Archive Notice - OSHA Archive

NOTICE: This is an OSHA Archive Document, and may no longer represent OSHA Policy. It is presented here as historical content, for research and review purposes only.

WHISTLEBLOWER PROTECTION ADVISORY COMMITTEE (WPAC)
Minutes of November 10, 2015 Meeting

U.S. Department of Labor
Frances Perkins Building
200 Constitution Avenue, N.W.
Washington, DC


The meeting of the Whistleblower Protection Advisory Committee (WPAC) was called to order by Anthony Rosa 1 at 9:10 a.m., Tuesday, November 10, 2015. The following members and U.S. Department of Labor (USDOL) staff were present:

NAME

SECTOR REPRESENTED

TITLE & ORGANIZATION

Jonathan Brock

Public

Emeritus Faculty Member (Retired), University of Washington

David Eherts

Management

Vice President, Global EHS, Allergan PLC

Gregory Keating

Management

Partner, Choate, Hall & Stewart, LLP

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 (Retired)

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

JJ Rosenbaum

Labor

National Guestworker Alliance

Christine Dougherty*

OSHA State Plan States

Principal Discrimination Investigator, Minnesota Department of Labor and Industry

Adam Miles

Federal Agency

Deputy Special Counsel, Policy and Congressional Affairs, U.S. Office of Special Counsel

Dr. 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

MaryAnn Garrahan

OSHA

Director, Directorate of Whistleblower Protection Programs, USDOL OSHA

Anthony Rosa

OSHA

Deputy Director, Directorate of Whistleblower Protection Programs, Designated Federal Officer (DFO) for WPAC, USDOL OSHA, Acting Chair for the Meeting

*participated via teleconference

Monday, April 20, 2015

Approximately 15 members of the public, including OSHA and USDOL staff, were in attendance.

Introductory Remarks

Mr. Rosa opened the meeting. Rob Swick, Directorate of Whistleblower Protection Programs (DWPP), welcomed the members and visitors and explained building safety procedures. Mr. Rosa asked the members and people in attendance to introduce themselves. Mr. Rosa then introduced the agenda, which was marked as Exhibit 1.2

Welcome from Assistant Secretary Dr. Michaels

Dr. Michaels thanked the members of the committee and the committee staff.

Best Practices Document

Dr. Michaels thanked everyone for their contributions to the best practices document and noted that this kind of document has never been done before at OSHA. He explained that OSHA opened a docket for public comment on the document at www.regulations.gov. The public comment period will be open until January 19, 2016.

OIG

Dr. Michaels stated that the Whistleblower Protection Program (WPP) has undergone GAO and OIG studies over the past 10 years. Since 2010, the program has made a lot of progress. Recently, the OIG issued a report on OSHA's whistleblower program to review improvements made since 2010 and found that the error rate for cases was less than 20%.

Program Update

Dr. Michaels mentioned that even though the WPP is receiving more cases than ever before and has acquired additional whistleblower laws to enforce, the hard work of OSHA's investigative field staff has allowed us to keep the pace by tackling the backlog.

He mentioned that OSHA received 3,288 new complaints in FY 2015 and completed 3,273 cases. OSHA awarded nearly $25 million to whistleblower complainants and reinstated 75 workers through merit determinations and settlement agreements.

Dr. Michaels provided some of the OSHA major whistleblower accomplishments since the last WPAC meeting in April, which included:

  • issuing a revised chapter of the Whistleblower Investigations Manual, which addresses remedies and settlement agreements;
  • publishing a directive on Alternative Dispute Resolution (ADR); and
  • utilizing the Quality Review Tool during audits of the program. The Quality Review Tool is an audit tool in a Microsoft Access database that follows key provisions of the Whistleblower Investigations Manual.

Training

Dr. Michaels stated that OSHA has made significant strides on improving its training for investigators. He added that, last month, OSHA released its first training directive for whistleblower investigators. The directive provides guidance on OSHA's policies and procedures for training Whistleblower Investigators.

He stated that the new directive outlines minimum training requirements for Whistleblower Investigators, as well as recommended training to help them prepare for professional certification exams. The agency is also identifying training paths that provide assistance to the regions in managing their training programs to ensure the highest quality investigations.

Dr. Michaels stated that DWPP is currently designing and developing a new curriculum for advanced training courses to help build OSHA investigators' skills as they gain more experience during their career. He then requested WPAC's assistance in creating a new training work group to identify existing training opportunities for OSHA across government and industry. He added that, while DWPP has figured out the general scope of the training, there are still some pieces that DWPP would like to put into place. Dr. Michaels asked the committee to identify existing training outlets and materials that would assist OSHA's training efforts.

Budget

Dr. Michaels concluded that the Department's FY 2016 budget request for the WPP was $22.6 million. The request would support a total of 157 full time employees (FTE), 22 positions more than the current FTE level of 135.

Discussion

The committee queried the Assistant Secretary on several topics, including the OIG Draft Report on the WPP, Alternative Dispute Resolution (ADR), data, professional certifications for whistleblower staff, and Sarbanes-Oxley (SOX). OSHA's response to the OIG Draft Report was marked as Exhibit 2.

Report from the Directorate of Whistleblower Protection Programs

MaryAnn Garrahan provided an update on the activities of DWPP. After thanking Assistant Secretary Michaels and the Committee for their hard work and commitment to the WPP, Ms. Garrahan gave her background and explained the goals for the Directorate and its efforts to achieve them.

Ms. Garrahan also explained that the WPP utilizes other strategies to improve WPP effectiveness and efficiency.   DWPP runs case reports quarterly, analyzes the data, and shares the data and any trends with the regions. The data points include: number of complaints filed, closed, and the outcome of the complaints e.g. merit, settled, dismissed. DWPP also tracks progress for meeting DWPP's annual strategic goals.

Ms. Garrahan informed the group that, under the Administrative Dispute Resolution Act, OSHA, along with other federal agencies, is required to implement an ADR program. In August, OSHA issued a directive making ADR available to every region. Having an ADR coordinator has increased the number of settlements.

DWPP also conducts Section 11(c) Administrative Reviews because the OSH Act does not allow complainants to appeal their determinations. DWPP continues to make improvements to its process. These reviews of case files provide the opportunity for DWPP to find areas to improve quality. In FY 2015, 140 requests for review were filed. In the same time period, DWPP issued final determinations for 127 cases. Approximately 25% of DWPP reviews involve sending the cases back to the regions with either additional questions or requesting additional investigative work.

Ms. Garrahan informed the group that DWPP recently updated Chapter 6 of the Whistleblower Investigations Manual and is almost finished revising Chapter 3 (Conduct of the Investigation) to update the reasonable cause memorandum. DWPP plans to update at least two chapters and incorporate any new policy memoranda into the Manual each year.

The Directorate also participated in the recent Department's OIG audit, which noted improvements in the program since its 2010 audit report. For example, OIG noted that in 2010, 80% of the investigative case files they reviewed contained at least one "exception," meaning that a specific process or procedure was not followed, as outlined in the Whistleblower Investigations Manual. In the 2015 report, only 18% of the case files reviewed shows this "exception." 

DWPP has increased coordination and collaboration with the partner agencies which enforce the underlying worker, public, and safety protections behind the whistleblower laws it enforces.  DWPP has met with each partner agency at least once in the last 12 months to discuss better ways to share information. In addition to reaching out to its partner agencies, DWPP is reaching out to other federal agencies that enforce whistleblower statutes to share best practices.

Ms. Garrahan ended her discussion by highlighting recent important cases for the agency.

A lively discussion ensued regarding a variety of topics including: new training courses for OSHA investigators, 11(c) administrative reviews, partner agencies, cases against railroads, employer outreach, and press releases related to whistleblower cases. OSHA's FY 2015 Whistleblower Data was marked as Exhibit 3.

Break

Data Discussion

Mr. Rosa briefly reviewed some information provided to WPAC at the previous meeting. He specifically mentioned limitations to OSHA's whistleblower database, such as the inability to select two distinct statute types for a single case. While OSHA can track a primary statute and other statutory implications, it is not currently possible to track the distinct outcomes of a complaint filed under multiple statutes.

Mr. Rosa provided WPAC with information about some recent updates to the whistleblower database. Since the latest release, the North American Industry Classification System (NAICS) code field is now mandatory. Although at this point, there is not enough data available to analyze, OSHA anticipates that this field will allow it better understand which industries tend to have retaliation complaints. Mr. Rosa also discussed the work OSHA is doing with state plan partners.

Mr. Rosa outlined a number of updates that OSHA would like to make to its whistleblower database. Specifically, DWPP would like to add:

  • ADR tabs
  • Penalty history
  • A docket/dismiss tracker
  • An equitable tolling tracker
  • Multiple adverse action field capabilities
  • Fields tracking non-complaint inquiries/technical assistance requests
  • Fields tracking ordered non-monetary relief
  • Fields better tracking post-determination outcomes
  • Additional fields to track the National Office administrative review process
  • Automation to the process
  • A tickler/case-reminder system

Mr. Rosa then asked WPAC for ideas on what data OSHA could collect that it is not currently collecting, and information about what data WPAC members think might be useful to the public, and why.

Ms. Lessin brought up several issues, including asking for information on organizations with the highest number of whistleblower violations and information on the ADR pilot. She also asked about the time frame for proposed database updates. Mr. Rosa explained that DWPP has no set timeline. DWPP is working on prioritizing the most urgent updates, and that it has a comprehensive list of desired upgrades. He also noted that there are some resource limitations, and that OSHA may receive additional funds for IT improvements in FY17, but this is not guaranteed.

Mr. Eherts stated that DWPP should make data a high priority and suggested that DWPP collect data about the anti-retaliation programs that employers have in place when retaliation does occur, in order to determine what kinds of programs are effective.

Mr. Frumin asked if the whistleblower database and the health and safety database were linked.

Mr. Rosa explained that because the databases are part of completely different systems they are not linked. If whistleblower investigators want information about a health and safety complaint, they can access the health and safety database. Mr. Eherts suggested adding a field for safety inspection numbers known to the whistleblower investigators. Mr. Frumin provided some of his preliminary analysis of the publicly available data and suggested that, because 11(c) continues to be the statute under which the highest percentage of complaints are filed, OSHA should focus its efforts on the needs of the 11(c) program. Mr. Rosa stated that making the NAICS code field mandatory can help OSHA better target specific industries, especially with regards to 11(c) complaints.

Mr. Miles stated that OSC is also working with a clunky and outdated database system, and offered to provide some suggestions to OSHA outside of the meeting.

Ms. Narine asked if data could be broken down by employer size. Mr. Rosa explained that DWPP has that field but was unsure if it was mandatory. It could be made mandatory, however.

Mr. Keating responded to Mr. Frumin's statement by noting that he doesn't see the value in treating any one statute as more or less important. Mr. Keating stated that all statutes are important, and they are also all different. He stated that DWPP should consider whether there should be a distinct focus on business retaliation versus safety retaliation. He also stated that the number of SOX complaints are not surprising, and SOX whistleblower provisions should be considered within a broader statutory framework.

Ms. Rosenbaum suggested that DWPP add questions related to the primary language of complainants, whether an interpreter was used, the structure of respondent (e.g. whether respondent is a temporary staffing agency) in order to gather more information about different groups of complainants who might be more vulnerable to retaliation. Mr. Rosa explained that DWPP is currently looking into emphasis programs, such as temporary workers, to determine whether there is a trend in retaliation against certain types of workers.

Mr. Frumin noted that, when analyzing employer size, it is important to distinguish between the size of the establishment and the size of the employer overall.

Mr. Eherts noted that when complaints drop, it is not possible to tell if that is because people are not aware of rights, or if retaliation is decreasing. Mr. Eherts stated that effective outreach can cause the number of complaints to increase, and that DWPP should consider outreach to both employer and employee groups.

Mr. Wengert suggested that, rather than asking for specific pieces of data that might be interesting to analyze, it would be better to examine data issues from a strategic perspective, and focus on determining what data is actually necessary for OSHA to move its strategic plan forward.

Public Comment Period

Jason Zuckerman, Zuckerman Law, spoke about the recent OIG report. He stated that he believes complaints have decreased because of OSHA's excellent work. He stated that OSHA, the ALJ and ARB are completely different than in the past. He thinks that more employers are open to getting claims resolved early, because of recent ARB decisions. Mr. Zuckerman also stated that he has found OSHA to be far more active about investigations than it was in the past. He stated that previously, OSHA would not require respondents to provide their responses to complainants.

He stated that prior to 2008, many at OSHA, although not all, deferred too much to Respondent position statements. He said that it is not like that at all now; it is a completely different world.

Mr. Zuckerman stated that he believe the OIG report was not really accurate. He added that, prior to 2008, reinstatement orders were very rare, and now he sees them all the time, which is a huge improvement for employees. He also reiterated that ARB decisions have improved the law for employees.

Lunch Break

Presentation on OSHA's State Plans

Overview

Doug Kalinowski, Director of OSHA's Directorate of Cooperative and State Programs (DCSP), delivered a presentation on OSHA's state plans, as they relate to whistleblower. State Plans are required to establish, and include as part of their State Plan, policies and procedures for occupational safety and health discrimination protection analogous to federal protections. They must be at least as effective as (ALAE) Federal OSHA.

There are currently 28 State Plans, five of which cover only state and local government workers. In these State and Local Government Only State Plans, the state whistleblower programs cover these workers only, while Federal OSHA provides whistleblower protection to private sector workers in these states.

Evaluation of State Whistleblower Programs

The Federal Annual Monitoring Evaluation (FAME) Report analyzes a State Plan's performance to determine whether it is continuing to maintain its ALAE status and to meet the mandatory regulatory requirements. DCSP has worked in recent years to improve the FAME process. It uses a database to track consistency, and data is entered in a more timely fashion. States are more onboard with ensuring that investigators get whistleblower training.

Increased monitoring attention has resulted in legislative, policy, and procedural improvements. South Carolina enacted legislation in 2011 that eliminated South Carolina OSHA's ability to conduct discrimination investigations. OSHA worked with South Carolina to get it reestablished. A Nevada state law required all complainants to inform their employers of their intent to file a complaint before an investigation would be opened. OSHA worked with Nevada to change that law as well. Maryland revised legislation and now allows orally-filed complaints. New York revised its Field Operations Manual and now allows orally-filed complaints.

State Plan 11(c) Policies and Procedures

Some states provide greater protections for whistleblowers than the federal states. For example, some states have longer filing deadlines and some states allow a private right of action against the employers.

State Plan Whistleblower Budget Constraints

State whistleblower budgets are tightly constrained. Inspection numbers are likely going down because state staffing is decreasing.

State Plan Data

Mr. Kalinowski shared state plan data with the committee. It was marked as Exhibit 4.

Discussion with WPAC Members

A discussion ensued on topics including the state plans using the same metrics that Federal OSHA uses to evaluate the program, CalOSHA's transfer of whistleblower cases to other agencies, why there are so many more federal cases when state plans cover about half the states, and how state plans work with Federal OSHA when a case is covered by more than one statute.

Best Practices and Corporate Culture Work Group Presentation – Dissemination of Best Practices

Mr. Brock led the discussion. He introduced the Dissemination Ideas document. It was marked as Exhibit 5. Mr. Brock discussed how to reach audiences of decision makers, implementers, and advocates.   He stated that adoption and application of the recommended practices will have business benefits, encourage some firms to do the right thing, and that increased likelihood of compliance will reduce risk of liability. After adoption, OSHA should engage in selected outreach efforts, including websites and conferences.

The committee discussed various ways in which OSHA could disseminate the Best Practices document including through such means as an organization's supply chain, various conferences, trade associations, human resources associations, and union conferences. After a short discussion, the committee made a few changes to the document and passed it unanimously. The edited version of the document is available for viewing on http://www.regulations.gov in docket OSHA-2015-0022.

Meeting Wrap-Up

Mr. Rosa again discussed the Training Work Group that the agency will be setting up after the meeting. The charge for that work group was marked as Exhibit 6. He noted that OSHA would be sunsetting the Transportation Industry Work Group. He then asked if there was any additional work for the 11(c) work group to do. The general consensus was that there wasn't additional work to do now, but the committee members wanted the option to re-constitute it in the future, if an issue arose. Based on this discussion, Mr. Rosa formally sunsetted the 11(c) work group as well. Mr. Brock noted that the Best Practices and Corporate Culture Work Group had completed its work.

Mr. Rosa then explained that, for the next meeting of WPAC, the plan is to have a charge for a training work group. Mr. Brock stated that it would be helpful to begin to educate WPAC regarding a safety and health specific program. Ms. Rosenbaum mentioned the issue of temporary agency workers, which would create unique questions for a work group. Ms. Narine agreed that temporary workers would make a great topic because employers of such employees can easily say that the person is not its employee and so there is no need to worry.

The meeting was adjourned at 3:08 pm.


1 The WPAC Chair, Emily Spieler, was unable to attend the meeting. Per the Federal Advisory Committee Act and the WPAC Charter, DFO Anthony Rosa chaired the meeting in her place.

2All materials associated with this meeting can be found at http://www.regulations.gov in docket OSHA-2015-0022.

Archive Notice - OSHA Archive

NOTICE: This is an OSHA Archive Document, and may no longer represent OSHA Policy. It is presented here as historical content, for research and review purposes only.