U.S. DEPARTMENT OF LABOR
VETERANS EMPLOYMENT AND TRAINING SERVICE
Meeting of the
Whistleblower Protection Advisory Committee
Tuesday, April 26, 2016
Room N 4437 A C
U.S. Department of Labor
200 Constitution Avenue N.W.
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
Sylvia Johnson, United Auto Workers
Eric Frumin, Change to Win
Nancy Lessin, Steelworkers' Charitable and Educational Organization
Jennifer J. (J.J.) Rosenbaum, National Guestworker Alliance
David Eherts, Actavis Pharmaceuticals
Kym Gaylo, Proctor & Gamble
Gregory Keating, Littler Mendelson, P.C.
Marcia Narine, St. Thomas University School of Law
State Plan Representative
Lezlie Perrin, State of Washington
Federal Agency Representatives
Rina Tucker Harris, Consumer Financial Protection Bureau
Eric Bachman, U.S. Office of Special Counsel
Robert W. Miller, Federal Motor Carrier Safety Administration
C O N T E N T S
P R O C E E D I N G S
WELCOME AND REMARKS
MS. SPIELER: Now we are going to get started.
MR. SWICK: Hi, I'm Rob Swick. I am with the directorate of the Whistleblower Protection Programs. I just wanted to go over, real quickly with you, a few things, safety concerns and building logistics.
First of all, there are two types of an emergency that can occur in the Frances Perkins Building. The first is a shelter in place. And when such an event shelter in place, we're in the right place. The second event is if we have to evacuate the building, and we will be leaving out the most closest stairway, which is right outside that door, right here.
There are bathrooms on all the corners, water fountains. There is a snack bar down the hall there, on the left corridor. There is a world winning cafeteria on the sixth floor, and ATM on the third floor.
Should you need assistance, please feel free to reach out to me or any of the Director of Whistleblower Protection staff if you could all raise your hands. We will be able to help you.
With that and when would you like to do the walk around, or
MS. SPIELER: I'll do the introductions.
MR. SWICK: Okay.
MS. SPIELER: So, as I think pretty much everyone in the room knows, I'm Emily Spieler, and I chair this Whistleblower Protection Advisory Committee. It was a committee that was first chartered in June of 2012, and had our first meeting in January of 2013, re chartered in 2014, and just re chartered again, posted, I believe, yesterday in the Federal Register.
Today we welcome several new members: Kym Gaylo, who is the global SHE associate director for Procter and Gamble; Leslie Perrin, from the department of labor and industries division of Occupational Safety and Health in the State of Washington. Several members were reappointed, and will serve through November of 2017: Nancy Lessin; Jon Brock; and Marcia Narine, who is joining us by telephone today. And Eric Bachman, deputy special counsel for litigation and legal affairs in the U.S. Office of Special Counsel, is replacing Adam Miles as a federal member of the committee.
DOL has, by the way, posted a on April 1st a Federal Register notice for additional members, and nominations are due by the end of May. So if you know people, now that we are on staggered terms, there will be appointments, I believe, annually. Is that right? And I would urge you, if you know people who you would like to nominate for a position on this committee, to offer their names up to the department.
With that, as is the tradition in this committee, I will go around the room and ask that you introduce yourselves, starting with the members of the committee, with your affiliation, then members of the staff, and then anyone else in the room who is present today.
MR. BROECKER: Brian Broecker, Office of Solicitor, committee counsel.
MR. MILLER: I'm Bob Miller with the U.D. Department of Transportation, Federal Motor Carrier Safety Administration.
MR. MOBERLY: I'm Richard Moberly with the University of Nebraska College of Law.
MS. PERRIN: Leslie Perrin, with the Division of Occupational Safety and Health in Washington State.
MR. BROCK: Jon Brock, retired faculty from the University of Washington.
MR. EHERTS: David Eherts, vice president, global EHS at Allergan.
MS. ROSENBAUM: J.J. Rosenbaum, National Guestworker Alliance.
MR. BACHMAN: Eric Bachman, U.S. Office of Special Counsel.
MS. SPIELER: Greg?
MR. KEATING: I'm Greg Keating, a partner at Choate, Hall & Stewart in Boston.
MR. FRUMIN: Eric Frumin from the Labor Union Federation based in New York.
MS. GAYLO: Kym Gaylo with Procter and Gamble, health, safety, and environment.
MS. HARRIS: Rina Tucker Harris with the Consumer Financial Protection Bureau.
MS. LESSIN: Nancy Lessin, United Steelworkers Union.
MS. SPIELER: Marcia, I know you are on the phone. Would you introduce yourself?
MS. NARINE: Sure. Marcia Narine, St. Thomas University in Miami. And is it possible for people to speak up a little bit, or maybe put their microphones closer when they're speaking? It's hard to hear most of the people.
MS. SPIELER: Okay.
MS. NARINE: Thank you.
MS. SPIELER: I Sylvia Johnson, who is a new member of the committee, was is delayed at I know that she had a family emergency, and we aren't exactly sure when she will arrive.
MR. ROSA: Hi. And I am Anthony Rosa. I am the deputy director for the directorate of the whistleblower protection programs here in OSHA. I am also the federal the designated federal officer for WPAC.
MS. SPIELER: So you have met Rob Swick. Could the other members of DWPP please introduce themselves?
MS. GARRAHAN: Good morning. I am Mary Ann Garrahan, the director of the of OSHA's directorate of whistleblower protection programs.
MS. JOHNSON: Marisa Johnson, DWPP.
MS. STEWART: Christine Stewart, I am division chief for policy.
MR. LEE: Viat Lee, DWPP.
MS. SMITH: Britannia Smith, DWPP.
MS. SWAN: Gail Swan.
MS. COTERLIA: Sarah Coterlia, DWPP.
MR. BARRETT: Otis Barrett, DWPP.
MS. GIVENS: Laura Givens, DWPP.
MR. FAIRCHILD: I'm Cleveland Fairchild.
MEGAN: And Megan for DWPP on the phone.
MS. SPIELER: Thank you, Megan. Okay. Now our guests, please.
(Audience introductions are made.)
WORK GROUP REPORT OUTS
MS. SPIELER: Thank you. As I think you also all know, it is the job of this committee to advise OSHA and the Department in order to make the whistleblower program within OSHA more effective. And to that end we had previously had three working subcommittees, and two new ones have now been appointed. And we are going to hear reports out brief reports, because they met for the first time yesterday afternoon brief reports from those subcommittees as to their what their plans for their work.
I would appreciate it if the chair of the committee would also, for the benefit of the people who are not familiar with the charges, if you would read the charge in addition to the report that you are going to give. Thank you.
Who wants let me see. J.J., do you want to go first?
MS. ROSENBAUM: So this is a brief report back from the outreach work group that met yesterday for the first time. So just to review, the outreach work group charge, as OSHA continues to make the whistleblower program a priority, we recognize that not all employers and employees are aware of statutory whistleblower protections, or understand why they are important.
In addition, OSHA often hears criticism that complying with its statutes it enforces is too costly. Consequently, we are seeking your help in informing more employers and employees about worker rights and how protecting employees actually saves a company money.
To this end, we would like WPAC to weigh in on the following questions. What phrases and concepts are most likely to get industry management interested in a particular OSHA whistleblower guidance product? What phrases or concepts are most likely to get labor workers rights groups interested in a particular OSHA whistleblower guidance product? What types of whistleblower guidance products or communication methods are most likely to be used by workers and employers? And what organizations does WPAC recommend OSHA consult with regarding whistleblower protections and types of information or support they could provide?
So, as we discussed the charge yesterday for the first time, we sort of saw three parts to it. The first question was the frames and concepts that help with outreach. The second was the types of information, guidance products, and communications that carry those frames and make them effective. And the third was the organizations that would be most helpful to receive those products.
As we were laying the groundwork for thinking about the charge, there were a few things that we started with, and sort of agreements. The first was that there was a lot of helpful thinking and work from the best practices work group, which John chaired before, that we were bringing into this conversation. Best practices is certainly a frame and concept that WPAC has invested in thinking about, and that we think is important, and will continue to break forward in this work group.
Secondly, we are thinking about two types of employers. The first is those that are willing and really looking to learn best practices, and those are the employers to whom the best practices products are really geared. And the second is just acknowledging that there are some employers out there that are recalcitrant on compliance failures, and maybe in a different place. And so we are going to think about how to reach both those kinds of employers in the context of our work.
And then, finally, we sort of all recognize that we want to think about outreach in the context of how to how it can be a collaborative effort with the help and safety side at OSHA, and also with other partner agencies, recognizing that outreach on whistleblower issues may occur in the context of a broader set of conversations that don't always start with a whistleblower investigation.
So, kind of taking those general background points, some of the next steps that we put on the table were, first, reviewing the existing tools that are out there, that WPAC has been created, they've been in a process of prepping more to roll out, so really looking at those and understanding what we think will work best for the different constituencies, members of the committee, also looking at some of the tools that the health and safety side and other partner agencies are using, and some of the tools that are being developed in industry and labor and other places to try to make those recommendations.
And as a subpart of that, looking at how the websites are working. Where is the traffic actually coming from? Where are employers and employees really looking to try to get information, and what links and cross leveraging between different partner agencies or different parts of the website would be helpful?
The second was pulling together research on the cost side, and really getting into this issue of how to show that retaliation is costing employers money. And some members of the committee have particularly good examples of metrics on good observations and targeted responses and think that there is a good amount of information where the committee could be helpful in pulling that together, and really helping make the case to employers that being a learning organization is good for the bottom line, in addition to, as several folks pointed out, good from a humanitarian kind of perspective, or because it's the right thing to do.
We also mentioned that it's important to remember that there are increasingly other legal overlays that might incent employers to adopt any retaliation Programs. We mentioned the California anti discrimination law that has come into place that requires some additional anti retaliation protections, as well as requirements coming out of the new executive order on federal contracting. So, increasingly, there is more and more places that anti retaliation protections are coming up in the law.
We also talked about opportunities within supply chain contracting for large employers who are already implementing best practices to encourage the adoption of those best practices and the training throughout their supply chains, which helps to reach to smaller businesses who have historically been hard to reach.
We talked about looking across the touch points of OSHA and its partner agencies with employers to see where greater outreach on whistleblower protection could help. Some examples might be the VPP and SHARP and other safety and health management systems; settlements on the health and safety side, which could, at the same time, incent the adoption of whistleblower protection Programs. And again, looking at the regulations coming out on federal contracting and the requirement of anti retaliation protections and the remediation process there.
And then, in closing, we talked a little bit about the idea of targeted outreach, and just this question that this idea that it's not just putting things out into the ether or up on the website, it's really looking at where employers are open to improving their anti retaliation programs, and looking for assistance, either because of the carrot stick approach, looking at where, again, workers are in the same position, and trying to make sure the information is there, looking across OSHA and the partner agencies, including best practices on how to do it.
And I think, finally, we mentioned some products that include and highlight concrete experiences and stories, both where workers brought things forward and the employers responded and issues were resolved, or where there was retaliation and the whistleblower protector came in and resolved the problem and the employer those some products with concrete examples would be relevant and helpful, as well.
So that's a very broad overview of a very rich discussion. We appreciate the charge from WPAC, and I think we think it will be a very helpful and fruitful work group.
MS. SPIELER: Do any other members of the committee and I should have said J.J. is the chair of that subcommittee. Jon Brock, David Eherts, Eric Frumin, Kym Gaylo, Rina Tucker Harris, Greg Keating, and Lezlie Perrin are all members of that subcommittee.
Do any of you have any additions to J.J.'s report, or are there any questions from members of the committee, subcommittee, or others about the report?
MR. FRUMIN: I'm not sure you mentioned it, but
MS. SPIELER: You need to talk into the mic, or
MR. FRUMIN: Sorry, I'm not sure whether you mentioned it. So one of the things that we discussed was the availability of in the future of information about current practices that the agency observes at employers with whom it deals, whether it's in the enforcement context or in the cooperative programs context. You did mention the I think the VPP program is an example.
So we're hoping that, going forward, that information will be available to us. It's not now systematically collected, but and we're not looking for everything. But at least for examples, for instance, of robust anti retaliation programs in place by employers that OSHA knows about through cooperative programs, et cetera, which could shed some light on what already constitutes "acceptable practice by the agency" when evaluating in some detail employer practices regarding retaliation, since that's going to be helpful to us in seeing how we can translate that into an effective message to a much larger group of employers.
MS. SPIELER: Jon, did you have your somebody over here had his hand up. Jon did.
MR. BROCK: No, I thought it was a good summary.
MS. SPIELER: Great. Yeah, go ahead, Greg.
MR. KEATING: So my only comment is that and now to put anyone on the spot right now, but I one of the main reasons, I thought, for the outreach committee was to well, one of the reasons was to be a sort of a further to the best practices recommendations. And I know the guidelines were issued in October, and I know the public comment period ended, but we're in a suspended animation right now, and I don't know if we're going to get any type of report on that today.
I also would like to if we are, to maybe have an opportunity since the last meeting we really had no opportunity, because they came out almost coincidentally with our last meeting. I wonder if we will have an opportunity to ask some questions or make some comments, or
MS. SPIELER: So, as I understand it and perhaps this because of some internal issues I think that the agenda came out the way it did. But I believe that the report from DWPP will certainly include a some status report on that, and that there will be an opportunity to ask questions at that point.
So, I guess I would ask I understand your concern, and I would ask that you hold it for this afternoon.
MR. KEATING: Sure.
MS. SPIELER: I actually think you made amazing progress yesterday afternoon. I would like to thank the members of the committee and the chair, the subcommittee and the chair. It's I think this is a tremendously important issue and an opportunity for the subcommittee for the committee, but more importantly for OSHA to really think about how to both get information out and have a more integrated view of what they do between the compliance side and the whistleblower side.
And so, I'm looking forward very much to hearing more about the subcommittee's work at our next full meeting, which will be in around six months.
So, with that, Marcia Narine is the chair of the other subcommittee on training, and we are going to attempt, Marcia, to have you do the initial report. You are sitting in the middle, in case you want to know, of the room, in a little box. And we will and then I will open it up for your other committee members and any questions. So go ahead, Marcia.
MS. NARINE: Okay. Good morning, all. We had a very productive and substantive meeting yesterday. I especially want to thank Anthony Rosa and Anthony Talia from the OSHA Training Institute, who provided some detailed information. So what I'm going to attempt to do is summarize a lot of that detail. And this is also including comments I received this morning from some subcommittee members. But I'm sure and hope that they will chime in if I miss anything.
Yesterday we had Anthony on the phone. I don't know if he is there in the room or not. He's from OSHA Training Institute. We will have another person join our sub group, Sue Ellen DeManche. She was not on our call yesterday, but she is the director of occupational health training, and she is going to join our subgroup.
We started off with Anthony Rosa providing background on the development of the whistleblower training directive, and then Anthony Talia provided I hope I'm saying it right, I'm not sure provided detail on all the various training offerings. And the key is that they're now focusing more on process and on key competencies for the whistleblower investigators, as opposed to being statute based.
One of the key questions that we're going to be looking at and thinking about is what kind of training should be delivered by webinar versus in person, because they have skills and knowledge based training. There is a field advisory committee for training courses, and OSHA has added a whistleblower rep. So it appears that, in addition to the training expertise and instructional design, it had a lot of substantive contributions from people in the field.
Currently, the way the training is designed now, we've added it up that there will be about 21 days of actual instruction over a period of 3 years. Not all of the training is yet completed, in terms of design. And a classroom day is six hours of instruction. So they have a course the first course that people will take is fundamental knowledge and skills, and it's going to be a blended four hours online and some in person, emphasizing mainly 118. That's six days of instruction.
Then there is another course on interviewing techniques, which will be about three days; another course on report writing, which will have six virtual classes with a learning portion and some practice sessions. They will be writing a portion of investigation files, and having documentation turned in for feedback. This one is something that's slated for Fiscal Year 2017. It'll be six one hour sessions over a period of six months. They will also have independent assignments, so this will likely be about 24 hours of instruction.
There is another course in legal concepts and knowledge, where the students are required to do a seven to eight hour pre training first. It's a both knowledge and skills course, looking at different statutes, but it will likely run over six days. And that six days is over and above the seven to eight hours of required pre training.
There is another course on complaint resolution and settlement negotiations. That will be three days. It will not be web based. They're still working on that right now. And then OSHA is going to start to develop two to three hour webinars regarding specific statutes that are grouped by subject matter. This is not part of the operational plan yet. This is where I think the committee members and the larger WPAC can probably provide some additional resources and assistance to the training group.
The course topics that they're looking for for some of these statutes will be focusing on environmental, energy, financial, consumer products, and transportation statutes. They will be grouped by statutes. And those will be more legal and rigorous webinars. Those are not yet in development, and that's the next phase.
Students typically have pre and post tests, and they get oral feedback from their instructors and also from more experienced, you know, professionals that are have been, you know, in the field for years. And they are have written tests with a minimum of 30 questions, with every class having three to seven learning objectives.
Right now the current training only covers federal investigators, but the state plans that have requirements to meet or exceed the federal standards can also send their people to federal trainings, or they can develop their own.
One of the things we talked about was the OIG report that came out in September 2015, and how this training responds to that. And there needs to be a balance, I guess. OIG wants a balance between and that's the office of inspector general wants a reasonable balance between timeliness and quality.
But one thing that Anthony raised to us, which I think is important, is there are basically 100 investigators with 3,200 docketed cases, and 7,000 complaints filed from last year. So, in terms of one of the biggest complaints from the OIG was the timeliness. We're not sure that this training is going to be able to address that. That seems to be much more of a resource issue.
We then asked OSHA for priorities for the subgroup. Their first priority for us was excuse me helping to ascertain the takeaway that the learner needs. What should be the required takeaways, for example, at the end of the federal statute webinars that I discussed? And those would be environmental; energy; financial, which is mainly SOX; consumer products; and transportation.
Another priority, that they need more technical classes, such as advanced transportation. And Robert Miller of FMCSA, who is one of our group members, indicated that his agency has some transportation materials. And again, this is where the larger WPAC may be helpful in providing some resources, because in addition to the development that they're doing at these more formal webinars, OSHA employees have individual development plans, or IDPs. They could be one, two, or three year plans, and they work with their supervisors, and they can take courses in their local areas. So another priority is to find some shared resources for independent study for the investigators.
The next priority would be to look at training opportunities for training on other issues, such as emotional intelligence, empathy without sympathy, cultural differences for interviewing. And on that last one, right now they have a one hour offering in the interview and training on dealing with cultural differences. But some things that are particularly important is that there is some nationalities or ethnic groups where looking people directly in the eye is considered difficult, or the way questions could be answered can be difficult. So we really want to make sure that the OSHA investigators are properly trained on some of those nuances which could be critical in getting to the bottom of the complaint.
And then we're also going to be looking at lessons learned from case reviews that DWPP is doing, and other lessons learned, so that if there are if there is information that should be funneled to the training group, they can act on it quickly and either tweak or revise or develop new training offerings. So we need to figure out what kind of pipeline there would be for that.
Finally, we are going to get a task force a matrix of the classes and one full set of training materials after we get clearance from WPAC so that we can be better prepared to make some recommendations.
And that's all I have for now, and hopefully other members of the subgroup will add things that I have missed that are important.
MS. SPIELER: Thank you, Marcia. Now, as I understand it, Anthony, the while the charge to the subcommittee specifically looks at internal training, the Department may be open to widening that charge, as we go forward.
The other members of this group are Eric Bachman, Sylvia Johnson, who has been was absent for these meetings okay, who is here now, but was not part of the discussion yesterday Nancy Lessin, Robert Miller, and Richard Moberly. Do any other members of the subcommittee
MS. NARINE: Well, actually, I will add one thing, Emily, before we do that.
MS. SPIELER: Yeah.
MS. NARINE: We did ask about the possibility about whether we should look at external training for employers, unions, other kinds of civil society organizations.
MS. SPIELER: Yeah.
MS. NARINE: That's not within our charge right now, but it's something that, if the large group believes we need to look at, we can take a look at that. And we did ask OSHA whether that was one of their priorities, and were told not at this time.
But I can see it being something that might have some cross fertilization with the outreach group because, to the extent that new guidelines come out, there will need to be some kind of training, especially for small and medium sized businesses and other organizations that don't have a sophisticated compliance program. So we can see some overlap there.
MS. SPIELER: Yeah. Thank you, Marcia. Any comments or questions, additions from Marcia's report?
MS. SPIELER: Again, I think and with the addition of the staff members who focus on training within OSHA, I think it's going to be an incredibly valuable committee. And I certainly am impressed with the amount you already got done, given the that it was only yesterday, and only the first meeting.
So I assume and I suspect that at our next full WPAC meeting we will devote more time to the work of the subcommittees. And if there are specific recommendations that come, we will then be voting on them. We do not anticipate any votes today on this or any other matter.
I am going to move ahead with the agenda. We have about picked up most of the time that we lost by our delayed start. And we are going to ask our the representative from the SEC to come and sit here and talk with us.
Let me give a little background about these next two presentations. When WPAC first was formed we had a number of conversations about the fact that we were both interested in knowing how some of the sister agencies where there was shared responsibility were dealing with retaliation complaints, but also learning from other agencies in which there was no shared responsibility as to how retaliation and whistleblower complaints were managed in order to inform our own conversations about what kinds of advice we could give to OSHA with regard to improvements.
So, this morning we will hear from the SEC, where, as you know, we have not only experts on the advisory committee, but also there is shared responsibility between OSHA and the SEC, but also from the wage and hour division from within the Department of Labor, where there is no shared specific responsibility, but where there is an anti retaliation statute that wage and hour is responsible for, and it echoes back to something J.J. said in her report with regard to the fact that people may be bringing forward complaints that overlap between different agencies within the Department of Labor.
So, the first report will come from the SEC, and I would ask you to introduce yourself fully before you talk. And then we will have some whatever questions that members of the committee may have, and then we will move on to the wage and hour division.
MR. MCKESSY: Okay, great. Thank you and good morning. Is it okay if I move around. I don't like speaking with my back to people.
MS. SPIELER: As long as you hang on to the mic.
MR. MCKESSY: I will just come over here, and hopefully everyone can see me.
I am Sean McKessy, I am the head of the SEC's office of the whistleblower. The office was created as a creation of the Dodd Frank Act, and I will talk about the retaliation aspects of that. July 21, 2010 is when the Act was passed. We're going to talk about one of my favorite aspects of it, which is the retaliation section. But my real favorite is the section that required the SEC to set up an office of the whistleblower, and even more a favorite is the one that said that they had to hire somebody to run the office, because that created my job.
MR. MCKESSY: If you've heard that the government can't create jobs, I'm here to tell you that's not exactly true.
So, talking about retaliation, Dodd Frank includes obviously, it's a statute that's about this thick and has a number of different provisions to it. The one that we'll talk about today is the retaliation enhancements created under Dodd Frank in our whistleblower program section. And, you know, just to state the obvious, our agency can only only has jurisdiction over securities law violations. So to the extent that there is retaliation about anything outside of you know, retaliation happening because of reporting of possible securities law violations, that's not going to be within our bailiwick.
But very specifically within our bailiwick, and for the very first time, our agency has the authority to enforce retaliation protections. So, in broad strokes, the Dodd Frank whistleblower anti retaliation provisions are an add on or enhancements to the retaliation protections and remedies that were provided under Sarbanes Oxley.
Sarbanes Oxley provided a number of provisions requiring certain individuals to report up the ladder if they're aware of securities law violations and had protections built in, particularly for public company employees who reported, pursuant to their obligations under Sarbanes Oxley, that they would not be retaliated against, and there were certain remedies built on.
Now, those remedies under Sarbanes Oxley, were limited in some regards because it required individuals who felt like bad things happened to them because they reported securities law violations to go through a process that is still in place, which is to report through the Department of Labor and have a finding made before you get access to the courts.
And Dodd Frank included enhancements to that anti retaliation regime. It doesn't replace Sarbanes Oxley, and the process by which individuals can report that they were retaliated against for reporting possible securities law violations under Sarbanes Oxley is still existent, and clearly, individuals still take advantage of it.
What Dodd Frank did is it added other mechanisms by which individuals who feel like they had bad things happen to them in their workplace because of reporting a securities law violation, there are now other avenues to pursue, and there is also enhancements, in terms of there is a longer statute of limitations to report. If individuals feel like they were retaliated against, there is enhancements to the remedies that can be received, up to two and a half times back pay. Reinstatement is a remedy also that is specifically enumerated in the statute.
For our purposes, the very interesting aspect of the Dodd Frank anti retaliation protections is, for the first time, Congress instructed the SEC that we have the authority to enforce the retaliation protections. So how did it do that? The whistleblower program provisions, including the retaliation protections, are built in to and, by statute, were instructed to be housed in the Exchange Act of 1934, which is, by definition, a statute that we have the authority to and the mandate to enforce. So, by putting the anti retaliation protections in the Exchange Act of 1934, the Congress was essentially saying, "Okay, SEC, you now have a statutory mandate and a statutory responsibility to think about retaliation issues."
You know, the agency has been in place since in the early 1930s, and I think it's fair to say that most individuals who came to work at the SEC did not think about employment related issues. Protections of employees is not really something that historically we have been involved in. This is my second stint at the SEC. My first stint was from 1997 to 2000. I was an enforcement attorney. And this was not something that was ever on my radar screen. You know, that was for somebody else.
You know, to the extent that there was a securities law violation, of course we wanted whistleblowers to tell us about it. We wanted employees to tell us, and then we would take it from there and bring appropriate action. But to the extent that an employee felt like bad things happened to them, that was not for us. Now it is for us.
So, one of the first challenges I had when I took this job in February of 2011, the statute had already been passed, our rules were more or less fully baked. So the first priority I had was to sensitize the enforcement staff to the fact that we now have this new authority. And you may not have every asked questions about these kinds of things.
But now it's appropriate not only appropriate, we're required to pursue investigations when timely, specific, and credible information is provided that an individual who reported wrongdoing had were harassed, demoted, fired constructively fired. All of the traditional ways you'd think about retaliation. And if those happened because an individual reported securities law violations, that's something that now we have the authority to enforce.
So we I spent a fair amount of my early days just educating staff on this new authority, and asking that they build into their investigation and enforcement plans questions around, you know, if there are credible allegations of underlying securities law violations, one of the things we routinely now ask companies is, "Did anybody report this to you, internally? And, if so, can you provide us with any information about their employment record from the time that they reported, going forward, so that we can assess whether the company was taking seriously the fact that an individual raised their hand and said that, 'We think that something inappropriate has happened'?"
And if bad things happened, as I'm sure you who have experience in this often times wildly coincidentally, right bad things start happening from the day the company becomes aware that an individual has reported wrongdoing either internally or to a regulator. And so, those are the kinds of things that we're looking for.
We have, so far, brought one case under the anti retaliation protections. This was brought in June of 2014. I will pause here for my crass commercial break. If you're interested, I have a website, sec.gov\whistleblower. And if you go on there you'll be able to find a link to the case that we brought.
This was a case that involved an individual head broker at a hedge fund in Albany, New York, who was asked to conduct in some self interested trading on behalf of the brokerage outfit. He got very uncomfortable about doing that, and ultimately, after pushing back several times and documenting his concerns to the SEC, on July 28th of 2011 he reported to his employer, "Not only am I no longer I am not comfortable and I am not going to engage in the kind of conduct you've asked me to, you should also know that I have reported this to the SEC."
And from that moment literally, from that moment on, everything went bad for him from an employment perspective. So he was stripped of his broker his head broker title, he was removed from the trading desk, he was escorted up to another office upstairs, away from the entire team. He was provided with a stack of documents about five inches tall with a yellow highlighter, and he was told, "Okay, sir, you're so concerned with compliance, go through, you know, tens of thousands of records of trades and highlight the ones that you think are inappropriate."
He said, you know, "If you give me my computer, I can do this in 30 seconds." They said, "No, no, no. You're a compliance guy, we want you to take your time. You sit in this office, and all you need to do is highlight, you know, page by page, go through." And "Oh, and by the way, since you are so concerned about compliance, here are nine compliance manuals. We want you to consolidate them into one master compliance manual."
Now, this is a guy who was traded and hired to be the head trader at a hedge fund, and now he is essentially being marginalized to be a job that he's not really qualified for, but because he was so concerned about compliance, he was marginalized. He ultimately left the company. So he and pursuant to his tip, we had investigated the underlying allegations.
As it turned out, he was correct, the company was asking the hedge fund was asking him to conduct inappropriate trading. And as we conducted the investigation, we also asked questions about what happened to this individual. From the day he reported until the time he left nothing really went well for him. And we asked for records about his prior performance record. He was consistently rated highly, he always participated in the highest end of the bonus pool right up until, coincidentally again, the day that he announced that he had reported to the SEC.
So we asked about that, we asked, you know, "How is it that you decided that your head trader would now become the head compliance guy?" Interestingly, in this case, the company relied on counsel, and they waived the privilege and allowed us to ask questions to counsel. And as it turned out, counsel actually advised the hedge fund that, "You can do literally anything you want to this guy, as long as you maintain his benefits and his salary at the same level," and so they followed that advice and they just took him off the trading desk and they kept him on his salary and his benefits.
We thought that was horrible advice, and but it did remove an element of intent that we were not able to establish that the company aided and abetted the retaliation violation because the individuals did in good faith rely on counsel's horrible advice. But in any event, we were able to bring our very first retaliation charge. The company settled for us settled with us in connection with the underlying violation, and also agreed to pay a penalty for retaliating against the individual.
Fast forward, the good news for the whistleblower continues. About eight months later, one of the aspects of our program that you may not be familiar with is that we are able to pay whistleblowers who provide us with good information. He did, and provided us with information that helped us bring a successful action where we got over a million dollars. So, pursuant to the payment provisions of our program, we were able to pay the whistleblower a substantial amount, 30 percent of the amounts that we collected.
Now, you know, the story for him is not all great. He obviously, he was fired, he's been marginalized in the industry, and has had a hard time finding another job as a broker. But we were able to at least provide him with some level of recompense, and we were able to fine the company.
So, one of the things that I get asked often is, you know, "Okay, SEC, you now have the ability to step in when you see retaliation, but what are your remedies? What can you do?" I think it's too early to say exactly the full scope of what our authority will be.
The statute sets forth, as I mentioned, a number of remedies that an individual can get, including 2.5 times back pay, reinstatement. My own sense and this is just me talking is those are not traditionally remedies that we have the authority to enforce. You know, generally speaking, when we have violators, we punish the company through civil fines. And at least in the one case we brought so far, that was the extent of our remedy. So we fined the company.
The statute, as I mentioned, has other avenues, including the OSHA process. Dodd Frank also included a right of direct action, a right of private action. So an employee who feels like they've been retaliated against can now access the courts immediately without exhausting the Department of Labor process. And this individual has availed himself of those remedies, as well.
But I just wanted to emphasize that our role in pursuing retaliation cases, at least at this point, is limited to asking the company about how they took action against an individual. And then, if we if it's appropriate, fining the company for doing so. And we let whistleblowers know that there are other aspects, other remedies you may be able to avail yourself of, but we're not the agency necessarily that can get you everything that perhaps that you want.
One of the very interesting questions that came out when we were proposing having this authority, when the rules were proposed about how we would implement the retaliation authority, one of the questions was, "Does a whistleblower have to report to us in order to be protected, or is internal reporting sufficient?" And there was a lot of discussion about this back and forth.
The commission has come out very clearly on this and stated that we believe any individual who reports well, let me take a step back. So the statutory framework that Dodd Frank puts in place says that individuals are protected for certain protected activities, one of which states, in essence, that an individual who engages in activity protected under Sarbanes Oxley is protected. And Sarbanes Oxley, as I mentioned, allows for individuals to report at least public company individuals, it allows and mandates that they report to the internal compliance function.
So our view has consistently been and I think, consistent with the statute individuals who participate in internal compliance reporting, pursuant to Sarbanes Oxley, fall within the protections of the anti retaliation provisions broadly.
Interestingly, companies do not all agree with that assessment, and have actually litigated on this topic. And, you know, one of the interesting things that I've observed my background is between my two SEC stints I was in house at three different companies, so I have a sense of the industry perspective on some of these things, and appreciation for sometimes the difficulty of implementing an in house process under a regulatory umbrella.
But one of the interesting things that I've observed is, in some instances, the companies that argued when we were proposing this program, that in order for somebody their employees to get paid under the program, we, the SEC, should require that they first report internally because, the company said or corporate America said in the comment period, "You can trust us. So if our we want our employees to come forward. They want them to come to us first. It will save you, the SEC, a lot of resources, and it will save you from getting a lot of the HR type reports that we always get and we can handle before you need to waste your regulatory resources." Always appreciate corporate America helping us in a regulatory standpoint.
Ultimately, the commission did not mandate internal compliance reporting as a pre requisite to an award, but built in some incentives to allow for internal reporting. But the reason I'm bringing this up is that the interesting thing is some of the same companies that argued very strongly that we needed to mandate internal compliance reporting as a pre requisite to an aware under the program are the same companies that are now litigating in courts saying that, "My employee who reported to me," or reported to the company, and never reported to the SEC lose one of the three benefits of the program. So they lose their retaliation protections.
This irony is not lost on me or anybody at the agency, that companies said, you know, "You have to allow and you have to require our employees to report internally, that's what we want them to do," and they are now litigating against their own employees to say, "You have lost your retaliation protections because you reported internally."
The commission actually came out very strongly and this doesn't always happen, but they issued their own interpretive guidance around this topic, and you can access that interpretive guidance on my website to specifically say that, "We believe" "The commission believes that individuals who report internal wrongdoing, whether it be internally or to us, ought to be protected under the retaliation protections," and that we have a role to play in pursuing those, regardless of whether the individual only reported to us after they were retaliated, as long as they tried to report the wrongdoing internally.
There has actually been a split in the courts on this. The Fifth Circuit was the first to weigh in on this topic in a case called Asadi, GE Capital versus Asadi. Interestingly, the issue of internal reporting wasn't really even argued. It was one of a series of arguments that GE Capital made.
And so we, as an agency, were caught flat footed. So we weren't a party to it, but we have weighed as amicus on a number of these cases. We didn't see this as one of the cases where we needed to weigh in. Ultimately, the Fifth Circuit concluded that because
MR. Asadi had only reported internally and had not reported to the SEC, he was not entitled to be protected under the anti retaliation protections.
We have, since that time, been very actively engaged in as amicus in this process, and the commission did issue its interpretive guidance. The Second Circuit recently came down in a case called Berman that to the contrary, so that an individual who reports internally is protected under the anti retaliation protections. So this sets up perhaps a circuit split.
District courts around the country have weighed in on this topic and have come down on both sides. I think the majority of district courts have come down on our side, but there is clearly a split. And then, you know, obviously, the Supreme Court's composition is a little bit in flux right now. But one of the things that people are suggesting is that maybe this is a topic that ultimately the Supreme Court will resolve.
You know, one of the interesting aspects from my perspective again, as someone who was in house and is now a regulator in my conversations with people who either represent companies or work at companies is to set a cautionary tale. You know, when we implemented this program, as I mentioned, we didn't mandate internal compliance reporting, but we built in incentives to allow whistleblowers to report internally and preserve their rights to still get paid under our program. In fact, first program I'm aware of that allows individuals to get paid, even if they reported internally first.
And so, as a result of that, our messaging around the program to individuals who may be aware of securities law violations is we are more or less agnostic. If you see something, we literally want you to say something. And it's okay if you work for a company that has a really good internal compliance function, and you believe reporting it to that function will get the wrongdoing stopped, then it's okay with us if we never hear about it, because, you know, we're for the protection of investors.
You know, we built in a mechanism to allow you to report to us, but many of you employees work for companies that will do the right thing. Ultimately, the commission decided we can't know every single company that we regulate and how seriously they take retaliation. So the whistleblower is really in the best position to decide whether their coming to us or going through their internal process or both is the right thing to do.
What is worrisome, and what I've tried to say in my stump speeches when I'm in front of audiences of employers and people who represent them is if it becomes the law of the land that one of the three basic elements of the program, anti retaliation protections, depends on individuals reporting to us, then you are going to hear me and hear others at the SEC change our messaging around, "If you see something you have to say something to us. You would be crazy not to say something to us because you will lose, fundamentally, one of the fundamental three elements of the program, your anti retaliation protections."
And, I say to corporate America, you don't want me to do that. So I don't understand why you're taking a very myopic view in individual litigation. You may win one individual litigation in Nebraska or in Texas, but you may be losing a broader war. And so be careful about what you're doing.
You know, I can't say that my words have any more sway than anybody else's, but I do think, as someone who used to work in house, I appeal to general counsels, you know, "You have to have a broader view of what's good for your company and what's good for employers. And if you continue to take these positions that you're taking, it's going to result in a number of people who otherwise are not inclined to report to us to get the message that not reporting to us is at your own peril."
So, that's where we are. I'm not here to make news. I'm not allowed to make news. I probably should have started with my usual disclaimer, which is the views I express today are my own and not necessarily that of the commission or its any of its commissioners or the staff.
But I will say that we that one case that we brought under the retaliation case will not be the last one. So we are actively tracking a number of very interesting investigations that have what appear to be very credible allegations that individuals who reported wrongdoing had bad things happen to them, up to including being terminated. And we think that the first case has sent a strong message that the SEC is here to stay, and is here taking an active role in the employment space, which I think came as a surprise to some individuals, but is something, I think, that's important.
Not entirely specific to the topic at hand, but another species of bad things happening to employers or employees or employers taking action against employees to continue to engage in conduct and shielding regulators from seeing it is what I call "pretaliation", and this is where employers use either their code of conduct, confidentiality agreements, employment agreements, severance agreements to, in word or substance, say to an employee, "You anything you know about the company you have to keep between us, and you may not ever report it to a regulator."
From my perspective, all I care about no offense to anybody here is to the SEC. And so we have a rule under our retaliation protections the commission passed a rule that says, essentially, no person shall take any action to preclude an individual from reporting a possible securities law violation to us.
You know, the basis for this is, you know, I really love my job, and I want to keep it. And my job will go away very quickly if corporate America could contract out all of their employees to say, "You can never report to the SEC if you want to keep your jobs," or, "If you want, you know, this bucket of money for your severance, you have to follow our code of conduct, which says that you can't report anything externally."
We have brought one case under that provision. There is a company called KBR that was conducting an investigation of a securities law allegation, and every one of their employees who they interviewed was handed a piece of paper that said, essentially, "Everything we talk about is between you and I, and you agree that you will never tell anybody else about anything that we talk about in this room."
We got a copy of that agreement, we asked the company how does this square with 21F 17(a). They said, "Well, you know, we were just worried about them running to the press or talking to their colleagues. We didn't think about the SEC." And we said, "Well, you kind of have to, you're a public company." And long story short, we fined that company for violating our rule 21F 17(a), and the company also agreed, as an undertaking, to provide everyone who signed that document with a new document that said, "If you interpreted anything we said to suggest that you can't report to the SEC, we're here to tell you that that's not true. You can report to any regulatory voluntarily, regardless of anything you've signed."
Again, I'm not here to make news, but KBR will not be the last case we bring under 21F 17(a). This is a space they were very actively investigating. Something that I spend a lot of my time when I'm educating our internal staff on is be aware that we have this authority. Ask for documents that individuals were asked to sign.
I can't tell you how many times lawyers who represent whistleblowers come to us and say, "I would love to have my guy come in and talk to you, but he can't because he just cashed this huge severance check and he was worried that if he talks to you he's got this thing in his severance agreement that says he can't speak to anybody," or they come in and say, "Hey, listen, he's going to sign this agreement on Thursday, so if you want to talk to him you better come in right now you better have him come in right now." And those are all things that we're very interested in hearing about.
Like I said, the program and our ability to enforce the securities laws will be severely compromised if we allow corporate America to contract out their employees. So this is an aspect of retaliation that we are very interested in, you know, kind of avoiding someone even getting to a point where they can be retaliated against because they're precluded from ever reporting to us.
So, in broad strokes, that's where we are, from a retaliation perspective. As I said, more news to come in this space. One of the things I don't know about your agency experience you know, once somebody brings the first successful action, I have received so many calls now from across the country from enforcement staff saying, "Hey, I want to get in on this, what am I looking for, how do I bring a retaliation case? I've got, you know, individuals who say that bad things happened to them."
And so we've got a lot of momentum in this space, and I'm looking forward to making additional news to say that the SEC is here to tell you that your employees ought to be protected if they report possible securities law violations, whether it be internally or to the SEC.
MS. SPIELER: Terrific. I'm going to ask you to sit at the table.
MR. MCKESSY: I will.
MS. SPIELER: Because I think that there are members of this committee who will and it really is for the committee that we asked you to come will have questions for you. And so why don't you swing around and face us? No, really, with your back they are not here for you to speak to, we are here for you to speak to. Okay? Thank you.
MR. MCKESSY: Happy to do
MS. SPIELER: So I'm going to open this up for to members of the committee. Richard?
MR. MOBERLY: So this is Richard Moberly from the University of Nebraska. And first I want to say the Nebraska District Court case held actually in the same way that your agency ruled on the internal whistleblower issue. So I just want to correct the record on that.
MR. MCKESSY: I was using that as an example
MR. MOBERLY: Yeah, well
MR. MCKESSY: The finest cities in the middle of in the Midwest. So
MR. MOBERLY: Well
MR. MCKESSY: Not a specific reference.
MR. MOBERLY: Yeah, right. So the question I have, actually, to have a thousand personal questions I want to ask you for my own personal interest, but I'm going to try and keep it to what might be interesting to the committee.
So, structurally, as I understand the SEC set up, is you have enforcement agents or enforcement officers who go out. And part of their duty, as you said it, was to think about retaliation among the 100 other things they're thinking about, right? And OSHA has taken a different structural position, where they have enforcement officers who enforce the substance of their statute, and then this whistleblower protectorate, where they have officers who are on the whistleblower side to deal with retaliation, specifically.
And I was just wondering if you could speak to a little bit of the advantages and disadvantages of your structure, as compared to OSHA's structure with regard to actual enforcement. And this is in light of, you know, within five years, having one retaliation case come up through the SEC. And I just wonder if you could speak to that a little bit.
MR. MCKESSY: Sure. So just to frame it, we have in the agency we've got a number of different offices and divisions. And of note here we've got our enforcement staff, which is about 1,100 people across the country whose mandate it is to investigate possible securities law violations and then, to the extent that they ripen into investigation, to bring actual litigation. So we've got a trial unit within that grouping.
In addition we have the office of compliance inspections and examinations, and that also is about 1,000 people, and their job is to conduct examinations of our registered entities, so your broker dealers, your investment advisors. So about 2,100 of our 4,000 plus individuals are tasked with doing the work to investigate and conduct examinations around possible securities law violations.
I think one of the things that your question touches on is, although we have some specialty units within enforcement, in large part our enforcement and examination staff are generalists in nature. And I think that there may be some disadvantages when you don't have individuals who are specifically tasked about slivers of your mandate so that, for example, if it could be an enhancement to our efforts if we were, for example, able to hire investigators, similar to other agencies have investigators, you know, fact finders on the ground whose mandate is specific to, you know, what name the topic. And for these purposes let's say it's retaliation, and you had a fleet of investigators whose job it was to do the fact finding in connection with that. We don't have that.
I guess one of the potential advantages to our approach is often times when you have allegations of one species of a securities law violation, it often is the case that there are others. And I think one of the advantages of having generalists involved is and individuals with a mindset that is broader than a particular type of violation is they can see it and know that maybe they don't know all of the details of it, but they know broadly what falls within our mandate and within our jurisdiction, and have the ability to expand an investigation that may have started out very tailored, which is not to say that can't happen under the other guidelines, but I think, as a general matter, the way our offices are structured is with a mind that we have a broad mandate to protect investors, facilitate capital formation, and so we implement our enforcement efforts with individuals with a broader perspective.
And so, that's the way I see the pros and cons kind of weighing out in that the structural differences between the agencies.
MR. MOBERLY: Thank you.
MS. SPIELER: Other questions? Greg?
MR. KEATING: Thanks very much for taking the time. It's very interesting to hear what you're up to at the SEC. I have sort of a twofold question around the interplay between SOX and Dodd Frank.
And so the first is sort of a procedural question, which is can you comment at all on the extent to which OSHA and the SEC communicate when individual charges are brought and, you know, refer maybe for lack of a better word
MR. MCKESSY: Sure.
MR. KEATING: cases to one another? And that's the first question. And the second question is I thought I heard you say a number of times that, you know, when the commission sees that someone has complained about Securities Act issues and then is retaliated against, you will jump in.
The second question is that, you know, the one of the things that's evolved a lot in the last five years is the scope of protected activity under SOX. And I guess I'm just asking you. Is it your personal opinion that the Dodd Frank retaliation provision is really limited for activity arising out of securities law or regulation complaints?
MR. MCKESSY: Sure. So first, on the collaboration question
MR. KEATING: Yeah.
MR. MCKESSY: I think it is well, there is a couple of things I know for sure that are happening on a routinized basis.
So, to the extent that an individual brings an action alleging retaliation through the OSHA process, it is routinely the case that, to the extent that there are securities law issues involved, that those complaints are routinely sent to our enforcement our office of market intelligence, so that it can be built into our database, our intelligence database, to say that there are allegations out here of securities law violation, including retaliation. And that happens on a daily basis.
Probably the more ad hoc kind of collaboration that happens is something that I'm not as directly involved in, but I'm aware that, for example, if we get and this happens, every agency gets complaints and for whatever reason individuals think that we have jurisdiction over it and it turns out that we don't, we do try, as best we can, if we get something that is not of interest to us or that we don't have jurisdiction over but we are aware that one of our regulatory partners does, and should be interested in, we will try to find the right home. And that certainly includes, if there are retaliation allegations made outside of the securities law space, we will try to find it a home.
One caveat there, and it's an interesting caveat. When Congress passed the Dodd Frank Act they imposed upon us fairly strict confidentiality responsibilities. So we are not permitted to directly or indirectly identify a whistleblower who came to us under the program, even to our regulatory partners, absent additional safeguards. When it comes to OSHA, for example, if we got the whistleblower's consent in writing, we would be able to share identifying information. Now, we're allowed to share the underlying allegations as long as we don't cross the line of directly or indirectly identifying.
So but subject to that sensitivity, I do think it's routinely the case that we try to find a home if something is completely out of our jurisdiction, but also if we have co extensive jurisdiction, that we try to include our fellow regulatory partners or SROs to the extent that allegations are made that we can either together pursue or, you know, bring parallel actions, whatever it may be. So that's the approach to collaboration.
On the Sarbanes Oxley Dodd Frank relationship question, as a general matter, as I said, our jurisdiction is limited to instances of securities law violation, and that's true under Sarbanes Oxley, continues to be true under Dodd Frank. There's a number of interesting questions that have come up about how, if Sarbanes Oxley continues to be and it is you know, Dodd Frank didn't repeal Sarbanes Oxley, so it continues the mechanisms that were set up under Sarbanes Oxley are still perfectly viable and appropriate and enforceable, from our perspective, and Dodd Frank has enhanced them in some regards, and in some regards created new avenues.
But one of the interesting questions that has come up and I'm glad so far we haven't had to answer it is what happens if we have an individual who is an attorney? We allow attorneys can be whistleblowers under certain circumstances, and they bypass their internal compliance function and report to us under Dodd Frank. It turns out they help us bring a good case. They fit within the exception to the exclusion of attorneys, so we can pay them.
One of the questions I've been asked is, well, what happens if that attorney did not report up the ladder, as required under Sarbanes Oxley? So you have a violator of Sarbanes Oxley who you're trying to reward under Dodd Frank, and this is, I think, a law professor's dream, right? This is ask your law students to answer the question. Fortunately, we haven't had to, but I think I bring this up only to say that the statutes continue to operate in parallel, and are both vital tools in our arsenal, but I think there are going to be instances where it is going to be difficult for us to square our obligations to enforce one, on the one hand, and enforce the other on the other.
I'm not sure if that completely answers your question, but
MR. KEATING: Let me try I didn't mean let me just can I just quick follow up?
MS. SPIELER: I you're asking about the effect of Lawson on Dodd Frank?
MR. KEATING: No.
MS. SPIELER: Oh, okay, go ahead.
MR. KEATING: No. So a quick follow up would be, you know, SOX has a very short statute of limitations. It was extended by Dodd Frank to 180 days, but 180 days is 180 days. And conversely, Dodd Frank has up to six years, I believe, which is a really long statute of limitations.
So if someone misses the statute of limitations under SOX, and a year and a half goes by, and they have raised some concerns that are not directly securities related, okay, they were bank fraud, or wire fraud, or something that is directly covered by SOX, I guess my question and it's really ambiguous under the case law and again, I'm not asking for your commission's opinion, or
MR. MCKESSY: Right.
MR. KEATING: I mean do you agree this is kind of an ambiguous, difficult thing, or is it your view that your commission is looking only at securities law violations?
MR. MCKESSY: I well, again, it's for the commission to decide on these things, but my own view is that, although some aspects of the retaliation protections are in the securities law space, there are certainly some aspects of it that are broader. And my own view would be that the retaliation protections in particular, and the extensions of the statute of limitations, because there are certain remedies that are only available outside of the securities the SEC's process ought not to be viewed so myopically.
And so that individuals who fall within even if they don't allege securities law violations, may be entitled to take advantage of those extended statute of limitations issues. Again, outside of my particular expertise, but my own view is that, although there are certain aspects of it, certainly, that are clearly delineated specifically for us to implement, I think there are certain remedies that are available to individuals outside of the securities law context, and my own view is that retaliation ought to be viewed in that rubric.
MR. KEATING: Thank you.
MS. SPIELER: Okay, wait. I just want to ask. Is there anyone here from the wage and hour division? Okay, so we will continue this discussion until the break time. If they don't show up, we'll just proceed without them.
Go ahead, Dave.
MR. EHERTS: That's good news. I'm Dave Eherts, and I'm a management rep, so I'm acutely interested. I'm vice president of environmental health and safety at a big pharma company, and I'm acutely interested in your discussion of internal whistleblowers and protection thereof, because I make an argument to my leadership daily that we need to be a learning organization.
And we actually desperately want the information employees have, especially when it pertains to hazards in the workplace, when it pertains to mistakes or errors people are making, whether it be financial or safety, and that it's really important that we encourage people to report to us early and often, because if we can nip them in the bud it's a much more effective way of correcting this behavior and setting a culture that we want. Or, if it's a workplace hazard, we can catch it before somebody else becomes injured.
And so, I want to encourage you to stick to your guns on this internal whistleblower issue because I would argue that enlightened people in industry will support you.
MR. MCKESSY: Well, I appreciate that. And, you know, I guess not to put particular individuals on the spot, but, you know, one of the questions and I won't ask you, but one of the questions I consistently ask when I'm addressing a group and part of my job is to do that, to educate people in house and people that represent companies on the aspects of the program one of the questions I ask is, you know, to what extent are you educating your employees on the fact that our program exists, and that in built into that program are specific incentives to encourage you to report internally.
And most of the time I hear, "Sean, you seem like a nice enough guy, you know, you used to be one of us. But I don't want my employees to know anything about you. I don't want them to know anything about your program, you know, because if I let them know that there is an opportunity to report to a regulator, that's already something I don't want to have happen."
And I personally I know this can often sound as a regulatory Pollyanna ish discussion, having been in house before, but I think that's a lost opportunity to educate your employees. If you really want them to feel empowered if they see something to say something, providing them with a full menu of options and I have no problem with companies taking very aggressive encouraging statements. You know, we really take seriously if you think that you see something wrong, we want you to report to us, and then you have to demonstrate it. Right?
I mean one of the things I always say is, having worked at three companies, if you think you've got the best compliance program, you've you know, you got a website, you've got mandatory training, you've got the whole thing, but everybody who reports ends up fired or, you know, in a new position, and you think your employees aren't aware of that, then you're naive. I mean people the culture you set is going to be way more important than the system you put in place. And, you know, employees talk around the water cooler all the time about, you know, "So and So raised their hand and, guess what? Now they don't work here any more."
So, as I said, right now I think that we are aligned. And, I you know, when I took this job, one of the, you know, questions, "How can you, as an in house guy, go in and, you know" I don't believe that I'm on the wrong side or the antagonistic side to corporate America. I hope that I think we're more aligned philosophically than we are nobody wants to have enforcement staff come and look into them. I get that. But in terms of what we're trying to do, we're trying to do the same thing you are: encouraging people who are aware of violations to come forward and stop it before a $1 million problem becomes a $10 million problem becomes a $100 million problem becomes an Enron, WorldCom, no longer a job problem.
And so but, as I said, as a steward of a program that is intended to protect be advocates for whistleblowers, if the Supreme Court says that if you don't report to us you lose one of the three benefits, I am going to have to, as a responsible regulator, let educate employees to say, "You ought to report to us." I don't know if it's going to come to that, but I don't know that I have an option, as an advocate for whistleblowers in the SEC space.
MR. EHERTS: I would say my responsibility internal to my company, then, is to make that irrelevant. I would like employees to report internally, regardless of what the external opportunities are. And, in fact, we have metrics in place where we encourage reporting to the point that we have quotas on how many reports different departments have to have internally.
There is an old adage from aviation, these old single engine planes, mechanics used to say that if it's not leaking oil, it's out of oil. And so if you have zero reports, it's not that you have the perfect workplace, it's that you have no program to collect those reports. And so we desperately want employees to give us their opinion, and we keep track of rates of employees giving us their opinion, and we reward high rates.
And therefore, it's irrelevant whether they go external or not, because hopefully everything is fixed internally. And it's not a $1 million problem; often it's a $100 problem. And it can get fixed very quickly if only we know.
MR. BACHMAN: And I just want to say thank you again for a very informative presentation. And I just had a couple quick more process oriented questions.
So, when your office becomes aware that there is a whistleblower retaliation component to a claim that's come in the SEC, how do you coordinate with the enforcement attorney who is taking this more generalist approach on was there a violation of a securities law to make sure that, you know, in this particular investigation the whistleblower retaliation aspect of it is really investigated thoroughly?
MR. MCKESSY: Yeah. The best way we could do that is to do what I do and what my deputy does, which is travel the country and educate our enforcement staff. You know, at the end of the day, we are the centralized subject matter experts on whistleblower interaction to the SEC writ large. And so, we are we make ourselves available as the resource that they can lean on to say, "Okay, I've got credible allegations."
You know, sometimes it starts with, "I think this is credible, what do you think?" And we're there because we get kind of a centralized view of the kinds of allegations and the kinds of evidence that are presented, we have the centralized view to say, relative to you know, "Los Angeles has a much better case that follows this fact pattern. Here is the kinds of things you would like to have in that regard."
And so, the model we have set up is, although we have generalists throughout the agency, we have this centralized group, which is mine, that educates individuals that we have this authority, and then markets our ability to help them bring cases. We've developed a pretty healthy inventory of model document requests, model testimony questions, the kinds of things you need to look for, and so that's the now we compete with others, right, because there are other individuals in the agency who have their own pet projects that they want to make sure that we're looking into this or that or the other.
So but as I said, you know, once we brought that first case, the enthusiasm I have had to do much less pushing and a lot more pulling now, in terms of getting people sensitized to and being aggressive about pursuing credible fact patterns that include retaliatory conduct.
MR. BACHMAN: And about how many complaints per year do you all receive that involve whistleblower retaliation?
MR. MCKESSY: Yeah, we don't break it down by that. You know, we got just under 4,000 whistleblower TCRs last fiscal year. And so any figures I gave on how many of those have retaliation would be anecdotal and probably a rough guess. But I am here to tell you that we are tracking a number of very credible allegations of retaliation across the country, and we are very encouraged I mean it's encouraging, from our perspective, discouraging from a corporate America standpoint, the number and kinds of activities that have been reported that seem to have some legs to it.
MR. BACHMAN: Thank you.
MS. SPIELER: Other questions?
MR. KEATING: Just a quick one. On the 21F I think it any I know you're continuing to pursue and look for incidents where actions may muzzle or have a chilling effect on people. Is there any thought or I mean one of the things that we did that was a very successful, in my opinion, result was this best practices work group. We came up with guidelines, and I think the Department may be acting on those.
Any clarity that can be given around sort of, you know, "We know that these types of things are okay. We're not going to tell you what you know, what lay out there what we think is not okay. But these types of things are okay, as long as you have the following language in a settlement agreement or a severance agreement or a confidentiality agreement or a code of conduct"?
MR. MCKESSY: Yeah, we're asked this question all the time. And, you know, one of the things that I find enjoyable about my job is when I'm speaking people ask me to give them, you know, dispensation: "You can say this and I'll be okay."
And look, I think, as an agency, we're always trying to think of ways to be creative and letting those who are subject to our jurisdiction know the way we're thinking about certain things. The danger, obviously, is always when you say, "As long as you say these things, then we'll be okay," it takes away, I think, a very important part of our jobs, which is to not only go by what is said, but also get to context and get to, you know, the kinds of things I was just talking about.
You know, I think by all accounts Enron got an A plus in their compliance. You know, people from the outside world, looking at what the kinds of things that they had in place, the kinds of words that they were using to encourage their employees were exactly the kinds of things that everybody agreed are the kinds of things we want people to say. But unfortunately, the culture didn't lead to it.
And so, my own view and we've been asked this question a lot my own view, as from a regulatory perspective, I don't know why I would want to go any further than what our rule says, which is no person shall take any action that impedes an individual from reporting to us. And that allows us to approach each case on a very facts and circumstances basis.
Now, we brought the KBR case, and that's now public. And what KBR was willing to do and what they were willing to say in their documents is now instructive to other companies. And I'm asked all the time, "If we now implement what KBR says, will you leave us alone?" Well, the answer is no. KBR was we fashioned that settlement around what we thought was appropriate, given the context of how those facts arose.
That said, if you're doing something completely contrary, or you're doing what they were doing before, and that led us to bring an action, then you ought to be thinking about that. But I and there is so there is always education to be brought out of when people want to know what's on our mind, read our litigation releases. Read when we bring a case against a company, particularly a company that may be in your space, those are the kinds of things that are interesting to us.
But I think it's dangerous to then extrapolate that to say, "As long as I do what the company did when the SEC told them the remedy, then I'm then safe." It gives you when you come to the table with us, it gives you something, you know, a interesting argument to say, "Well, wait a minute," you know, "You told KBR to do this, and as soon as we read that opinion we went out and did it." That certainly can be persuasive, but it's not going to be dispositive.
So, this is a long way of answering your question. I think there may be some mechanisms other than actual enforcement actions to educate the public on what we're thinking. You know, I certainly spend a lot of my time talking about this topic. But and we've been asked on both sides, you know, the whistleblower community has asked us you know, has written the commission public letters to say, "You ought to say these are the 10 things you can't do," and then, on the other side, you know, "Give us the 10 things that, if we do, we'll be okay," and that's very hard, to thread both of those needles.
And so again, my own view is from a regulatory standpoint. We want to message, you know, be thinking broadly about the fact you know, are you doing anything that, in word or substance, tells your employees that they report wrongdoing to a regulator at their peril? And if you are, you ought to take actions to address that.
MR. EHERTS: Could I follow up
MS. SPIELER: Yeah, go ahead, Dave.
MR. EHERTS: I just have one last learning I'd like to communicate and that's that I think we have a very sensitive tool to determine retaliation in my workplace, and that's that we rate supervisors and managers and departments by the number of observations we receive from employees. And we have rates between 30 and 90 percent, so we get a lot of reports.
Well, the minute one of those departments goes to zero, that's an indication that there must have been retaliation, because people stopped reporting. Why else would they? I'm sure you haven't fixed all of the issues.
And so, what we do is we carefully monitor the number of good observations that come in by department. And the first time we see a sharp drop we investigate what happened to cause that drop.
MR. MCKESSY: And that's the kind of thing that would be very difficult for us, as a regulator, to kind of implement. I think that's, you know, that's appropriate for your context. And, you know, I certainly don't have any problems with it. But it may not be appropriate for a very small company or the like. And, you know, our jurisdiction does cover from the very smallest public companies to the biggest. And to set forth some framework for all of those and all the species would be very difficult to implement, I think.
MS. SPIELER: Other questions or comments?
MS. SPIELER: So I was actually surprised that you say you started there in 2011, and the first case was brought relatively recently.
MR. MCKESSY: In 2014, correct.
MS. SPIELER: Yeah. So why do you think that there was that lag time before you initially litigated a case? And do you think that the people who were raising concerns that fell in your retaliation bailiwick all went off to and filed their own complaints in court, instead of waiting?
MR. MCKESSY: Yeah, I obviously, it is a question that is asking for more speculation than actual data driven answer. I can say that, you know, when I took the job when I look back on my first five my five years here, when I first took the job it was a mad scramble to understand, first of all, what is this office going to look like?
You know, confidentiality was something that was brand new. You know, the statute said that anything we got in writing, until we passed our rules, would be would have to be deemed to be a whistleblower complaint. And so, our obligation not to identify whistleblowers extended to every writing we received during this period of time.
And so and I'm not saying this for sympathy on my job, but I spent a lot of my early days on the job trying to get our minds around and educating our staff on what our confidentiality requirements were, while still building an office, while still coming up with policies and procedures, while hiring individuals to work in the office.
And then, as we evolved, I started getting a lot of reactionary questions, subject matter expert questions about how do we deal with whistleblowers in our investigations. What can we can't we do in connection with putting a whistleblower on the stand, and those kinds of questions. Then we started to get our first trickle of claims rewards. And how do we process those? And how do we do that?
And I'm not retaliation questions didn't start becoming part of what I thought was a mandate for us to spread until we had put out a lot of the immediate fires we needed to. And that's not an excuse, I just think it is a practical reality, that our agents you know, people who work for the enforcement division were not sensitized to the fact that we have this authority. And I, frankly, didn't have either the resources at the time to be the cheerleader I've become for that species of our workings until I had had some time to kind of get my legs under me and figure out how this was going to work. So that's one aspect of it.
The other aspect of it is it is a truism that, you know, under Dodd Frank a tip has to have come in the door after July 21, 2010. And our rules were passed in August of 2011. So and if you think about a tip coming in the door at any given time, the reality is even the best tips take time to be reviewed, investigated. And then, if it needs to, to be litigated.
So there is a number of reasons why it seems like a long time passed between things happening and I hear this all the time you know, I submitted you know, if I hear again, you know, "I gave you Madoff on a silver platter, I gave you this," I mean the public just believes that they give even the best, best tips take time for us to assimilate, work our way through, decide whether and how to investigate, and then bring a successful action. So all of those timing issues, I think, are the reason that it took us a little bit of time.
And look, frankly, as a pragmatic matter I think this is true of most regulators when you get new authority, the first time you speak on it you want to win, right? So you're looking for the case. And I gave you a thumbnail of the facts. I mean the facts here gave us what we thought was a very compelling case. You know, the dates lined up that he he announces, and he had the email where he told his employer, "I told the SEC," and then he had a very significant chronology.
And so, all of those things, I think, go into, you know, when you pull a lever, when you think you've got a credible case, versus when you've got a win. So all of those, I think, have contributed to how we have approached this new authority, and I think have driven some of the timeframes in bringing these actions.
But as I said, once you have one, the momentum has accelerated. And you know, we're tracking a whole bunch of very interesting allegations of retaliation, and I think in the future we'll look back and say, "Well, it took a little while for the first one to be brought, but then it became more of a rolling, regular basis."
MS. SPIELER: Just one other do you have any idea how many private actions have been filed under this under the Dodd Frank provisions?
MR. MCKESSY: I don't. No, I don't.
MS. SPIELER: Other questions?
MR. MOBERLY: This is Richard Moberly again. So I'm on the training subcommittee. And I don't know if you heard we gave a report beforehand. And I heard you say that part of the way you are spreading the word about retaliation to your enforcement agents is you and your deputy I think you used the term "cheerleader" going out and about to tell them about it.
Are there specific training is there specific training that you have provided to enforcement investigators that we can learn from here, as we think about training retaliation officers, investigators?
MR. MCKESSY: Yeah. So, you know, we've tried to take a multi layered approach to our training vehicles. So the day our rules went into effect I conducted a training on the on all of the rules, division wide. And so, by video link, everybody from the enforcement division was required to sit and listen to me for two hours talk about what this new authority was.
And then we have cascaded that, you know, under a number of different vehicles. So we have our own page on our the enforcement intranet site has a whistleblower page to it. And on there are housed the kinds of documents I was talking about before: model questions to ask, model document requests, you know, an overview of the program, considerations. And clearly, within that those written materials are documents specifically tabbed and related to retaliation cases.
I have visited personally all 11 of our regional offices in person. And every time I get asked to speak on a panel that's anywhere near one of our regional offices I make a point to visit in person. There is nothing like in person training. And you know, it's an interesting thing.
Not coincidentally, every time I visited an office in person, the calls we get from that office skyrocket. Because, you know, having a voice, having a face that someone, you know, actually showed up and enlightened them and so that's a big part.
And sometimes the training is an overview if we go to an office that has a lot of new employees that need to hear kind of the big speech. But now that we're mature enough, we kind of rely on our intranet and our internet site to do the broad education, and we try to do tailored trainings in connection with what we think is hot either for that office or from our perspective. And so, certainly in the recent the last six months or so, or let's say since the first retaliation case was brought, we have tailored some of our training, internal training, specific to retaliation cases.
One other thing that we did is we actually had we offered an education panel that had the three attorneys who brought the first retaliation case on, and I moderated the panel for all of enforcement. And so, one of the messaging I was able to say is, you know, if you are concerned that you are not a retaliation expert, and that, you know, that's not in your sphere, the good news is you are tied with these three individuals in second place for the number of retaliation cases that have been brought. You know, only these three people have actually been involved with an actual retaliation case.
And so, they were able to talk on a real time basis. You know, we had this panel a month after we actually brought the case, and they were able to go through the decision trees that they had to confront, the issues that came up, this waiver of you know, the attorneys advising them on this issue, and how they dealt with that. So those are and, you know, it's an iterative process, right? We never feel like we've educated everyone and we can just kind of sit on our laurels. We are out and about all the time, you know, between my deputy and I, talking to our individuals.
And then, you know, each regional office, each of our special units has an attorney assigned to them from our office, so that's their go to person. Obviously, they can talk to anybody, including me, and probably every day every one of us is responding to one question about a subject matter issue, often times retaliation or confidentiality or and it is one of the reasons I feel like I've got the best job in the agency is every day is a new day. I never know what question I am going to be asked, and we are asked questions about how to implement the program on a daily basis.
So, I hope that's helpful. I mean I think it's important, whenever you're doing education, to have a variety of voices, a variety of mechanisms. You know, obviously, you want to provide written resources when you can. There is nothing that takes the place of in person training, allowing people to ask very specific, practical questions.
You know, when you're trying to give an overview like I just gave, it's very difficult to go into the weeds. But if you go to an office and they can say, "I'm actually bringing a case, and here are the facts," and allowing other people to hear, that kind of practical training is invaluable in those kinds of settings.
MS. SPIELER: So it's actually time for our break. And I understand someone from wage and hour just arrived. I need to suggest that we put this off for our next meeting. I think we might be able to formulate some specific questions around training and outreach, and overlap between the populations that OSHA may be concerned about and wage and hour may be concerned about with regard to retaliation complaints, and we so, in the interim before our next meeting perhaps the work groups could also help formulate those questions.
And I do I can't I don't know who it is here who came, but and we appreciate your showing up, but unfortunately we are running behind on our agenda at this point, and we had anticipated having our conversation with you starting at 10:15, and it is time for a break, which I am sure the committee needs. And we will we have made commitments starting at 11:00 to outside speakers, other outside speakers.
So, I would suggest that we take a 10 minute break now and reconvene and move on to the rest of our agenda. And my apologies, but I hope you will be able to come back.
(A brief recess was taken.)
MS. SPIELER: Okay, why don't we get started? Over the next hour the committee is going to be hearing from people from outside the committee who have asked to speak to us.
The Railroad Workers United had sent in a specific request to be added to the agenda. And is a representative of RWU here and ready to speak? So if you could, come forward and take a seat at the table. So we're running a little behind, so if it's possible to shorten this, that would be great. But we've allocated a half hour for this.
MR. Sheumake here?
MS. SPIELER: So I'm going to I think it's Charles Charles Sheumake has sent us a letter about the issues that have been raised by RWU that we're going to be discussing, and I'm going to be ask that that that his letter dated April 14th be marked as an exhibit for the as he will not be responding, and I would you please give us your name and other identifying information? And then you can go ahead and make your statement, and we will have members of the committee will then ask you questions.
RAILROAD WORKERS UNITED PRESENTATION
MS. ROOKAIRD: I am RWU. My name is Kelly Rookaird. I am wife of Curtis Rookaird, a railroader that was illegally fired from BNSF. I will just read my statement and my resolutions, what I feel need to be changed.
Hello, my name is Kelly Rookaird, wife of Curtis Rookaird, former BNSF conductor that was unlawfully fired on 3/19/2010 following an incident that occurred at Cherry Point, Washington. My husband was fired performing an air brake inspection on an oil train. His claim was found to have merit by OSHA Region 10. It was obvious to the OSHA investigator, the FRA, and us that was clear case of retaliation initiated from Stu Gordon. In the Seattle federal court his trial is to be held next month, May 16th through the 27th.
BNSF egregious behavior has caused us devastating financial harm. Washington State Senator Patty Murray's office was working with our mortgage company to prevent our home from foreclosure for four and a half years. But because of the retaliation from BNSF, it prevented Curtis from gaining employment from a large employer during the background check process, and we ultimately lost our home, nearly became homeless.
Since the process for prevailing in their case is so lengthy, we have lost all of our main assets. Our adopted special needs boys have been overwhelmed with grief of loss, as well. The only home they've ever had, instability, our family's reputation and good standing within our community. Our previously excellent credit is gone.
I have also lost my employment due to conflict of interest, as the company does business with Berkshire Hathaway. All this has caused me tremendous grief and I am plagued with health concerns for the first time in my life.
My proposed resolutions. Impose substantial fines towards railroad officials indirectly to railroad presented or formerly employed by the railroad to obey and respect your findings by non negotiable immediate one million initial personal fine for retaliation (sic).
If worker is granted employment reinstatement from the findings imposed, 10,000 per day to be awarded to the employees, the worker from railroad, for not reinstating the worker immediately upon the preliminary order should be order of Department of Labor Secretary findings (sic).
Denying workers their due process of law. In these cases, increased workers punitive damage cap up to five million each, since the current cap is 250,000 is completely inadequate. The cap should be large enough to be an actual deterrent. Raising this cap is the single most important safety measure that could be enacted since 250,000 cap is so low, which is no apparent deterrent at all. Continuing these practices to raise velocity of how fast they move cargo over the safety of the workers and the risk of the communities throughout the United States (sic).
When OSHA investigators request documentation, they must have subpoena power and strict sanctions towards the railroad for not following all of the discovery guidelines. During an OSHA investigation it must be mandated that the investigators interviewed all parties involved without fear of retaliation toward employees for their testimonies. If railroad carrier retaliates, intimidates, threatens workers for their cooperation, then that member of the railroad management must be sanctioned equivalent with the criminal charges made and personal sanctions, along with the sanctions against the railroad carrier for each alleged threat.
Impose $30,000 fines or higher for each violation. Congress funding for and designated screener. Administrative worker for initial process and determination of whether the case has merit or not for the OSHA investigator (sic). The investigator should only be investigating and completing their reports.
Streamline the Secretary findings report without all the beginning laborious novel writing before the actual findings.
Investigators have no more than 20 open active cases at a time in order to effectively process expeditiously their work, but it needs to flow in the use of rotation of incoming cases (sic). Adopt a format like the EEOC does their investigations. The due process letter should only consist of, on page one, a check box of merit and not or not. On page two a brief description of incident. Thereafter, follow the actual order of Secretary findings, period. And 30 day effective deadline from receipt of Department of Labor's office to get out the findings from the regional investigator to the worker.
Any and all of these recommendations shall be non negotiable towards the carrier, not subject to chapter or bankruptcy in any form or fashion.
Additionally, I feel like the accord dated 2012 between BNSF and Department of Labor OSHA has not was not designed to be a get out of jail card for the railroad. It was only to be used as a way to settle certain cases, not this one. Not retaliation from railroad towards the workers.
The carrier should show respect for the government entity and not current completely disregard, as they are today.
My husband is a conscientious workers. And if BNSF would have cared about safety they would have kept him and promoted him.
Lastly, I move the congressional funding for these crucial issues of great concern with a smoother, shorter timeframe for all fairness of the workers to work in harmony with the railroads, because justice delayed is justice denied.
MR. Anthony Rosa, please provide me a copy of all the names outstanding railroad whistleblower cases and how many might there be throughout the entire United States.
Thank you for your time and consideration for addressing these critical issues. And I have an enclosure I would like to give you.
MS. SPIELER: Do you have a written copy of your comments that we could
MS. ROOKAIRD: I only have one copy. I can send it to you.
MS. SPIELER: I'm wondering if we shouldn't add that to the exhibits to make because sometimes when the transcript is made, it isn't as accurate as the written statement. So I think that the original request to speak that came from the Railroad Workers United should be part of the record, as an exhibit. And then your statement, as well, should be probably number three. And if you could send it to the staff, that would be very helpful.
MS. ROOKAIRD: Yes, ma'am.
MS. SPIELER: I really appreciate your taking the time. I want to caution both you and the members of the committee that we are not in a position to discuss individual cases in this forum. We can, however, discuss process and general questions of what OSHA can do in terms of improving its process, and
MS. ROOKAIRD: That was part of my resolutions.
MS. SPIELER: Yeah. No, I understand that.
MS. ROOKAIRD: Just through our experience.
MS. SPIELER: Yeah. And I want to ask, because originally your request to speak there were quite a few names on the list of people who might speak. Is there anyone else who is joining you today?
MS. ROOKAIRD: Yes, there is. Mike Elliott
MS. SPIELER: Well, I would suggest that the rest of you come to the table. And if you could, identify yourselves for the record. Did you also want to make statements, or
MR. ELLIOTT: Yes, I would like to make a statement, and
MS. SPIELER: Okay, if okay. So please have a seat.
MR. ELLIOTT: Sure.
MS. SPIELER: If you could identify yourself and speak into the microphone, that would be
MR. ELLIOTT: Sure. My name is Michael Elliott. I am a whistleblower. I am also the former chairman of the Washington State Legislative Board for the Brotherhood of Locomotive Engineers and Trainmen.
MR. KURTZ: My name is Jeff Kurtz. I'm a retired railroader. I'm formerly the Iowa State legislative board chairman for the Brotherhood of Locomotive Engineers and Trainmen. And I retired in 2014 after 41 years of service on the railroad.
MS. SPIELER: MR. Elliott?
MR. ELLIOTT: Great. I have a statement. And at some point, if I'm running too long, just cut me off. I'll try to answer some questions, and I can send the document in to add to the record so we don't take up too much time.
MS. SPIELER: Yeah. May I ask if your colleague also has a statement to
MR. KURTZ: Yeah.
MS. SPIELER: Oh, okay.
MR. KURTZ: Yes, I
MR. ELLIOTT: Yeah, he has one also.
MS. SPIELER: That makes it a little difficult to know when to cut you off. So how about
MR. ELLIOTT: Oh, all right
MS. SPIELER: if you keep it to under five minutes.
MR. ELLIOTT: Yeah, it's right about five minutes a little bit over, perhaps.
Good morning, Committee, and thank you for the opportunity to comment. My name is Mike Elliott, and I'm a whistleblower. Previously, I worked on the Burlington Northern Railroad, and later on its successor, the BNSF Railway Company. For 17 years I worked full time in the crafts of switchman, brakeman, conductor, and locomotive engineer. Simultaneous with my work on the railroad I performed collateral duties as vice chairman and later as chairman of the Washington State legislative board of the Brotherhood of Locomotive Engineers and Trainmen.
As a union official, my primary responsibilities were workplace safety, health, and education of the nearly 900 BLET union members living in Washington State.
In March 2011, BNSF retaliated against me for reporting signal system concerns critical to both public and worker safety brought to me by my membership. Within weeks of having initiated a Federal Railroad Administration focused inspection that uncovered hundreds of federal defects, a BNSF manager staged a workplace conflict after I had signed out from work and while under mandated federal arrest. I was arrested by police in front of my coworkers, jailed, and taken before a magistrate in chains and charged with felony assault. BNSF refused my union's request to postpone personnel hearings associated with staged conflicts, and then provided those hearing materials to prosecutors.
After nearly nine months of court imposed restrictions on my civil rights, a Tacoma, Washington jury acquitted me of all charges associated with the staged conflict. Following BNSF's adverse employment actions, I filed the whistleblower complaint under the Federal Railroad Safety Act.
In the weeks and months that followed, the OSHA investigator organized and logged emails and other important documents I had saved associated with my reporting of the signal safety concerns on the high volume, high profit BNSF Seattle subdivision. But by 2013, the backlog of whistleblower cases at OSHA would not allow for additional investigation on my case.
Consequently, I decided to pull my case from OSHA and file a lawsuit in federal district court. In June 2015, after over 4 years, 2 separate BNSF dismissal hearings, and a federal pardon me and a felony criminal trial, I finally had my day in court before a jury of my peers. After a six day trial, the jury took less than three hours to conclude BNSF had broken the law under the whistleblower provisions of the Federal Railroad Safety Act. The jury awarded me $1.25 million, of which $250,000 was in punitive damages, the maximum amount allowed under existing law.
I would like to offer some suggestions for improving the whistleblower process under FRSA. I am going to let Jeff talk and get his in, and then you could ask some questions. Thank you.
MS. SPIELER: Great, thank you.
MR. KURTZ: What I'm going to talk about today is the rules and how they're written to undermine the whistleblower law.
In 2007 there is a July of 2007 there was an FRA report titled, "The Impact of Participatory Safety Rule Revision on Incident Rates, Liability Claims, and Safety Culture in the U.S. Railroad Industry." The report states in its abstract that even though outcome data were statistically inconclusive, a number of indicators in this study suggested a positive benefit on carriers that used a process that included cutting back on rules, allowing employees a hand in determining those rules, and putting those rules in an easy to understand format.
Interviewees reported more enforceable safety rules, increased compliance, and overall employees in several overall improvements in several aspects of safety culture, such as labor management relations. The report also states that the present condition of the rules and regulations may in themselves inhibit safety.
Well, you ask any employee that has been around since 2007 how things have changed, and they will tell you that the rules and regulations and policies have become more complex and have increased in size. And that's why we contend that the rule making apparatus itself is out of whack and is contrary to safe practices.
I've got an example of right before I retired, of a case that I helped represent an employee on. And it was over what we call a trip optimizer on a locomotive, which is like a cruise control. And one of our members had a serious problem with this trip optimizer, which is the problem had him jumping ahead 35 miles on his territory, which would have put him in different speed restrictions and different grades on his territory. In short, it would have led to a disaster if he hadn't taken steps to disarm it and run his train without it for the rest of the trip.
He took the steps to turn it in formally, so we would have a record of failure on the trip optimizer "we," being the union, the local union because if there isn't anything on an official record, and if an optimizer fails and an engineering conductor get in trouble because of it, the carrier could say there was no record of an optimizer failing before, and so it must have been the employee's fault that they got in trouble.
Well, first of all, he was criticized in writing for not turning it in the right way, whichever way that is. We're not sure what they meant by that. And then, about a month and a half later, he was disciplined under what they call the low hours policy. Now, low hours is a policy where no one knows what it is, no one no parameters are given, as far as what is required in terms of work.
And furthermore, according to the COO, Carl Ice he gave this in a town hall in Fort Madison, Iowa in 2014 he said, "No information is going to be given," because if it is, according to him, people will only work that much and no more.
Now, anyway, we filed under the Whistleblower Act for several reasons. One, if he was found guilty of violating low hours again, which we still have no idea what constitutes this policy, so it's very fluid he was told he would be terminated. One of the tenets of low hours is it never goes away. It stays there. So if you were found guilty of a violation, then it could be held over your head forever.
Now, think about it, a policy that is I guess the best description would be fluid being held over your head for 20 to 30 years. The second reason is it seemed awful funny that this was done so soon after he turned the optimizer in. In fact, for the month in question that he was cited for, he was available for service 23 out of 25 days that he was on an extra board, which an extra board is a board that they use to call you for extra work. And one of the days off that he was off was to take his 85 year old widowed mother to the doctor, since he is her primary caregiver.
The hours he works, when he is available for service, is governed solely by the carrier, and not in any way, shape, or form by him. He cannot walk off the job early if he wants. If they want him to work more hours, have him work more hours.
The decision rendered by OSHA on this case was that, since a letter and discipline would have been generated by the policy whether he had turned in the optimizer or not, this case was dismissed. And I called after the decision to ask if the railroad suddenly made a policy that 10 employees be terminated every Tuesday, if a whistleblower just happened to be one of those employees, would we get the same answer, and I was told that OSHA doesn't rule on bad policy.
I think the whistleblower law could be a very good law. It seems like the people that are tasked to enforce it are very sincere. But I think that we've got problems that we need to address, and I think that some of the scope of what they do needs to be expanded. So thank you.
MS. SPIELER: Thank you. I believe you also had some suggestions, and I wanted to give you the opportunity to offer them.
MR. ELLIOTT: Thank you, Madam Chair. The one of the first recommendations to the panel here is the heavy caseloads and lack of adequate office support staff, those were factors in my own case. When I had communications with the investigator, the investigator was spending a lot of time on clerical and other issues that the expertise of the investigator ought to be working on the case, and then have the support staff do the other things.
I was told that some of the support staff positions they currently have are being canvassed out as people retire, and they're not going to replace those positions. So if you could give another thought to that, to make sure that there is adequate support staff for the investigators we have, their caseloads are already heavy, but that was one of the things in my case that caused me to take it out because after a certain amount of time had passed we said, "We got to keep this moving."
Another suggestion would be some type of a kick out option that sends the case directly to the administrative law judge from the investigator, without some type of supervisory review. If the ALJ says, "Well, you know, I think there is enough for a preliminary ruling here," something along those lines seems like that would help move these cases along without going through the full process of supervisory oversight.
As far as supervisory oversight, I think we got to be careful to ensure that there is that mid level and higher supervisor bias is eliminated. And I'm going to give you an example. I believe, and it's my opinion, any former railroad manager is not capable of making an unbiased evaluation of a railroad whistleblower case. It's just not possible. Once you're indoctrinated in that line of thinking, I think it's your mind is poisoned to that sort of unbiased ruling. So, I would ask that this panel and OSHA look carefully at those relationships in all the various regional offices.
Just to give you an example on my own case while it wasn't OSHA, it was the FRA one of the managers who was involved in the staged accident at work, or the staged conflict, then resigned, went to FRA, and tried to get a job on the same territory as an inspector. Well, I complained about that most strenuously, and the guy resigned. But point is that we shouldn't be getting into those types of scenarios at all.
Oh, and another good one for OSHA would be subpoena power. Once I got my case into federal district court, and we had subpoena power, that turned up some very, very damning evidence against the BNSF in terms of what they had withheld from OSHA. So I think you need to take a look at that and see if it's possible to get your investigators subpoena power on these railroads.
Let's see. The Railway Labor Act process. Department of Labor needs to take a look at it. I mean what's
MS. SPIELER: I think that's way outside the scope of this committee.
MR. ELLIOTT: Okay. Well, that was in there, I thought I'd throw it out there
MS. SPIELER: Yeah.
MR. ELLIOTT: but we'll just brush over that one.
MR. ELLIOTT: That's a whole other discussion, maybe
MS. SPIELER: Yeah.
MR. ELLIOTT: for another forum. Thank you. Okay. Let's move down.
Okay, on the OSHA side of it now this is something when this is re evaluated by you all and the Department, is the $250,000 punitive damage cap, it's ridiculous. I mean that's absolutely no deterrent to a multi billion dollar corporation like BNSF, and their parent company, Berkshire Hathaway, absolutely none. So we need to look at that. I think it should be at least five million at this level, internally, to OSHA. And then at the federal district court level it should be removed. Let the jury decide, based on the facts, on what happened. So, take that into consideration, please. That is that would be a big one, because they understand that kind of talk.
I heard the gentleman that spoke before me talked about whistleblower programs in other departments of government. And if there can be a sharing of that information between OSHA and these other departments to initiate other whistleblower type of activities and I'm going to use my case for an example.
The territory over where I was reporting the serious signal violations, there was $800 million in federal high speed rail funds that went into that subdivision in that area along the I 5 corridor. They need to take a look and see, you know, "Hey, you're supposed to be improving the track structure, the infrastructure, the signal syste
MS. Where did that money go and what was it used for?"
So I just think the communication between OSHA and other agencies, SEC, whoever it might be, to check "Hey, check your whistleblower stats," we need to take a look at this.
This again, this might be beyond the scope of OSHA, but in federal district court on when you win an award there, there is the interest rate is ridiculous, it's
MS. SPIELER: Yeah, definitely beyond the scope of what OSHA can do anything about.
MR. ELLIOTT: Okay. Well, anyway, that's another one that I will take that to the judicial side.
MS. SPIELER: Let me stop you here, because I think it's important that you've raised some important issues
MR. ELLIOTT: Sure.
MS. SPIELER: very much from the heart, some of them are within the what the scope of what OSHA might be able to address.
MR. ELLIOTT: Sure.
MS. SPIELER: Many of them are would require statutory change.
MR. ELLIOTT: Right.
MS. SPIELER: But I would like to give the committee a chance to ask you questions if they would like. And so and we are going to need to move on, so
MR. ELLIOTT: Right, thank you.
MS. SPIELER: Eric?
MR. FRUMIN: Eric Frumin. One of the questions that's been raised repeatedly before this committee concerns the accountability, the ultimate accountability, of managers who engage in retaliatory behavior. And this was also true specifically in the rail sector.
So I was wondering if you could you mentioned about the problem with the manager who stages this conflict and who then tried to get a job for FRA. But within the employer, the company itself
MR. ELLIOTT: Right.
MR. FRUMIN: are you aware of any change in the status of the either the direct manager or any of the people that he or she reports to regarding this trail of tears, here, you know, the management misconduct?
MR. ELLIOTT: Right. Well, I'm glad you brought that up. That was on my list. Not one of the managers involved in the misconduct and violations of the law under my case was disciplined in any way. In fact, one of them claimed that the incident that he that the conflict that he staged caused him post traumatic stress disorder, and he was allowed to retire on a full railroad board retirement. Not one manager.
This, the amounts of money I told you here that the jury awarded, again, that was against BNSF generally. No effect. So those managers went on. One of them, the general manager, went on to be promoted to a vice president. So, I mean, we need to look at that. The committee needs to look at that. And when you have something like this that's this egregious, that these managers shouldn't be promoted, shouldn't be allowed to go into other government jobs and just sail off into the sunset, so to speak.
MR. FRUMIN: Well, so, in other words, the message within the company and the guy from the SEC alluded to this, you know, what's the message within the company about, you know, who wins and who loses the message within the company is that managers who engage in what I mean I wasn't at the trial, but it looks like
MR. ELLIOTT: Right.
MR. FRUMIN: it was misconduct to me, within that company was that they are, at a minimum, not penalized and, if anything, on the other hand, were rewarded. Is that a
MR. ELLIOTT: That's
MR. FRUMIN: Is that an accurate conclusion?
MR. ELLIOTT: a fair statement.
MR. FRUMIN: Yeah.
MR. ELLIOTT: And that was, again, if I could have gone through all of my stuff that's in there Jeff, did you want to comment?
MR. KURTZ: We there was a situation on my home road after I retired where a crew was in what we call a control point, and they were working the switches. They didn't think the instructions they got were legal, from the chief dispatcher, who would be the guy that would control those switches. He threatened them repeatedly.
Finally, they invoked what we call the Good Faith Challenge. It's a federal regulation. They said, "If we're going to do this, we're going to invoke this good faith challenge," which lets those guys it lets them refuse the work, and has the manager put it in writing, what he was trying to get them to do. This manager told them that he was going to terminate them if they did this.
So, it was brought up to our local management what happened, because this was all on tape. And they, our local union officers, were told, "Well, let's just keep this quiet, and we're going to talk to him privately." And the crew ended up doing what they were told, because they were intimidated, you know? Because railroad justice is not good. I mean you wait years before you get back to work, no matter if you're right or not.
So, they did the illegal process. And they were told later, "Yeah, well, we'll talk to this manager." That's what happens. So
MS. SPIELER: Nancy? And I know I'm going to have to cut this off, because part of the problem is we're running now a bit late, and we have to reconvene at 1:00, because Dr. Michaels and possibly the deputy secretary are coming at 1:00. So they don't have any flexibility in their schedules. So a couple of more minutes, and then we're going to have to move on. We have three other speakers who want to talk during the public comment period.
Nancy, go ahead.
MS. LESSIN: So I have two questions. I will do them both.
The first is I believe it was in 2012 OSHA and BNSF negotiated an accord because of some serious problems. So my first question is have you noticed a change since that accord, in terms of the kinds of things that you're talking about?
The second has to do I think, MR. Kurtz, you were talking about a situation where there were too many rules, or the low hours rule, and it couldn't be shown that that was the person who had talked about the trip optimizer problem, that that that he might have gotten it anyway. And so, it wasn't a case.
And I was just reviewing something that we call the Fairfax Memo. It has to do with injury reporting and discipline from that, but it talks about in some cases an employer may attempt to use a work rule as pretext for discrimination and careful investigation is needed. This is an OSHA memorandum, and it talks about vague rules, which this one sounds like, "may be manipulated and used as pretext for unlawful discrimination."
So, I just is that kind of what you're saying happened? Because if that is the case, then I'm going to talk to OSHA about, you know, this is a specific memorandum for injury reporting retaliation, but it
MS. SPIELER: Yeah. I'm going to ask that you keep your reply brief.
MS. LESSIN: Seems like it might be related to what you're talking about.
MR. ELLIOTT: Right. I think they're using the rule book and all these nebulous rules as pretext, like
MS. Lessin has indicated, to retaliate against whistleblowers and people that are injured in the workplace.
I think when you still look at who is leading the pack of whistleblowers, it's companies like BNSF and the other railroads, without any question. I think, when you look at those your own facts and figures and statistics, that the deterrent effect of the whistleblower program is not bringing about the change we had hoped to in the industry. So we need to continue to work on that, they need to be punished commensurate with their misconduct.
MR. KURTZ: I just wanted to comment about the agreement between OSHA and BNSF. Since 2012 things have changed. It's gotten worse. The people that I will tell you. Let me write rules, regulations, policies. Believe me, I will be able to do anything I want. And that's basically what the railroads do.
I mean you can talk to all of the local union officials, they will tell you the same thing, that you're not going to get around this maze of rules, you're not going to get around this maze of regulations and policies, because of the fact that they have an infinite capacity to write rules. And if you're in compliance with one, you're going to be violating another rule.
So, yeah, it's the FRA knows it's a problem, the carrier know it's a problem, the unions know it's a problem. And it's going to continue to be a problem until it's addressed.
MS. SPIELER: Okay, a quick question from J.J.
MS. ROSENBAUM: Thanks. I just wanted to thank you all for being here, and say it's really important for the committee to hear from whistleblowers, families of whistleblowers, and union folks trying to support whistleblowers.
I just wanted to ask you, MS. Rookaird. You had a number of important recommendations, but and I was trying to listen across the presentations. The three that I heard come up in both of the recommendations were broader subpoena power or more aggressive pushes to get the documents early in the investigations that open up what really happened; issues of caseload and staffing that slow down investigations and cause significant delay, and the impact of that both on the investigation and the quality of it and the ability to win and also the impact on families during that time; and then also the sort of question of punitive damages and penalties being at a level that they change behavior.
I just wanted to ask you, MS. Rookaird, if there are any other high priority recommendations you wanted to lift up as we close.
MS. ROOKAIRD: Well, I'm going to let Mike because we have pending litigation
MR. ELLIOTT: Yeah, she's got pardon me pending litigation, so she's worried about that. I think that once the ALJ has ruled, there should be some sort of a penalty for not reinstating them and for trying to drag out the process. And that's what, you know, BNSF and the other railroads, generally, their lawyering is about, is delay.
And I think her last statement, or her closing statement, was justice delayed is justice denied. It is absolutely true here, folks. We need to take a look at this. I know that the committee can only make recommendations, and we can't make a broad brushstroke of changes, but the ones that we talked about, the internal ones that you just mentioned of support staff, adequate support staff, that's as start, and subpoena power
MS. ROOKAIRD: They need to
MR. ELLIOTT: And the subpoena power to get the evidence, I mean in my case, once we got to district court, that's where some of the real damning documents were recovered.
MS. SPIELER: I want to echo J.J.'s thanks for your coming forward and raising these concerns with us. It is incredibly important for the committee to hear them. And thank you very much for your thoughtful remarks.
So, we are now going to move into a public comment period that I'm going to get a little more aggressive
MR. ELLIOTT: Thank you, Committee.
MS. SPIELER: about timekeeping. Let me just I'm going to suggest we have three people who are here who would like to speak: William Wahoff, Larry Mann, and is it Larry? Larry Halprin. I'm going to suggest that we start with MR. Wahoff, who has requested five minutes. And then Larry Mann and I will hold you to five minutes, as well. And then MR. Halprin. And we will stick to 15 minutes for that.
While you get settled, however, Brian needs to just check quickly check on the exhibits from this last discussion.
MR. BROECKER: Yes, thank you. Just to clarify the exhibits for the record, the first exhibit that will be marked Exhibit No. 1 is the Charles Sheumake letter from BNSF Railway.
The second exhibit, that will be marked as Exhibit No. 2, is the Railroad Workers United Original Request to Speak, signed by Janet Wallace.
Exhibit No. 3 will be the statement, the written statement, from MR. Rookaird, whose testimony was just given. And I understand that there is written testimony from MR. Elliott and MR. Kurtz, as well?
MS. SPIELER: I don't not that I know of.
MR. BROECKER: No?
MS. SPIELER: No.
MR. BROECKER: MR. Elliott and MR. Kurtz, since you're here, do you both have written statements that you'd like to submit as exhibits?
MR. ELLIOTT: Is that okay if we get them to staff?
MR. BROECKER: Of course.
MS. SPIELER: Okay.
MR. BROECKER: Certainly. Okay, so the statement from MR. Elliott will be marked as Exhibit No. 4, and the statement from MR. Kurtz will be marked as Exhibit No. 5.
MS. SPIELER: Okay. And as Exhibit No. 6 we had a statement submitted to us by Don Davis. And in the interest of time I am not going to read it, but I will ask the committee members to read it so that we can discuss it at a future time.
MR. BROECKER: That's been marked as Exhibit No. 6.
MS. SPIELER: MR. Wahoff?
PUBLIC COMMENT PERIOD
MR. WAHOFF: Yes, thank you. Thank you, MS. Chairman Chairperson, I should say. I am Bill Wahoff of the law firm of Steptoe and Johnson PLC. And we are from the heart of the United States. We have offices in Ohio, Kentucky, Pennsylvania, West Virginia, Denver, and in Texas. So we are the other Steptoe, not the one with the Washington office. I always have to say that.
I wanted to address in less than five minutes to help the Chair a couple of things regarding procedures in whistleblower investigations.
And the primary first of all, I share the outreach subcommittee's concern that employers don't know about the retaliation whistleblower laws and the breadth of them. And so, incorporating just some quick suggestions, incorporating that information in opening conferences, in the on site consultation, and others other opportunities for communication would be really important.
Also, just acquainting employers with the general procedure of these whistleblower investigations, because employers are very familiar with OSHA safety and health investigations and the procedure opening conference, et cetera, et cetera but the whistleblower investigations, not so. So the procedure side of it.
Then one final comment, and then I will stop. I would suggest that the any settlement negotiations be as as done in the EEOC, deferred to a separate mediator, okay, rather than having the OSHA investigator conducting settlement negotiations for the whistleblower. It's a much you know, any federal judge, any state court judge judges like to have other people do their mediations. That's become standard practice, even in state courts.
It would be a much better appearance, I would submit, if the if that were deferred to a separate person to do settlement negotiations in whistleblower cases.
With that, I will conclude. Thank you very much, and it's a pleasure seeing everyone.
MS. SPIELER: Thank you very much. And I think those are all very salient points, in terms of conversations we're currently having.
Just any quick questions?
MS. SPIELER: Great, thank you. And thank you very much for making the time to come.
MR. MANN: Again, I'm Lawrence Mann, I'm counsel to the Academy of Rail Labor Attorneys, and I'm also rail safety coordinator for the transportation division of the Sheet Metal, Air, Rail, Transportation Union. That the transportation division is basically the United Transportation Union formerly, which represents conductors and engineers. ARLA, these are attorneys throughout the country that probably handle, I would say, over 90 percent of whistleblower cases throughout the country.
And, as counsel to ARLA, I am the recipient of the problems that have arisen. So I want to briefly mention several that I think will need some statutory recommendations to the Secretary. And if I have time, some other issues I would like to raise. I will subsequently set this in some detail to the committee, because I know I don't have time to tell you all the issues.
One that I want to mention is, under the statute, as you know, that the action must be brought within 180 days. And it's entitled, "Statute of Limitations." That's under D2(a)ii. And we have two cases pending where the cases arose within OSHA and it stayed for more than four years. The railroad both railroads have now alleged that a four year statute of limitation applies.
There is a general statute of limitation that Congress adopted. It's 28USC United States Code Section 1658. And basically, what it says, if there is not a specific statute of limitations within a federal of law, a four year statute of limitations applies. Well, I can tell you that the whistleblower lawyers throughout the country have no knowledge of this, they just simply are unaware of this, and it caught them blindsided.
So what I'm recommending is that there be a specific statute of limitations in the law if the 180 days is not the actual statute of limitations.
Another issue relates to your preliminary reinstatement of workers. I know that your order is that the railroads' objections do not stay reinstatement, if that's ordered. However, a federal court has issued an order that stated that only final orders are enforceable. So your reinstatement order is non effectual. And I recommend, on behalf of everyone who is handling whistleblower cases, that the statute be amended to mandate that the your temporary reinstatement orders be enforceable.
Another issue that has arisen and you cut me off whenever you think my time is up
MS. SPIELER: Okay.
MR. MANN: I will just keep going. We have a situation where certain times employees are simply incapacitated, and they are unable to request an ambulance. Now, I am aware of a number of cases where that has occurred. And the railroad's position and these are all the railroads their position is that only the employee may request an ambulance. So I am requesting that you make a recommendation to the Secretary that that statutory provision be changed so that anyone could be able to request an ambulance where someone is incapacitated.
We have a problem also after an ALJ decision has been rendered and it's adverse to the employee. The railroad's positions have been and are, currently that you are no longer able to access the courts. That's their legal position.
MS. SPIELER: I'm going to tell you you have 30 seconds left.
MR. MANN: Thirty seconds. Well, that's one issue I think needs to be handled legislatively.
We still have the disparate enforcement issue. As you may remember, I am on the railroad working committee with Eric, and we've made that recommendation to you last year.
The subpoena power issue, we've made that recommendation. And it's really important. We need that.
I will just stop now.
MS. SPIELER: Thank you very much. And if you do take the time to write out more extensive comments
MR. MANN: I will.
MS. SPIELER: we will look forward to seeing them.
MR. MANN: I will.
MS. SPIELER: MR. Halprin?
So it's a couple of minutes to 12:00 now. We I am going to say that we are going to stop at 12:15. We have to be back here by 1:00, so it'll be a quick lunchtime for people. I think we can get through the cafeteria in that time, but it's critical that you be back here at 1:00.
Go ahead, MR. Halprin.
MR. HALPRIN: Thank you. I will try not to take 15 minutes, and give you a little more time to eat.
MS. SPIELER: I think there may be questions for you. So if you could make your comments brief
MR. HALPRIN: That's fine.
MS. SPIELER: For those of us who have actually read through all the materials
MR. HALPRIN: Well, I do appreciate that. I assume that, for the most part, it's something people haven't seen before.
So I represent the Great American Insurance Company and Strategic Comp. They are workers comp carriers dedicated to workers comp and dedicated to reducing injuries, illnesses, and deaths in the workplace. They have been in operation for 23 years, insured over 1,000 companies, currently insure about 700 mid to large sized companies with about 300,000 total employees.
So they have tried a number of different measures to try to bring about an improvement in workplace safety and health with the particular charge they have. They are usually challenging companies in relatively hazardous occupations or industry sectors. They've tried various measures and behavioral safety, some of the various other techniques that people have suggested, and found that, through their experience, the only one that really works is an incentive program that's tied to lost work day cases.
They've found that, in order to change a company's operations and behavior and be successful, you basically have to change the culture. And I've done various things with lots of companies. If you start writing programs and having meetings and all the other things that people might do, it takes too long to bring about the kind of change that persuades employees to buy in. And if you're looking for buy in in a cultural change up and down the line, they have found the incentive programs are the only things that work.
Now, when you have an incentive program, some of the other things that people watch for you know, number of safety communications, number of meetings, those things may go up. But the idea is, instead of counting meetings or communications which don't necessarily achieve anything, the bottom line is looking at the way to improve safety and health by reducing injuries, illnesses, and deaths.
So, they through their success, they have had 39 percent less indemnity claims than would be projected by the National Compensation Center, 58 percent less what I would call catastrophic accidents, which is either fatalities or some sort of claim which results in a $475,000 claim or more.
So I spoke to NACOSH not too long ago, and one of the questions was, well, maybe some of these claims are just being diverted to the health insurance carrier. Well, realistically, health insurance carriers ask lots of questions when claims get up to $475,000 and long before they do. Employees do not find it appropriate if you want to call it that to engage in fraud so that they can win a $100 no, had the opportunity, you know, four out of see the let me describe the Programs.
Incentive programs are based on putting 75 to 125 employees in a group. And then, if the entire group goes without a month for a lost work day case, then there is certain money that's put into a pool, and then everybody gets a chance to draw. And only four out of, let's say, 75 or 125 workers actually get the $100. So if you look at that, and you think about a large claim, no employee is going to forego wage replacement for lost time and pay high deductibles and copays for the opportunity to win $100 and engage in fraud on top of it. It just doesn't happen.
So, what they've done is they've developed this program. It's worked effectively. And then, of course, they go out in the field, they use it. It's been very effective. And then they get concerns from their insureds who say, "Well, OSHA is writing these memos" Fairfax Memo, whatever you want and then, of course, this committee has developed best practices, OSHA's got some language in it, safety and health program draft guidelines and the whistleblower guidelines, all of which seem to try to discourage various incentive programs without any regard for whether they actually work or not.
And as a matter of fact, the agency hasn't really collected any data or attempted to collect any data. There is, unfortunately, a there is anecdotes and there is bias, and those things have come together and people say, "Well, if there is any negative consequences that could come out of something, then that's going to discourage reporting."
Well, there are lots of negative consequences in this world that come from various things, or potential. On the other hand, there are some positive consequences that come out of them. And the mere fact that you might be discouraged by 1 factor from doing something when there are 20 relevant factors doesn't mean in the end result somebody is not going to report a case.
So, there is two things to keep in mind. First of all, bottom line, when you go through this particular focus that they have and, of course, in a five year program they basically have avoided 101 cases that statistically would have resulted in claims of $475,000 or more with their insureds. If you project that to what could be done with the rest of the industrial community, if they had similar programs and some of them do and some of them don't you get a huge number of lives saved and limbs saved. And, in exchange for that, when you look at that, then having a 90 no, 100 percent record keeping accuracy doesn't become very important.
OSHA has developed a number of databases, and none of them have actually shown the kind of problem that supposedly justifies discouraging or actually trying to prohibit incentive Programs. If you look at the data the American General Industrial Medicine article from 2014, it does not find any statistical relationship between safety award cases and reporting. What it does find is, typically, there is one case that is under reported, and then they go into large description about how much confusion there is with the actual OSHA reporting system.
I've been counseling clients for a long time about it. It's not quite as bad as the Internal Revenue Code, but if you've ever tried to understand it, you would know that it's something that can only be handled by somebody who does it day in and day out.
So, when you take a survey like AGIM did, and you correlate workers comp cases to the Bureau of Labor Statistics survey, which is then given to organizations which don't do record keeping on a normal basis, but simply are told, "By the way, this is going to be your year to collect the data," and there is no enforcement mechanism, a small employer is not going to call me up, get an expert, or otherwise try to figure out what the record keeping requirements are. They're going to put something down that falls within some zone that they think is credible, and that's it.
So we've got a study that was done, they didn't find any problem that was poorly structured based on a BLS survey rather than OSHA 300 data, which didn't find any problem, anyway. If you look at all the other studies that supposedly show a problem, OSHA record keeping data from Eastern Research Group, from OSHA's national emphasis program, they show 90 to 95 percent accuracy.
So I'm not saying there is no problem at all, but when you weigh the potential for some loss in accuracy against saving lives and limbs, there really isn't a close case. And so this point is that people have to look at this data and see that there is a trade off, but pure accuracy just for the sake of accuracy is not worth losing lives and limbs, and
MS. SPIELER: So I'm actually going to interrupt you to open it up for discussion, because I think most of us or maybe all of us have read your written statement and the attachments to it, and I think it would be worth allowing some conversation about that
MR. HALPRIN: Sure.
MS. SPIELER: now, before we have to break. Dave?
MR. EHERTS: Yeah. I'm specifically interested, because I do this for a living. I'm a vice president of EHS, and I'm very open to learning what works and what doesn't.
So and I haven't had a chance to look at the primary data. So I'm interested in why you chose certain thresholds and certain periods of time for the analysis, but I think we can do that at a later point.
I am interested in cause and effect. So, for instance, back in 1993 I've got a quick story to tell you I was working at Merck Pharmaceuticals. They had one of the best EHS programs in the pharmaceutical industry. Rhone Poulenc, a big chemical conglomerate in France, bought an American company called Rorer. They started RPR, became Sanofi eventually, and they built a site in the U.S. And the site in the U.S. had a very high TRIR. And France was berating the leadership at that site to get the TRIR down.
So they tried to recruit me I was very young at the time from Merck to put the program in there. And so the vice president starts by saying, "I've got a problem you can help me fix. I need to get the TRIR to zero."
And my answer back in 1993 was, "Oh, that's easy. Put everybody in a group of 10, try to get friends together, the maintenance group together, the laboratory people together, and then tell them if none of those 10 report an injury for the year, if they're accident free, all 10 get a Sony Walkman." It was back in 1993. "But if one of those 10 report an accident, nobody gets it." I said, "Your rate will approach zero. You don't need me."
I stood up to leave, and he said, "Hold on. I want a safety program."
And I said, "Oh, that's different." And I sat down. And I said that I'm very interested in your data specifically, because there is a difference between association and cause and effect. And I'm all for incentive Programs. In fact, we're running one similar to yours, we're just incentivizing different behavior. And I think that's the crux of the discussion.
So we're incentivizing the reporting of near misses, unsafe conditions, suggestions for improvement. We call all those things good observations. And the sites have a target to get numbers of good observations in. And we incentivize a high reporting. And the nexus between that and a lower TRIR is that those good observations turn into corrective and preventative actions. And those corrective and preventative actions, therefore, take hazards out of the workplace, or they change rules.
One recommendation, "Shouldn't we be wearing safety glasses over there? We're riveting." Or, "Shouldn't we have steel tip shoes over here? We're working, rolling around heavy racks." So those recommendations from employees that we incentivize turn into changes in the workplace that reduce accidents. And we've got good statistical analysis ourself, greater than 95 percent correlation in using Yates corrected chi square analysis that sites with good observation programs have lower injuries.
And since we're incentivizing the reporting of injuries, we think our data on the TRIR side is good. So that's the nexus that I would argue is there between good observations, employer participation in the program, and low injury rate.
MR. HALPRIN: Right.
MR. EHERTS: I'm interested in how your lottery turns into lower accidents. What's the connection between the lottery
MR. HALPRIN: I think it's the same principle. The difference the lottery, you have a group, it's got the incentive to look out for each other's backs, if you want to put it in colloquial terms, and they do that. So, instead of getting involved in doing observations on some sort of scheduled basis and creating paperwork that then has to be followed up on, they look out for each other because they say, "If we don't look out for each other, somebody is going to have an accident, and we're going to lose the ability to compete for a prize."
So, basically, you condense everything down into the motivating factor and the buy in that makes it work, but they don't have the resources necessarily to do all the paperwork, to fill out an observation and send it in and have them all collected. And they end up, in their mind, with the same benefit, but without that commitment of resources which they don't have.
MR. EHERTS: Well, I think taking care of each other is a huge component. But another component is finding hazards and getting them fixed. And so, how does watching out for each other's back turn into fixing unsafe conditions in the workplace? Is there a program that they
MR. HALPRIN: Well, they that's it. I mean you're talking about people that the normal experience I've had is that people that usually work in the facility are best aware of the hazards and how they might be fixed.
MR. EHERTS: Absolutely.
MR. HALPRIN: So, you know, they had a bakery operation and they had one of them had carts with handles that were on the outside of the cart, so people go pushing the carts and they'd go by each other and smash hands. And somebody said, "Well, why don't we put the handles on the inside, so that we don't do that?"
MR. EHERTS: Excellent.
MR. HALPRIN: So there is a naturally driving force that motivates people to do the things that will protect each other without as much of the paperwork that you might get if you went with the leading indicators and started taking records of all those things and sending them in. They just don't have the resources in many cases for that kind of system. So they end up with the same benefit without all the paperwork and the burden that will discourage some people from participating.
MR. EHERTS: Well, I would argue
MS. SPIELER: Let me I'm going to stop you, Dave
MR. EHERTS: Okay.
MS. SPIELER: because I think there are others, including myself, who have questions.
MR. EHERTS: Very good.
MS. SPIELER: And we're running out of time. Eric?
MR. FRUMIN: Has Great American sought to have these data published in a peer reviewed journal?
MR. HALPRIN: That's a good suggestion, and I think we're talking about it. So far we've just tried to get the information to OSHA, to NACOSH, to your committee. That would be a logical
MR. FRUMIN: And who are the main analysts of these data?
MR. HALPRIN: I don't know their names. I mean you saw the statistics.
MR. FRUMIN: What's their affiliation?
MR. HALPRIN: I can't tell you that. I don't know.
MR. FRUMIN: Okay. And did the people doing structuring the comparison or the analysis look at the studies on the under counting of cases that's in the literature?
MR. HALPRIN: I think they looked at a fair number of them, yeah.
MR. FRUMIN: And so is there a reason why you didn't reference any of those in your document?
MR. HALPRIN: Because there is two things. One is the under counting has no statistical relationship in any of them with incentive Programs. And two, even if there was some under counting, which I've suggested, the OSHA findings have been that the countings have been in the 90 to 95 percent accuracy rate.
So the question is, if you're going to save lives and limbs, does it really matter if you miss a case now and then? And you make a decision that first of all, like I said
MR. FRUMIN: All right
MR. HALPRIN: The tail is wagging the dog. There is on evidence
MR. FRUMIN: Right, but the under count data that you talk about is only from the evaluation of the NEP, rather than from the multiple other studies like those in the peer reviewed journal, BLS, Michigan
MR. HALPRIN: There are no
MR. FRUMIN: that look at the under count. I mean you want to talk about the under count from the NEP, but not the other studies about the under count. Your analysis of the NEP results doesn't discuss incentive Programs. They didn't really look at that. But you go into quite a bit of detail about that, but you don't discuss the under count studies from other sources. And I'm just wondering why that is.
MR. HALPRIN: Because we haven't found any that find a statistical relationship between under counting and incentive Programs.
MS. SPIELER: I'm going to exercise the prerogative of chair to ask a question. Sorry, Nancy.
MR. HALPRIN: Sure.
MS. SPIELER: So I actually am fascinated by the what your internal data show with regard to the reduction in catastrophic injuries and the effect on the MOD factors that which is clearly the goals of your companies and what you're selling.
I'm interested in knowing, because of this tension between what you are labeling as bias within the worker and community and the unions, and how OSHA views it, and apparently how MR. Eherts views it, and how you view the incentive programs, I would be very interested in knowing whether there have been any direct to worker surveys done by an independent or study organization that asked the workers themselves what their perception is about how the safety incentives work.
And if there haven't been, whether you think your company would be willing to set up a situation where an independent research organization could come in and really take a look at this question by going directly to the workers with a guarantee that there would be no retaliation against them for participation in a study that looks at the effectiveness of safety incentives as a component of actually improving safety, as opposed to changing claiming behavior.
MR. HALPRIN: Well, first of all, I will pass that on.
But I would like to be clear about one thing. There is a difference, to me, from a legal standpoint, between something that a worker might say could be a factor that they would consider and might in an ideal world, if you weigh things to discourage
MS. SPIELER: There are people who know how to design these surveys.
MR. HALPRIN: Right.
MS. SPIELER: I would not include myself in them.
MR. HALPRIN: But, I mean, it's
MS. SPIELER: All I'm interested in knowing is whether there is any way of cracking this nut of disagreement by actually going in and having independent review of what's going on in these companies.
MR. HALPRIN: What I'm saying is if the independent review is to find out whether there is a case that's not reported, to me that makes sense.
You or ask a worker, "Did you actually have a case that you failed to report?" That would be a legitimate question. Asking them whether there is some factor that might discourage them in some way to some degree from reporting is not what I consider relevant.
MS. SPIELER: Okay. So I gather your answer is, "Yes," you would "we welcome it, but we would be interested in knowing how the survey would be conducted."
MR. HALPRIN: Certainly.
MS. SPIELER: Great. Thanks. Nancy, go ahead, and then we'll break for lunch.
MS. LESSIN: Sure. So just a couple things. I also noticed there have been studies, actually, on looking at safety incentive programs and their relationship with reporting that are in the literature, in peer reviewed journals: one from 1999; there is another from 2012; there is many others that are not in yours at all. You say there is no evidence, but there are peer reviewed journal articles.
Secondly, if, in fact, the idea of having prizes for this low, you know, worker comp, you know, whatever this association is, was a way to prevent catastrophic injuries, then I would think that the Chemical Safety Board, whose job in this country for 18 years is to look at how to prevent catastrophic injuries and tragedies and fatalities, would have looked at this and included it in its recommendations in all of the catastrophes they are investigating. At no point in any of theirs is there a suggestion that this is something that is going to prevent the next catastrophe.
MR. HALPRIN: Okay, the Chemical Safety Board
MS. LESSIN: issue that you talked pardon me?
MR. HALPRIN: The Chemical Safety Board is a politicized animal. But beyond that, catastrophe has two different meanings. Here we are talking about a claim of $475,000 or more. Chemical Safety Board is talking about a chemical release that might engulf an entire community, so
MS. LESSIN: It actually does explosions and worker death, which I think you were talking about.
The other thing is that you referenced the NEP with OSHA, looking at the records review. And according to the GAO's 2012 report on safety incentive programs, it the GAO report documents that OSHA inspectors received inadequate guidance on how to assess incentive programs for enforcement purposes. The NEP did not select a nationally representative sample. And, according to the GAO, OSHA cannot use the results of the NEP to determine the effectiveness of safety incentive programs and other workplace safety and health policies on injury and illness reporting.
So the GAO said, "We're not looking at this because it was inadequate." You use that as the centerpiece of saying, you know, there is no connection. The GAO says you can't look at this in regard to safety incentive program. That's the GAO.
MR. HALPRIN: The agency, I think, is a very cooperative group, and competent group of professionals. They made a decision not to examine the issue, and didn't collect the data they would have needed to examine the issue. That's not our fault.
MS. LESSIN: The last issue that I want to
MS. SPIELER: Okay, so Nancy, I'm sorry.
MS. LESSIN: Okay.
MS. SPIELER: I am going to cut this off.
MS. LESSIN: Okay.
MS. SPIELER: I think you've raised some significant points. Later in the day we will put into the record the various materials that you filed with us in advance of the hearing, so that it is available. As I've said, you've raised significant points.
MR. I understand that you just recently asked for time, but I think we cannot do it now. If we may be able to allow you to say something later if you want to hang around through the day.
Okay, so we're going to break for lunch. And again, to the committee members, we must be back in our seats by 1:00. Thank you very much.
(Whereupon, a luncheon recess was taken.)
A F T E R N O O N S E S S I O N
MS. SPIELER: So, why don't we reconvene? Welcome, Deputy Secretary Lu and Dr. Michaels, Assistant Secretary for OSHA. I'm just going to turn this over to the two of you, and we really are delighted you could be with us.
DEPUTY SECRETARY LU: Well, thank you for having me. I don't want to steal too much of Dr. Michaels's time. This is really just a chance for me to say thank you.
When I met with all of our DFOs for all the advisory committees, I said, "You know what? I see the resumes and the CVs of all the people that come through the advisory committees. I see the work product that's best practices for protecting whistleblowers. I have to, you know, read all this stuff, clear this stuff, and it just dawned on me you all are doing such incredibly important work, you're not getting paid I'm not, at least, aware that you're getting paid you are doing this on your own time.
I know it's not only the time here in Washington, but it's the time that you do in other meeting subcommittees, consultations between meetings and this is a lot of work. And I just really just came on behalf of the Secretary to say thank you.
And I would do that and I have actually this is the second of three advisory committee stop by's I'm doing. You may have seen the Energy folks are down the hallway. And I would say that to everyone, but I will say that we appreciate your work, particularly on a subject like whistleblower. Whistleblower protection is one of a high priority of this administration. We've done some great work on this issue.
And, as the Secretary always says, "Look, we don't have" at least I have not had an original idea during my time here, and I benefit from the great expertise of not only a wonderful staff at OSHA, but also people from outside. And so, the input that you provide based on your years of experience, your collective wisdom, is critically important for us to do our job.
And when I read a document like this best practices, I said to David on the way up here this is fantastic. I mean I sort of think about this more broadly not only in the whistleblower context, but how do I become a good leader, how do I foster a culture in which people are allowed to say, "Hey, something is not right here"?
And so, this has broader applicability, and I just want to thank you for your work on this. But, more importantly, your service to this committee. We have an open door. I hope to come by again before the end of this administration and hear from all of you. And I get updates, not only from the DFO, but from the OSHA staff on your recommendations that come out of this. And, as I said, before things go out the door, I have a chance to see them, as well.
So, the advisory committees are a critical part of what we do here at the Department. We could not do our work without all of you. So thank you for your service.
DR. MICHAELS: Thank you so much for joining us. I'm happy to also be here, first, to thank all of you. As you heard from Deputy Secretary Lu, we so
MS. SPIELER: Thank you very much for joining us.
DR. MICHAELS: We so value your work. It really we already see its impact in many ways when people talk about the development of the whistleblower protection activities of OSHA. They clearly are influenced by you, and I think people really see it, and I think there is great potential to do even more.
I also wanted to take this opportunity to thank the OSHA staff and the SOL staff who work, first, directly for the committee, and Anthony, who is a, really, just fabulous leader for this, and Brian, who is now with a solicitor you know, comes from our from OSHA, as well, so knows these issues. And also the folks from the other agencies who have been helping us out.
And also let me take a moment to thank the OSHA whistleblower protection staff, MaryAnn Garrahan and your team. And I know we have quite a few of them here. It's a small office, so I think almost the entire office is here to learn from you, direct from you, and to be here to be resources for you. And it really is it's a small office, given the huge responsibility we have, and they do a remarkable job, and I'm grateful for what they do.
So, since, you know, we've met last, I know there are two new groups that this group has put together, the outreach excuse me, the outreach group and the new training work group. I don't see is Marcia on the phone, or Marcia, thank you so much for chairing that group. And J.J., also. It's really I think there is some very important work that you can do when we have high expectations of you.
As you no doubt heard, we have been working through the comments that we've received on the recommended practices document. And they've really been eye opening to us. And they're great. I mean we've gotten lots of comments, some saying, you know, equal and opposite things, so it's hard to sort of go through them all and adjudicate them and say, "Well, what makes the most sense and what fits into our rubric," but I think we've really stirred up a lot of really great conversation.
And I know, talking to folks outside of OSHA and I think you will hear from some of them today that this document was read widely, not just in this country, but overseas. I'm sorry, the original document that you wrote, then the OSHA draft document have been widely read. And I think you're already having an impact, I think, as we perfect this document and get something out that we're really that we could all embrace. We will be have a bigger impact. So we're really pleased about that.
A couple of just updates. Since the last time we met you may have heard already you all were really very instrumental in helping us think about these reasonable cause questions. And I know we've discussed it a little bit, but the reasonable cause memo, which came out in April 2015, a year ago, now has been integrated into the latest version of the whistleblower investigations manual. So that's really become much more sort of concretized.
We're trying to both expand and strengthen the training programs that we do for our staff. And really, we're talking mostly about our field staff. And so our at our OSHA training institute we have a couple of new courses that have come on now. We have launched two new classes of course on the fundamentals of whistleblower investigations, and then an interviewing techniques course. And we are developing two new courses, legal concepts and settlement techniques.
We've issued and this always takes a long time, and we have been working hard on this, and we appreciate the help of the solicitor's office in this, too final rules for conducting investigations for several different rules. Most recently, I guess, food safety has come out.
It's always interesting when people you know, it gets a lot of press, and it makes it look like it's a new activity, though in fact it continues what we're doing. But sometimes it even gets written up as, you know, new, onerous, you know, job killing regulation, since no one really understands the way we work. But they're very useful, in terms of our process, and we've gotten, I think, three or four out since the last meeting. So our staff has done a great job on that.
We're also working to update our online complaint form to make it more user friendly. You know, the process of the federal government to change any sort of a form is a long one. It requires a couple of rounds of public comment, and so we're now I think we're approaching the end of that, as well. We've gotten a little actually, even gotten a little bit of public comment on it.
We're always looking at the budget, and the budget's you know, the cycle has started again. And there are some people who say we will not get a new budget this year because of the political situation, we'll just get a continuing resolution.
But we're always hopeful, because every year when the President submits a budget to Congress, it the President always asks for an increase in whistleblower protection staff. And it shows, really, the commitment of the Labor Department and the White House to this program, because there are many programs that don't get an increase. We are usually among the biggest increases requested this for expanding our whistleblower protection program.
When Congress actually does pass a new budget we usually get an increase, as well. Since I've been here, every time Congress has done something other than simply a flat, you know, continuing resolution, we have gotten an increase. So we are hopeful that if there is if Congress does pass do a new budget this year, we expect to get more resources.
But obviously, one can't predict, and it's it wouldn't be unexpected if Congress just says that they don't want to pass a budget this year because the election is coming, and just gives us a CR. And that's tough, I mean, because with a CR, flat funding, it's actually a decrease in funding. Certain costs are always going up. But with our relatively small staff, I think we continue to work very hard and do a really great job.
Those are just the basic points I wanted to touch upon. I'm happy to answer any questions that you have about either short term things or some of the longer directions. I think, as I said, this committee has really made a huge contribution to our work, and I expect that will continue. So I'll take a couple of questions, if you like.
Sylvia? Nice to see you.
MS. JOHNSON: Thank you, good to see. Sylvia Johnson from UAW. You mentioned Congress and
DR. MICHAELS: Get closer to your mic.
MS. JOHNSON: Oh. Oh, yeah.
DR. MICHAELS: I can hear you, but
MS. JOHNSON: I forget. You mentioned Congress and the unlikely event that they might pass a budget. Should they pass a budget, what kind of increase could you expect to see
DR. MICHAELS: Well
MS. JOHNSON: within OSHA, more broadly, and within the whistleblower
DR. MICHAELS: You know, it's really hard to predict, but the President's budget asked for an increase in several areas. Usually, you know, the reality is we rarely see as much as the President's budget asks for. Usually some compromise between, you know, nothing and, you know, what the President's budget but outside of the whistleblower protection area there was an increase in asked requested in enforcement.
Also in for our state plans, because we haven't been able to increase the amount of money going to state plans in quite a long time, and that's very important to do, an increase in compliance assistance. But the increase in the President's budget on for whistleblower protection was an increase of $3.4 million in and to add 22 FTEs.
In the past, Congress has actually gone not as far as the President has asked, but actually given us a generous increase, and we are ever hopeful to see it.
MS. JOHNSON: Thank you.
DR. MICHAELS: But we will see.
MR. FRUMIN: David, we have talked
DR. MICHAELS: Identify yourself, please.
MR. FRUMIN: Sorry, Eric Frumin. We've talked here yesterday in the outreach group and previously about the relationship between the work of this directorate, the whistleblower program, and the safety and health enforcement, and expressed an interest in OSHA finding ways to enhance its work to prevent retaliation by incorporating assurances or other kinds of provisions in enforcement activities such as settlement agreements to try to address retaliation, in addition to whatever happens as a result of complaints coming through the whistleblower program itself.
So, I'm curious whether you could comment on that at all that is, the likelihood that the enforcement program could start addressing this in a more robust way. There are pro forma, you know, warnings against 118 retaliation, but 118 violations for 40 years, it hasn't been that helpful.
And then a corollary to that is the forthcoming regulations and guidance on the executive order on fair pay will be describing if it's anything like the draft, will be describing labor compliance agreements as mitigating factors. And one of the criteria for evaluating those, as well, will be whether they contain anti retaliation provisions. So also sort of enforcement related, both things in the offing. Wonder whether you could comment on those.
DR. MICHAELS: No, and you certainly raised an important issue. I can't speak to where the the regulations around the fair pay and safe workplaces regulations, you know, where the final will come down on these issues, because it's still in process.
But in terms of our own enforcement activities, I know that this is an area that you have raised with us, which I think there is real commitment to try to coordinate or work better, because we recognize that this is the bifurcation of anti retaliation investigation from safety inspection is not a good one, and we need to make sure that they're better linked in our field work. You know, we can have discussions here in the national office, but until, you know, the offices and the field start better coordinating, we won't see that.
And so, you know, we've discussed this with the leadership in both our enforcement programs and our whistleblower protection programs, and raising it with the field staff and saying, "How can we do this better?" And I think you've been very helpful to us, and we're grateful for that.
MR. MOBERLY: Good afternoon, Dr. Michaels. Thank you for coming. Richard Moberly. And you have testified in front of Congress and talked with us about OSHA and the need for statutory reform. We have had whistleblowers come and tell us today about more instances of where this statute itself is problematic. And I was wondering if you could update us on where that might stand.
DR. MICHAELS: Well, you know, the Obama Administration has been supportive of the Protecting America's Workers Act, and the in particular, the components of that that would update the 11(c) provisions and allow us to do a better job making sure that workers are not retaliated against for raising safety and health concerns.
I know that that legislation has been reintroduced by Senator Franken and Representative Courtney, I believe. I haven't seen I actually haven't read the newest version. But until Congress acts on that sort of thing, we won't see the sort of changes that we think are required. I won't speculate on the likelihood of Congress passing that this year.
But we have long recognized the importance of that, and the limits to this. On the other hand, what we're trying to do and, really, with your help, is to do as much as we can within that current legal structure. And I think, in particular, there was a the collaboration between the solicitor's office and OSHA has very much improved.
And a few years ago, Trisha Smith, our solicitor of labor, issued a memo talking about the importance of that work to the field solicitors. And we've been working much more closely with them than ever, and really getting much more bringing much more important cases to fruition. And I think we are having an impact, though I think there is a limit to what we can do, given the legislative parameters.
MS. LESSIN: This is Nancy Lessin. A follow up question, I think, to that, who we heard from this morning were rail workers dealing with FRSA. And they had a number of concerns, some of them statutory, some of them maybe things that could happen without a change in the statute.
But when, then, is the relationship between OSHA and the agency for whom you're enforcing their whistleblower protection? Can OSHA talk to FRA about the kinds of things that we heard, and how often does that happen, and what's that relationship?
DR. MICHAELS: Yes, we actually do have we try to have an active relationship with all of the agencies whose legislation, anti retaliation legislation, we investigate and enforce.
And let me turn this over. Anthony, actually, has been helping Anthony and MaryAnn have been spearheading these outreach we've some have gone very well, I think.
MR. ROSA: Well, actually, yes. This is Anthony Rosa. We actually have, for the past several years, a memorandum of agreement between OSHA and the FRA. And in this memorandum of agreement it allows us first in fact, we do this with all of our partner agencies, but we do it with the Federal Railroad Administration. We meet with them in person at least twice a year. We share information.
What we actually do, we work with them to first we look for opportunities where there is outreach. We always want to try to find outreach. I know in the safety and health side we have compliance assistance specialists here within OSHA. But with the partner agencies we're always looking for opportunities to reach out to those industries and provide the workers with the knowledge of what their rights are.
We also share with the partner agencies on a continuing basis copies of all complaints that are filed, so that these agencies can actually investigate the underlying the issues to which the retaliation allegation has been raised.
We also, in our weekly in our biannual meetings, what we also do is we send we give a copy of all a report of all of the FRSA complaints in this particular case for the FRA just to make sure that no case has fallen through the cracks, because sometimes in the office they may have forgotten to send a copy of a complaint. So we make sure that they double check their records to make sure that all the complaints that we received they also received and they have investigated.
And we do an annual report with the FRA. We actually work with them and as part of the MRA, we work with them on what types of outreach, what types of technical assistance we have. Because, as I was mentioning yesterday in one of the work groups, we in our program it's we find it we need to identify the reasonableness of the complainant. So many times we contact a partner agency to when the complainant tells us a particular scenario, we contact the partner agency if we're not sure what the scenario would look like, so that we have a better understanding of what the complainant why the complainant raised the specific concern or, you know, safety issues.
So we are we have constant dialogue with our partner agencies here in the national office, as well as in the field. And especially with the FRA.
DR. MICHAELS: And, you know, what's useful about meetings like this is, if there are other sort of policy issues that we're not seeing out of individual cases, we will get them from I haven't been briefed on this morning's session, for example, but, you know, as those we learn about those, then we could raise those in those meetings, as well, because we have an ongoing dialogue.
MR. ROSA: And there have been instances I know when I was in Atlanta there was an instance where the FRA has actually a regulation that deals with anti harassment that they're going to actually issue a fine against the employer. And we had a particular case to which they because we had found merit to the case under the FRSA, they were able to use that in order to impose a fine against a particular railroad.
So we do look for opportunities that we work together. And we also look for opportunities when we can investigate together.
MS. SPIELER: So I think there are a couple of things that we heard this morning that would be you don't have to react now, but I thought they were interesting.
MR. Wahoff from Steptoe and Johnson brought us some very concrete suggestions, and among them relates, I think, to the issue that Eric raised, which is that he feels that his clients are familiar with the procedure for OSHA compliance inspections and less familiar with the issues of retaliation, and suggested that maybe there is something that should be inserted into opening conferences and closing conferences on the compliance side that deals with the anti retaliation questions.
And although I think it's likely that our outreach committee may come back with that as well, I just thought it was an interesting point, coming from where he's sitting, as a representative of employers, feeling that getting the word out and educating people in a better way about this by linking the processes that OSHA engages in would be very useful.
And so, I just wanted to
MR. ROSA: No, thank you.
MS. SPIELER: Yeah. And the other more troubling and I have no idea how to deal with this in response to a question that Nancy Lessin asked this morning the people who came from the railroad suggested that the BNSF agreement has not been effective. And I know that that's been a something that the this administration has been quite proud of, and we have been assuming that there was an effectiveness.
And I have no idea whether this is an isolated pocket of concern, or a broader pocket of concern, but it does tell us, I think, that the effective negotiation of that kind of agreement probably needs to be followed up on in terms of evaluation of its effectiveness on an ongoing basis. And I thought it was important for you to be aware of that, as a concern.
DR. MICHAELS: No, I appreciate that, and I will certainly look into that. I will get briefed on what we learned this morning, and think about how we might proceed.
MS. SPIELER: Other questions or comments for Dr. Michaels?
DR. MICHAELS: Well, let me again thank all of you. This really it's great to see how this committee has gelled, progressed, and, really, the contribution it's made has been very significant. And I am personally very grateful. Thank you.
MS. SPIELER: Thank you for making the time for us.
MS. SPIELER: Welcome.
MS. GARRAHAN: Good afternoon, everyone. I'm MaryAnn Garrahan, the director of OSHA's whistleblower programs, and it's a pleasure to be here. And I do want to echo Dr. Michaels's thanks to the committee. We truly appreciate all of your hard work and your dedication. And what you do helps us tremendously.
And for the purposes I want to thank the four new members. And for your purpose I want to just briefly say that our directorate, as Dr. Michaels mentioned, is very small. You know, we call it small and mighty. We have Anthony Rosa, who is the deputy. We believe we have some of the best and brightest individuals in our program in OSHA, and also across the country in the whistleblower program.
And we're responsible for, here in D.C., promulgating regulations, developing national performance measures, policy and procedures, supporting OSHA's 10 regional offices. It was mentioned earlier this morning that we have approximately 100 whistleblower investigators across the 10 regions.
We also strategize on agency outreach efforts and provide outreach, as well. And we run an administrative review process for requests for reviews of regional determination on complaint investigations under 11(c) of the Act.
So, before I go into the update I want to thank DWPP staff, particularly Meghan Smith, who is on the phone, and Marisa, and Josie Gross. Due to their logistical and programmatic help, they really are the ones who make this meeting happen.
And then, second, I just want to mention that if you would hold your questions until I kind of finish, then we're Anthony and I are more than happy to respond to whatever questions you have.
So, I'm going to start by saying at the last meeting I mentioned two agency milestones in OSHA's operating plan for this fiscal year. One involves a customer service measure related to website traffic, and the second one has to do with updates to our training. This kind of fits in well with the two work groups here. I know J.J. mentioned earlier in her report out this morning about learning from website traffic.
So we've started using a tool called Google Analytics, and we look at it, we provide some statistical analysis in order to better understand not only who is looking at what on our site, but where are they coming from to our site, as well. And what we've learned so far, for example, is that the three most visited statutes are the STA, the Surface Transportation Assistant Act, page; the Federal Railroad Safety Act; and our Aviation Investment and Reform what we refer to as our AIR21 page.
And we've also mentioned I know Anthony had talked about and I will talk a little bit more about our work with our partner agencies, but you know, we have set up links to some of our we're hoping to get links on with all our partner agency web pages, but we've already seen some success where we're seeing traffic from those links from our partner agencies back to our page. So that's good news. In particular, we're seeing those on the EPA ones and the Consumer Financial Protection Board links.
The other milestone I had mentioned was about a training. And Marcia gave a nice overview of the new courses that OSHA has developed for the whistleblower program and the ones that are under development. And I just want to re emphasize that training is a very high priority for this agency. And we very much appreciate the efforts of the work group, and we will look forward to your work in what the committee as a whole recommends to OSHA on this topic.
As with many aspects of the whistleblower program, we have come a long way in making improvements. And not only did we go from a system of generalist to safety and health enforcement and also whistleblower investigation to specific whistleblower investigations, we've also realized that our training needed to be very specific for our whistleblower investigators, as well.
And that has been, again, a priority. And you've heard from Marcia on some of the areas that we've already been able to accomplish in a relatively short period of time. And the Department is tracking our progress on that. It is in our agency operating plan.
The other thing that I want to mention along the lines of training is what also is a priority for the agency on training is training our management team. And I don't think we're unusual as an agency that, when it comes to promoting people, we tend to promote our best technical people and we don't always take the time to really provide the types of training that they need in order to, for example, review other people's investigative files or turn things around, you know, in terms of timely.
And so, as an agency, not only under the whistleblower program but under our safety and health enforcement as well, we are developing some specific training for our management team, as well. And we think that's going to go a long way to improving quality and efficiency.
So, I'm not going to go into as I say, Marcia gave a nice update on that. The next thing I'm going to mention is the 11(c) administrative reviews. I told you that's one of our very important functions that we take extremely seriously. We do this because most of you probably know, unlike other whistleblower statutes, the 11(c) section of the OSHA Act does not allow for complainants to appeal their determinations. So our directorate takes on that function.
And since the last time I gave an update so I'll just report out. On the first 6 months of Fiscal Year 2016 that's from October through March we've had 82 requests for reviews that were filed. And this is an increase of six over the same period from last year. And in the first 6 months of Fiscal Year 2016 we issued final determinations for 79 cases, and that's 5 less than, say, a year ago for the same period of time. That slight drop in productivity, we believe, we due to working out kinks in a new process change that involves providing more explanation to the requester in the final determination letters that we give.
You know, we've been criticized as an agency for rubber stamping, and we want to make sure our letters are, you know, addressing all the issues that they raised to us.
Now, Dr. Michaels gave an update on some of the regulations activity. Since the last meeting we published a final rule on procedures for handling retaliation complaints under the Consumer Financial Protection Act. And an interim final rule for the MAP 21, that's moving ahead for progress in the 21st Century Act. And a final rule on the FDA Food Safety Modernization Act.
Now, we're moving forward with the final rule for the Seaman's Protection Act. And also the Affordable Care Act and the and also, just to give you a heads up, the interim final rule for MAP 21 was published on March 16th, and it's open for public comments until May 16th. And then we'll develop the final rule. We are really pushing to get everything cleaned up by the end of the calendar year on these regulations.
Dr. Michaels had mentioned about we had issued and we've been sharing with the committee about a reasonable cause memo. It clarified three causation standards that we apply, depending on the statute that's involved. For example, the but for causation, motivating factor, and contributing factor. And we incorporated that memo into our manual, and we also issued a new chapter on information disclosure, addressing our non public disclosure policy for ongoing investigations, as well as the procedures under the Freedom of Information Act, the Privacy Act, and the sharing of information with other federal enforcement Agencies.
Overall, I want to mention for better transparency and consistency we are developing a process where we will be linking our policy memos to our manual until we actually get the manual updated, and we think this will be helpful not only to the public, but also to our investigators, as well, to ensure better consistency instead of because we often will get policy out via a memo because it's a little quicker, it gets a lot of review. But it's getting our manual updated takes a long time. So you can be looking to that. We expect to get that up in a couple of months.
You had a question about how we deal with our partner agencies. And Anthony gave, you know, some really good examples. We take that work extremely seriously. We do we work not only with partner agencies, but, you know, also sister agencies. Now, our partner agencies would be the agencies that actually enforce the regulations that we enforce the whistleblower anti retaliation section on. The sister agencies would be like Sean's group in SEC that has a whistleblower or anti retaliation program.
And for example, our partner agency of SEC is the office of market intelligence, you know, which we meet with. And again, you know, our we think it's very important to be meeting with these partner agencies, so that we can make sure our regional offices are sharing all the complaints. As Anthony says, we try to do a double check on that to ensure that they're getting everything and also discussing any other matters that we think is important.
It's not really intuitive for workers to know under these 21 statutes outside of 11(c) that OSHA is the agency covering the Whistleblower Protection Act. So it's very important that we do outreach. We have a lot of work ahead of us, because we don't think we're really where we need to be, in terms of the outreach, and that's why we're really looking forward to the work that the outreach group is going to be helping us, as well, because there are some statutes that we receive very little complaints. And when we meet with our partner agencies, they're rather surprised. And, you know, we think, again, education outreach is going to make a difference.
And we mentioned that we're working on the links. We're also working on, if they have call centers, you know, 800 numbers, we're working with standard language that the call center can use if they receive something.
Now, I also mentioned we're reaching out to our sister agencies, and we think that's very important, as well, because we think we can learn a lot from them, and they likewise are learning a lot from us. And we have reached out to quite a few.
We have talked with them on topics, you know, such as you know, in terms of what they do, from a standpoint of outreach, what they do with training. And really, this is going to be a long term relationship we see, you know, because we see that and in terms of we have as Dr. Michaels mentioned, we're updating our electronic whistleblower complaint form. And the reason we're updating it is so that it is going to really screen out better so we're getting the correct ones that apply to us, and also giving information to the complainants, where maybe there are complaints outside of OSHA should go. And we see that, you know, working with, again, our sister agencies on that, we could probably do something across the government. So, we're really excited about working with our sister agencies and learning from them.
Now what I'd like to do is highlight a few recent enforcement whistleblower cases in the last six months.
Earlier this month OSHA ordered JPMorgan Chase to reinstate an employee after the company terminated a loan delivery operations manager at one of their New Jersey offices who raised concerns about financial transactions to his superiors. The agency ordered the company to pay over $151,000 in back wages, over $51,000 in compensatory damages, and out of pocket medical expenses.
OSHA's investigation found that the loan manager engaged in protected activity when he raised numerous concerns to bank management and this was between November of 2013 and May of 2014 about failures to properly record loans, both internally and to government regulators, and for refusing to override a failed compliance test and falsely reported as having passed. The bank reinstated by removing the employee's responsibility retaliated by removing the employee's responsibilities, eliminating his position, and subsequently terminating his employment.
And then, this past March, OSHA filed suit against Lear Corp this is a seating company with three of its managers for suspending and terminating employees for reported workplace hazards in violation of the OSHA Act (sic). The suit seeks back wages, interest, and compensatory and punitive damages. And additionally, the suit seeks an order directing Lear to remove all references to this matter from the employee's personnel records, and baring Lear from future violations of the OSHA Act.
OSHA has alleged that the company harassed employees, reduced their overtime, segregated them from coworkers, suspended and later terminated one of the employees in retaliation for raising health concerns associated with exposure to cyanide.
In early March the agency found that Jake Rieger Farms wrongfully terminated a driver who refused to operate a truck that was unsafe. In January of 2015 this Iowa commercial motor vehicle enforcement stopped and ticketed the driver of this tractor trailer truck for operating an unsafe tractor trailer, and for lacking proper state registration. The driver was directed to a repair shop, contacted his employee, and returned to Nebraska.
OSHA found that on January 2015 a coworker drove the employee back to the repair shop to retrieve the truck. The company directed him to drive the vehicle, which was still lacked the proper registration back to Nebraska. The company told the driver to start his return trip after law enforcement personnel left the area. When the driver refused to do so, the company immediately terminated him and forced him to find his own transportation back to Nebraska, a distance about 170 miles.
So, OSHA ordered this company to pay the driver $25,000 in punitive damages and $30,000 in compensatory damages, which includes back wages, repayment for tickets paid by the driver that was issued by the Iowa DOT, attorney fees, and transportation back to Nebraska, and compensation for distress. So, despite some of the successes we have seen with these cases, we still have a lot of work ahead of us.
So, I'll move from enforcement to outreach. And again, I want to thank the committee, this time for your list from the last meeting of your outreach contacts that you provided us. We have made good progress in filling in contact information for many of those organizations. We have also added organizations from those who responded to the recommended practices document that we posted for public comments. So we really expect to get very good use out of that. So I want to thank you for that.
One thing we're in the process of doing we think that it's going to be helpful is we're completing some wallet cards that our investigators, compliance officers, partner agencies, and others can disseminate that give protected activity and filing deadlines for five different statutes that OSHA administers. We started with 11(c), STA, FRSA, AIR 21, and SOX.
We're also in the process of developing a whistleblower rights poster. This would be similar to the OSHA poster, though employers would not be required to post it. Again, we're working on that.
We and I have teamed up with EBSA, which is part of the Department of Labor, Employee Benefits Security Administration, the Internal Revenue Service, representatives from various state exchanges, and HHS, the Health and Human Services, to explain to small employers and human resource professionals that retaliating against employees for asking for a right covered under Title I of the Affordable Care Act is prohibited. And we have been going around the country with the team of other federal agencies, talking about this. So we think that this is also very important, and something that we have not done in the past.
We've also we have also a number of outreach related products we would like to develop, including a summary of the steps that are involved in an OSHA whistleblower investigation. You know, we think that this summary would be a very important to the complainant and also the respondent.
You know, right now we have a directive. And for someone to go on our website and get to the directive and find out what the process is can be a bit much. So we're thinking something that would be an overview to understand all the steps involved in the process would be helpful.
You know, and again, I want to thank the work group, the outreach work group, for your great start. And we look forward to, again, the eventual committee recommendations in this area, as well.
So, I have saved the best for last, and that is I want to talk about the your best practice document and what we've done with what we've posted on the website. I want to start by once again thanking the committee for your best practice document. As Dr. Michaels mentioned, we very much appreciate the work that you have done to put this together. It was no easy task. It was a very difficult task, and we appreciate all the expertise that you brought to putting that document, that recommendation to us, together.
And we also understand just by having a diverse group really helped. And you reached consensus, which is really outstanding work on your part. Labor, management, public input into that document.
Now, what we did was we took that, took your recommendations, and put it into a format that would be something more in line with what we believe is appropriate for dissemination from a federal agency. And what we wanted to do is ensure and we put a lot of effort into that work, it just wasn't one person, it was a lot of work and a lot of review went into that, and but we wanted to make sure that all the good work that you had done was incorporated, and that we didn't miss any major concepts.
And we also you know, again, the agency decided that perhaps others might have something to contribute, as well. And so a decision was made to post not only your best practices document, but our recommended practice document, so the public could see both of them. And we at a total of and as you know, the comment period closed this past January, mid January, and we got a total of over 3,800 public comments. And I guess over 3,700 of those were due to a mass mail campaign conducted by the National Whistleblower Center.
So there were approximately 60 comments, kind of unique comments, submitted for the document. They the public commenters included individuals, labor unions, industry trade groups, companies, law firms, quasi government entities like the U.S. Postal Service, the Washington Metropolitan Area Transit Authority, and then whistleblower organizations and other non profits.
And the big comment themes included the belief that the document only applies to 11(c) or OSHA safety related whistleblower statutes, a concern that the document would be mandatory, concern with how the document interplays with a new reporting role, discussions about the document's treatment of incentive programs, requests for examples, and concerns that the document could be detrimental to whistleblowers. And that came from the I had mentioned the writing campaign by the National Whistleblower Center. You know, they pointed out that not all whistleblowers are reporting internally as a protected activity. And they're a little confused over the scope of our document, you know, versus others.
So, I just want to let you know, in terms of where we are with this. We are carefully, carefully reviewing all the comments. And I can't stress that enough. You know, it's it really is something that is a very high priority of you heard from Dr. Michaels, you know, in terms of the we want the best document that possibly can be out there. We want to make sure it's not too long, so that we lose people, so, you know, there is many things we're considering.
You know, in terms of I can't say in terms of exactly what's going to be in it, what's not going to be in it at this point, because again, it will be getting a very high review, and but I will say that there is a good chance the title will be changed slightly. There is the appearance of it will look a little bit differently. You know, we're really getting we really are getting some kind of marketing experts involved, too, so that the right amount of white space and illustrations are put into it.
So, we are doing all we can do, in terms of oh, we're also following up with some of the commenters, where we've had, you know, questions to, you know, make sure we understand, and we're continuing to do that to make sure we fully understand when people make comments.
And you know, it was open to everyone, and some of the WPAC members did elect to comment as individuals. And, believe me, we are taking, you know, all those comments into consideration and really going very closely, looking at each one.
So, with that topic, which I know is near and dear to you, you know, we're I'll also mention that our expectation for finishing that is some time this fall. In terms of Dr. Michael's standpoint, the earlier the better. He really wants to get that out. And that's where you know, he made a decision not to get back to you know, in terms of work back and forth with the advisory committee, because it just takes too long to do that, because it has to come from a full recommendation from the committee.
So, you know, we have every intention to you know, in terms of get something out. That's the plan. We have the advisory committee, as I say, working on some other very important areas, which we really are looking forward to getting your feedback on. And with that, if you have any questions, Anthony and I are open.
MS. SPIELER: Nancy, go ahead.
MS. LESSIN: Just a couple. The first is any of the you talked about some successful cases. Were any of them decided through your alternative dispute resolution, or were these done in the traditional way?
MS. GARRAHAN: The ones I reported on were done in the traditional way.
MS. LESSIN: Okay.
MS. GARRAHAN: But what I'd like to do for your next for the next meeting is really give you an update I think that is important on our ADR program and our you know, what we have found so far, and how it's working.
MS. LESSIN: Great.
MS. GARRAHAN: I think that's a very good point.
MS. LESSIN: Specifically on that, I would love to understand if there are particular statutes for which ADR seems to be working better than others. And also, look at the data that you have. What were the you know, what were the awards under an ADR case versus maybe a matched or a non ADR, just to get a sense of that?
The other quick question is you talked about a number of drafts, a wallet card, a poster. Is there any time for us to look at drafts of these, or is it a quick process that needs to get out? And I don't even know if that would be possible, but
MS. GARRAHAN: Yeah.
MS. LESSIN: I would, you know
MS. GARRAHAN: You know, as much as we would love your feedback, it's the type of thing that these committees run under the FACA rules. And I know you all have that FACA training. And in terms of it's not like we can just informally get feedback. And it just takes a while, because then a work group would have to discuss it, and then the work group would have to go to the full committee. So it just but a yeah
MR. ROSA: I just want to point out that all of these documents we are clearing everything through our office of the solicitor, and we are also sharing it with our whistleblower executive steering committee, which is a group of some regional administrators, to make sure that you know, so we are following all the processes to make sure that the information that we have in these documents is in compliance with our rules. But, yeah, it does take some time.
MS. GARRAHAN: It takes some time. But the other thing I want to mention that our outreach products, not like, you know, rulemaking, which takes, as you know, particularly for OSHA, years and years and years, we can always update our outreach products, too. And we like to do that periodically, anyways. So do keep that in mind.
MS. LESSIN: So I just say this comes from a concern. There was a larger than wallet card at one point in the recent past that kind of had this slogan of "stop, think, act" that was really problematic. So I would just hope that that theme wouldn't continue, that you
MS. GARRAHAN: Yeah, now I think you
MS. LESSIN: would find a different theme.
MS. GARRAHAN: Yeah, it's not. Thank you.
MS. SPIELER: A similar observation. There was at least one thing at one point posted on the website that almost promised that you would take forward a case under 11(c), and I think I we had some correspondence about that.
And so, perhaps, after even if they're done, you could not necessarily have recommendations from the committee, but you could bring them to the committee for individual for reactions from the committee, so that you could take those under advisement as you continuously revise the documents.
J.J., go ahead.
MS. ROSENBAUM: I think for the outreach work group, one of the things that we had identified doing was doing a more comprehensive review of the existing outreach materials and seeing if there were overall themes that we could point out, or if there were additional complementary materials, those sorts of things. So there is a process
MS. GARRAHAN: Yeah.
MS. ROSENBAUM: as you were saying, where we'll be doing some of that.
MS. SPIELER: Greg?
MR. KEATING: It's Greg Keating. Thank you very much for the report, and especially for the last but by no means the least topic.
I completely understand, given the time constraints, the difficulty of sort of going back and forth. And this is maybe as much a question for Emily or for the collective committee, but, as you know, a lot of work went into the recommended practices, 18 months worth of sessions. And I have to particularly call out Jon Brock, our chairperson, who really did an amazing job of keeping the boat going and drafting, editing, and revising, and drafting and editing, and just stating a fact. The guidelines that came out were certainly very similar, but there was a lot that was not included.
And I guess my question is, is there any way consistent with FACA rules and our own charter perhaps, to have, if assuming he'd even be willing to do it somebody like Jon available between now and the fall to liaison with you or with anyone who is working on it on your group, and just try to sort of point out certain things that you might want to consider from that expertise or area?
MS. GARRAHAN: Well, actually, Jon has pointed out he elected to comment as an individual, and he did compare the two documents. And we are taking his comments very seriously, and going through them. And if we have any questions, Jon, we will follow up with you on that. And believe me, again, Dr. Michaels is very interested in ensuring that we go through, you know, every comment very, very seriously, very thoroughly.
So, we do have that information
MR. KEATING: Okay.
MS. GARRAHAN: so that's very helpful to us.
MS. SPIELER: Jon?
MR. BROCK: Well, I'd be happy if you asked me some questions about it some time, I'd be happy to respond.
But I'd like to say that those were not really individual comments. That was a necessity, I thought, to point out the work that had been submitted contained an approach and concepts that would be considered when they if they reached the professional field and organizations, would be considered in many respects as new and innovative, because you really wouldn't find at least some of those practices in existing Programs. Even the people on the committee who run programs like that or advocate for programs like that in the workplace on a daily basis learned a lot from the experts that we brought in from outside the committee and from each other.
And the reason that I took the trouble to go through that line by line was because a very high proportion of the valuable concepts were either omitted or severely diluted, including the emphasis on prevention, the techniques related to that and to other things, combining aspects that are really not combinable that require separate activity. And in addition, misunderstanding or creating the potential to misunderstand the incentives impact of course you heard the same things I heard this morning.
So, I think, in the interest of what we're all here to do and I recognize that the work that all of you do here is hard work, I worked here a long time ago. It was hard then, it's a lot harder now. And I know that five years ago the things that you summarized here, and that Anthony summarized here and at other meetings, were things that weren't even on the agenda. So I know there is a lot going on here, there is a lot of work to do and a lot of improvement.
But if we would like to have those best practice guidelines make a difference in the workplace, then it has to contain the features that will make a difference. And what was put out in the public comment is certainly it puts something out there, just like if you put out the steps in an investigation it would be informative. But that document described a reactive program, not a proactive program, not a program with prevention, not a program that would lend new insights to the field, and that would get the people around this table and the people that they deal with in their professional circles excited about paying attention to that.
So, as you go through the comments I read all the comments also, and there are certainly some legal and policy questions that we missed and that narrowed consideration. And the process of developing consensus required balancing of words and the way things were put out. And certainly there are format questions that you have to be concerned about, not just marketing which is great, that you're attending to that but also your agency, not, you know, a non profit organization, you have to do certain things. All of that you know, those are constraints we all recognize.
But I urge you to really to have some kind of dialogue with us, not just with me there is people around this table that know much more than I do, I was only the scribe, I was privileged, but I was only the scribe so that when it's issued, that it will have an impact in the workplace. Otherwise, the work that we did and the work that I know you're going to do and have already done will not be particularly worthwhile.
So I say that with all respect and with all sense of constructive input to an effort that we've all made and we're all trying to do our best, all of you working on it now, all of those who worked on it before. But I think those omissions need to be considered in a very substantive way, relative to impact, not simply with respect to editorial expediency and so on. And if something is left out, there may be very good reasons to leave things out or to change things, but there should at least be good reasons. And I think that will only be revealed through dialogue, and I want to encourage you to find a way, properly following the rules, to engage people other than myself in that dialogue.
MS. GARRAHAN: Okay. Thank you, Jon. And one thing else I wanted to just quickly mention too is, since we did get some significant comments, what we plan to do when we issue the final document is also post a response to how we came to some of our decisions. It's not going to go into every one, every single detail, like we do when we issue a regulation, where we call it a preamble.
But we think, out of respect, too, to people who took the time to comment, we thought it would be beneficial to point out some items and actually show a crosswalk where someone might have wanted it worded this way, and we worded it this way, and maybe why we worded it a certain way. So we're hoping that's going to be helpful, as well.
MR. BROCK: Thank you.
MR. EHERTS: So I'm a bit concerned also about the individual back and forth. I know we want to stay very, you know, precisely within the rules for the federal advisory committee, but is there like the art of the possible? Like how quickly can we move? So if you got something back to the committee and they then forwarded to a subcommittee, and we acted very quickly to get recommendations back to the committee with the proper notification time, just how fast could that happen?
MS. GARRAHAN: Not fast enough. And that's why, again
MR. EHERTS: Even if we took out all the time in the middle? So we did the notifications exactly at the minimum? So we couldn't get that information back and forth within a month or two?
MS. GARRAHAN: Yeah
MR. EHERTS: No?
MS. GARRAHAN: Again, this is something that's been decided at the highest level, that it just, you know, wouldn't feasibly work.
MR. EHERTS: Okay.
MS. GARRAHAN: Back and forth. But again, it has been very helpful that we got some specific comments in. And we didn't intentionally we didn't try to miss anything that was significant. There was a lot of thought put into it. But it has helped, getting comments.
MS. SPIELER: Anyone else?
MS. SPIELER: I hope at the next meeting I think that an ADR update would be extremely helpful.
MS. GARRAHAN: Absolutely.
MS. SPIELER: And anything that's going on with regard to your evolution of data collection I think would also be useful for the committee at our next meeting.
MS. GARRAHAN: Okay. And, you know, one thing I would like to mention, speaking about both ADR and our data, is I would like to share some good news. And I know you have heard from us, that we have a very old, clunky database, and that the rest of the agency now it's been, what, six, seven, at least, years has gone to a much newer system. And we've been waiting for funding, waiting for funding, waiting for funding.
Well, the good news is that our agency, our administrative programs, has set aside some funding to get us started this year, and they actually think we will, a year from now, be on that new system. That is going to be a tremendous help to our program, because we will be able to do more data analysis. I know a lot of people ask for data, and we just can't get it. For example, ADR, we have people manually keeping track over ADR, because we don't have a field for that.
So we're very, very excited about that. And last week we had all of you had heard who have been here and for the new people the agency not only has this directorate, which is relatively new, but we have new positions and a regional office, which is a going to make a huge difference. There are assistant regional administrators for the whistleblower program, instead of being reporting to, say, the safety and health program.
And we had those individuals in this past week. The first time we had them in was last year, so it's the second time. And you know, we talked about the data collection, but also I know another topic that this group has mentioned, and that's the enforcement safety and health enforcement and whistleblower working closer together. That was a hot topic, as well, and we have some really good follow up. It was a very productive meeting. So I wanted to share that, as well.
MS. SPIELER: Terrific. Other questions, comments?
MS. SPIELER: Anything you want to add, Anthony?
MR. ROSA: No, I just wanted to say, as MaryAnn mentioned, we did have a very good meeting last week, and we actually had a brainstorming session, as we were talking about when we move into this new database system, this is an opportunity to put everything we want to put in that so called wish list of the fields that we can't track, like ADR, like several of the processes that we can't track right now. And we're working on developing a work group that's going to help us go through that transition.
And just to reiterate what MaryAnn mentioned and was talked about earlier, that we're also looking for it's important to bring the field managers here, and they actually had an opportunity to listen to the Railroad Workers United, because it's important for field managers to know what really is going on inside the industry coming from the workers themselves. But we're also looking for as the field managers went back to their regions, they also took the message of finding opportunities to cross coordinate with the safety and health side. So that was an important opportunity to get them together and share that message.
MS. GARRAHAN: And just one more thing. Lezlie, as the state representative, please know that we do want state involvement as we move forward with our moving to OIS.
MS. SPIELER: Eric?
MR. FRUMIN: Yeah, I want to follow up on something that Jon said in his response to the draft recommended practices, and it's related to some of the frustrations that we all feel with the obvious and severe limitations under which the program operates.
Whether it's the nature of the 11(c) statute, the case load for the investigators, the clunky data system that's probably a generous description and I have to step back and say, well, you know, what could be done differently? Because to just operate within that box is really I mean it's necessary, you have no choice, but there's got to be another way to think about it, to try to deal with a larger problem of, you know, employers who just feel free to retaliate, you know, without consequence.
And Jon's point about thinking that these that the best practice, recommended practices, needs to think about a proactive program. You know, the it's definitely that. It does need to be very clear that this is not just that a reactive approach doesn't cut it, that a proactive, preventative program by the employer, an anti retaliation program that actually means something is important. But I think that would be true, as well, for the whistleblower program within the agency, to think in terms of prevention as much as responding to the cases.
So you've mentioned several things you're doing, and I just want to reiterate that general idea, whether it's working more closely with enforcement, or outreach, or whatever, that if there are opportunities that are credible to take prevention seriously in the same way that the safety and health enforcement takes prevention seriously, not simply responding to incidents that are reported or complaints, that those opportunities are really, really important.
Are they a distraction, if you want to call it that, from the difficult work of keeping up with the caseload and not, you know, abandoning that? Well, yes, they are. And are you short staffed? Yes, you are. But we're under the current conditions, you're never going to catch up with this beast simply by reacting to it. And my hunch is that if the agency more broadly supports a stronger anti retaliation effort, that it will pay off in terms of trying to limit the caseload to something more manageable, even while you're fighting for funds or, you know, whatever the other frustrations are.
MS. SPIELER: Other comments or questions?
MS. SPIELER: Do you have any thoughts for us, as we go forward?
MS. GARRAHAN: Well, you know, kind of emphasize that what you do as things I reported out, you see how they directly relate to, you know, what we work on here. So I think it's important, in terms of for the work groups. And I know that they're set up a way so that we have the appropriate OSHA representation on the work group, in terms of obviously, they're not official part of the work group, but they're there as your support folks. And I think that that's helpful, so that you're not kind of duplicating efforts, or you're on track of what's going to be helpful to OSHA.
So I know, as someone involved in an advisory committee in that past, that that's really, really important. So, you know, feel free, as a work group, to reach out to those folks. And if there is additional support that's needed, we will, you know, provide it as well. Sometimes we need to reach out to other directorates. And, you know, if you need some field perspectives, you know, we can pull those in, as well.
MS. SPIELER: Terrific. Great. So we're moving clearly, we constructed this agenda in a way that we should have rethought. But we are ahead of time now, and we do we have a meeting wrap up time. But before we do that, I just I wanted to give Rick Inclima a minute to speak. He had asked this morning, and we really ran out of public comment time. And so, go right ahead, Rick.
MR. INCLIMA: Thank you, Madam Chairman, and thank you to for the to the committee. It's a pleasure to be before you again. My name is Rick Inclima. I'm director of safety and education for the Brotherhood of Maintenance of Way Employees Division. We represent 35,000 men and women who build, inspect, maintain the railroad tracks and bridges around the United States. And I work closely with our other sister rail unions representing probably, in total, about 180,000 rail workers.
I wanted to just touch base on the testimony this morning from the rail workers that you heard, and the concerns about both retaliation and accountability. There is a mechanism currently available under the Federal Railroad Association Administration's regulations, and it's 49CFR209.303. And what 49CFR209.303 provides is a mechanism for FRA to institute disqualification proceedings against both employees in safety sensitive positions or managers who have oversight responsibility for those safety sensitive employees.
And you know, what we have advocated in the past, and what I'm going to bring to this committee, is where you have patterns of violations, where a manager or a you know, a region of managers are consistently violating whistleblower rights or engaged in such egregious activity against an employee in a whistleblower case, you know, the FRA has the ability and the power to initiate these disqualification proceedings under 209.303.
Frankly, you know, the MOU structure is already there for the cooperation between OSHA and FRA to you know, to proceed along these lines. Certainly, in my view, even news of such action, whether it actually occurs or even is being considered, would quickly spread across the country throughout the ranks of rail managers. When they realize that they would be held personally accountable for their actions, rather than hide behind the railroad shield, you will see a massive change very quickly.
The 209.303 procedures do include due process for those employees. Like I said, the regulation and the MOU exists, and it's there for, really, just a matter of utilizing and leveraging those tools that are already there through the cooperation of OSHA and FRA to you know, to hold people accountable for egregious activities.
Now, in a BMWE has submitted comments to OSHA along these lines. I'm not sure if it was within the best practices comments or the guidance document, but it was fairly recent, and I would certainly be happy to follow up with any of you on those issues.
You know, in a perfect world, where we see these patterns, the OSHA investigator, whether it was as pattern of activity or egregious activity, ideally the OSHA investigator would make a recommendation to their counterparts at FRA and then cooperate on a 209.303 proceeding. So that's what I wanted to bring to the committee, you know, just to let you know that it's out there. The mechanism and the structures are already in place, it's just a matter of using the tools that are currently available. Thank you.
MS. SPIELER: A question from Nancy.
MS. LESSIN: Has this been used? And how successful has it been?
MR. INCLIMA: Well, that's a great question, Nancy. 209.303 has been used against safety sensitive employees. Some of my own members. And you know, we deal with those cases through the due process.
I recently filed a FOIA request with FRA on about how many managers have actually faced these same proceedings. My guess is there is none. I have not received a response yet, but, you know, we haven't been able to uncover any of that. So again, it's a under utilized tool that needs to be brought to light.
MS. SPIELER: Thank you very much.
MR. INCLIMA: Thank you very much.
MS. SPIELER: One housekeeping matter. The information that was filed with us by
MR. Halprin should be made a part of the record. And so this is Exhibit No. 7. A would be the cover letter dated April 18th, B would be the set of exhibits that start with Exhibit No. A. C would be the letter dated February 22, 2016 regarding OSHA docket number OSHA 2015 0018 and 2013 0023.
What am I up to? D would be the comments of Strategic Comp and the Great American Insurance Company before OSHA February 22, 2016. E would be the January I clearly didn't put these in the right order January 19, 2016 letter to Dr. Michaels. And lastly, the comments dated January 19, 2016.
MS. LESSIN: I had a question about that. So that's going to go up as exhibits on our website. But if there was false or flawed information in that material, are we or are members of the public allowed to put counter documents, peer reviewed journal articles
MS. SPIELER: No. The answer is no.
MS. LESSIN: No? Okay.
MS. SPIELER: This is during our public comment period we invite people from both management and labor to come and provide us with their views about what is happening, and we accept them as part of the record. We don't accept them on either side as inherently true, and certainly, as a committee, we are entitled to scrutinize them again on either side. But we are not in a position to put something up on the website. If you, as an individual, want to write something and publish it, you are free to do that, of course, as is anyone else on the committee.
MR. EHERTS: But of course the discussion, the questions and answers, are all part of the record. So
MEETING WRAP UP
MS. SPIELER: Yeah, yeah. Okay. So, the sorry, I lost my train of thought. We're about, well, half an hour ahead of time. We had a half an hour allocated to meeting wrap up. I'm not actually, I'm totally open to any suggestions about what you would either like to make sure we pursue in a future meeting, discuss at a future meeting, or any other observations about the work groups that will be doing their work between the meetings, or questions you would like to ask about the work group process that would help in the intervening period.
MR. EHERTS: Yeah. I just I consider that we're a very well led committee, and still we've had frustrations getting discussion back and forth with OSHA, because we have to follow the Federal Advisory Committee Act so carefully. And I'm just wondering if we couldn't have a federal advisory committee on federal advisory committees, and just
MR. EHERTS: Because there must be ways to structure our meetings and our subcommittee meetings in anticipation of recommendations coming so that the notification periods can be overlapped. Because I think, if we had been able to work more quickly, we could have had a much more constructive dialogue with OSHA. We could have answered questions almost in real time.
MS. SPIELER: Are you talking now about the best practices recommendation, or is there something else that
MR. EHERTS: Well, I think that's a great example, because we did a lot of work on those and put them forward. But then OSHA really couldn't go back and forth with us very much within the rules, so they had to issue them based upon their interpretation of what they thought would be the best thing to do.
And had Jon's group had a chance to go back and forth a couple times, there may have been much improved. And so I'm just and I know that if we notified one meeting after another, there is not nearly enough time to do that.
But I'm just wondering. I mean I'm sure you could figure out a way to set these things up in a manner such that we could react more quickly. Is that possible?
MS. SPIELER: So it's an interesting question, because I think, conceptually and MaryAnn, you should jump up and down if you think I'm getting this wrong, or whoever else is here, Brian or anyone else from SOL but it's this is an awkward conversation, I think, because the agencies, the departments, set up federal advisory committees to solicit advice.
MR. EHERTS: Not to go back and forth.
MS. SPIELER: Not to go back and forth. And so, in a sense, the advice is given, and it can be accepted or not accepted, or accepted in part. And it's and that is, in fact, the structure, the nature of the relationship.
So which is hard, because, on the one hand, you convene a group of people like the people who worked on the best practices guidance, and who have an incredible amount of expertise coming in, and then spend a lot of time taking talking to people out in the field, and hammering out a kind of understanding about what really matters. And it's hard, I think, to transmit all of that in a document.
And so, there is something inherently almost a little insulting in the fact that, okay, you kind of send off this document and the agency has not just no obligation, but really no and no duty, but really, the system is not set up so that they come back to you again. I feel I was about to say it's kind of like when you send a kid out into the world and you think, "What are they doing?"
MR. EHERTS: You know what dawned on me, though, is that I think OSHA had very good reason for doing what they were doing, it's just that the committee didn't understand it as we were working for those 18 months.
MS. SPIELER: Yeah.
MR. EHERTS: And so, if they could have interjected, or if we could have sent the first draft, and they could come back and say, "Well, that works, but in the real world, this doesn't"
MS. SPIELER: Yeah.
MR. EHERTS: "and these are the legal reasons why it won't," I think they have got very good reasons. But had Jon's group been given a shot at it, I think it would have been a much improved
MS. SPIELER: Yeah. You know, so I think that it may be that if the DWPP were more evolved at the time that we began working on that document, that the nature of the dialogue would have been different. But as MaryAnn has correctly pointed out, they were in a scramble to a little like the discussion we had about the SEC whistleblower office this morning.
And so, I don't know if it would have been a different kind of dialogue between the agency and the committee if it were a more mature organization internal to OSHA, but they really had other legitimately, I think, had other priorities in order to get improve the on the ground whistleblower program. And therefore again, legitimately thought, "Well, we have this great group of experts. We'll let them spend their time on that, while we do this."
MR. EHERTS: Right.
MS. SPIELER: And I think partly this is the
MR. EHERTS: And they got all that done.
MS. SPIELER: result of that.
MR. EHERTS: Right.
MS. SPIELER: And we did. But I think it's very interesting to me, the relationship that has already been set up around both the training and the outreach work, where there are it's very clear that there will be an ongoing dialogue between the people who are doing the work within OSHA and the committee, so that it's very unlikely, I think, that something this kind of disconnect would happen again.
And again, I think that's partly a reflection of the fact that, with permanent leadership in DWPP and more people out in the field, that there is just a greater depth and ability to be in that kind of dialogue with us. So
MR. EHERTS: Fair enough.
MS. SPIELER: Is that fair, MaryAnn, do you think?
MS. GARRAHAN: No, that's fair, yeah.
MS. SPIELER: So Eric?
MR. FRUMIN: So I'm thinking ahead to the both the work of the outreach group and our own next meeting, six months from now.
With regard to the question that I and others have raised about the improving the interaction between the whistleblower program and safety and health enforcement, so assuming that the outreach group and maybe the training group, as well, continue to have some discussion in the interim, I think there will be the next meeting will be ripe for having a chance to interact in the meeting with the enforcement what's called the enforcement directorate at OSHA, and DWPP in the same room at the same time, so that with six months advance notice, they'll have an opportunity to think about and share with us how they can move forward more effectively together, so that the whole is more than the sum of the parts, leveraging each of their respective capacities and authorities, and so forth.
By then we should also have the executive order on fair pay, which will also directly address the question of anti retaliation provisions and enforcement settlement agreements for federal contractors
MS. SPIELER: You know, I'm not sure everyone here is familiar with it, so
MR. FRUMIN: Okay. Well
MS. SPIELER: Just in two sentences.
MR. FRUMIN: In two sentences? The President issued an executive order a while ago. We're about to see the regulations implementing it, which requires a different way for the major federal contracting agencies to learn about and consider the effect of labor law violations on the federal contracting bidding process, so that when Lockheed Martin is putting in a bid for a $5 billion weapons system, and they've got OSHA violations, for instance, the fact of those violations is no longer irrelevant to the decision by the contracting officer as to whether Lockheed Martin is a responsible contractor and qualifies for that bid, which is a huge change in federal regulatory authority and federal procurement policy.
And the Labor Department is at the center of the collection of that information, the interpretation of that information for the contracting agencies. And it'll shine a light on quite a light on the nature of the violations and how both the agencies and the cited employers, the bidders, deal with those violations. And retaliation discrimination issues are clearly described as one of the violations that could raise questions or problems for a contract, even potentially disqualify a contractor.
But likewise, the main thrust of the executive order is to get bidders qualified, not disqualified. So let's make sure that the black list misnomer is not applied here. It's not a black list, it's to get bidders qualified. And one of the best ways to qualify them is to get a settlement agreement, what's called a labor compliance agreement, which says to the agency and to the labor agency, like OSHA or Wage and Hour, and to the Defense Department, this company has gotten right with the Lord and they've resolved their problems.
However, it's supposed to have assurances that workers can report violations, and to do so in an atmosphere free from retaliation. So again, there will be a need to put specifics on how anti retaliation provisions are memorialized in settlement agreements between labor enforcement agencies and major companies accounting for a quarter of the U.S. GDP. So those regulations are, I think, imminent as well.
So, without prejudging them, but just going on the basis of the guidance, the draft that was released for public comment, my hope is my expectation is that, for both of those reasons, both the leveraging that we've talked about earlier as well as the arrival of the effective procurement regulations, this joint discussion with the enforcement side of OSHA and the whistleblower program, with the committee, will be important and useful, timely, and will also be related to at least judging from what we've said so far yesterday the work of the outreach group.
MS. SPIELER: So, MaryAnn, if you would take that and think about it, we would very much appreciate it. Other Greg?
MR. KEATING: So, just in terms of thinking ahead and I you know, I was and am very excited to be on the outreach work group, but coming here I was kind of scratching my head a little bit, thinking, well, since we don't have any guidelines, you know, yet, what are we reaching out about?
And my analysis has been informed a bit, hearing Eric. There is another angle to this, this sort of the enforcement angle, and reaching out to make sure and I understand that, and I respect that. But I think a big piece of what we were trying to reach out about was this exciting new guidelines around an effective compliance program that will not allow retaliation. And I'm really enthused to get an update, MaryAnn, that it you're methodically going through all the comments. It takes time, and you're from what I hear, you're looking at a fall kind of potential dissemination.
My specific observation is, looking to our fall meeting, which I imagine will dovetail may dovetail around this time, can we at least in the outreach work group, which will include member of your you know, Anthony or Meghan or whoever can we at least work to try to think about effective splash with this announcement? You know, effective outreach with when the guidelines go out?
Because I think there is a lot of potential there. And you know, and I mean this completely respectfully, but I think the initial draft guidelines didn't get a lot of splash. And I think you know, I think they got at the end there was a lot of comments, and many of them well thought out. But I think this is an enormous opportunity, and I hope that we can work with the whistleblower directorate in the outreach group so that when we finally press the send button "we," being you it really gets the
MR. KEATING: It gets the attention it deserves from employers across America, workers across America, et cetera, et cetera.
MS. SPIELER: Nancy?
MS. LESSIN: Kind of pondering how to continue the dialogue about problems on rail, and whistleblower protection, and the issue of is you know, is the accord the way to go, or if it isn't working, what needs to happen?
And we don't have a work group, and we so I'm just I would like to at least have some thought about how to continue that piece of our discussion kind of aimed at can anything be done to make the situation better in whatever arena?
MS. SPIELER: Maybe the best we can do for between now and the next meeting, I think, might be to ask DWPP to follow up on some of the issues that have been raised and report back on them, and their report and then maybe at the next meeting we can figure out what would be the appropriate next step. Is that fair?
MR. KEATING: I think so, yes.
MS. SPIELER: Anything else?
MS. SPIELER: And Greg, I think your suggestion is a good one, and I have no idea how the timing could be managed, which is, I think, why it led to silence, that
MR. KEATING: No, I
MS. SPIELER: But certainly the minute the you hit send there ought to be something ready. And so certainly, all even if the outreach committee doesn't know exactly when you're going to hit that button, they can be engaged in a conversation about what should happen when you do.
MR. KEATING: Or just to be a little more specific about what what I'm talking about, you know, we I remember I think it was the last meeting, Dr. Michaels himself sort of spoke that he'd like to be sort of active in raising awareness, or speaking, or whatever it is that and we as you referenced earlier, we gave you a list of a lot of organizations.
I mean just I think it would be if possible, it would be very effective to communicate through the outreach group about, you know, which ones are you thinking about working with, and you know, how is that going to play out, and all that other stuff. That's specifically what I'm talking about.
MS. SPIELER: Eric?
MR. FRUMIN: Do we have a handle on how the work groups will be functioning in the interim?
MS. SPIELER: So I can give a partial answer to that. I clearly, by telephone conference call. There was some discussion during the ethics training yesterday about what kind of notice was required for activities of the subcommittees, and we were instructed, actually, that full public notice is not required for all subcommittee meetings.
So, I would ask the chairs of the subcommittees to figure out which of the meetings would be most appropriately publicly noticed. But my suggestion would be that I assume you have a staff person assigned to each from your office?
MR. ROSA: Yes, we actually do.
MS. SPIELER: It's actually, thank you.
MR. ROSA: Actually, we do. We do have a staff person. Actually, we have also subject matter experts from
MS. SPIELER: Yeah, but I want to know
MR. ROSA: a training institute
MS. SPIELER: We're on the logistics now. So we need a staff person in the DWPP
MR. ROSA: Yeah, we do have a staff person in each one.
MS. SPIELER: Okay
MR. ROSA: And one thing I just want to point out. It was
MS. SPIELER: Wait, wait, wait, wait. Who is assigned to which
MR. ROSA: Well, we have Marisa was at the training work group
MS. SPIELER: Okay. And Marisa, you'll be working with the training group on an ongoing basis?
MR. ROSA: At the present time, because Meghan is going yes, and Christine currently until Meghan returns.
MS. SPIELER: Okay, so wait. So is Christine, are you handling the logistics for outreach, or is Marisa handling the logistics for both?
MR. ROSA: Marisa is going to do the training. Christine will handle the logistics for the outreach.
MS. SPIELER: Okay.
MR. ROSA: Or she will delegate it over to Marisa until Meghan returns.
MS. SPIELER: Okay. So my suggestion is that the chairs of the committees be in touch with the staff people who are the assign logistics people to set up the an initial conference call, and then develop the schedule as you agree at that initial conference call. Is that okay, thank you. As we did before, really.
MR. FRUMIN: Yeah, that's pretty much the way we did it with the
MS. SPIELER: Before we I think we were publicly noticing everything, and
MR. FRUMIN: Right. Well, we had
MS. SPIELER: And that changed the some of the dynamics, because that triggered some requirements.
MR. FRUMIN: Right.
MS. SPIELER: And if we don't publicly notice everything, then it may be somewhat more efficient for the subcommittees to meet, especially in the initial framing conversations and so on.
As you get closer to actual recommendations, having public noticing the public so that people can engage in the conversation I think would be important. Fair enough, Eric?
So, what I right now, in terms of the next meeting, I will anticipate an ADR report, perhaps a fairly extensive one with data, if that's possible. I had a conversation with the person from the wage and hour division, and will be in touch with you because she said we agreed it would be helpful if we would articulate some of the issues that particularly we would like her to address. And she or they will come back.
We will try to address the sort of set of issues that you have raised, Eric, about whistleblower and enforcement, and the relationship to settlement agreements, as well as more generally. And the two work groups, presumably, will have more time on our agenda.
So, right there I think we have a pretty full meeting in six months, and undoubtedly there will be other issues that will arise. Is there anything I missed?
MS. SPIELER: Any last comments or concerns?
MS. SPIELER: So before we adjourn, I would like to join the various people who have thanked the various staff members who both put together the meeting logistics, but also do the hard work of trying to develop the program, with special thanks to MaryAnn and Anthony, who have really took on a big job, not that long ago, as a team and have really pushed ahead on a number of the most critical issues.
And all of the staff, I want to say around logistics and all the other issues have really been terrific. So thank you all. I will forget someone if I try to name everyone, so I'm not going to even try.
But thank you very much, and thanks to the committee members for your hard work. And see you in about six months. Adjourned.
(Whereupon, at 3:47 p.m., the meeting was adjourned.)
* * * * *