WHISTLEBLOWER PROTECTION ADVISORY COMMITTEE (WPAC)
Minutes of September 3-4, 2014 Meeting
U.S. Department of Labor
Frances Perkins Building
200 Constitution Avenue, N.W.
The meeting of the Whistleblower Protection Advisory Committee (WPAC) was called to order by Chairman Spieler at 1:30 p.m., Wednesday, September 3, 2014. The following members and OSHA staff were present:
|TITLE & ORGANIZATION|
|Public||Edwin W. Hadley Professor of Law, Northeastern School of Law|
|Richard Moberly||Public||Associate Dean, University of Nebraska|
|Jonathan Brock||Public||Emeritus Faculty Member (Retired), University of Washington|
|David Eherts||Management||Vice President Global EHS, Actavis Pharmaceuticals|
|Gregory Keating||Management||Shareholder, Co-chair of the Whistleblowing Practice Group and Member of the Board of Directors, Littler Mendelson P.C.|
|Marcia Narine*||Management||Assistant Professor of Law, St. Thomas University School of Law; Compliance Consultant, MDO Partners|
|Kenneth Wengert||Management||Director of Safety, Environment and Business Continuity Planning, Kraft Foods|
|Ava Barbour||Labor||Associate General Counsel, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America|
|Eric Frumin||Labor||Health and Safety Director, Change to Win|
|Nancy Lessin||Labor||Program Director, United Steelworkers' Tony Mazzocchi Center for Health, Safety and Environmental Education|
|Billie Garde||Labor||Attorney, Clifford & Garde, LLP|
|Christine Dougherty||OSHA State Plan States||Principal Discrimination Investigator, Minnesota Department of Labor and Industry|
|Rina Tucker Harris•||Federal Agency||Enforcement Attorney, Consumer Financial Protection Bureau|
|Thomas Perez♦||Department of Labor||Secretary|
|David Michaels||OSHA||Assistant Secretary, U.S. Department of Labor, Occupational Safety and Health Administration|
|Louise Betts||OSHA||WPAC Counsel
Office of the Solicitor, USDOL
|Nancy Smith||OSHA||Acting Director, Directorate of Whistleblower Protection Programs, USDOL OSHA|
|Anthony Rosa||OSHA||Deputy Director, Directorate of Whistleblower Protection Programs, Designated Federal Officer for WPAC, USDOL OSHA|
* participated via teleconference for portions of the meeting on September 4, 2014
• participated only on September 3, 2014
♦ participated only on September 4, 2014
Ms. Spieler welcomed the attendees and asked all persons present to introduce themselves, including WPAC members, OSHA staff and observers in the audience. Approximately 20 members of the public were in attendance.
Welcome from Assistant Secretary David Michaels
Dr. Michaels thanked the members of the WPAC for their hard work and noted that we're very lucky to have Tom Perez as the Secretary of Labor, as he is a true champion for worker safety who brings many years of experience fighting hard against discrimination. Dr. Michaels also introduced DWPP's new Deputy Director, Anthony Rosa, and Acting Director, Nancy Smith. Dr. Michaels thanked the DWPP staff for their hard work, and stated that in 2013, OSHA more than doubled merit determinations in whistleblower cases as compared to 2009, and is on a similar track in 2014.
Improvements in the Whistleblower Program since the Last WPAC Meeting
A significant concern of OSHA's has been its ever-increasing inventory of pending cases, including over-aged (also known as backlog) cases, which grew steadily from FY 2005 to FY 2012. To address this trend, OSHA has streamlined its procedures for documenting the outcomes of complaints - whether they were withdrawn or settled, or if the parties stopped cooperating with OSHA's investigation. These new procedures have contributed to a significant reduction in pending case inventory in FY 2013 and 2014.
During this period, several regions piloted a new organizational structure, which created a new position of Assistant Regional Administrator for Whistleblower Protection. The new position allowed for direct caseload management and oversight of whistleblower investigations by subject matter experts, resulting in more efficient and effective investigations under all statutes. Following the success of the pilot, OSHA is implementing this new structure and position for every region.
Additional improvements include entering into a Memorandum of Understanding with the Federal Motor Carrier Safety Administration, which provides for a better exchange of information between the two agencies; improving review times in our Section 11(c) appeals program; and conducting on-site audits of our regional programs to ensure they are strong and effective throughout the country. OSHA is also working on a policy memorandum clarifying the Agency's burden of proof in whistleblower cases.
Dr. Michaels discussed several recent cases with good outcomes for whistleblowers, including a settlement with Gaines Motor Lines Inc., and two individuals, for more than $262,000 to compensate four former truck drivers who were fired for participating in an inspection audit, in violation of the whistleblower protection provision of the Surface Transportation Assistance Act; a consent order in the amount of $100,000 with McKees Rocks Industrial Enterprises for firing a worker it suspected of calling OSHA and triggering an OSHA inspection; and a settlement requiring Asphalt Specialists to pay nearly one million dollars in damages, including almost $250,000 in back wages to the drivers it had terminated for raising safety concerns, $110,000 in compensatory damages, and $600,000 in punitive damages, and to reinstate the drivers, who had raised safety concerns after being directed to violate U.S. Department of Transportation mandated hours of service for commercial truck drivers. OSHA also ordered Department of Energy Contractor Washington River Protection Solutions to reinstate an environmental specialist who was fired in retaliation for voicing nuclear and environmental safety concerns, and to pay the employee $186,000 in lost pay plus interest, $24,000 in compensatory damage, $10,000 in punitive damages, and reasonable attorney fees.
OSHA's Whistleblower Budget Request for FY 2015
Dr. Michaels reported that the Labor Department's FY 2015 budget request included $21 million for the Whistleblower program, which would support an additional 27 positions for a total of 158 full-time employees.
Recommendations for the Work Groups
Dr. Michaels asked for specific help from the work groups. He asked for advice and input on effective means to change corporate culture around the issue of whistleblowers, helping employers achieve a culture of ethics and compliance, and collecting best practices and making recommendations to OSHA, so that OSHA can collectively affect a positive corporate culture change that encourages employees to report concerns without fear of retaliation while realizing benefits for employers who establish these programs in their workplaces. Dr. Michaels asked the 11(c) workgroup for recommendations on how section 11(c) of the OSH Act could be strengthened. He asked the Transportation Work Group for recommendations on discouraging employer practices that lead to retaliation against whistleblowers in the transportation industry and pointed to a voluntary accord signed by BNSF agreeing to revise several personnel policies that violated the Federal Railroad Safety Act.
For a full account of Dr. Michaels' presentation, refer to page 16 (Line 7) of the September 3, 2014 meeting transcript, in Docket - OSHA-2014-0012-0002 at http://www.regulations.gov.
Report from the Directorate of Whistleblower Protection Programs
Ms. Smith delivered the DWPP field report. Ms. Smith talked about the ARA for Whistleblower Protections positions piloted in OSHA Regions IV and V and extended to Region II, and an Alternative Dispute Resolution (ADR) pilot program in OSHA Regions V and IX. She informed the committee that OSHA is working on making the ADR program available to every region. She also discussed mediation training for staff and creating a whistleblower training track at the OSHA Training Institute which would include five task-specific classes. Ms. Smith also mentioned that national office staff have been visiting regional field offices to better understand the processes in the field while gathering feedback concerning needs and issues.
Ms. Lessin and Ms. Barbour asked questions relating to the ADR process. Ms. Smith and Mr. Rosa explained that ADR is voluntary and that a case will go back to a full investigation if ADR isn't working. Information shared in the mediation remains confidential. Mr. Frumin asked whether there would be closer integration between the compliance and whistleblower programs. Ms. Smith explained that they train compliance officers on the whistleblower statutes. Mr. Keating stated that he was a fan of early ADR because it can shorten the process. Mr. Moberly noted that he was happy to see more coordination on the underlying misconduct. He further noted that he was concerned that confidential ADR could prevent facts regarding worksite problems from being addressed.
National Office Report
Mr. Rosa delivered the DWPP operations report. He discussed his background with OSHA and some additional thoughts on the benefits of having an ARA for Whistleblower Protections. DWPP has been moving away from the term "appeals" into using "administrative reviews", as that is a more accurate description of the 11(c) review process. Mr. Roas discussed DWPP's new practice of holding Administrative Review Forum meetings to discuss cases that may need more investigation or that may need to go to the full Administrative Review Committee, which is comprised of members of DWPP and the National Office of the Solicitor. DWPP launched an online complaint form on December 5, 2013. As of September 2, 2,614 complaints have been filed online. OSHA is working on a Spanish version of the online complaint form. Since the last WPAC meeting, OSHA has worked on interim final rules for the Food Safety Modernization Act, the Affordable Care Act, Seaman's Protection Act, Section 708 of the Sarbanes-Oxley Act, and the Federal Railroad Safety Act, which are all currently in effect. DWPP is also working on an interim final rule for MAP-21, Moving Ahead for Progress in the 21st Century. Among the things discussed at the last WPAC meeting was the observation that OSHA needed to provide better guidance on referring safety and health matters to the safety and health side. Since then, OSHA has issued a memo on this topic to the field. DWPP is also working on updating chapters in the Whistleblower Investigations Manual.
Ms. Barbour asked about what kinds of data national office personnel were bringing back from the regions and whether that is helping with perceived inconsistency issues. Ms. Smith responded that staff were bringing concerns back, and that DWPP has instituted monthly phone calls to share information between regions and the national office. Ms. Spieler asked whether DWPP has considered having national experts on the statutes where few complaints are filed. Ms. Smith replied that it's a goal the office is working toward. Mr. Eherts asked if there had been a plateauing of the e-complaints. Mr. Rosa explained that there had been some tapering off.
Federal Motor Carrier Safety Administration (FMCSA) Presentation
Robert W. Miller, Director, Office of Policy, Strategic Planning, and Regulations at the FMCSA presented information on the OSHA-FMCSA Memorandum of Understanding (MOU). The MOU formalizes the historically informal relationship between OSHA investigative staff and Department of Transportation (DOT) field offices. Anthony Rosa worked with FMCSA when he was in Atlanta and helped to formalize the system for national coordination. Completion of the MOU addresses GAO audit finding calling for greater collaboration between the agencies. There are four key elements of the MOU: collaboration on investigations; data sharing; training; and annual reports in which the agencies share information annually to understand how they are doing and the outcomes of their efforts. The agencies are still working out the kinks of implementation and working to engage stakeholders.
Mr. Moberly asked whether, under the MOU, if the underlying complaint, such as an hour of service complaint, would be investigated by DOT. Mr. Miller confirmed that an investigation would occur. Mr. Moberly followed up by asking whether DOT would be bound by a confidentiality agreement. Mr. Miller wasn't sure but explained that, when DOT investigates a company, they investigate the whole company, not just the one complaint. Mr. Keating asked if there were similar MOUs with other agencies; Mr. Rosa confirmed the existence of other MOUs and explained that they are available on the website www.osha.gov. Mr. Frumin and Mr. Miller briefly discussed FMCSA's new anti-coercion proposed regulation. Ms. Spieler asked about issues relating to contractors being covered under the Surface Transportation Assistance Act. Mr. Miller explained that it adds a layer of complexity, but they can figure out the companies that drivers are working for when violations occur.
Mr. Rosa gave a brief presentation on OSHA's whistleblower data collection methods in its Integrated Management Information System (IMIS). He handed out screenshots of the various collection fields, which can be seen in Exhibit 2 in the docket. Mr. Keating asked how cases are monitored once they go to federal district court. Mr. Rosa explained that courts don't often send information, so cases are not often tracked. Mr. Rosa acknowledged that, because of the lack of data, it would be difficult to know how effective a kick-out provision would be. He also explained that settlement information can be found in the IMIS database. Mr. Rosa confirmed to Mr. Eherts that, in cases where someone claims retaliation for reporting an unsafe condition, the unsafe condition is usually referred for investigation. In response to a question from Ms. Spieler, Mr. Rosa explained that, in a situation where an employee works for a contractor, both the contractor and site employer may be named as respondents. Mr. Rosa also explained that a report of the data from IMIS is available on www.whistleblowers.gov. Ms. Lessin asked whether employee protections for refusal to perform unsafe work were statute-specific. Mr. Rosa explained that there are some differences between the statutes.
United Auto Workers Presentation
Steve Mitchell of the United Auto Workers delivered a presentation on whistleblower complaints in the plant where he works. Mr. Mitchell raised concerns about how some of the cases were handled and advocated for changes similar to those discussed in the 11(c) Work Group meeting that morning. A discussion on this issue followed between Mr. Mitchell and members of the WPAC, Mr. Rosa, and Ms. Smith. Mr. Mitchell's handout was marked as Exhibit 3.
Nuclear Regulatory Commission (NRC) Presentation
Lisamarie Jarriel, Enforcement Specialist (Acting Alternative Dispute Resolution Program Manager), Office of Enforcement of the NRC delivered a presentation on how it conducts discrimination investigations. Ms. Jarriel's presentation was designated as Exhibit 4. The NRC aims to encourage participation in protected activities so that nuclear facilities can become an environment for raising concerns. NRC's main interest is protecting the public. They receive most of their discrimination allegations from the allegation program. On average, the NRC receives 130 to 150 complaints of discrimination each year. Once a violation is established, OSHA is concerned with making the employee whole, and NRC is interested in preventing a chilling effect in the workplace. The NRC pays Cornell University to mediate if both parties agree. What is said in the room is confidential, unless a nuclear safety issue is discussed. The agreement is then reviewed by the NRC to make sure that there is no gag order involved. The NRC will investigate if it appears that action taken against a concerned individual has caused a chilling effect. The NRC sends around two chilling effect letters per year, which are public letters stating that a particular nuclear facility is not conducive to workers raising safety concerns. The NRC has found that resolution tends to reduce the chilling effect at a facility. Ms. Jarriel clarified that the NRC and OSHA have joint enforcement authority under section 211 of the Energy Reorganization Act of 1974.
Ms. Spieler adjourned the first day of the meeting.
September 4, 2014
Ms. Spieler called the second day of the meeting to order and explained that much of the day would be dedicated to the reports of the three work groups and discussing recommendations from the work groups.
11(c) Work Group Report
David Eherts presented the 11(c) Work Group Report. The work group proposed three recommendations that were unanimously approved by the work group.
11(c) Changes Recommendation
The first recommendation was as follows:
The statutory provisions in the OSH Act that are supposed to protect employees who face retaliation for bringing forward their concerns about injuries or hazards are not adequate. The provisions of Section 11(c) are much weaker than the provisions of the other whistleblower laws that are investigated by OSHA, and they are also weaker than the provisions under state law in some State Plan states.
The results are troubling:
- Individuals who bring their concerns under Section 11(c) to OSHA are often barred as a result of the short (30 day) statute of limitations and, therefore, large numbers of potentially meritorious complaints are screened out because they are filed too late under the statute.
- The ability of the complainant or OSHA investigators to pursue a meaningful settlement process is hampered by the limited resources to litigate claims, by the lack of a provision for preliminary reinstatement, and by the higher standard of proof required in 11(c) cases.
- Most complainants, even if they have legitimate complaints, never have the opportunity to have their complaints heard in a full adjudicatory hearing because they lack any right to appeal to the administrative law judges within the Department of Labor or to take the cases into court. There is no formal appeal to the investigatory decision to find a case to be without merit.
- For those cases that are found to be meritorious, very few are ever pursued. The number of cases under Section 11(c) filed by the Solicitor of Labor, although it has increased, is still very small.
We believe that the provisions of Section 11(c) are simply too weak to protect the rights of whistleblowers under the Occupational Safety and Health Act. It is basic fairness to extend to whistleblowers, under the OSH Act, protections that are equivalent to those available under the many other whistleblower laws.
In view of these concerns, we urge the Secretary of Labor and Assistant Secretary of Labor for Occupational Safety and Health to advocate for changes in the federal statute that would expand the necessary protections under federal law, and to support efforts in the states to expand health and safety whistleblower protection under state law.
The federal statutory changes should include:
- Longer statute of limitations (from 30 to 180 days);
- Revised standards of proof equivalent to those found in 49 USC 42121(b) (AIR21) and Section 806 of the Sarbanes-Oxley Act, 18 USC 1514A;
- Preliminary right to reinstatement;
- Right to de novo review by administrative law judges;
- Right to attorneys' fees and full damages (including compensatory and punitive damages) in litigated cases; and
- A "kick out" provision that would allow the complainant to take a case into court; and
- A provision guaranteeing procedural rights under the statute similar to the provision in Section 806 of the Sarbanes-Oxley Act, 18 USC 1514A(e)(1) and (2).
After a spirited discussion that included concerns about expanding 11(c) but not providing additional funding to the states, causing an increase in the number of frivolous claims by lowering the burden of proof, and the due process implications of preliminary reinstatement, the committee passed the recommendation unanimously. The text of the recommendation was marked as Exhibit 5.
Incentive Programs Recommendation
The second recommendation submitted was as follows:
The 11(c) Work Group discussed the Fairfax Memo and proposes the following recommendation to OSHA:
The reporting of an injury or illness by an employee is important not just for compliance with the OSHA Recordkeeping Rule 29 CFR 1904 (i.e., it is a protected activity under the Act), but also because it represents critical information for the employer, so that the workplace can be effectively improved, future injuries and associated process disruptions prevented and lives and costs saved. Building on the Fairfax Memo of March 12, 2012 entitled Employer Safety Incentive and Disincentive Policies and Practices, we recommend that OSHA develop and implement an information and education campaign that educates and engages employers and employees about the problems with practices, policies and programs that reward a low number of reported injuries and illnesses (i.e., a low Total Recorded Incident Rate ), often referred to as "incentive programs"; as well as injury and safety disciplinary practices as described in the Fairfax Memo. The goal of the information and education campaign is to have employers eliminate these practices as they discourage workers from reporting injuries and illnesses. Receipt of occupational injury and illness reports is essential to correct problems before someone becomes seriously hurt.
OSHA must have the ability to do more than educate employers about the detrimental nature of practices that discourage reporting of injuries and illnesses; and workers should not have to wait until they have been retaliated against by such incentive programs before OSHA can act. OSHA must be able to use a full complement of enforcement tools to address situations where employers continue to implement or maintain such retaliatory incentive and disincentive programs. One possibility would be that such programs, practices and policies violate OSHA's Recordkeeping Rule 29 CFR 1904 and employers could be cited and fined under the rule for having such programs, policies and practices.
On the other hand, incentive programs that reward the reporting of near-misses, the reporting of potentially hazardous workplace conditions, sharing ideas on ways to eliminate or reduce hazards and hazardous conditions, participation in workplace safety audits or inspections, etc. should be encouraged.
The committee agreed to change the word "hazardous" to "detrimental" for the sake of clarity and discussed the nature of incentive programs that violate the Fairfax memo and the chilling effect that they can create. After a brief discussion, the committee passed the recommendation unanimously. The text of the recommendation was marked as Exhibit 6, and a copy of the Fairfax Memo was marked as Exhibit 7.
Punitive Damages Recommendation
The final recommendation submitted by the 11(c) Work Group was as follows:
The Section 11(c) Subcommittee has explored the use of punitive damages in settlement and litigation of OSH Act Section 11(c) retaliation cases. The Subcommittee has found that OSHA may not be applying consistent standards regarding punitive damages, and, as a result, may not seek punitive damages in appropriate cases. The Whistleblower Investigations Manual at 6-2 (2011) identifies cases appropriate for punitive damages as those "where the respondent's conduct is motivated by evil motive or intent, or when it involves reckless or callous indifference to the rights of the employee under" Section 11(c). The Subcommittee agrees that punitive damages are a necessary tool in combatting and deterring these types of egregious cases. Accordingly, based on our research and discussion, we make the following recommendation:
We recommend that OSHA work with the Department of Labor's Office of the Solicitor to develop consistent, articulable standards regarding the circumstances when punitive damages would be appropriate in an OSH Act Section 11(c) retaliation case, whether based on the standards set forth in the Whistleblower Investigations Manual (2011) or some other standard. We further recommend that OSHA work with the Office of the Solicitor to achieve better coordination between OSHA investigators and the Office of the Solicitor regarding the appropriateness of punitive damages in particular cases. And, finally, we recommend that OSHA apply these consistent, articulable standards and seek punitive damages in appropriate cases in order to more fully remedy and deter egregious conduct.
The full committee passed the recommendation unanimously with no discussion. The text of the recommendation was marked as Exhibit 8.
Continuation of the Work Group
The committee discussed whether the work group had completed its mission and decided that it had more work to do in finding ways to help the 11(c) program improve.
Best Practices and Corporate Culture Work Group Report
Mr. Brock delivered the report for the Best Practices and Corporate Culture Work Group. The work group has reviewed a large amount of information in an effort to develop best practices. The work group has developed a substantial portion of what would be employer best practices, and the work group's next task will be to put its recommendations on best practices into a useful format. Mr. Brock stated that they were working to define what retaliation is and gave some examples of what would be considered best practices. He noted that punishments and implied punishments are retaliatory. Leadership commitment and training are essential. The work group is examining incentive systems and whether they promote retaliation, and the potential business benefits of a safe workplace Mr. Brock further stated that the group has identified major functional areas and categories for the work group and possible dos and don'ts for the industry. The work group is also working on figuring out what format would be most useful. Mr. Brock indicated that examples of good programs would be useful to the work group. Mr. Brock's outline was marked as Exhibit 9.
Mr. Moberly asked if the work group had discussed any incentive programs such as affirmative defenses for employers who might adopt these best practices, such as the Farragher-Ellerth defense in the sexual harassment realm. Mr. Keating stated that if an employer does everything right that it should be considered in any punitive damages valuation by OSHA. Mr. Moberly also brought up practices that prevent the underlying misconduct, and Mr. Brock agreed that it was an important area of focus. Mr. Frumin suggested practices that would get employees involved in the process. Work group members also discussed the scope of the work group and how much changing corporate culture should be part of it.
Public Comments, part 1
Emily Spieler noted that two members of the public had contacted OSHA but were not present to speak during the public comment period. A whistleblower with an open case expressed concern that OSHA does not have the resources to pursue cases in a timely fashion. The second whistleblower, with two open cases, was concerned about the effects of electronic stalking as a form of blacklisting and retaliation. Ms. Spieler also noted that any public comments on open cases will not be discussed at WPAC as the cases were still ongoing and WPAC was not the proper forum to discuss these cases.
Shanna Devine from the Government Accountability Project advocated for an independent national audit of regional compliance with consistent national standards, regulations establishing consistent national policies for all discretionary rulings and interpretations and whistleblower laws administered by the DWPP, and the authority for the DWPP to close a case at the complainant's request if the regional office has not completed its investigation within the stated regulatory deadlines. A written copy of Ms. Devine's remarks was marked as Exhibit 10.
Jason Zuckerman from Zuckerman Law noted that OSHA is more responsive to whistleblower claims now than in the past but that the agency still lacks sufficient resources to carry out its whistleblower functions. In response to a question from Mr. Keating about whether the extent of the backlog problem varies between different OSHA regions, Mr. Rosa explained that the problem exists in all of the regions but that different regions have taken different approaches to resolving it. Mr. Frumin commented on the importance of adequate supervision as OSHA regional offices restructure their whistleblower staff. Committee members also discussed the possible effects of adding a kickout provision to section 11(c).
WPAC Next Steps
The committee discussed information it might want from OSHA and asked questions about backlog and lapse time. Ms. Spieler indicated that all work groups would continue for the time being. Ms. Spieler stated that she wants the comittee to look at training, data analysis, temporary workers, and investigation quality issues. Mr. Eherts concluded that he wanted to encourage value stream mapping of OSHA resources so that before we ask for more resources we know they are being used responsibly. Ms. Lessin wanted to look at the national office administrative review process going forward. Mr. Moberly wanted to review the extent to which OSHA could use policy letters in a manner similar to the NRC. Ms. Dougherty suggested reviewing what a good investigation looks like and sending that information to the states. Mr. Frumin recommended an approach to analyzing data on whistleblower issues in the transportation industry. Mr. Keating concluded that while Mr. Miller's testimony to the work group was compelling, he wanted to have an employer come to testify at the next subcommittee for balance. He also stated that he has concerns with looking at data, that the data can be spun and manipulated by experts.
Public Comments, part 2
Ms. Spieler called the meeting back to order. David Legrand, CWA Director of Occupational Safety and Health, described his experience with retaliatory employer practices across the country by employers with unlawful policies. He discussed OSHA's handling of a particular Cleveland case a positive example, and raised concerns about California's handling of similar cases. He stated that he would like to see improved coordination among regional and area offices and a nationwide approach to companies that engage in the same illegal practices across the country.
Work Group Reports
Report from the Transportation Industry Work Group
Mr. Frumin thanked work group members for their participation and explained what the work group had been doing. The work group report was marked as Exhibit 11. In March, the work group discussed training and incentives; however, it had difficulty defining the term "effective" training and this was a stumbling block. Yesterday, the work group had consensus and decided to recommend voluntary/internal training and for the committee to establish a workgroup to help OSHA develop model training materials to provide to employers. On the incentive issues, there was a split between management and labor. Management wanted to use training programs to elicit more lenient treatment in enforcement; labor wanted to look at employer history and identify managers involved with respect to violations.
Mr. Frumin submitted the work group's draft recommendation to the full committee. The draft recommendation was marked as Exhibit 12, and notes from the August 20, 2014 work group meeting were marked as Exhibit 13. After a short discussion on training with a focus on the rail sector and recommendation formatting, the committee edited some of the language in the recommendation. The unanimously passed recommendation is as follows:
Amended WPAC Recommendation to OSHA Regarding Training. The Advisory Committee recommends to OSHA that it develop and offer statute-specific periodic training to transportation and other industries subject to whistleblower laws. The Advisory Committee recognizes that effective internal training on the topic of whistleblower laws may assist company managers, supervisors, and employees in understanding their rights and responsibilities under the whistleblower laws, and prevent retaliation.
The Advisory Committee recognizes that some employers, especially small to mid-size employers, may lack the resources to design their own training programs.
The Advisory Committee will take up the task of recommending threshold parameters and content for such training.
The committee discussed the nature of the whistleblower problems in the transportation industry; the types of training transportation employers are already offering; the extent to which additional training efforts will address problems in the industry; and the need for training to include all employees, not just managers. The text of the recommendation as passed was marked as Exhibit 14. Mr. Frumin discussed additional issues that the work group has been working on. With the participation of a new ex officio member from the Federal Motor Carrier Safety Administration, Robert W. Miller, he anticipates that the work group will look at more issues related to trucking. He has not forgotten air transportation, but the committee has not done much on that topic.
Ms. Spieler brought up several issues for discussion over the next six months and at next WPAC:
- Training – what's being done? What's working?
- Industry/management presentation
- Review of whistleblower data and consistency of investigations
- Work refusals
- Can we learn from NRC model?
Committee members added their own issues to add to the list:
- State plans
- Systemic issues in the whistleblower program
- Including a Rule 68-type provision in ADR
- "Rewards" for employers with good programs
- Further discussion of data/investigations inquiry
The committee requested certain data from the DWPP, and Ms. Smith stated that OSHA would consider the requests.
Dr. Michaels addressed the committee to thank them, as did Secretary Perez. For a full account of Secretary Perez's presentation, refer to page 266 (Line 7) of the September 4, 2014 meeting transcript, in Docket - OSHA-2014-0012-0002 at http://www.regulations.gov.
Ms. Spieler adjourned the meeting.
I hereby certify that, to the best of my knowledge, the foregoing minutes are an accurate summary of the meeting.
Date: November ____, 2014