS. NARINE:  I am hesitant to ask the question, but can you give me B

MS. SPIELER:  Why don't we say the committee has not considered B

MR. FRUMIN:  Right, whether these are appropriate for -- how about that, okay?  "The committee has not considered whether these are appropriate for inclusion in such settlements."  There you go.  Thank you, Richard.

MS. LESSIN:  So that would be the second sentence of number two?

MR. FRUMIN:  Right, right.

MR. KEATING:  That is fine with me.  I just thought one of them might be these recommendations "may not" be appropriate.

MR. FRUMIN:  Well, if we step back even further, just say we are not saying whether they are appropriate or not.  If someone wants to do that B

MR. KEATING:  Yeah, I am okay with what we B

MS. SPIELER:  So the WPAC has not considered whether these recommendations are necessarily appropriate, or are appropriate.

Okay.  "So the WPAC has not considered whether these recommendations are appropriate for inclusion in such settlements."

MR. FRUMIN:  Yeah, that ought to be really clear to people B

MS. SPIELER:  Is that fair?

MR. FRUMIN:  Yeah.

MS. SPIELER:  Okay.

PARTICIPANT:  And keeping the first and third paragraph.

MS. SPIELER:  Yeah.

PARTICIPANT:  All right.

MS. SPIELER:  Okay.  So, we have now completed our review of this document, and it is the revisions and addenda.  Does the -- is it the will of the committee that we can vote on the entire package at this point, or do I need to go through the various revisions in B

(Laughter.)

M O T I O N

MR. FRUMIN:  I move we vote on the entire package.

PARTICIPANT:  Second.

MS. SPIELER:  Okay.

PARTICIPANT:  I seventh that.

MS. SPIELER:  So the vote is on a full committee recommendation to the Secretary and Assistant Secretary, that they proceed with the development of guidelines regarding best practices relating to whistleblowing, as developed by the subcommittee, and as amended by our discussions today.  Is that clear?

PARTICIPANT:  Yes.  Thank you for the B

MS. SPIELER:  Motion?  Is there a motion?

MR. FRUMIN:  I move.

MS. SPIELER:  Second?

MS. LESSIN:  Second.

MS. SPIELER:  All those in favor?

(A chorus of ayes.)

MS. SPIELER:  Opposed?

(No response.)

MS. SPIELER:  Abstentions?

(No response.)

MS. SPIELER:  The motion carries unanimously.

I want to again thank the committee, which I think has B

(Applause.)

MS. SPIELER:  -- done a spectacular job in really wading through a lot, listening to a lot of reports, learning a lot from each other and from outsiders, and the openness with which each of you approached this.  And the leadership that was provided by Jon Brock, really, was both exceptional and terrific.

And I have to say, as well, that the staff, and, in particular, Meghan Smith, who staffed this committee, was B

(Applause.)

MS. SPIELER:  So it is -- I am really delighted to be able to transmit this to the agency and to the department as a real work product from this committee.

I do -- and I will look forward to seeing the edited version, so that we can all have a single document in hand that reflects these, I think, incredibly thoughtful and participatory conversations that we had today.

So, I know how energetic you all feel at this particular moment, but I do think that it is important for us to have a conversation about this point about next steps for the committee.  So -- and I don't think we need another break, unless there is a motion -- okay, good.

So, we currently have three subcommittees that have been charged by the Assistant Secretary with specific tasks.  I, frankly, don't have the charges in front of me.  And we could discuss our future work within the context of those committees.  But I am going to suggest, instead, that we have a more far -- a broader conversation about potential things that the committee might be able to address in the coming 18 months or 2 years.

And then, we will decide if some of those issues come within the current subcommittee charges, and we can just move ahead with them.  Or, in the alternative, we will take those ideas back to the directorate and to the Assistant Secretary for discussion, and come back to the committee about how we will proceed with them.  Is that okay with you, Anthony and Eric and -- okay, okay.  So B

MR. FRUMIN:  Emily?

MS. SPIELER:  Yes?

MR. FRUMIN:  Just a point of information.  Work group last fall pretty much decided that it had come to a plateau -- how shall we call that -- with its work.  There -- members of it liked the opportunity -- Marcia and I were the only WPAC members on it.  Most of the people on the work group were stakeholders -- labor management from rail, trucking, and -- oh, excuse me, Robert was on it, joined us about nine months -- so, most of them were not WPAC members.

They appreciated the opportunity to interact with OSHA, itself, and to have various discussions.  And, you know, we produced some consensus recommendations.  That was good.  But I think we have run out of steam, in terms of what we can do as a consensus group, and even the sense of urgency about continuing to talk amongst themselves.

So, I don't think it is appropriate to keep the group as a continuing operation.  And it would make sense to just, you know, report its contribution and leave it at that, and free up both of us on it, or at leave space for WPAC to have another work group, if needed, for something else.

MS. SPIELER:  So can I just ask a question about that?  Looking somewhat cursorily, I admit, at the data that we received yesterday, it did appear that the allegations under STA tended more than others toward work refusals, and the allegations under FRSA tended more than others toward retaliation after reporting an injury.  And I wondered whether that raised any concerns for those of you who have thought about -- the three of you who have really thought about the transportation industries, and whether there was anything hidden in there that would be worth further explanation -- exploration.

I am not only asking you, Eric, but also Bob and Marcia.

MR. FRUMIN:  Well, there is a lot to be learned from the information about, actually, a number of the transportation statutes.  Those two, obviously.  Air-21, as well.  We got three years' worth of allegation summaries.  But it was a laborious process to try to come through it and find patterns that were interesting.

So, I would say yes, definitely, there is material to work with.  Whether we have -- there -- the inquiry is useful, the hypotheses galore from the limited information we had.  And when it is available in a form that would allow us to actually study it better, we should definitely do that, because there is a number of questions that are kind of leaping off the page.  Right now we don't have that ability, and even the information that we had, which was all the allegation summaries, didn't seam to pique the interest of the stakeholder members of the committee.  They were, like, "Okay, this is enough already."

But they had a lot of issues they needed to resort -- they wanted to talk about, but the work group didn't seem to be the place to do it.  So there is a structural question, then there is the issues that we, as a full committee, including -- not the least of which is DoT, whether it is FMCSA or others there -- would want to dig into.

So, yes, we want to look at that.  Hopefully, the information will be available in a form that will let us do that better.  The MOU is running now with FMCSA, and there will be more coming out about that.  So there is a lot of work to be done in transportation, it is just that that particular work group, that group of people, wasn't the, you know, horse to ride.

MS. NARINE:  I will add to that.  I think -- because I know, toward the tail end, we were still waiting for the MOU, we were still waiting to get a lot of information.  And so, I don't know if it was the composition of the work group -- of which I was a member, so I don't know if it was that group of people, including Marcia, but I think there was a concern about -- I don't know that the -- I think the mandate was clear.  I don't know that we all wanted to work on the same mandate.  Is that accurate?

PARTICIPANT:  Yeah.

MS. NARINE:  And I think we also were missing some information, and we were waiting -- a lot of meetings were saying, "We are still waiting for this information."

MR. FRUMIN:  Right, right.

MS. NARINE:  And I don't know whether that was a reason for us to not work on other things that I think we could have worked on.  So I don't know that that transportation group needs to be disbanded, as opposed to maybe rethought and kind of clear listings of priorities that OSHA would think would be useful.  But I do agree that we probably cannot go farther with the work group that existed.  Would that be accurate?

MR. FRUMIN:  No, I think that is fine.

MS. NARINE:  Yeah.

MS. SPIELER:  Okay.  Nancy?

MS. LESSIN:  One of the things that I look at in the data is the sort of continuing -- in rail, the continuing cases about rail's being retaliated against when they report injuries and accidents.  And I also know that this is an area that OSHA has done a bunch of things.  It has, you know, this agreement with the FRA, it has had settlement agreements with, you know, large carriers.  And one of the -- you know, is it making a difference?  It is wonderful that things are happening, but are those things being successful?

And some kind of really kind of looking at we had this problem -- there is actually a very strong statute right there, much stronger than 11(c), a strong statute, but we keep having cases.  Have cases gone down, where we have had these, you know, settlement kind of MOUs, or whatever it is with BNSF? 

You know, I think it is worth noting that there is still a huge problem.  And is enough being done?  And, you know, what else might need to be done?

MS. SPIELER:  Is that something that you all are looking at?

MR. ROSA:  That is something that we have been considering, exactly what you are saying, that, in addition to all the reports and the MOUs, we are still seeing -- especially on the railroad industry, specifically -- same issues with the same carriers.  And that is something that we are having some difficulties working with.

But the other thing that we looked at with regard to the data is that this is something that we are starting to look at now, is -- because we just looked at this about -- a few weeks ago -- is some of the data, it is still not -- because of the length of time it is taking the investigations, has the trend gone down, or are we still issuing cases prior -- you know, pre-accord, or pre these efforts that we have made? 

So we are still looking to see maybe there could be a downward trend in the next year or two, once, you know, post the accord, and post all these -- you know, all these efforts that we have made.  So that is where we are right now in the agency, on the railroad.

MS. SPIELER:  I think it would be very interesting -- we can talk about this later, but it would be very interesting, I think, for us to hear a report on that, as you review it.  Because this question of do the interventions matter is certainly one of -- a lot of interest to the committee.

MS. NARINE:  And I will add I think part o the problem -- at least that I could see -- from the transportation subcommittee was that the rail issues were so critical, but we also believed that we needed to look at trucking and all these other things, because, obviously, that goes into transportation.

So, whether there should have been a complete separate rail committee is just something to consider.

MS. SPIELER:  Okay.  So, moving on from transportation, Ava?

MS. BARBOUR:  So -- and this is something that the subcommittee, I think, discussed a little bit, and we hadn't moved on to, but recognizing that, you know, the OSHA Act comprises still the largest number of whistleblower complaints, we haven't really dug into the state plans at all.  And I think that is something that we really should take on. 

And whether that is in the 11(c) subcommittee, whether that continues as a working group issue, or whether it is something that the full committee takes on, I think it is an area -- given the limitations that we have with 11(c), because we need congressional action to change the statute, looking at the practices within the states, and if there is areas of improvement and comparison that we can do, I think that would be useful.

MS. SPIELER:  So, I guess I am turning to you again, Anthony.  To what extent -- and I believe we had a conversation about this a couple of meetings ago, but to what extent can the agency put together information about the -- I think part of the reason we stalled, if I remember correctly, is that the agency -- you said it did not have the information, and then there was a question about how we would possibly compile it.  I am not sure if I am remembering that or not. 

But you made a huge amount of progress in building DWPP since we last had this conversation.  And maybe this is a -- something we should hold until Mary Ann has moved more fully into her position, but it would be very useful, I think, to do what he was suggesting.  But I think it would be difficult for the committee without assistance from the staff to really get the information together.

MR. ROSA:  Well, I think that it is, first of all, very beneficial to work with Mary Ann as she comes on board, and bring her up to speed of what is going on. 

And, with regard to data on the states -- and I have had conversations with Christine Dougherty, who represents the state plans here -- we do have access to that data, because it is part of our data system.  Even some of the state plans may have a separate database, they do download or upload that data to our system.

The one thing that we have to look and take into consideration, however, is the sensitivity of us giving out state plan data without the state plan's, you know, buy-in into it.  You know, there is a state plan association board.  And I just want to make sure that  -- we want to make sure that the states are okay with us giving this information to this board.

MS. SPIELER:  So -- this is interesting, because I am watching the facial expressions of people around the room.

MS. SPIELER:  I see that, too.

MS. SPIELER:  And I see some people out there who are nodding their heads, and I see our representative from a state plan shaking her head in puzzlement.  It is all public information.

MR. ROSA:  Yeah.

MS. DOUGHERTY:  You know, every plan has to file with the Fed on what they are going to do, what their numbers are going to be, what their expenditures are, what their plan is.  Every -- I don't know how many years, but -- to get money.

MR. ROSA:  Right.

MS. DOUGHERTY:  And to say that you can't release that information B

MR. ROSA:  I didn't say that we can't release it.  I just said we want to make sure that we have the state plans agreeing, or at least we -- understanding that we are giving this information out to the board.

MS. SPIELER:  So we can, clearly, have this conversation.  But it may be that OSHA has the authority to tell them, as opposed to ask for B

MR. ROSA:  That is true.

MS. SPIELER:  -- for their permission.

MR. ROSA:  Yes.

MS. SPIELER:  I assume that has a political overtone, and would be -- definitely not in my job description.

MR. MILLER:  I think the term would be make them aware that it is going to be provided B

MR. ROSA:  That is what I meant.  That is what I meant.

MS. SPIELER:  Okay.

MR. MOBERLY:  Should I just make a Freedom of Information Act Request?

(Laughter.)

MS. SPIELER:  No, actually, we were joking about that the other night, because the data, of course, which was generated -- that we were given last Friday was generated in response to a FOIA.  But we had not pressed for it, but -- because we did not want to add to your overworked staff's, you know, job duties.  And you have a legal obligation, obviously, to respond to FOIA requests.  And so it is a kind of odd situation, but we do view the committee as here to be of assistance to the agency, and not create additional headaches, unless they are useful.

(Laughter.)

MS. SPIELER:  Nancy?

MS. LESSIN:  So I just want to clarify.  The state plan data on whistleblowers is only 11(c).

MR. ROSA:  That is correct.

MS. LESSIN:  It is not -- so it is only 11(c).

MR. ROSA:  That is correct.

MS. LESSIN:  So perhaps it would be the 11(c) committee, or maybe -- you know, whatever.

MS. SPIELER:  Yeah, it may be.  It may be.

MS. LESSIN:  Okay.

MS. SPIELER:  There is actually a -- this is a little bit of a digression, but there is some very interesting variations in the state plan statutes.  There is also some very interesting variation among other -- all states, in terms of how the courts have looked at retaliation actions.

And so -- and I am not exactly sure where we can take that, but there may be -- particularly in the state plan states -- some interesting information about -- that would be useful, I think, to DWPP in digging down into it, and thinking about how to handle the complaints, administratively.  So, I think we don't know until we see what we can -- what is available. 

Ava?

MS. BARBOUR:  Well, and to sort of piggyback on that comment, when I, you know made the suggestion just now, I was thinking in terms of data that we could get that would be publicly available, but also work that we, as a committee, could do in terms of looking at the statutes and any case that exists in the states, and studying that, you know, which is not a burden on OSHA staff B

MS. SPIELER:  Right, right.

MS. BARBOUR:  We can do that ourselves.

MS. SPIELER:  Richard, did you have your -- okay. 

Yeah, Greg, sorry.

MR. KEATING:  Emily, I just had two things for going forward that I wanted to float. 

The first is -- and I don't know just how -- I am going to look to Anthony, like we seem to keep looking to Anthony, for guidance, once I finish what I am about to say, whether this is doable or not.  But Ava just noted that OSHA oversees 21 federal statutes.  This committee, I think, has been a terrific honor to serve on, and I think we have made some great progress.

I also think it is clear that -- echoing something I said earlier, that, you know, one of the things that has become apparent is there is this difference between many of the safety-related statutes, and some of the -- SOX being the primary, you know, fraud, financial fraud statute, which, again, I think you are going to see those numbers go up.  I know we have seen a market uptick in the monetary recovery.

But what I am interested in is -- since the creation of Dodd-Frank, which, admittedly, is under another agency's jurisdiction, the SEC, this issue has doubled, tripled, quadrupled.  It has become more and more of an issue for employees and employers in that space.  And I know that it is an understatement to say that the SEC has been fairly aggressive in their initiatives in this area.  And I know there is a memo of understanding with the SEC.  When OSHA gets a SOX charge, I believe we share it with the SEC, if it is B

MR. ROSA:  Well, I don't believe we have an MOU with the SEC.  But we do -- as a matter of practice, we share a copy of the complaint with the Securities and Exchange Commission B

MR. KEATING:  Okay.

MR. ROSA:  -- as we do with any other partner agencies.

MR. KEATING:  Okay.  I mean I throw out there whether there is any sense in trying to at least communicate with the SEC and collaborate over ways that OSHA is handling financial whistleblower actions, and the best practices we have just come up with, other ways in which there is alignment, as opposed to one agency kind of going in one direction, and another in another.

MR. ROSA:  Well, actually, thank you for raising that.  We have been engaging over the past four, five, six months in an active way -- we have been doing this for several years.  But in a very strong, active way, we have been engaging not only the SEC, but all of our partner agencies.  We have had meetings recently with Mr. Miller, with Federal Motor Carriers.  We are having at least -- for each one of our partner agencies we are going to have -- we are proposing to have at least two meetings per year with our colleagues of each one of our agencies, whether it is the Department of Energy, whether it is the FAA -- we recently met with the FAA, actually. 

So we are meeting with each one of our partner agencies, and we have actually -- now that we have a full staff in our directorate that we didn't have this time last year, that each one of our staff members has delegated authority to run with that particular agency, and be the point of contact for DWPP.

As was mentioned yesterday, we are also pursuing to ensure that there is linkages between our websites.  But when we have our meetings with our partner agencies, we are talking about the outreach opportunities of working together, we are talking about training -- you know, them training us, or us training them on the different aspects, or doing outreach together whenever we have the ability to do that.

We are also looking to -- and Bob Miller knows that we talked about this -- getting some of the desk aides that these agencies may have, because we are not the ones under the truck, we are not the ones sitting there on Wall Street.  We are not the ones -- but at least, if we get an idea of what these partner agencies are doing that are educating their own investigators, then at least we get an idea and a vision of what that complainant has gone through.

So, we are engaging all of our agencies, and that includes the SEC.  And we are doing that at least -- we are having at least two meetings per year, sometimes three, if it is warranted.

MS. SPIELER:  Greg, would it make sense to ask at some point to have someone come over from the SEC and B

MR. KEATING:  I think so.  If it is possible, I think so.

MS. SPIELER:  Okay.  So, I mean, that is certainly B

MR. ROSA:  Absolutely, absolutely.

MS. SPIELER:  -- something we could do for our next meeting, and -- as we have done with some of the other agencies, and then sees what develops from that.

MR. KEATING:  If I may --

MS. SPIELER:  Okay, and you had another one.

MR. KEATING:  -- just one other one.  And I -- you know, I wanted to -- this is a best practices continuation.  And I deliberately, you know, chose to wait until we had voted on the best practices recommendation before raising this again, but I do feel strongly, personally, about it.  And so I wanted to raise it again.

I mean we have made, I think, huge headway in identifying best practices and urging OSHA to consider them and provide guidance.  I also believe that, you know, if employers are -- especially small and medium-sized ones -- if they are willing to go and really expend the resources, and can show that they adopt these policies, I think -- you know, we heard earlier from Dr. Michaels that there were, you know, 300 or 400 and hundreds of thousands of dollar punitive award cases recently.  There is individual liability in cases, there is criminal liability in cases. 

And I think that OSHA -- not now, now we are asking you to just consider these and make them guidelines -- but I think that we should at least talk about whether there is some safe harbor for employers if they can show that they clearly committed to these principles, that that should be considered in, say, the punitive damage phase, or some sort of criminal or individual liability phase.

So, I am not suggesting we argue or talk about that now, but I think it should be put on the table for future discussion.

MS. SPIELER:  Okay.  And my guess is that, certainly in considering punitive damages, the issue of egregiousness includes, I would assume, some consideration of those kinds of practices now.

MR. KEATING:  That is right.

MS. SPIELER:  And maybe a more kind of complete conversation about how OSHA approaches those questions would be useful for us in thinking about the issue that you are raising.  And, again, we could easily put that, I think, on the agenda for next time.

PARTICIPANT:  Absolutely.

MS. SPIELER:  I mean I don't know if you read the opinion that the judge just issued in the Fayed case in our district court.  But he -- you know, he explicitly said no punitives, not egregious, and under the standards that exist.  And you know, and I think that that is understood in most of the agencies and in litigation, but certainly worth exploring, as to what the parameters of that might be, and how we -- one starting point, it seems to me, might be to talk about how OSHA thinks about it now, in the settlement process, and perhaps how SOL thinks about it in the settlement process on individual complaints in 11(c).

MR. ROSA:  What I do want to say is that -- especially my experience as a former assistant regional administrator in region four, when cases were brought up to me for review, that included, you know, the allegation of retaliation.  We do look into whether the front-line manager, as we were discussing earlier, if the front-line manager was held accountable for taking that particular action.  And I do recall a couple of cases, several cases, in which the manager was, for example, disciplined, or the manager was demoted or suspended.  And we took that into consideration, you know, when we were calculating the damages in that particular case.

MS. NARINE:  Is that a policy that is -- is that a practice?  Is that just a kind of a general practice, or is that something that is actually a policy?

MR. ROSA:  Well, I B

MS. NARINE:  Like, is there, like, mitigation creditors, or something more formal B

MR. ROSA:  There is nothing very specific, but what we do is we look at the totality of the case, the totality of all the evidence that was gathered during the investigation, and we -- in a neutral basis -- and, you know, and the evidence is constantly swaying, but we are weighing it on a neutral basis.

MS. NARINE:  So I am not going to speak for Greg, but I know we had some conversations and then we kind of came to impasses when we started talking about this is where I think there is a big labor management divide about the benefits of credits or mitigation or safe harbor. 

But for those that weren't part of those discussions, I think, just very briefly, one of the -- so I put myself in the hat of the person in charge of compliance for a whole company.  And not every company has a thing like that.  But they are not just thinking about the safety issues, they are thinking about every possible way where they can be, you know, charged by the government, or sued by somebody, or looked at by a regulatory agency.

And so, to the extent that I am keeping in my head, okay, there is mitigation credit for this, and there is not for this -- no, you want to have some kind of a consistent -- you should do things because it is the right thing to do.  Let's put that on the table, on the record.  But not everybody thinks that way.  Right?  And so, the question is, is a company, or is an employer intentionally or unintentionally going to put more emphasis on strengthening programs where they know, okay, under the federal sentencing guidelines, I am going to have this, so I need to make sure we do this?

So, is there some kind of way to make it more transparent as to this is going to weigh in your favor if you have adopted these kinds of things, et cetera?  Because at some point I strongly believe that companies need incentive and penalties to do anything.  And, to the extent that there is some way, whether it is a safe harbor or something -- or some kind of a -- some level of transparency as to how this is going to be weighed, that will, for many companies, dictate how much investment they are going to make into adopting any kind of best practices.

So, I think, to the extent that that can be made a little bit more -- it doesn't have to be codified, it doesn't have to be an Act of Congress.  But just something that makes it easier for people in compliance or safety or anything to say, "This is why we need to do this."

MR. ROSA:  Sure.

MS. SPIELER:  Yeah, I think this needs further conversation, obviously.

MR. ROSA:  Sure, sure, sure.

MS. SPIELER:  The -- you know, for an individual who has been terminated who is owed back pay, obviously, they are just owed that. 

MS. NARINE:  Right, of course.

MS. SPIELER:  So the question is the -- what additional relief there is, and that varies under the statutes, and it varies in the way it plays out over the different statutes.  I think it does require fuller conversation.

Nancy?

MS. LESSIN:  So, rather than dive into that conversation, I was going to go to another place.  But when we do get to it, I do have a number of things to say.  But B

MS. SPIELER:  I am sure you do.

MS. LESSIN:  So, if we are B

MS. SPIELER:  Yeah, go ahead.

MS. LESSIN:  -- kind of done with that, I am very interested in the beginning discussion we had on alternative dispute resolution, and very concerned that working means getting it done quickly, rather than justly, or something. 

And so, the idea of looking at what happened in the two regions, where the pilots happened, what was the data there, what -- you know, how were cases resolved, and, if it is being expanded, what -- how it is going to work. 

And the concern I have is, when you have a worker who is not represented, and you have a mediator, and you have an employer who has a whole bank of lawyers, what is the -- what does that really look like for the worker side of this, and the kind of imbalance of power, and how OSHA is going into this -- now we are expanding it to all regions.

So I want to hear a lot more about both the pilots and the plans for going forward, and especially if you have -- you know, the more and more vulnerable workers who are involved in this, what does this look like?  Who is representing them, and how does this work?

So, that would be one thing I would want to put on the table. 

And the other -- there is actually two others.  One is the data that we got, I think there is a discussion about why are things -- you know, why are things looking like they are working here, and not working there, and is there any advice that we can have on that.  And if we add the state plan data, are we going to learn more?

But, again, sort of not just getting the data, but looking at the differences.  And are there things that this region can learn from that region?  Or is this just a -- it is an artifact because it really -- this is -- these were the circumstances.  So, anyway, there is the data issue.

And then the third one is if the new record-keeping rule goes through with some of the changes about dealing with practices that discourage injury reporting, there may be advice that this committee can give to OSHA, in terms of going forward with that new  -- you know, what might compliance assistance look like, or what might -- you know, what is new, and is there anything we can help with?

So, those are a lot of ifs.  But if that happens, there may be some things to look at.

MS. SPIELER:  Okay.

MS. DOUGHERTY:  I would just like to piggyback on your first one about the ADR.  Is -- if you can even find out for us, you know, are we talking about employees that had some disciplinary action and remained at work?  Are we talking about terminated employees that are going into the ADR?  So they are, you know, losing income.  Or people that -- you know, very often what I find is people lose a job, you know, half of them can find other work right away.  So is it a matter of a disparity of earnings, then, that you are looking at with the ADR?

So, if we can kind of give some categories for how these cases were actually filed and settled B

MR. ROSA:  Sure.

MS. DOUGHERTY:  -- and whether or not any of the -- you know, both parties come to the table and say, "Yes, we want this mediated," and the mediator is going, "Well, there is way more stuff going on here than we should be mediating."  Has that ever happened, that maybe the employee really does have a lot more that they could get by going forward, and they don't really understand that taking the, you know, one month's salary at this point -- probably not a good idea?

MS. NARINE:  I am sorry, I missed it.  What is the roll-out date for B

MR. ROSA:  It is not -- I don't know if I -- it has gone out yet.  The directive is in the clearance process right now. 

         

And the one thing I wanted to clarify is that these individuals that are working are ADR coordinators.  They are not certified mediators.  These are OSHA staff.  So we are not -- have a contract with an outside mediator.  These are OSHA personnel that are moving from the enforcement side and to be coordinators and sort of the facilitators of the negotiations.  They are not mediators.  I want to make sure that is clear for the record.

MS. SPIELER:  Richard?

MR. MOBERLY:  I also want to follow up on something Nancy said, and that is just about the data, generally.  And it seems like every -- so I think OSHA has made great strides in the type of data that it has accumulated and collected and produced for us, but it also seems like, whenever we have these meetings, we say, "Well, do you have this?  And what about this?  And how about this?" 

And I just didn't know if it would be helpful if there was a group of people who worked with OSHA to say, "This is what an outside group would want, datawise, and what are your systems like?  And what would it take to move from your systems to something more productive?"

MS. SPIELER:  So, I actually have begun a conversation with DWPP on that question.  And I think, once Mary Ann has moved into her position formally, we will be able to have further conversations about it that -- and if it seems like we could do that, then we will see if David Michaels is willing to charge an additional group that specifically focuses on data collection issues.  It is something that I am personally interested in, and do think that there are people on this committee who could be tremendously helpful.

So, we will see.  I also know that the OSHA and DoL systems are -- could be better.  And so, what we might think would be good might not exist, and so there needs to be a lot of coordination on that.

There were a couple of other issues that have come up in the past, and I just -- you may not -- given how tired you are, may not remember, but I just want to throw them out and ask if there are things that you have continued interest in, and -- so that I can work with the DWPP and Dr. Michaels on figuring out whether it makes sense for us to address them.

One is sort of parameters around training, internal training, and questions about that.  And my recollection, Marcia, is that that -- you had a lot of interest in that area early on, and I wondered whether there was continued interest in those questions, and whether people thought that that was something the advisory committee could be helpful on.

MS. NARINE:  I mean I think that was very, very early on, so I guess maybe the only thing that might be helpful is any updates.  When we first learned about -- I think it was the first meeting B

MS. SPIELER:  Yeah.

MS. NARINE:  -- we learned about what kind of training was done, what kinds of resources were out there, and at the time it was discussed that a number of changes were occurring.  So, rather than putting together a whole committee, or anything like that, maybe an update B

MS. SPIELER:  Okay.

MS. NARINE:  -- about, you know, since we first met two years ago, is there some improvement, is there something -- working on, these are some gaps in the training B

MS. SPIELER:  Yeah.

MS. NARINE:  Especially now that, you know, new structures have been put into place, maybe Bill's  concerns are all obviated.

MS. SPIELER:  Okay.  Two other issues that kind of came up at this meeting that I just want to mention out loud, and see if there are people here who feel that this is something that really should be taken on by the committee. 

One is the rulemaking application that Tom Devine talked about.  We talked about it in the context of best practices.  It is certainly -- it is not something I think the committee has to weigh in on, by any means.  But if there is a feeling among committee members that this is something you really want to delve into, we could certainly discuss it.

I realize that most of you have not had a chance to look at the petition yet, and we could definitely simply postpone whether that is something that people want to be discussing, but I wanted to throw it out.

MR. KEATING:  I think we should B

MS. SPIELER:  Postpone it?

MR. KEATING:  I think we need to read the petition.

MS. SPIELER:  Okay.

MR. KEATING:  I haven't even had a chance to read it.

MS. SPIELER:  And the second -- and here, this may be simply a report -- we got a public comment regarding preliminary reinstatement practices.  And, obviously, that is not an 11(c) issue.

Anthony informed me during one of our breaks that there is, not surprisingly, a lot of OSHA policy on how preliminary reinstatement works under the statutes in which it is available.  If the committee would like, we could also have a report next time on how preliminary reinstatement is handled by the agency, and then, if it becomes an issue that people want to discuss at greater length, we can put it on our future agenda.  Is that -- okay.  So we will add that to the report section of the meeting next time.

Eric?

MR. FRUMIN:  Yeah, so I have a couple I wanted to add.

On the state plan question, I think it would be appropriate to get a briefing from the directorate of state programs, the division at OSHA that oversees state plans and has primary responsibility for monitoring the 11(c) function in the states on their monitoring process.  They did -- so every since the disaster in Nevada a few years ago, OSHA has been doing a lot more intensive monitoring of state plans now, on a biannual basis.  And the 11(c) function was the focus of that in, I think, 2012, 2013, whatever. 

So there is a -- there was a fairly detailed review at that time, and presumably some period of time has passed where that -- findings, the recommendations, the implementation, all that has had a chance to sort of ripen.  So it would be good for us to find out, you know, who is minding the store, and what does the store look like these days.  Has the stuff on the shelves expired, or whatever, you know?  So that would be useful.

And, along -- and a companion to the point about the data availability, information from the states, because, you know, OSHA does look at it pretty intensively in some cases.

In close sort of -- closely related to that is the kind of dire situation in California.  And I just wanted to mention that that is something that, if we were to hear from the CESP about their monitoring of states, that we get a special briefing on the situation in California.  In fact B

MS. SPIELER:  I am not sure everybody knows what you are talking about, so B

MR. FRUMIN:  Sorry.  So the California 11(c) program has been a focus of repeated criticism by the annual federal reviews for quite some time.  It is a different program in that there is a separate agency under the broad state labor department, different from Cal/OSHA, which -- division of labor standards and enforcement, they do the basic wage and hour enforcement.  They have responsibility for a number of anti-retaliation provisions under California state labor law.

So, the anti-retaliation 11(c) function was delegated to them.  So the head of Cal/OSHA has no control whatsoever over their anti-retaliation program, even for people -- not even for -- for the people involved with Cal/OSHA enforcement. 

So that program has been suffering from serious problems that -- retaliation investigation, 11(c) complaints, and they have been suffering from serious problems for a very long time.  This is not to take away from the tremendous efforts that the commissioner, Julie Su, and others there have undertaken on wage theft in California and, in some cases, even on safety-related retaliation, but that program has been in dire straits, and has been said to be in dire straits by the Fed OSHA state plan enforcement people for quite a while.

So, this isn't Wyoming.  It is not Maryland.  This isn’t Nevada.  Actually, this is California.  This is the biggest state plan out there in one of the most important parts of the U.S. economy.  And it is on life support.  So, I think whether or not we get that briefing from DCSP on state plans overall, we should be getting a briefing from them on where the California situation stands.  So, I think that is an important request, period.  So that is one thing, just on state plans.

The other thing -- and I think we should ask -- we should look into is the relationship between complainant activity under Section VIII, enforcement in general, and retaliation concerns.  Whether it is in the intake process, when complaints are received initially by OSHA, wherever it is received, the area office, the 800 line, all the way through the inspection process and afterwards, there is an obvious concern about complainants themselves being the subject of retaliation, as compared to workers who do whatever.

And we could look at the OSHA 11(c) data and, filed with the primary agency is 338 out of the 1,800 cases.  You know, it is not a small element, 338 people reported filed their 11(c) complaint.  There is -- suffered their retaliation as a result of having filed a complaint with OSHA.  Well, a complaint is a really important thing in the life of OSHA.  It is 27 percent of all inspections.  They are productive inspections, they are finding a lot of violations.  And if workers who are -- file complaints are treated this way, and you know, whatever, 20 percent of the -- all 11(c) complaints B that is a big problem.

I have raised this question in the past "Do complainants get special consideration in whistleblower B- complainants with a primary agency get special consideration in whistleblower investigations or not?”           So when Derrick Baxter was here from MSHA and did a briefing for us, I asked him -- and somewhere there is a memo floating around at MSHA which says, yes, recovery in those cases pay 20 percent more, there is a 20 percent premium when you are settling or resolving complainants under the Mine Safety Act.  That has been their experience.  So, somehow, the agency is taking this into account, looking at them more seriously.

So, for the little -- you have people who are data-hungry.  I did ask -- I was never able to get the actual -- he said that number one time.

So, just to make a long story short, I think it is a -- it is important that we look -- we focus in on the complaint process under Section VIII of the Act, and where the retaliation issues play out with the complainants, and how that affects the agency's practice in the field, the area offices, and the regions regarding the inter-relationship of these two really important functions.

Are we protecting complainants adequately?  Are we preventing retaliation against complainants adequately?  Are we intervening to stop that so we don't end up with, you know, more TRO applicants B

MS. SPIELER:  Yeah. 

Nancy?

MS. LESSIN:  Can I -- I want to add one thing to Eric's piece about California, just for when we are going to do this.  My understanding is it is not -- so there is Cal/OSHA, and then whistleblower goes to this different agency.  But when you look at the Fairfax memo, that is going to workers comp, the Fairfax issues.  As I understand it, if you have been retaliated against for reporting an injury, that gets kicked out now to yet another agency. 

And so, it just seems like we really should take a look at what is going on here, and is it at least as effective as -- I believe is the word, because the sense that I get from, you know, those that we represent in California and others, is not so much.

MS. SPIELER:  Okay.  We have a list.  It has an even 10 items on it, a number of which are really "Let's get some more information to the committee so we can consider what to do next." 

Anything else?  Christine?

MS. DOUGHERTY:  I just wanted to -- when Eric was talking about the reports that are done, and the audits that are done, I looked at the most recent audit reports from the state plans that I could find online.  And what type or depth of audit that you get out of federal OSHA as a state plan depends on who is doing the audit.

I think that we need to be looking at maybe if there are standards for these groups doing the audits, and how are they looking at the programs.  Are they all following the same script, and do they all look at the same issues?  Because if you look at those reports, the discrimination stuff might be one line that says they had X amount of cases this year.  What does that help?  Nothing.

So, there needs to be maybe some standards for the auditors themselves.  And, if there are standards, what are they, and why isn't that appearing in the report itself?

MS. SPIELER:  And that is something I think this committee could help with. 

J.J.?

MS. ROSENBAUM:  So, on November 20th of last year, when President Obama issued a series of executive actions around immigration, there was the creation of a committee on the enforcement of labor and immigration law, which the Department of Labor sits on, along with the EEOC, the board, the Department of Homeland Security.  I think those are all the agencies.

And one of the charges there is to clarify the process by which workers who have brought forth serious labor disputes, including whistleblower disputes, can make sure that their immigration status, or fears of immigration enforcement don't interrupt their ability to bring that complaint forward, or to be free of retaliation. 

I think it is a really important issue for a subset of workers on a subset of the statutes here, but it would be helpful to hear a report back on how OSHA is thinking about that issue in that context.  I believe that someone has been participating from OSHA in the committee.  And I do think, in terms of enforcement of the statutes for many workers, fear -- both workers who may be working on a status, also workers who are on temporary visas, whose visa is tied to their employment, and who, if they suffer retaliation, would have to return to their home country, even if the retaliation is later found to be illegal.  Immigration status is an issue in the context of making sure that the statutes can be enforced.

MS. SPIELER:  So, again, something I think that we should begin a conversation about at our next meeting, and then see where it takes us.

MS. LESSIN:  We have a five-day meeting.

(Laughter.)

MR. FRUMIN:  When is our next meeting?

MS. SPIELER:  We don't -- and I am not sure what staff is thinking, actually.  So we will be in touch as quickly as we can.

And we may -- given how hard it was to find government rooms in D.C. the last couple of days, I had a conversation with someone that -- suggesting that maybe they would reserve a block of rooms nearby the point that the date is picked, so that we wouldn't be as dispersed as we were this time.  So the -- we are going to work on the logistics, probably in the next few weeks, and we will be in touch.

Jon, you had your hand up?

MR. BROCK:  Yeah.  This probably is already assumed, but the other part of the Assistant Secretary's charge to the best practices effort was to look at dissemination.  There were probably a few of those issues on the list that came up today.  And you may want to help to form that agenda.  But B

MS. SPIELER:  Yeah, definitely.  Definitely.

MR. BROCK:  We still have some work to do.

MS. SPIELER:  Right.

MR. BROCK:  There were a lot of good ideas that got put aside.

MS. SPIELER:  Yeah.  Okay.  I think that I will be working with Mary Ann and Anthony in the next month to sort of figure out how we are going to move this forward, and figure out when the next meeting will be, and we will be in touch.

Again, before we adjourn, I want to thank the ARAs for joining us today.

(Applause.)

MS. SPIELER:  It was -- I think it is -- as you can tell from the participation on this committee, people think the work you do is really important.  And we are also delighted that your positions now exist.  So this committee is really set up to assist the Department and the agency in thinking through and becoming more effective in the enforcement of whistleblower issues.  And the more you can bring those forward and bring those forward to the directorate, the more we will be able to be helpful.

So, thank you for coming and listening, and I hope that you will continue to bring issues forward that we can help address.  And a thank you to the rest of the D.C. staff for being incredibly patient, I think, with the work groups, and for assisting us in this meeting and then, of course, for the -- to the members of the committee, who -- I think this has been an incredibly productive and engaged meeting, and I want to thank you all for your level of participation and commitment to the issues.

And, unless anyone else has anything they want to say in closing, I will declare the meeting adjourned.  Thank you very much.  Five minutes early.

(Applause.)

(Whereupon, at 3:55 p.m., the meeting was adjourned.)

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