November 10, 2015

Department of Labor

200 Constitution Avenue, NW

Washington, D.C.



Name Affiliation
Anthony Rosa DWPP
Mary Ann Garrahan DWPP
David Michaels OSHA
Eric Frumin Change to Win
Gregory Keating Choate Hall & Stewart
Ava Barbour International Union, UAW
Kenneth Wengert Retired: Kraft Foods
Marcia Narine University of St. Thomas, School of Law
Nancy Lessin United Steelworkers
Jennifer Rosenbaum National Guestworker Alliance
David Eherts Allergan Pharmaceuticals
Adam Miles Office of Special Counsel
Christine Dougherty OSHA - Minnesota
Rob Swick DWPP
Jason Zuckerman Counsel for Plaintiffs
Eric Lahaie Directorate of Corporate and State Programs
Louise Betts Hoshizaki America, Inc.
Doug Kalinowski Directorate of Corporate and State Programs
Jonathan Brock Retired; University of Washington



MR. ROSA: I would like to get this meeting started and get it in order.  My name is Anthony Rosa.  I am the Deputy Director for the Directorate of Whistleblower Protection Programs, and today I'll be wearing a number of hats.  One is them is obviously, I'm the Designated Federal Officer for the Whistleblower Protection Advisory Committee.  Emily Spieler, our Chair, is absent today, and therefore, I will be chairing this meeting as well.

Before we proceed, I wanted to pass the microphone to Rob Swick, who is going to give us our safety briefing.

MR. SWICK: Good morning, everyone.  Thank you for joining us today.  It looks like most of you are old school to this, but just a friendly reminder of the procedures and the safety here.

There are two kinds of safety events that could happen in the Department of Labor, the shelter in place or an exit situation.  In a shelter in place situation, this is exactly where you want to be.  In the event that there was an evacuation, you will follow the staff out of the building to the nearest stairway and we will congregate outside. 

The bathrooms are pretty much on every corner of the building, to the left and the right out of here.  There is a five-star cafeteria on the sixth floor to have your lunch if you don't wish to go out.  There is a café around the corner on the fourth floor, coffee and things like that, I believe, little blizzards.

Should you have any questions or need for any assistance, you can contact Meghan Smith over there, or any member of DWPP for assistance.  And lastly, I want to throw my two cents in for advice.  Remember that the meeting is on the transcript, so if we can only have one person talking at a time, that would be great.

MR. ROSA: Thank you, Rob.  Before we proceed with introductions, I just wanted to bring as our first exhibit for this meeting our agenda.  So I would like to call everyone to look at the agenda in your handouts.

We're going to do brief introductions, followed by a welcome speech by Dr. David Michaels, Assistant Secretary, followed by an update from the directorate, by Director Mary Ann Garrahan.  We will go to a break and after that we will have a data discussion and then we will have a public comment period. 

After lunch, we will have a presentation from our Office of State Programs that is going to talk about Section 11(C) and the state plans, and that follows to our discussion on the Best Practices Work Group that we spent time yesterday discussing, and then we'll have a meeting wrap up.

So I want to bring that in as Exhibit No. 1. 

And then now, I just want to do some further introductions.  First, I would like to get introductions from the committee members and then followed by DOL staff and then the general public.



MR. FRUMIN: Eric Frumin, Change to Win.

MS. LESSIN: Nancy Lessin, United Steelworkers, Tony Mazzocchi Center.

MS. NARINE: Marcia Narine, St. Thomas University, School of Law.

MR. ROSENBAUM: JJ Rosenbaum, National Guestworker Alliance. 

MR. EHERTS: Dave Eherts, Allergan Pharmaceuticals. 

MR. MILES: Adam Miles, Office of Special Counsel.

MR. BROCK: Jon Brock, public member.  Retired; University of Washington.

MR. KEATING: Greg Keating, Choate, Hall & Stewart.

MS. BARBOUR: Ava Barbour, International Union UAW.

MR. WENGERT: Ken Wengert, retired from Kraft Foods.  

MR. SWICK: Christine Dougherty.

MR. ROSA: Oh, Christine.

MS. DOUGHERTY: Hi.  Christine Dougherty, Minnesota OSHA, representing State Plans States.

MR. ROSA: Welcome, Christine.

DR. MICHAELS: I'm David Michaels of the Office of the Assistant Secretary at OSHA. 

MR. WATSON: Bruce Watson of Bloomberg Media, and I am a reporter.

MS. GARRAHAN: Mary Ann Garrahan, Director, Directorate of Whistleblower Protection Programs.

MS. STEWART: Christine Stewart, Division Chief for Policy, Directorate of the Whistleblower Protection Programs.

MS. SMITH: Meghan Smith, Directorate of Whistleblower Protection Programs, WPAC liaison.

MS. JOHNSON: Marisa Johnson, DWPP.

MS. JAMINSON: Greta Jamison, Office of Communications.

MS. GROSS: Josie Gross, DWPP.

MS. SWANN: Gail Swann, DWPP.

MR. HOLCOMB: Sid Holcomb, OSHA Communications.

MS. CAUDRELIER: Sarah Caudrelier.  I'm on detail here at DWPP.

MS. GIVENS: Laura Givens, DWPP.

MR. BARRETT: Otis Barrett, DWPP. 

MR. FAIRCHILD: And Cleveland Fairchild, DWPP.

MR. SWICK: I'm Rob Swick.

MR. ROSA: And last but not least?

MS. BETTS: Louise Betts, Office of the Solicitor.

MR. ROSA: Thank you, everyone. I want to proceed now with our agenda. It is a great honor that I want to introduce someone that I enjoyed working with; someone who is very passionate for workplace safety and health, and worker rights and is going to have a conversation about how the agency is moving forward. And with that, I want to bring this over to Dr. David Michaels.


DR. MICHAELS: Thank you so much, Anthony. And really, the honor is mine. It's great to be here today with you, to see all of you and to be here to thank you in person for the really important work that you've done. I know you all put time into this.  It's not remunerated; from all of you, it's clear it comes from the heart and we are grateful to have your wisdom and expertise in helping us move forward with our mission, which is to make sure, among other things that workers have a voice and that they can raise concerns about health and safety issues that affect them or their co-workers or the health safety or well-being of people in the general public, and you play a very important role in that.

I want to especially thank your Chair, who can't be here today, Emily Spieler, who has done a really remarkable job moving this forward.  And Jon Brock, who has chaired the Best Practices in Corporate Culture Work Group, which I think has its great name, but more importantly, the product that you produced and the direction you're going, I think has been phenomenally helpful.

So all of you who are on that committee, we're grateful for that.  I want to thank Anthony for taking on chairing today and being our designated federal official, and to thank Mary Ann, and Anthony, and Rob, the entire staff of the Whistleblower Protection Directorate, who is working very hard.  It's a small, but mighty group.  We should many times more the staff, given our challenge, but they do a really fabulous job. 

And also let me thank Louise Betts.  The Solicitor's Office really are a partner in all of this and I'm grateful for all that you contribute to the effort here today, but also, all of what you do.

I spoke very briefly with some of you yesterday at the work group meeting.  I heard you had a very productive meeting.  I can't wait to hear more about where you think we should go, the materials you think we should be disseminating, and how we should be getting our message out.  I really do look forward to hearing that because I think your input has made a huge difference and will continue to do so.

My readings of the best practice documents are that it really is a unique document.  We have never produced anything like that from the OSHA point of view.  We've been waiving into this area of how to tell employers the best way to approach issues of whistleblower protection to ensure retaliation doesn't occur.  And this is the first time we've really done anything like this and I'm very excited about it.  I think you've really launched us in a good direction.  We opened the document where we're asking the public for comments.

So please, any encouragement you can make to others to put in their comments, if they're useful ones, we'd like to see that.  I'll certainly spend some resources and time over the next couple of months, also, encouraging people to tell us what they think.  That process alone of getting people to read it and comment I think will be useful, even if they have nothing to say, it spreads the message.  So we'll be doing that as much as we can.

The public comment period, as you know, will be open until January 19th.  This is not a regulatory docket, so if someone doesn't make that deadline but still has something to say to us, we certainly can receive that information, but it won't necessarily be useful to us in putting together the final document.


Just to touch on a couple of other topics I think of interest to everyone.  As you know, for the last probably nine or ten years, there have been a series of reports looking at the functioning of our whistleblower protection activities.  The Government Accountability Office has done a couple of studies.

The Office of the Inspector General, here at DOL, has done a couple of studies and we can really see the progress that we've made.  The most recent report came from the OIG's office, looking at the improvements we've made since 2010, and I think the results were very positive.

We've reduced the error rate dramatically.  Before we made our changes, we brought on Mary Ann and Anthony, we didn't have a directorate.  The Inspector General estimated -- there were errors in about 80 percent of the cases.  Now we're down to -- we think we're really far, far below that; somewhere less than one in five.  Less than 20 percent.  I think we're even better than that.  And you're going to hear more about that from Mary Ann Garrahan's presentation, but I think we've made some great progress and it's a statement to the dedication of the staff and the new structures that we've brought in.

Not surprisingly, we get more and more cases.  We have a big backlog and I think we've been very successful in tackling that backlog, but as long as more and more cases come in, it's going to be very hard to get rid of that backlog.  We have new statutes and we do a better job telling workers that they can file with us, especially now that we have an online filing form.  So we get more cases filed with us than ever and it keeps our field staff very busy, but I think we've been able to keep pace.

In Fiscal Year 2015, you know, it just ended, we received 3,288 new complaints and we completed 3,273.  Now, that doesn't mean we still don't have a large backlog, and obviously, some of the cases we completed were some of the easier cases, but I think we've done a really great job in keeping up.  We awarded nearly $25 million to whistleblower complainants and we reinstated 75 workers through merited terminations and settlement agreements.

We've also, I think, made some real progress in the functioning of our activities.  We issued a revised chapter of our Whistleblowers Investigation Manual, which addresses remedies and settlement agreements.  We'd like to promote alternative dispute resolution.  We published a directive on that and we think that will be very helpful in some cases.  We have a new quality review tool that we utilize during our audits and we're doing more audits in the field now as well.

We're also very much focused on training.  We have a lot of new staff.  One of the things that we've successfully gotten in our budgets over the last few years when there has been a new federal budget is the increase in staff and that has required more training for investigators because we want them to be highly trained.  We want them to understand the different statutes that they're working on, the different investigative techniques, the interview techniques.  It's a full set of skills and knowledge that our investigators have to have.  So I think we've made big strides in approving our training.

Last month, we issued our first training directive for whistleblower investigators.  I know our staff really worked very hard on that.  And that directive provides guidance on our policies and procedures for training.  We outlined, for the first time, minimum training requirements for our investigators, including all the recommended training that will help them prepare them for the professional certification exams, and that's very important to keep our people certified.  They will more likely stay with the government.  They will be recognized for the quality of their work.

We've also tried to identify training paths that provide assistance to the regions in managing their training programs.  So every region will have to manage their programs.  Our objective, obviously, is to make sure we have the highest quality, highest caliber investigators who work with a very high level of professional expertise and I think we're getting there.

But this is an area that we'd like you to help us on.  I always like to come and ask you for something and I think you've really given us so much help on the materials on recommended practices.  So we've really worked out the general direction or the general scope of the training, but there are still some pieces that we really need help on.  What I'd like to do is ask you to create a new training work group to help us with this area, to focus on training topics or the issues that we haven't yet addressed in our recently published directive.  I don't know if it's been provided yet or we will provide it.  We have this directive mandatory training program for OSHA whistleblower investigators.

So I'd like for you to identify existing training outlets.  Are there other materials?  Are their venues?  Whether there are opportunities out there to assist in our training.  We're interested in a lot of issues and I think there is a tremendous amount of training out there and other government agencies in the private sector in academia around interpersonal issues.  You know, we deal with labor management relations on a regular basis and our folks could use some training on that; industry-specific topics around the 22 statutes that we administer.  I mean, there are lots and lots of very tough issues.  And so you all have an expertise in many of these areas and we'd love your help on that.  And I'm grateful for any help you can give us on that and I know that will be a subject of discussion later today.

Just to let you know where our budget is, which is where we think our budget is, we are hoping to have a budget by December 11th.  That's the deadline for the current continuing resolution.  As of last year, we had a budget.  The year before, we had a continuing resolution.  In the president's proposed budget for 2016, it reflected our commitment and the Obama Administration's commitment to build this program.

We requested $22.6 million, and that would support 157 full time employees.  Right now, we're at 135.  So if we get that, it would be a big increase.  As I think we've all seen, the whistleblower program has gotten very good bipartisan support.  So we are ever hopeful that even in these areas of budget cuts or flat budgets that we'll get an increase.  So we'll see.  We hope to know that.  We don't know yet, but I think we'll have some idea in the next week or two as to what our budget will be.

So that's really my update.  You'll hear a lot more about some specific cases, about some of the numbers from Mary Ann and others over the next few hours, but I'm here really just to thank you and to see if there are any questions you have for me or anything you think I should know while I'm here.

Let me turn it back to you.

MR. ROSA: Thank you, Dr. Michaels.  Anyone in the Committee for Dr. Michaels?

Yes, Nancy?

MS. LESSIN: Good morning.

DR. MICHAELS: Good morning.

MS. LESSIN: I just want to -- I mean, hopefully, we're going to discuss this some later, but in your response to the OIG report, there are a number of things, but I'm just going to pick up on one of them and that's the decision to implement alternative dispute resolution across all regions.  And specifically, what you wrote here was that OSHA believes -- okay.  So, "The ADR process for whistleblower cases that OSHA believes will continue to reduce investigation times and improve outcomes for complainants."

Then you say, "The ADR process was piloted in two regions, which resulted in a significant increase in the settlement rate for both regions, as well as providing significant savings and time and cost.  In light of the positive results, we're expanding it."

It doesn't say anything about outcomes for complainants and there is a huge body of literature -- this is just a little bit of it -- that talks about ADR when they are significant power disparities between a worker, for example, and a corporation.  We can look at vulnerable workers.  We can look at any worker, but when you're up against a big corporation in a situation where the bad outcome for the employer is rarely, rarely, rarely punitive damages, it's just reinstatement.  So there is not big pressure on one party and there are power disparities.

I am really concerned about this kind of well, "It was cheaper and faster," without looking at what's happening with complainants.  You know, are they getting the same or better outcomes from ADR.  And this paragraph did not suggest that that was the case.  So I just want to express a concern and perhaps, you can say oh, yes, the outcomes are much better for complainants. 

DR. MICHAELS: We believe they are.  I mean, obviously, this wasn't a report about the ADR.  This was a paragraph just saying why we're doing it.  But when we looked at getting people back to work more quickly if they lost their job, for example, or making a settlement with their employer, at a level that the complainant was happy with it, we thought it really was a big success.  It's not perfect and we certainly know there are many cases where we shouldn't even go into it.  You know, it's an ADR that we supervise.  It's not an ADR where just some outside arbitrator was brought in.  So it's very different than a lot of the ADR programs where there is a lot of literature about, you know, which says essentially, you're forced into this.  this is a voluntary relationship.  It's not compulsory, which is the other issue around some of these issues.

We can certainly talk more about that, but our feeling was for the people who went into that program, it was successful and it's not compulsory.  I mean, if people weren't happy with it, they can get out of it.  So if we could solve people's problems quickly and get the employer and the complainant to the table quickly and say let's solve this.  Let's deal with it, we think that's a success if everybody leave happy.


MR. MILES: So I'd just like to say --

DR. MICHAELS: Identify yourself.

MR. MILES: I'm sorry.  Adam Miles with the Office of Special Counsel.  Our experience at OSC with mediation has been overwhelmingly positive.  So we'd be very supportive of efforts at OSHA to increase utilization of mediation.  And just responding to the particular comment that breaking down that power dynamic is one of the things that we've that mediation does.

And when it's an individual employee going against the big employer like the Defense Department, when two people can sit down under voluntary circumstances and have a neutral from OSC helping them to understand the relationship between the employee and the employer, a lot of times it's leading to we're seeing not just better outcomes for complainants, but longer lasting outcomes.

So we're able to come up with settlement agreements that really fix a relationship problem versus just providing legal relief.  Our experience has been just overwhelmingly positive.  So we'd be very supportive of OSHA and would like to help in any we can.

DR. MICHAELS: That's great.  I'd love to see more about your program as well.  I know we've talked with your office quite a bit about this.

MS. NARINE: Marcia Narine.  I'm sorry, my voice is not too strong today, which might make this a much shorter meeting today.

Do you or any of the agencies do any follow-up with the complainants afterwards, maybe three months later or four months later to say how is it going with the reinstatement?  Have you had any issues?

And I know that's not common.  And this might be an uber best practice.  I'm not necessarily recommending that, but I'm just curious.

DR. MICHAELS: Mary Ann tells me that in the pilot, we actually surveyed the complainants -- the parties, three months later.

MR. ROSA: Yes.  Yes, we did.

DR. MICHAELS: We can provide you with that information.

MR. ROSA: Yes.  In fact, we did survey and we were able to get -- and even now, even in these regions that have a full time ADR person, we are getting feedback from both parties.


MR. ROSA: And we're getting a lot of positive responses that this was a very good, easy, non-confrontational approach to resolve the matter.

MS. NARINE: Okay.  Great. 

DR. MICHAELS: It's not going to work in every case, but we certainly think there are plenty of examples where if we can move that quickly, you know, make them whole, it's better for everybody.

MS. NARINE: Okay.  Thank you. 

MR. ROSA: Yes.  Eric?

MR. FRUMIN: So we have an agenda item coming up on the question of data for the program.  And so we can talk about this more then, but I wanted to ask, when you did the evaluation of the program in the regions and made a decision about its strengths and weaknesses and then decided to roll it out. 

Presumably, you use specific criteria for determining success or failure or something in between.  So it would be helpful if you could share with us both the criteria that you used, the key metrics, as well as the results.  What were the results of the evaluation that you did from your program data that allowed to conclude that the program was worth expanding.

I raise it now, in part because it's relevant to your comments, but also because when we get to that part of the agenda, we're be interested in discussing virtually the same questions about the program overall.  So just sort of a marker.  And then the other related aspect is whether you saw in your evaluation that you did any differences by statute because clearly, the strength or the power that complainants bring to the table vary greatly by statute; likewise, from the employer side. 

The advantages and disadvantages of ADR, you know, upfront, vary greatly by statute.  So putting aside the data question, did you see any difference, by statute, when you did this evaluation?

DR. MICHAELS: Yeah.  We'll have to look at the data to get back to you.  I don't have any of that with me now. 

MR. ROSA: Sure.  We will look at the data, but as a preliminary -- because I was involved in the actual approval of the -- on the evaluation of the two pilot regions before we launched it.  The process was very similar to what we've done non-ADR.  The only thing is that it allowed us to stay the investigation while the negotiations were going on. 

So the results were as good, or even better than if we would've just done regular settlement negotiations.  Because of the fact that we already removed the enforcement part of it, maybe we can get the parties together in a more amicable way to discuss.  We did not experience any -- there were not shortcomings.  There were no ways of trying to find a quicker way to resolve; we were just trying to get the parties together in a more amicable way.

MS. NARINE: Do you know off the top of your head if any of those were SOX investigations?

MR. ROSA: There was one that I know of that was a case out in Region 9 that was a SOX case.  Most of the other ones, there were a myriad of different statutes.


MR. ROSA: But there was one particular SOX case that had a significant settlement, but all the other ones had basic settlement.  And we've had instances where a non-ADR case was settled for $2,000, for example, versus an ADR case that was settled for $4,000. 

And again, it all depends on the circumstances in the case, but we didn't see that an ADR was less favorable to the complainant than if you would not have gone through ADR.  All we did was remove the enforcement part of it to make it easier to negotiate.


MR. ROSA: But we will definitely look into more data.  And whatever we are collecting right now, not only are we collecting data in the pilot, but whatever we are collecting now, as the program is moving forward, we have been collecting this information and we're constantly monitoring it.  And that is part of the things that we are doing in the data that we're going to talk about later, how we're going to try to get some additional fields in the system to capture this information and track it better.

MS. NARINE: Because I think Eric and Nancy's points about the power differential and the difference by statute would be really relevant.  And I'm not sure of how I conceptualize it in my head, but I think a SOX case can be different than some of the other cases, you know, for a variety of reasons.

MR. ROSA: Sure.  Sure.

MS. NARINE: The numbers are going to be different in a SOX case.  The concern about reinstatement may be different in a SOX case.

MR. ROSA: Exactly.  Right.  Right.

MS. NARINE: So I'd be interested to see how that works.

MR. ROSA: Absolutely.

MS. NARINE: And the employers might have different concerns about reinstatement in some of these cases.

MR. ROSA: Right.  And we also want to look at -- so far, the data that we have seen did not show any difference between a represented employee and a non-represented employee, but those are the things we are also looking at.

MS. NARINE: I know we need to move on, but I'll just say that I was on a panel -- and I don't see Jason here, Jason Zukerman and some others at the ABA Labor and Employment, and we did an actual hypo on whistleblowers and it was SOX and others.  It was about 40 or 50 lawyers in the room and they talked very specifically, strategically, about how they bring some of these whistleblower cases and talked about are we going to bring a SOX or are we going to bring a regular employment and they talked very strategically about how they're going to file, what they're going to file, et cetera. 

So there's lots of discussion about whether we're going to go through OSHA or whether we're going to go through here or whether or not it's easier and how we're thinking about reinstatement.  So from a real world practical, you know, how this going on in the plaintiff and defense bar, this kind of issue about where ADR is being used and how we'll have a lot of practical significance. 

So I think it's important that this messaging get out because it's going to have a big impact, I think, on how plaintiffs are bringing the cases and how employers start thinking through what they do because the issue of reinstatement obviously is a big deal for the employer community.

MR. ROSA: Yes.  Absolutely.  And before we proceed, I just wanted to add, since the reference of our response to the ID report was raised as Exhibit No. 2.  So I just wanted to make that note.

MR. FRUMIN: Can I?  I just have one other question.

MR. ROSA: Sure.

MR. FRUMIN: David, or Mary Ann or anybody, do you know, roughly, offhand, the total number of ADR cases that were covered by your evaluation?  Just roughly.

DR. MICHAELS: Why don't we try to just get the numbers rather than --

MR. FRUMIN: Okay.  That's fine.  I got it.

MS. NARINE: My follow-up is in the data discussion, do you have data that you can give us?

MR. ROSA: Yes. 

MS. NARINE: Great.  On this issue?

MR. ROSA: Yes, we do.

MS. NARINE: Fabulous.

MR. ROSA: In fact, just to give you another fact, once we did our evaluation, we also looked at another agency that has done ADR to see how we stack up.  We did it with EEOC and we were fairly close in percentage of success as the EEOC has.  So we wanted to make sure that we were not just going off on our own.  That we were actually comparing ourselves to another agency that had an established program in place.

Yes, Greg?

MR. KEATING: Dr. Michaels, I'm sure we'll hear more about this later today, but I'm just intrigued by this concept of training and assistance that you're looking for from the WPAC.  And my question is, is this intended to be training to continue for your investigators or substantive training for employers and employees in the workforce?

DR. MICHAELS: No.  We're very much focused on our investigators.  Obviously, any suggestions that we can encourage others to get training would be great too, but we're very much interested in making sure our investigators are properly training to do their job as well as they can.

We've looked at other programs, for example, there is a federal program that provides training on interviewing techniques in criminal cases.  We don't have criminal cases, but we've sent some of our investigators to get interview training at other agencies, for example.  So what are the skills they need and more places we can get that training is what we'd like you to think about with us.


MR. EHERTS: I've got a comment.  Maybe it's a unique business perspective, but I think there's two ways to decrease the backlog and one is through ADR and more OSHA people.  The second way is to have fewer claims.  And so I want to put a plug in for Jon's group in that what they're focused on is teaching businesses on how to put anti-retaliation programs in place and I think there are three big advantages to getting these things early. 

The first is competitive advantage for the business because if they can get this information internally quickly, if it's an unsafe workplace, it's easy to fix it when you get the information early.  And if somebody is stealing money, that's information that the companies desperately really want to know.  So it makes no sense to retaliate against somebody giving information that's really important to the business. 

And also, I think it keeps you on the right side of the law.  So there are a lot of reasons businesses should be investing in the things that Jon is bringing forward and I just want to point out that that's going to reduce the backlog quite a bit also.

MR. ROSA: I certainly hope so.  Yes, JJ?

MS. ROSENBAUM: I just wanted to flag two additional fields that I think would be relevant and where they may be a disparate outcome with ADR.  The first is language. 

MR. ROSA: Yes.

MS. ROSENBAUM: So a cross statute -- how are those outcomes measured?  And the second is where has the agency invoked the Miranda of understanding with the Department of Homeland Security?  Because when there are additional immigration-related threats on the table, that may also impact the pressures around ADR.

DR. MICHAELS: Thank you.

MR. ROSA: Thank you.  Yes, Eric?

MR. FRUMIN: What were the professional certifications that you referred to?  Any idea or can you tell us about it or can you tell us about it another time?

MR. ROSA: Well, I do know that there are some members that have the CFE, Criminal Fraud Examiner (sic), for example.  That's one.  I don't know of any others, but similar to what we have in our training directive for our compliance staff, where we have the Certified Industrial Hygienist, Certified Safety Professionals and the like.  We're also looking to expand our whistleblower staff would also have some professional certification that we can encourage them to get involved in.

MR. FRUMIN: And they're mentioned our directive.

MR. ROSA: Right.  Any additional questions for Dr. Michaels?

(No response.)

Well, thank you very much.

DR. MICHAELS: No, thank you.  And I look forward to continuing to work with you.

MR. ROSA: Thank you.  And now I have the esteemed pleasure to introduce my boss, Mary Ann Garrahan, the director of the Directorate of Whistleblower Protection Programs that will be doing an update of the directorate and together, I will be helping her in answering any questions you may have afterwards.

Mary Ann?

MS. GARRAHAN: Great.  Oh, thank you, Anthony.  And good morning to everyone.  It's my pleasure to be here.  And I really wanted to thank Dr. Michaels for his powerful message about whistleblower protection.  I would like to echo his thanks to the Committee. 

You know, after attending the last committee meeting and I reviewed the Best Practice document several times, I also read the previous Committee minutes.  I am so impressed with your hard work, enthusiasm, and your dedication to helping OSHA improve its Whistleblower Protection Program.

So just as a little background, I assumed my role as the director of the Whistleblower Directorate shortly after your last committee meeting.  Before that I was the regional administer in Philadelphia for OSHA.  And because I believe so strongly in the mission, working for OSHA has really been a career for me. 

Many years ago, I started with OSHA as a compliance safety and health officer.  So as the new director, I would like to review our goals under the Whistleblower Program and highlight some of things we are doing to reach them.  But before I do that, I want to thank the DWPP staff, particularly Meghan Smith and Marisa Johnson, Francis Owen, and Greta Jamison from our Office of Communication.  It's really due to their logistical and programmatic work that makes this meeting happen.

Also, I would like to introduce to you Christine Stewart.  Christine is the new division chief of Policy, Planning, and Program Development.  And she is an alternative DFO for this Committee.  We are delighted to have her as part of our directorate team.  She was a manager over the whistleblower investigators in our Kansas City Regional Office.

So as you know, Dr. Michaels has talked about that this directorate is a standalone, similar to our directorates of enforcement programs in construction.  Our directorate develops policy, procedures, and outreach materials and we provide support to our regions.  In addition, we write regulations for the statutes we enforce.  We conduct administrative reviews of appealed 11(c), the Asbestos Hazard Emergency Response Act (AHER), and the International Safe Containers Act cases.  And we participate in the national office audits of the region's Whistleblower Protection Program. 

We do all of this and much more with a staff of 16.  And I am really extremely honored to be working with such a smart, dedicated staff and some of them waved to you this morning, but they introduced themselves. 

Now, to get to our strategic goals.  Each fiscal year, the agency develops program goals.  So for FY 2016, the agency has three whistleblower protection performance goals that are qualitative.  They are meant to ensure improvements in our efficiency.  We have a goal for a number of investigations we complete and we have a goal for measuring the timeliness of whistleblower investigations and that is the average age of pending whistleblower investigations.  And we also measure the timeliness of customer service to new whistleblower complaint filers by measuring the average number of days to complete a new complaint screening process.

So those are our three goals, and we also have four agency whistleblower protection milestones for 2016.  So this fiscal year, we plan to conduct a quality review of a specific subset of completed whistleblower cases, and this will be accomplished by focused audits conducted by our regions and by national office audits of a subset of the regional whistleblower programs.  Each year, the national office conducts to three regional audits per year.  And I mentioned that DWPP participates in those national office audits. 

So for the whistleblower portion of the regional and the national office audits, DWPP developed an access database called the quality review tool.  Dr. Michaels had just mentioned that this morning.  The purpose of this tool is to improve the consistency, uniformity and quality of our whistleblower investigations. 

The items that are identified the tool are taken from key investigative steps in our whistleblower investigation manual.  This tool, not only is being used by federal OSHA, but we're also using this tool to monitor the whistleblower programs in state plan states.  It also can be used proactively by our regional and state managers when reviewing open cases.  It provides an excellent checklist to ensure all pertinent investigative steps are completed.

Another agency milestone is that we will consider developing a customer service measure related to Web traffic on OSHA's whistleblower website.  We plan to use Google Analytics for this.  We plan to look at our website and determine whether reviewers to our site are, for example, entering through our partner agency websites that link to our websites.  And also what they're looking and maybe what they're not looking at on our website.

We also have two agency training milestones.  In FY 2016, the agency plans to develop a new legal concepts course and a complaint resolution and settlement negotiation course for our whistleblower investigators.  So in addition to our agency goals, we have other strategies for improving our effectiveness and efficiency. 

In our directorate, we run case reports quarterly.  We analyze the data and we share the data and any trends with our regions.  Some of the data points we find most important are the number of complaints filed, the number of closed, the outcome of the complaints.  For example, did we find merit?  Was the case settled?

We also track progress for meeting our annual strategic goals, such as the 2016 goals that I just mentioned.  And also, yearly, our directorate updates the data that we provide on the public website.  We do this approximately one month after the end of our fiscal year.  So that's right around this time, a year. 

So in your packet, you have a copy of the most recent data for 2015.  Let me show it to you.  So one thing I'm pretty sure of -- and there is going to be the data discussion later on, but I'm pretty sure you're aware that our database for the whistleblower program is old, it's clunky to use, and due to its age, it is very difficult to make enhancements. 

We have not been given enough adequate funding for needed improvements and this is certainly a huge challenge for us.  You know, I really can't stress that enough.  So as we mentioned, Anthony will be giving you an update and seek your thoughts on data issues, you know, after our break this morning.

Moving on to other ways of improving the efficiency of our program, some of our regions have been piloting the use of electronic case files.  I know this morning we discussed the whole program that we implanted as optional through our regions, and that's the alternative dispute resolution method.  I just wanted to mention that under the Administrative Dispute Resolution Act, it requires federal agencies to really look to consider ADR programs.  So it's out there in an Act. 

As we mentioned, you know, you're very interested in the outcome of our results and we'd like to share that with you.  And also, I think what's important is we are closely monitoring, as we're moving forward.  Right now, we have three regions that have regional ADR coordinators and that's Regions 8, 9, and 10.

I mentioned that an important function of DWPP is conducting administrative reviews and I mentioned there's actually three statutes, but we only get really requests under 11(c).  So as many of you know, the reason that we're doing these reviews is because the OSHA Act does not allow for complainants to appeal their determinations.  So we take this task very seriously and we are continuing to make improvements to our process. 

We recently enhanced our responses to complainants to better explain our rationale for our determinations.  And these reviews or case files provide the opportunity for us to find areas to improve quality.  We are in the process of improving the way we collect data on areas that need improvement that we discovered during these reviews, but we are analyzing the data.  We're looking for trends for systemic issues.  We are trying to determine the root causes and take action in order to improve the qualities of our investigations across the regions.  You know, examples include what types of action we take, developing new policy, clarifying a distinct policy, and training.  It might be retraining.  It might be actually adding additional training. 

So just to let you know, in FY 2015, we had 140 requests for reviews.  And during this same period, we had final determinations of 127 cases and approximately 25 percent of our reviews involve going back to our regions with questions or asking them to reopen the cases. 

So speaking about policy updates, last fiscal year, we updated Chapter 6 of our Whistleblower Investigative Manual, and we are almost finishing revising Chapter 3, the conduct of the investigations.  We're updating that to include the reasonable cause memorandum.  I know your last meeting, you had a discussion on the reasonable cause memorandum.

In our plan, moving forward with our manual is to really update at least two chapters each year.  And each year, we're planning on incorporating any new policy memoranda into the manual.  So anything that we've issued by memos to our field, really, since this Administration, we plan to catch up and incorporate into our manual.

Another way to improve our program is through audits conducted by the Department of Labor's Office of Inspector General.  We mentioned that a little bit that in December, the OIG issued an audit report, and this was more than a year of reviewing case files in three of our regional offices and conducting interviews with staff and managers within the regions and here at the national office.

As Dr. Michaels mentioned, the good news is that the OIG reported noted improvements in the programs since 2010.  Specifically, as Dr. Michaels mentioned, we went from an error rate of 80 percent when they looked at the case file of finding at least one error that they considered an error, and reducing that in their latest report to 18 percent of the cases.

So we consider this a considerable improvement; however, you know, we still have a ways to go and the OIG made some recommendations and you have a copy of this.  It's the same recommendations in their draft.  And you have a copy of a draft that is in the report.  And the good news is that we have been working on those same recommendations and we will continue to work in those areas, such as continuing to address improving the training of our investigators.

One thing we have been doing, and Dr. Michaels mentioned this as well, the OIG actually looked at this as well, although we had sort of like a disagreement with the OIG in terms of what data they were looking at. 

They were looking at our partner federal agency's data versus the data that we submitted to our partner agencies.  But we believe we've made great strides in our efforts for increased coordination, in collaboration with partner agencies, which enforce the underlying worker public and safety protections behind our regulations. 

Working closely with our partner agencies is very important because it allows us to reach workers that we normally don't reach.  DWPP has met with each partner agency at least once in the last 12 months to discuss better ways to share information.  We're also making progress towards creating reciprocal Web links between OSHA and our partner agencies.  And this improves customer service and helps demonstrate a strong working relationship between the federal agencies. 

Right now, we have EPA, the FAA, and HHS, all have placed links to OSHA's whistleblower pages on their webpage and have explained to employees who may have whistleblower protections under statutes that OSHA enforces and we think this is very important.  And I told you we're going to use that kind of data, the analytics to see whether or not they're actually using those links.

Now, regarding the Affordable Care Act, we anticipate -- oh, I wanted to mention one more thing we're doing with federal agencies, too, that they have hotlines.  We're actually working with our hotlines too.  And also looking at, you know, in terms of OIG, we just want to make sure that everyone who might hear something about a whistleblower complaint, if it happens to fall under one of our 22 statutes, they know where to send these folks. 

Regarding the Affordable Care Act, we anticipate that whistleblower claims may increase in the near future due to an upcoming change in the Act.  Beginning in 2016, medium-size employers and those with 50 to 99 full time employees must offer adequate health insurance to their employees.  If their employees go to the healthcare exchanges and receive cost-sharing subsidies for adequate health insurance, which is a protected activity under the Affordable Care Act, the employers will be subject to fines of $2,000 per employee.  So consequently, some employers may believe that there is an incentive to terminate employees who are seeking to find affordable health insurance coverage for their families under the law.

So in addition to reaching out to our partner agencies that enforce our underlying worker public and safety protections behind our regulations, we're also reaching out to federal agencies that enforce whistleblower statutes.  So what we think that this is a great way to not only improve our effectiveness and efficiency, it also is a way of helping other agencies as well, by sharing some of our best practices. 

Some topics that we are interested in are how they train their investigators, their investigative processes and procedures and their investigative case load.  Our investigators carry an average caseload of 23 pending cases.  And you all may recall that in 2012, an OIG report states that ideally, the average should be between six to eight cases.  And from some our other federal agencies we've been talking to, they have much lower caseloads. 

On to regulations.  I mentioned that we're responsible for promulgating regulations, specifying the procedures for handling of retaliation complaints filed under the 22 statutes that OSHA administers.  I'm pleased to report that as of just a few days ago, November 9, the regulations for the National Transit System Security Act and the Federal Railroad Safety Act became effective. 

And as my final update, I am just going to highlight a few significant cases from our last six months.  In the DeFrancesco vs. Union Railroad Company, the Administrative Review Board explicitly adopted the analysis in OSHA's Fairfax memo on injury reporting and retaliation as the standard for evaluating whether a railroad can escape liability in whistleblower case by referencing its record for disciplining employees for safety violations, regardless if the employee reported an injury.  So we consider that significant. 

Earlier this year, the regional solicitor in our Region 9, the San Francisco regional office, filed a claim in the U.S. District Court against Skyway Trucking, enforcing the terms of a settlement agreement that was brokered in FY '13.  And the solicitor is seeking back wages and reinstatement.  And this is significant because it is the first time a regional solicitor has sought to enforce the terms of an OSHA settlement agreement in U.S. District Court.

In July of this year, OSHA ordered Oak Harbor Freight Lines to pay $20,000 in punitive damages, after Oak Harbor suspended a 25-year commercial truck operator without pay at its Portland, Oregon terminal, after he did not feel well enough to drive.  OSHA's investigators found the company's attendance policy encouraged drivers to operate trucks while sick or exhausted.  And drivers absent due to illnesses or exhaustion had negative notes placed in their personal records and faced possible discipline or termination.

OSHA has repeatedly asked Oak Harbor to change the attendance policy, but the company has not complied.  This is the second time the agency has found Oak Harbor retaliated against a truck driver who invoked federal safety rules. 

In one more case, in the spring, OSHA investigators determined that Union Pacific disciplined a 35-year employee after a freight engineer reported injury sustained in a December 2013 collision, where the employee received medical attention.  The conductor who was working with the engineer on the worksite was not injured because he jumped from the locomotive before the impact occurred and was issued significantly less discipline.  Union Pacific was ordered to pay the engineer close to $363,000, including punitive damages. 

So despite the success we've seen of these cases, we still have a lot of work ahead and us and I appreciate all the work you are doing to help us.  Thank you.

MR. ROSA: Thank you, Mary Ann.  Any questions?  Yes, Marcia?

MS. NARINE: Good morning.  Thanks for the reports.  I have three questions.  First, you mentioned a legal concept course that your employees are taking or are being designed.  I was wondering if you could explain that.  And I can either tell you the other two questions and you can pick the order to answer them or --

MS. GARRAHAN: Okay.  No, we'll start with that one.


MS. GARRAHAN: Because we have a legal concept course that we do for our safety and health inspectors, you know, as well. But I'm going to turn to Anthony because he was on the committee that has really made the recommendations for the improvement to our training.

MR. ROSA: Sure.  And before, I just want to give you a little background about how we came about with the enhancements to the training program.  Before we got into the work group, there were two courses; there was what we call the 1420 and the 1460.  One is the basic course, primarily, Section 11(c), and the second course was the federal statutes course, which covers all the ALJ statutes. 

So the two courses, for many years, were statute-based.  It was specific on what the statute was about.  What we decided to do is first, we needed to revise the course competencies for what investigators would have following the model that has been used for compliance officers on the safety and health side.  Once we develop that and what the competencies we needed for investigators, we decided to take the courses and either enhance or eliminate and start fresh.

So the 1420 course has remained, but it has been enhanced and now we call it the basic fundamentals course because that gives you sort of a cradle-to-grave process.  The other four courses, and one of them is the legal concepts course, are processed-based rather than statute-based.  So specifically, on the legal concepts, we're looking at specifics with regard to what legal issues.  It may involve a lot more of the ALJ statutes; it may involve a lot more of scenarios like retaliation by association, leeway doctrine.  Those kinds of things that have a lot more legal weight that we need to do further analysis.  For example, the other course that we mentioned earlier is the complaint resolution course.  We're trying to get some techniques out there to help investigators find ways to resolve cases to get to negotiation techniques.

Another course that we're working on that has been completed and will be launched very soon is interviewing techniques.  We have a lot these courses already on the safety and health side.  We're trying to bring them into the whistleblower scenario.

MS. NARINE: Great.  Thank you.

MR. ROSA: You're welcome.

MS. NARINE: The second question was that you indicated that in 25 percent of the cases you had sent them back for additional questions.  What happened in those situations where decisions changed, reversed?  If you know.

MS. GARRAHAN: We're trying to get a better data system that is going to really keep track of that.

MR. ROSA: Yes.

MS. GARRAHAN: That's one thing Anthony is going to be talking about.

MR. ROSA: There have been some cases.  And even from my former region, when I was in Region 4, that one particular case we sent back, that resulted in a settlement.


MR. ROSA: We have a case that we sent back to another region and it actually was filed in District Court recently.


MR. ROSA: So there have been a number of cases.  The majority have come back and they still have been, you know, we have still the appeal or the review. 


MR. ROSA: But the process allowed us to look at it from not being investigator, being on the outside looking in.

MS. NARINE: So fresh eyes.

MR. ROSA: As a fresh eye.  Right.  And to see if there was something else that we probably could have done, gathering other pieces of information; done another couple of additional interviews that we should've done, but there have been a number of cases that the outcome has changed.

MS. NARINE: Okay.  Thank you.  And then the last question is you indicated that you're working with, I guess, the other agencies have hotlines.  Are those hotlines run by outside vendors?


MS. NARINE: Okay.  So do the outside vendors indicate Mr. Anonymous Caller, did you know that you could also file a claim through OSHA, or do those outside vendors forward complaints directly to OSHA for handling?

How is that linkage with OSHA actually occurring?

MS. GARRAHAN: Yeah.  Well, my understanding is that we have certain text --

MR. ROSA: Correct.

MS. GARRAHAN: -- that we have given the hotline to use --


MS. GARRAHAN: -- that actually gives information on how to contact us.

MR. ROSA: Right.  We have some specific scripts, scripted language --

MS. NARINE: So they have a script.  Okay.  Perfect.

MR. ROSA: -- that when the call comes in, we'll tell them these are the different avenues that you have to file your complaint.  You can call our 800 line.  You can go online.  You can call our local office.  These are avenues that you have to reach us.

MS. NARINE: So at some point -- I'm sorry.

MS. GARRAHAN: I was going to say, even in our electronic complaint form, we've been modifying that because we want to screen out complaints that need to go to other federal agencies.

MS. NARINE: Right.

MS. GARRAHAN: And so wouldn't it be nice to have one kind of electronic complaint form for the federal government where, you know, somebody could go and then it would be sent to the correct agency.

MS. NARINE: Okay.  Thank you.

MR. ROSA: Thank you.  Nancy, please?

MS. LESSIN: Good morning.  Nancy Lessin, United Steel Workers.  I have two questions.  The first one is I know this predates your time, but there have been employers that OSHA has developed accords with and one of them was BNSF in, I believe, 2012.  I'm interested in understanding when that accord was developed and that relationship.  Has there been a difference in the case numbers coming in, the retaliation claims? 

This would be, in particular, under FRSA, since the accord from before -- are these accords making any difference is the question?  And it's partially a data question, but it's partially qualitative.  So that's my first question.

MS. GARRAHAN: Okay.  And Anthony, you want to -- I know we looked at the data and we have seen improvements, but a lot of it are some old cases.

MR. ROSA: That's correct.

MS. GARRAHAN: But go ahead, Anthony.

MR. ROSA: Yeah.  A lot of it is still -- because our cases are taking a while, we're probably still working on cases pre-accord and we do have cases after the accord, but we have seen some positive -- it's like, positive change in the outcome and we're still trying to gather all the data.  But currently, we're still working on cases that were pre-accord. 

MS. LESSIN: What I would like to see, in terms of data for this, would be in 2012, how many FRSA cases came in from BNSF in 2013 and 2014, and 2015?

MS. GARRAHAN: And we have all that.

MS. LESSIN: And we will be asking for that when we do the --

MR. ROSA: Sure.  And one of the things that I believe we have been working on is we're still getting complaints that are the same complaints regarding injury reporting.


MR. ROSA: What we're not seeing as part of the accord was the application of the point system.  So we believe that that has been corrected.  That that point system has been somewhat addressed through the accord.  That was a part of the accord.  But the complaints coming in with regard to injury reporting are still --

MS. LESSIN: Are still there.  People may not be getting points, but they're still getting retaliated against.

MR. ROSA: Some other type of action.

MS. LESSIN: The second question has do to with you just mentioned the situation with the rail carrier, UP and a fine that included punitive damages.  Do you then end your relationship or do you track whether or not an employer or rail carrier, you know, under FRSA they can now take that to the court system.  Do you know if they took this case to the court system to appeal it or they paid?

MR. ROSA: I believe they appealed it.  You may know about the UPKs, Christine.  I'm sure.  Did they appeal?

MS. DOUGHERTY: It's been appealed.

MR. ROSA: It's been appealed, yeah.

MS. LESSIN: I mean, one of the questions that I have, you know, is when OSHA does something like this, what percentage are appealed and do we know what ultimately happened?  And does it make a difference that OSHA, you know, found not only a merit finding, but punitive damages? 

In terms of what actually happens to the rail, to the worker, has this made a difference or when it goes into the court system and it's a de novo case, is it like, irrelevant?

So I would, you know, I think a piece of this is, you know, from our perspective is, you know, seeing that, you know, giving advice to OSHA to do what you can do, but I'd also love to be able to look at what actually happens in all of this.

MS. GARRAHAN: And I think Nancy, I think you're making something that's going to be discussed in our data card.  Right.

MR. ROSA: And that's a very good point that we want to look at, once we issue an Order, what happens afterwards.

MS. GARRAHAN: Absolutely.

MR. EHERTS: You know what?  Just to comment, I think Nancy is on the right track, but if you look at the data, it seems like the investigators have four times too many cases.  I mean, they've got an average of 23 per investigator and it needs to be six to eight.


MR. EHERTS: So I think a very important metric is how many cases are coming in and what you can do to decrease that number.  So outreach and collaboration I think is critically important.  Without that, I think we're going to be looking at ADRs and things like that forever.

MS. GARRAHAN: When you say "outreach," you're talking about outreach to the employers on an anti-retaliation program --

MR. ROSA: Absolutely.

MS. GARRAHAN: -- and not outreach on their -- right because we're getting outreach and getting more complaints.

MR. ROSA: Exactly.

MR. EHERTS: Well, because the employees understand they've got a process to do it.  And I think that's important because the more cases brought, the more likely industry is going to see that they're going the wrong direction and they need to do something internally.


MR. EHERTS: And I think it's just incredibly clear to me, being from business, that this is information that the company desperately needs.  So to retaliate against an employee from bringing this information forward is crazy.  And I think we just have to get the employers educated.

MR. ROSA: Right.  And if you see the data, you'd see that the number of complaints coming keeps going up.  This year compared to last year, '15 to '14, it was 190 more cases.  And if you see the number of cases that we closed, even though we closed a record number of cases at 3,273, we barely broke even because 1,388 came in. 

MR. EHERTS: Those are --

MR. ROSA: So we're barely breaking even in just responding to those that are coming in.

MR. EHERTS: It reminds me of the old adage about buy more ambulances for the bottom of the hill and putting a fence at the top.


MR. EHERTS: And I think we need to stop buying more ambulances and finally put a fence at the top.

MR. ROSA: And that's why this best practices discussion we'll have later on this afternoon is vital to our program.


MR. EHERTS: Critically important.

MS. GARRAHAN: Dissemination is critical.

MR. ROSA: Yes, JJ?

MS. ROSENBAUM: Thanks.  So you mentioned in Region 9 that the Solicitor's Office had brought one case for the failure to buy by settlement agreement to District Court.  And I was curious why that was happening, whether that was being seen as a test case within the subtler protectorate, whether that's something that the solicitor's -- a decision the Solicitor's Office takes on their own or whether that's just how you're seeing it internally. 

MR. ROSA: Well, in that particular case, I mean, a lot of times we have been -- well, most of the time, we have been successful in getting the parties to agree to the terms of the settlement.  Probably in this case for the company side, the respondent's side. 

In this particular case, it was clear that that didn't happen and there are a number of factors, and I'm not going to speak for the Office of the Solicitor, but there are a number of factors as to why the solicitor will or will not take the particular case. 

In this case, the evidence was strong enough to say we have a very strong matter here.  The company didn't come up with their end of the bargain and we decided to go ahead and proceed with that enforcement.  So there are a number of reasons why a settlement may not be enforced in the core system. 

Eric and then Greg.

MR. FRUMIN: So Mary Ann, you mentioned a number of important cases recently, and some of those you publicized.  I wondered whether you had any particular criteria or indicators to tell you which sorts of cases are worth publicizing to demonstrate that the agency flexes its muscles and tell people about that. 

Obviously, some of them show up because they're kind of off the chart cases and we see them on OSHA's website, but I'm sure there are many times more cases that are settled or prosecuted favorably, which don't.

So what's in your thinking or have you given much thought to how you decide which cases you want to put out there and let the public know, employers, workers, or whoever that you're being aggressive in pursuing these cases and finding merit, et cetera?

MS. NARINE: Can I just follow-up on that?  I don't want to go out to turn, but it actually goes to my question because when you were saying -- I don't know if it was Oak Ridge, something -- the name of the company that you had to tell them a second time.

My concern was, you know, Dave was talking about, you know, employers need to be educated.  At some point, this company already knew that it had did something wrong and you had to tell them a second time.  And so for some companies, it's a cost of doing business.  And I'm a management representative.  All right. 

For some companies, they already know what they're supposed to do and what they're not supposed to do.  So this is company already knew that.  So do they need to hear about the multi-million-dollar fine?  Do they need to have penalties that are much more significant?  Do they need to hear -- do companies need to be fined more severely or do they need to have more incentives to comply?

So it's kind of more of a macro question is --

MR. ROSA: It is.

MS. NARINE: -- because I'm not sure that -- that company knew it was doing something wrong.  And I'm not speaking for this company, but I'm just assuming; they already knew.  They were already educated.

MR. ROSA: That's right.

MS. NARINE: The big companies already know what they're supposed to do, so I'm not sure that outreach to the big companies, you know, the Union Pacific, they know what they're supposed to do.

MR. ROSA: Right.

MR. FRUMIN: I think it's a two-pronged approach.  I think it's got to be a strong compliance, but along with that has to be outreach.

MR. ROSA: Right.  No, I agree, but I'm just worried about -- so that company really struck me as why is this the second time?  They already knew.  So is that fine big enough?  And do you need to really do something to make the smaller and the midsize companies know this can happen to you so that you really get them in line so that you don't have to come to them.  And maybe that's what helps bring the numbers down so that your workers have the six to eight that they're supposed to have and not the 23.

MS. GARRADAN: And I think what you're saying is very much in line with how Dr. Michaels sees things as well.

MR. ROSA: Yes.

MS. GARRADAN: And how we --

MS. NARINE: I think companies respond to penalties and incentives. 

MR. ROSA: Right.  And companies also respond to the media coverage.  So we've had some experiences with that and that's one of the reasons why -- UPKs, for example, that is $363,000; it includes the maximum punitive damages of $250,000.  So the same thing we did earlier in the year with Metro North that we discussed in our April meeting. 

One of the things that we look at, in the statutes that do have punitive damage, is that we look at the history.  We look at the history of the company.  We actually look at the egregiousness of the act, but we also look at the history.  If you go back to cases that we've had with Norfolk Southern, you will notice that some of the punitive damages were a lower amount, and as we had more and more cases, the punitive damages went up because the history was building.  Same thing with UP.

If you look back now, you will see that there hasn't been a case against Norfolk Southern because they have worked with us in trying to get those issues resolved.  Some of the other companies it hasn't happened and that's why in some instances they may not have been a press release, but maybe on the second, now the penalty, if it's allowed by the statute, it's higher and it will allow for a press release.

And by the way, to answer your question, Eric, we do have a criteria, similar to what we have on the safety and health side that we have a SIC case memo, a policy memo about when the area director is going to issue a fine that is over $100,000 or whatever it is.  It becomes SIC case.  We have also a criteria of what is considered a significant case on the whistleblower side, depending on what the total dollar amount, or if it's a novel issue.  It may be a jurisdictional issue.  It may be a particular activity issue that may be of novel -- something very interesting that will raise it to the level of being significant, and then it goes through the clearance process with the press release.

MS. NARINE: When I used to train people around the world, the most important thing was a let me tell you what just happened to the people in our industry.  This company got this fine.  This company, the Department of Justice is looking at them.  That is what got the attention of our operations people, is seeing what happened to everybody else in our industry because otherwise, it was like, well, that's pharmaceuticals, that's not us.  That's not us.  And when they saw it was other people in the industry, that's when all of a sudden my training was relevant. 

MS. NARINE: Okay.  Eric.  And then Greg has a question.

MR. FRUMIN: So is this policy on, for lack of a better word, significant cases?  Is this in the manual or is it somewhere else?

MR. ROSA: It's not in the manual.  It's a separate directive.  It's a memo.  It should be on our website.  Whether it's on a website or the OSHA website, it is on the website.

MR. FRUMIN: All right.  So if you could share that with the Committee --

MR. ROSA: Absolutely.

MR. FRUMIN: -- that would be great.  And I think it would be worth us discussing it at a future time.

MR. ROSA: And we're in the process of doing some revisions to it as well.  So we've been working on it.  Greg?

MR. KEATING: Thank you, Anthony.  Mary Ann, I just had a question.  A comment and a question.  I'll start with the question, which is very excited that OSHA issued these recommended practices and has a schedule in place for public comment. 

One of the things that occurred to me, though, is you took what the best practices work group and then the full committee unanimously approved and you shaped and molded it a little bit.  Is there going to be an opportunity for either the work group or the committee to give you any feedback in this time period when the public is to comment?  I don't imagine it would be, you know, extensive, but I would think there might be some interest in hearing some minor feedback from the Committee on what you did with the recommendations.

MS. GARRAHAN: Yeah.  And I understand that this afternoon, if there is time after the dissemination discussion that Anthony was going to turn it over to you all to give us feedback on the document.  Now, from a timing standpoint, if it's turned back to the work group to talk about and then, you know, it just wouldn't work from schedule-wise if the best interest is getting something out that we can start sharing with employers because a work group would have to go through the Committee to make recommendations to us. 

So certainly, I believe it's been mentioned that anyone on the Committee can use our regulation.gov site to comment individually.  And certainly, if you've had an opportunity to look at what we've done and you want to make some discussion from the Committee this afternoon, if there's time, we would certainly be open to that. 

MR. KEATING: Okay.  And sort of related to that -- and this is an individual comment, but you said a moment ago dissemination is key.  And I think what Dave was talking about is really trying to get businesses to buy into this so that we can create a transparent culture and avoid retaliation to begin with, it's critical.  And I've said this since the first meeting.  And I'm very, very pleased and appreciative of the efforts of Jon and the work group to put this together. 

I do have a comment, though, which is that I think to get the buy-in and attention of business so that they will cease on this and implement this, it is going to be important to get them to understand that this isn't just a recommended practice to protect whistleblowers.  Okay.  It's also a recommended practice to improve compliance and transparency in the workplace; therefore, enhancing productivity and making it a much better workplace. 

So if we focus only on recommended practices to stop retaliation, I don't think we're going to get as much attention of the chief compliance officers of the world, of the CEOs of the world, as we weave in words like "compliance."  "Transparency."  And that's my comment.


MS. NARINE: Thank you for enhancing an effective compliance program. 

MR. ROSA: Right.

MS. NARINE: He put that in the title, actually. 

MR. KEATING: Absolutely.

MS. NARINE: That gets the compliance officers to want to use it.  It gets the boards to like it.

MR. FRUMIN: You know what else gets their attention?  Competitive advantage.  That has the key words too.

MS. GARRADAN: Okay.  Good.  You know, we tried to put in some words into the document we picked up from the recommended practices in terms of the business case for it.  And certainly, what your thoughts are, we certainly will consider --

MR. KEATING: I hear that and I agree.  I just think that the title alone could really grab attention if we weave in a few words around compliance, transparency.

MR. ROSA: Good.

MS. NARINE: Especially as we discussed with Dr. Michaels, possibly trying to promote this at compliance conferences and that kind of stuff, if compliance is in the title or in the main body.  That will get compliance officers to say okay, this is for us too, it's not just for the plaintiff's bar or something like that.

MR. ROSA: Right.  Right.

MS. NARINE: And board members will then say is this something we're looking at and you're get audit committees to look at it.  And I think you want this elevated, especially because there is talk of having board members, especially at bigger companies, trained on it.

MR. ROSA: Sure.  Very good point.  Thank you.  Any additional questions or comments?

(No response.)

Okay.  Thank you, Mary Ann.


MR. ROSA: Let me just look at our --

MR. FRUMIN: Sorry.  I just had one other question. 

MR. ROSA: Yes, Eric?

MR. FRUMIN: The training program that you are working on for the staff, who do you envision providing the additional training? 

Are we still through OTI?

MS. GARRADAN: Yeah.  We're working through our OTI.  And also, the good news is that we have hired a full time whistleblower trainer at our training institute recently, which is good because we've been pulling resources from our field and that takes away from our field, you know, doing their work.  And so this was a person who was a regional supervisory investigator.  First line manager of the investigator.  So that's good news.  And they plan to hire at least one other, if not two other trainers as well, depending on how the budget goes this year. 

MR. ROSA: Yeah.  And one of the things we looked at is, when we worked on the work group, is we wanted -- currently, OTI, OSHA Training Institute, has three tracks.  They have a safety track, a health track, and a construction track.  Now, they have a parallel whistleblower track.

So it's not just a standalone office, it's actually a track that is going to have its own office, its own leadership, its own curriculum, its own development of materials, research, evaluations.  Everything else that is included in the training program is going to have its own dedicated team.

MS. GARRAHAN: And the new intro course is being provided the first week of December.  So we're very excited about that.

MR. ROSA: Right.

MR. FRUMIN: Who is the person who is the head of that now?  The person she was talking about who --

MR. ROSA: He was a regional supervisory investigator in Region 2 and now he has taken the role as the first instructor.  He reports to a higher command.  OSHA Training Institute is still working on getting additional people to complete that particular track group, but he was a subject matter expert that is an investigator; was a regional supervisory investigator for that region and now he is going to be heading up the training team.

MS. GARRAHAN: And we're working very closely, by the way, with our training group too.  So we want to make sure that they are providing the right --

MR. ROSA: Because all the materials are coming to us for our review and approval to make sure that both DWPP and our directorate of training and education are working together and the approval of the materials.  Make sure that they're falling in line with our instructions.

MR. FRUMIN: So are there any particular federal agencies who handle retaliation cases who you think are most likely -- I mean, like, the highest priority agencies for you to partner with in enhancing and revising this curriculum?

I mean, I can think of the usual ones that employment lawyers think about that come off the tip of your tongue right away, but I'm just wondering from your standpoint, which are the ones who you think have the best wealth of knowledge and experience in training anti-retaliation investigators as compared to, you know, the people who agencies will do training on safety issues or healthcare, blah, blah, blah.  Whatever.  So I'm wondering if there are any particular agencies who stand out as the people you want to partner with.

MR. ROSA: Agencies, meaning our partner agencies that are giving us training?

MR. FRUMIN: No, the agencies who you want to partner with to develop better training for your staff.  Like, LORB, EEOC.

MR. ROSA: Right.

MR. FRUMIN: Not necessarily people you are partners with, but which are the ones that roll off the top of your tongue.

MR. ROSA: We are actually engaging ourselves with offices like Office of Special Counsel and EEOC, and MSHA --

MS. GARRAHAN: And DoD and MSHA.  Right.

MR. ROSA: DoD.  We recently did a presentation together with DoD.  So we are working with all the other -- we are working very diligently in contacting all of our other agencies that have a whistleblower provision to also gain some insight as to how their process works and if there is some technique that they have that is actually a good idea that we could probably implement on our own, or vice-versa.

MR. FRUMIN: So where does the Board, the Labor Board fit into that panoramic?  You didn't mention them, I did.  I was wondering whether they're an important source for you or whether it's just one of the other agencies out there.

MS. GARRAHAN: Yeah.  No, certainly.  The National Labor Relation Board?


MS. GARRAHAN: We have visited them recently. 

MR. ROSA: That's right.  One of the things we actually do with the Labor Board, and I don't know if you've -- we've mentioned this in past meetings, but our Section 11(c) statute is very limited in the 30-day timeframe. 

MR. FRUMIN: We talked about that problem here.

MR. ROSA: Right.  And the NRLB has six months to file a complaint.  So when we get an untimely complaint, we encourage the complainant to contact the NRLB and we actually share all of our complaints that had been dismissed as untimely with the NRLB so that they can at least get an idea of how much traffic is going to them and how they can address those issues.

MS. NARINE: Is that a formal arrangement is or that just kind of an informal --

MS. GARRADAN: We have a formal arrangement.

MR. ROSA: We have a formal memo.  Yes.  We have a formal process that we did last year.

MS. GARRAHAN: I mean, we're learning a lot from -- and we have a lot more to learn, but even the U.S. Postal Service --

MR. ROSA: Yes.

MS. GARRAHAN: -- you know, we've met with the Postal Service, but we've also met with the OIG of the Postal Service, and what we found out is that, for example, under 11(c), if it's filed -- if it's not filed timely, we can refer those to the OIG and the OIG will handle the discrimination complaints --

MR. ROSA: Exactly.

MS. GARRAHAN: -- that are untimely on our part.  Untimely filed with us. 

MR. ROSA: Okay.  Any additional questions?  I thought there were other hands. 

(No response.)

All right.  Well, thank you very much, Mary Ann.  I just wanted to make note that since we talked about we would put this as an exhibit, our charts.  I just want to let you know, as of today, it may or may not have been on the page, but we have asked our IT folks to put this. 

This is always on our webpage, but it may not have this FY '15 yet.  We just submitted that, so it should be up momentarily.  But this is now going to Exhibit No. 3.  And with that, it's 10:31.  So we'll have a 15-minute break and come back at 10:46.

Thank you.

(Brief recess.)


MR. ROSA: Okay.  We want to reconvene.  Before we proceed with the next topic on the agenda, I just wanted to ask those that have not introduced themselves earlier to do so now.

MR. ZUCKERMAN: Hi.  Good morning.  My name is Jason Zuckerman.  I work on the plaintiff's side of these cases.

MR. CHARTIER: George Chartier OSHA Communications. 

MR. ROSA: Okay.  Thank you.  All right.  The next topic is a group discussion on data.  I know the Committee has been very interested in getting to understand a bit more about our data and we want to hear from you as to what other types of data issues you would want us to share with you.  I wanted to give you a quick, I guess, overview the data as we have done in the past.  Just give you a quick outline. 

In September of 2014, when we had our meeting in September, we talked about database and we did a presentation that included a handout of screenshots and we talked about the sort of cradle-to-grave process of how we have our fields; what we do when we collect information.  And what we do when a complaint comes in, what information we gather and how do we proceed to the determination type and even after that.

During that discussion, we also talked about the limitations that we have to our database.  One of those, specifically, that are working with our IT department is regarding our inability to select more than one case type.  So I'll give you an example.  We have a trucking case that falls under STA, Surface Transportation Act.  But it's also a worker protection issue that may fall under Section 11(c), and our database only allows us to check one case type.  And it has another section called statutory implications.  And there, we can checkbox anything else; any other statute that applies.  That's implied or that that applies to that particular case. 

The problem with the system is that it doesn't track both cases; it's only tracking one case.  And if the complaint, for example, becomes whatever the determination is -- let's say it becomes a dismissal, a non-merit case, the 11(c) portion, if it's appealed, comes to the directorate, as Mary Ann had mentioned earlier, while the STA case goes to the administrative law judge, but there's no way for us to track both.  The only one that the system is going to allow us to track is the one that's called case type.

So for the most part, we usually select the STA case or the AR-21 case or the SOX case or whatever the other case is because that may have a much longer appeal process because it goes to AOJ, ARB, Court of Appeals.  It may be run backwards and back and forth, so we usually use that as a case type and use 11(c) as statutory implication.

Same thing applies with an EPA statute, where you may have a case that may apply to a number of EPA statutes.  We have six.  So which one of those six is the case type and which one of those is the statutory implication or a lesser statute, for lack of a better term.

So those are some of the limitations to the system and we have been working with our IT department.  We have two members of our IT department that are here in case there are any questions that come up, technical.  I brought the folks here to help us out. 

MR. FRUMIN: If we have questions as we go or do you want to finish first?

MR. ROSA: Well, I just want to give a quick overview of what we did in the last presentation.  We have been working on doing some updates.  We have a whole slur of fields that we want to add to the system.  We have a whole slur of reports that we want to create and we have been working very hard.  Our IT folks have been working very diligently with us. 

Earlier this year we did a launch and we added some additional fields or we actually made some fields mandatory that were not mandatory and then we ended up having to roll it back because we were losing data.  So we didn't want that to happen.  So there were also some technical issues with the system as well.  You know, on the safety and health side, we mentioned that they had moved over to the OSHA Information System (OIS). 

I mentioned back in September of 2014, all of our systems back in the day used to be on the old NCR system.  Some programs, including the whistleblower program, was moved over to what we call the WebIMIS system.  So there were a period of time that whistleblower was far more advanced than safety and health.  Now, safety and health has kind of taken the lead and they are on OIS and we are on WebIMIS.  Is there a possibility that we would move to OIS? 

We're hoping that we will be able to do that, but in the meantime, while we're in a WebIMIS, we have been working with the IT folks to do some enhancements to the system.  One of the things that we're working on is we have our North American Industrial Classification codes, NAICS codes.  We have it in our system, just like it's in the safety and health system.  The only issue was that we never had it mandatory. 

So one of the things, as we move over to doing some outreach, especially on Section 11(c), if we do outreach to railroads, we know the companies.  We know the airlines.  We know the banks.  We know what some of these industries are, but on 11(c), it can be a manufacturing plant; it could be poultry facility; it could be a construction site; it can be a number of things.  And without having that NAICS code, we do not know where the complaint is coming from and whether we should be getting more complaints or whether we're getting too many complaints and what type of outreach are we going to do to either engage employees to raise concerns or engage employers to have systems in place so that they can address these issues in-house.  So we made that now fixed, and as of October 13 of now, recently, our IT folks worked on this data loss issue that was going on.  Basically, we repopulated the information that we've lost and now we've relaunched that software.

So now, as of a month ago, we are now having this mandatory NAICS code.  Obviously, it's too premature for us to do any data analysis at this time, but now the user is required to put a NAICS code for every single case.  In a year or two years from now, we'll be able to get this data and have a better feel as to what we're going to do to target and what information we can also put out in the public because one of the things we want to do, currently, as we mentioned as the exhibit, this is all we have, the data that is out in the public.  All of these charts that we put out every year.  But definitely, we want to put more information out in the public. 

Some of the challenges that we have is unlike the safety and health data, whistleblower data is protected by -- it's covered by the Privacy Act.  So safety and health data, you can go onto OIS and you can find out if you call a particular company ABC Construction, you would know how many complaints they had; how many inspections were conducted; what type of inspections they were; how many inspections are ongoing. 

On whistleblower side, you don't have that because the Privacy Act prevents us to give that information out.  But there is information that we could put out, provided that we do some redaction to some of that data.  So those are the things that we are working on, but first we need to get the system up and running with the fields that we need to get the fields, and then we can take that information and put into a website that is available to the public.  

So some of the things that we recently added also was we work with our state plan partners and we get a lot of complaints, especially the online complaint form, which, by the way, we received over 7,000 online complaints since December of 2013.  So that has increased the number of cases that we are working on.  But a number of these cases go to our state plan partners and we are documenting those in the system, but we didn't have a simple checkbox to show state plan referral.  So now we added that in the system.  So as we move along with additional revisions to the system, we are trying to capture specific actions that we're taking. 

So if we did an administrative closure case, for example, because we referred that to the state plan, we would check the box to say refer to state plan.  What that does, it helps us, later on, when the complainant, after exhausting all the administrative remedies afforded by that state, wants federal OSHA to get involved.  It allows us, because we have the record, to do a federal review because we would consider that a duly filed complaint versus doing a CFPA, which is when it is not duly filed. 

So those are some of things that we've added to the system.  Some of the things that we are working on adding to the system, we have to add ADR codes.  We want to have a date that the ADR was started; a date that the ADR ended, and what was the outcome of the ADR.  Was it settled?  Was it not settled?

We're also looking to see, similar to safety and health, where they have initial penalty and current penalty.  We only have one box that says what the relief is.  If the relief changes, it erases the history.  So if we ordered $300,000 and it was settled for $200,000, we don't know that because we have to change the $300,000 to $200,000, and the $300,000 is no longer in the history. 

So it's hard for us, even when Dr. Michaels, you know, mentioned earlier, we had ordered $25 million.  That's including any revisions that we did to the system.  We may have ordered 26 or 27 million and collected 25 million, but those are the things we're working on with the system.  Safety and health has that on the OIS system.  We don't have that in our system.  So we're trying to add some additional fields to our relief page or the determination page.  So how much is it that we ordered and much was actually collected?

We're also looking at other types of codes, similar to what was mentioned on the OIG report about docket dismiss.  You may have seen, and we're working on doing some clarifications to our manual about what we consider the docket dismiss case.

And I just want to clarify to let you know what that means.  Section 11(c), the Asbestos in the Schools, AHERA, and the International Safe Containers.  Those three cases, we can do an administrative closure with the complainant's consent, which means it doesn't get docketed.  All the other 19 statutes need to be docketed.  It's required that they are docketed, even if we don't investigate. 

So if we get a SOX complaint that's a year old, we have to call it -- we have to docket that case, but we have to dismiss it because unless there is any equitable tolling that will apply, it's untimely because it's beyond 180 days from the alleged action.  But right now, when I run this report and it will show the number of -- if you look in the report and it gives you like, determinations, it will show as a dismissal. 

You would think that we actually investigated and we found non-merit, when, in fact, we never investigated.  It was an administrative dismissal because it was untimely, but there's no way to capture that because we don't have a field in the system that checks docket dismiss and why?  Was it untimely?  Was it lack of jurisdiction?  Was it extra territorial?  What were the issues that required to not proceed with that case?  The gatekeeper provisions. 

So the system is very limited to that.  So when you see the number of dismissals and you see that, a high percentage of those are cases that we didn't even get to.  So we're looking at putting that particular field in the system to help us track the docket dismiss. 

Another thing we're looking at in the system is equitable tolling.  Sometimes a complaint does come in late, but there are certain principles that we look at, you know, did the employer try to shade or cover up the issue so that the employee would be untimely?

Did the employee file in the wrong venue?  Whether there other extenuating circumstances that the employee could not file timely, like, having, you know, we've had cases where the employee had a head injury and was in the hospital for several months. 

Well, of course, they're not going to file in 30 days.  So we look at those issues, but we don't have a way to capture that either.  So we're adding a field in the system that's going to say, "Was equitable tolling applied and what was it?"

So again, there's a lot of things we have in the system that we can't track.  Adverse action fields.  Right now, we only have one field for adverse action.  But what if a complainant was demoted, suspended, and then terminated?  You have three adverse actions.  We can only capture one.  Which one do we put in there, the closest one to the 180-day time period, or should we put all three?  Because technically, when we do our report and we do our investigation, we're looking at all the adverse actions. 

The other problem that we have is the system allows us to put multiple complainants, but it only allows us to put one adverse action. 

We must've lost Christine. 

So what if we get three complainants scenario and each one had an adverse action on a different day?  Which day do you put in the system?

There she goes.  There she is.

Another thing that we're looking at in our system is we currently have two methods; administrative closure, if 11(c) has gotten AHERA and the complainant consents, I don't proceed.  I understand that I'm late or it's an EEOC matter and not a whistleblower matter.  But we don't have a way to capture inquiries. 

We get many calls from complainants or from individuals in general that just want to get information from us and we have no way of capturing a lot of this technical assistance that we are providing to the public.  Similar to the safety and health side where they do have a form to capture it.  We don't have anything to capture.  So because that is man-hours.  That is a lot of time that we're taking, providing this technical assistance.  So we're working on trying to do that.

I mentioned about the damages section.  In addition to monetary relief, what other relief did we order?  Did we order them to provide a neutral reference or a non-disparaging clause?  That should be an item to be recorded in the system.  Did we ask the employer to clean the record and clean any disciplinary records?  We don't have any way of capturing that.  Or any training requirements that we did as part of a settlement or any posting requirements.  So there are a lot of other things we're trying to gather.  And I'm giving you all these ideas because I wanted you to know where we're heading so you can give us --

MS. NARINE: You want to ask all these questions.  What about this?

MR. ROSA: You're right.  And there may be other things that we should be capturing. 

MS. NARINE: I anticipated you, Nancy.

MR. ROSA: As Mary Ann mentioned, we're moving into more of an electronic system.  We have a field called additional tabs -- additional information tab.  We want to convert that into a diary sheet.  If I get a call from a congressional office with regard to a constituent in Dallas, Texas or in Chicago and they want to know what's the status of this case, I have to call the region -- and I look in the system, I don't know what happened.  But if all the diary entries are done to the system, I can easily pull it up and we can say this is what's going on with the case.  And so we're working on trying to create an electronic system so that when the investigators are entering this information, any contact they made with the parties, anybody that's in that system can see that data.  We may not have the ability to modify the data because they are the owners of that record, but we will have the ability to see what's going on and to be better responsive to any inquiries that come in.

I mentioned about the statutory implications and the case types.  We're looking for, you know, information regarding attorneys.  We have complainant information, but we don't have information of whether this was an attorney for the complainant or not.  Same thing with respondents.  We can promote respondents, but the system now has a problem that it doesn't allow us to put this is a company versus this is a person because many of our statutes, we can actually name an individual, rather than just a company.  The system, you have to check one of the two.  So if I say ABC Construction and that's a company and I wanted to say that Anthony Rosa is the president and he's also named, I can't make him a person, he's still a company.

So there are little things that we're trying to work with the system to try to get working.  Differences in like, preliminary reinstatement.  When is the reinstatement ordered?  When is preliminary ordered?  Again, did we order reinstatement?  Did it actually occur?

The number of cases that we mentioned earlier today about number of reinstatements are those that we either got the reinstatement or we ordered the reinstatement because would mark that in when we do a merit case.  But did it actually occur? 

MS. NARINE: Settlement.

MR. ROSA: Right.  At the settlement, many times it doesn't get to reinstatement.  So the before and after is very critical for us to be able to say -- and it goes back to the question that Nancy had mentioned earlier -- I think it was Nancy earlier, about when we go to through court system of what happens afterwards.  Because when we do this, what does the ALJ say and what does the ARB say and what happens afterwards?  And we're not able to capture that because we only have one set of fields and we should be able to have multiple set of fields for the different stages of that investigation.

And two last things we're trying to work on is we want to try to automate the system.  All of our letters are done manually.  So we don't have any kind of correlation to take I want to do a notification letter; I'm going to type 4 dash blah, blah, blah, blah, the case number and it's automatically going to populate the information on the letter.  We have to manually type all that in.

Same thing with the findings.  Everything is done manually.  The report of investigation is done manually.  We don't have the ability to put certain information and have template letters.  They can be modified or tweaked afterwards, tailored, but currently, we don't have the ability to do that. 

So we want to try to automate the system so that there is also consistency throughout the regions as using the same type of letter.  That's one of the big challenges that we have is trying to create this consistency, especially in administrative disclosure letters and notification docket and dismiss letters, secretary's findings, settlement withdrawals.  All different types of letters. 

So we're trying to work on that.  Maybe a long wish list, but there are a lot of things that we're working on with the system.  And the last thing that we're also working on is a tickler reminder in our reporting mechanisms.  So if an employer is due a response in 20 days for a position statement, then in like, 15 days, it'll show up on your screen and it says ABC Construction owes you a position statement in five days. 

When you have an investigator that has an average of 23 cases, and many of them with 30 or 40 cases, it's hard to keep track of what cases are coming up due or what are past due.  So we're trying to see if we can develop a tickler system that would remind us ahead of time.  And we have that on the safety and health side.  I used to do all of those tracking reports on upcoming abatements and we would contact the employer and say you have five days from your last, you know, abatement date.  What are you doing about it?  Rather than going after the fact and saying you're past due.

So again, those are a lot of things that we're working on.  Online complaint form; we get a lot of these complaints.  We placed in what we call a holding tank, but that data is not automatically transferred to the OSHA-87 or the whistleblower form.  So we're working on how we can get that data automatically transferred once we know that the case is going to be investigated and not referred elsewhere. 

So it's a lot of -- sometimes there's a lot of duplicate entry in some of our fields.  And even on the appeals, WebIMIS database on the appeals side has a missing -- doesn't have all the fields that we are using to track our appeal process or our request for review process that we have an access database for.  So we're trying to find a way to reconcile these systems so that everything is in the same place. 

So that kind of thing gives you an idea of where we are and where we're heading.  But like I said earlier, we're trying to look for the trends, where the complaints are coming in my industry, by the NAICS codes.  What agencies are we referring cases to?  You know, we're going to be able to track.  Is this going to a state plan?  Is this going to EEOC?  Is this going to OSC?  Where is this complaint going to, to determine trends to see if maybe we need to modify our reporting systems?

Mary Ann mentioned, we're working very hard on our online complaint form and we have a prototype that we're working on that it's user-activated.  So if the person clicks that they believe that they're retaliated because they're Hispanic, a window pops up that says you may want to contact the EEOC.  And it directs the user directly there, rather than going through our process because we're eventually going to send them there anywhere. 

MS. NARINE: Right.

MR. ROSA: So we're trying to work on being very user friendly to bring that person, that individual to the appropriate agency automatically.

Let me see, what else?  Again, I mentioned about we're working on the appeal process and what we're doing on settlements, pre and post.  So some of the things that we wanted to ask you is what data does the whistleblower program not currently collect that you think we can collect.  And what data could be useful to the public and why?  Again, within the confines of the Privacy Act.  What we can or cannot disclose based on the Privacy Act.

I know some of you had questions, so please feel free.  Nancy?

MS. LESSIN: All right.  So I have several.  I'll start with in October an online publication called Fair Warning published an article about whistleblower cases focusing on rail.  They displayed, for some period of time, the employers that have had the largest number of whistleblower complaints.  I believe number one was the United States Postal Service.  Eight of the top ten were rail carriers.  I am assuming that that information came from an FOIA that came to whistleblower.  Am I making that correct assumption?

MR. ROSA: I don't recall if it came through an FOIA or it just came directly from the media. 


MR. ROSA: It may have come -- I believe it may have come from an FOIA. 

MS. LESSIN:   And then two questions related to this.  One is can we, on this committee, get the dataset that went to Fair Warning, now that it's been put out into the public?  And second, related to this question, when you get an FOIA and it goes to the public, is there a website that you then publish that data on because now it is in the public domain?

MR. ROSA: That's an interesting question.  That's something I will look into because under the Freedom of Information Act, or the E-FOIA, any FOIA request that is made three times or more, it becomes what they call a hot FOIA and it has to be in a general location available to the public.  But you're asking me, even if it is ones that has gone out.


MR. ROSA: So that's something that I will look into to see if we can make that publically available.  But I do know that, for example, any request for records, once it triggers three different requests, it has to be made publically available under the E-FOIA of 1996, the amendments of E-FOIA.  But I will look to see that it can be made available.

MS. LESSIN: Great.  Okay.  Second question is about the ADR from the pilot cases.  Can we get the specific data that you've looked at that says gee, this is working, we should expand it, including, you know, by statute, how it's worked, including what the complainant got compared to a dataset that shows what complainants got if they didn't use ADR.  So that would be very useful to look at.

The third thing that I'd like to see is a dataset that breaks down some of this information, specifically OSHA 11(c) and FRSA by how many complaints were related to workers being retaliated against for reporting an injury or injury reporting issues versus how many complaints are coming in for workers being retaliated against because they raised a health and safety issue.  And I know we've seen some of that in the past.  I would love to see the current data broken down by that and that may have, you know, I'm not sure if STAA would have that as well, but anything that would have kind of those being retaliated against, in the injury reporting arena versus raising a health and safety complaint. 

And then the last question, at this point, is you talked at the beginning about if a case is put in under this then they can only track it under STAA and not under -- what percentage of cases that you have, have this dual or possibly, you know, triple -- what percentage of cases fall into that problematic category where you can only track?

MR. ROSA: It's a very small percentage of cases.

MS. LESSIN: Okay.  All right. 

MR. ROSA: Very small.  I don't even want to give a figure, if it's two, three, or four percent.  It may not be a lot, but it does happen.  And it happens primarily with STAA in 11(c), and it happens with the EPA statutes.  Sometimes it could be a water treatment plant that has toxic substances.

MS. LESSIN: Right.

MR. ROSA: That's two statutes right there.  And it happens sometimes 11(c) and EPA.  I remember a case that I worked on in South Carolina that was asbestos.  So it's asbestos to the public and it's asbestos to the worker.  So it could be that scenario too.

MS. LESSIN: Okay.  All right.  And then what is the timeframe for all of these changes?  And maybe this is for your IT people, but what's the timeframe for turning over an old clunky system into the nimble system that you're looking for? 

I mean, should we expect this by, you know, by the end of the year or by five years from now?

MR. ROSA: There is no timeline.  There are a lot of priorities that we're working on.  There are a lot of limitations, especially in the resource arena for us to work on this.  We don't have, I mean, we've been working -- again, a lot of times it depends on just the system itself.  If we didn't have this data loss issue, we probably would've been a couple of steps ahead, but we had to take a step back to try to fix the problem with the data.  So we don't have any particular timelines, but we have at least put together a comprehensive list of the things that we want the system to look like.

I think there is -- I'm sure if there is a FY '17 budget proposal, but I think there is in the budget proposal some additional money, potentially, for some IT improvement but I'm not familiar with how that's going to work.  I don't know the specifics of that. 

But yeah, we don't have a particular timeline at this time, but we have worked on a list and we call them like, 3.3., 3.4, 3.5.  So we have already certain versions that we had categorized.  And based on the complexity -- 'cause we worked with our IT folks and some items need a lot more programming than others.  So those may need to be tabled.  Some of the easier things, the low hanging fruits, we can work on those and some of the more complex things, we need to wait.


MR. EHERTS: Yes.  I want to comment.  I think this is very important and if you want a recommendation from the Committee, it ought to be to make this a very high priority because I could write down 20 inefficiencies that are occurring because you don't have the data you need to focus on the right things. 

So maybe one of the reasons that you don't have resources to do this is because of inefficiencies that are caused by exactly this problem.  So it's a circular type issue.  But I think it's very, very important.  And then you ask what information would be interesting from the database, and that would be what programs employers have in place when these complaints occur.  Do they have a policy published?  Do they have training in place?  What kind of anti-retaliation program --

MR. ROSA: Okay.

MR. EHERTS: Because I want to know is that the right answer?  I'm kind of working under the premise that the answer to 23 cases per inspector and the way to get that down to four to six is by focusing on programs at the employer so that they don't retaliate, so that they encourage employees to bring these issues forward so they recognize it as a learning organization. 

This is data; you need to be more competitive, right.  But if complaints are coming in from companies that are already doing that, well, then we ought to turn our attention someplace else.  And so I think we're working blind in many areas because you don't have the information.  So that's why I'd encourage you to really to put all resources into that first and then I think the answers will be clear and you'll be able to refocus in areas that will actually make a difference.

MR. ROSA: Absolutely.  I appreciate that.  And that's one of the things that we are, especially Mary Ann and I are consistently talking with our front office and always engaged with IT folks and always trying to find ways to get the process moving.  Again, at this particular time, since the last meeting, we needed to work on addressing the data loss problem. 

Now that that's been taken care of and we just recently launched our upgrade, we're now moving to the next phase and we have a list of items and we hope to continue that process.  We've been working very hard with our front office and with the budget office to make sure that we had the resources to get this going.


MR. FRUMIN: So you've mentioned several times the parallel data systems that OSHA has, the whistleblower program on the one hand and the compliance enforcement on the other.  Is there any linkage between them?

Is there any way in which either a whistleblower investigator or a CSHO can note the fact that in the course of their investigation, a related inspection or investigation is going on with the same employer?

MR. ROSA: Very, very good question.  I'm glad you raised that because we just talked about that the other day.  Because we are in two different systems, it's difficult for us -- it's impossible for us to do an establishment search.

I come from the safety background.  I spent most of my time on the safety and health side and I was IT -- I did a lot of IT databases back when the old NCR was around and there are a lot of things that you can do by doing an establishment search and you type in ABC construction --

MR. FRUMIN: Right.

MR. ROSA: -- and it would show complaints, referrals, accidents, fatalities, inspections.  And it would show, at the time, whistleblower, when it was part of the system. But now, because whistleblower, for years, has been in a different system and OIS now is still in a separate system, there's no way for doing that correlation. 

One of our goals is to have the ability that a compliance officer, before they go out in the field, they can do an establishment search as they do to do their pre-inspection research and say oh, there's a whistleblower complaint going on.  Let me contact the investigator and find out what's going on.  Or vice-versa.  Have the investigator -- because what we need to do on the investigative side is to make sure that we are not preempting the advance notice.  So we're not giving advance notice.

So we want to make sure that before we go and visit the site or issue a notification letter to the company that the compliance officer had already initiated their inspection.  How do we know that?  We need to go to OIS.  We can't just go in our own system because it's two different systems.  The idea of consolidating them together will be helpful for them.

MR. EHERTS: Yeah.  I wasn't -- that's way ahead of where I was going.  I was just asking whether there was any linkage at all.  For instance, if you look at the WebIMIS screens that you gave us in the past, it gives a case number, which I assume is a whistleblower number.

MR. ROSA: Correct.

MR. EHERTS: And then it gives under the respondent name, activity number.  So the activity number sounds suspiciously like an inspection number in OSHA compliance.  Is that not --

MR. ROSA: No.  The activity number is a system automated number.


MR. ROSA: Yeah.  There's no linkage.  And even if we put a linkage, because of the way this system, the WebIMIS works, it would be difficult to export both and then try to merge.  Let's say that we create an additional tab field and put the inspection number in there and then take the OIS data and take the whistleblower data and put them into a spreadsheet and try to make the link, it would be difficult because of the way that the systems work to try to make that happen. 

So I see what you're trying to find the link between the two, but it's very difficult to pull -- and it takes a lot of -- the system, currently, I mean, we don't have a report system, a standardized report that would allow us to do this.  We would have to go and do ad hoc reports to export the data from WebIMIS --

MR. EHERTS: Right.

MR. ROSA: -- and export the data from OIS and then find a way to merge them into a separate system.

MR. EHERTS: So without having too big an appetite here, is it possible to add a field for any OSHA inspection numbers that are known to the whistleblower investigators?

Some cases come up through where it's known, as you've pointed out, in regards to advance notice, where it's known that there is an inspection number.  It is possible to at least, without even linking the two systems and all the possibilities that might add at least that to it?

MR. ROSA: Sure.  Sure.  That's a very good idea.  Thank you.

MR. EHERTS: Okay.  So then we'd be able to, at least for the cases that are in the system, find out what are the inspection numbers and then you could get all the inspection data for the State of Georgia and see which of those involve the whistleblower case.

MR. ROSA: Exactly.

MR. EHERTS: Stuff like that.  So that could be an incremental change without a whole lot of hassle.  I think that's worth considering.

MR. ROSA: Sure.  And that would apply to 11(c) cases because we wouldn't necessarily have this information for railroad cases because the FRSA is doing the --

MR. EHERTS: Not necessarily.  And you might not necessarily even have it for an 11(c) case.  There will be some 11(c) cases where there isn't a referral to a compliance.

MR. ROSA: That's correct.  That's correct.

MR. EHERTS: But at least if you have a field for it, you'll be able to capture it and it might help to install some of your advance notice issues or at least promote the communication within the regions or the area offices, right?

MR. ROSA: Absolutely.

MR. EHERTS: Okay.  What do we have, two minutes left?  Yeah.  So I looked at the data that you gave us for the 10-year period or 11-year period, the stuff that he handed out earlier.  And it seems that this big increase in cases is really accounted for by FRSA over the period of time.  It's pretty self-evident.  If you -- what I did was I looked at three-year rolling averages.  Three-year average from the first three years and the last three years in this table.  And if you take out the FRSA cases, 11(c) for the first three years, 2005 to 2007, accounted for 64 percent of the cases, cases received.

This is the very first table under the colored pie chart.  And if you take out the FRSA cases in the last three years, 11(c) is 64 percent of the cases.  STAA is virtually the same.  SOX went down from 13 percent of the cases to 6 percent of the cases.  So what we're seeing is with this expansion in the number of cases received, a continuation of the outside role of 11(c) in the program.  A diminution, substantial in the SOX cases and, of course, a growth in both FRSA and STAA.  I didn't even bother with the other ones.

AIR21, you know, it was 3 percent of the cases, including FRSA in the last three years.  So to me, take on a lesson the last 15 seconds is that the -- if the past is a prediction of the future, we need to continue to focus attention, particularly on the needs of the 11(c) program in order to try to get the backlog and other caseload issues under control. 

The 11(c) cases are not dropping off as a proportion and they are going to continue to account for the oversized burden and there are obviously many aspects to the program that are not reflected adequately in the data, as you've just clearly convinced me of about all the problems with what the data is not capturing.

So this is not really a data issue; it's more of a program issue, but I think that's a really important lesson that leaps off the page if you just do some quick numbers on the back of an envelope here.  So I just wanted to just mention to the group before we finish the data discussion.

MR. ROSA: And I'm glad you raised that.  As I mentioned earlier, making the NAICS code mandatory can help us target the 11(c) better and to analyze it and say why is it still 60, 64 percent? 

Where are they coming from?  Has there been a change?  It is moving between one industry to the other or is the same industries that are -- what can we do about that?  Just getting the 2,000 11(c) cases is not going to solve the problem, but finding out if a percentage of those is coming from certain industries will give us a better feel that okay, we need to target those particular -- we need to do a lot more outreach and not -- before you start out, I know Adam wanted to say something.

MR. MILES: Oh, it's all right.  We have an awful, clunky database too.  So I just have a suggestion for ways around it, but I can do it offline.  Go ahead.

MS. NARINE: In addition to "by industry," do you have the information by employer size?

MR. ROSA: We have that information in the system, yes.

MS. NARINE: Okay.  So that would data that would be interesting for me to know because I'm curious as to where these cases are coming from.  Are they coming from very large companies?  Are they coming from small mom and pop shops?  Because in terms of what the outreach and what the education is and what the messaging is, again, some smaller companies may not care so much about competitive advantage.  Some of them, you know, so I think the messaging and how we get to them is going to matter, depending on what their sweet spot is.

MR. ROSA: And I'm glad you raised that because one of the things that I just had here to follow-up on that is not that we just have a field for the employer side, that we want to make that field mandatory.

MS. NARINE: Right.

MR. ROSA: Because I'm not sure if it's mandatory or not.  I will check, but we want to be able to make that mandatory.

MS. NARINE: Because I think the industries are particularly important.  That's what I wanted to know also, but is the biggest problem coming from mid-size?  Is it coming from certain regions?  I know you guys know where the regions are as well, but to really target because you might need different "marketing campaigns" for different regions.

MR. ROSA: Exactly.  Very good point.

MS. NARINE: Different industries.  Different employer sizes.

MR. ROSA: I'm being confirmed that is it not mandatory right now.

MS. SMITH: It's not.

MR. ROSA: Yeah.  So that's something we can do a quick fix and make it mandatory.  Even if the investigator doesn't know the exact count, they can get a good estimate about whether it's 300, 500, or 25.  At least we get a better feel as to that's the size of the employer.  That's a very good valid point.  Thank you.


MR. ROSA: Nancy?

MS. LESSIN: I just wanted to quickly pick up on something that Dave was talking about.  I think if we look at the data that was collected in this Fair Warning report and they did the Top 10 list.  The Top 10 list are large employers who are getting retaliation complaints against them over, and over, and over, and over, and over, and over again. 

So the issue about what's going to change that because there have been penalties.  There have been, you know, and the cared of here's how to do this well and the stick that I think that there is some issues that say none of this is working, what will work?  And I think that's, perhaps, a discussion --

MR. ROSA: A new approach.

MS. LESSIN: -- that we could have at some point.

MR. ROSA: Absolutely.  Yes, Greg?

MR. KEATING: Just one thing.

MR. ROSA: Sure.

MR. KEATING: So in response to what Eric said, you know, I note that the number of SOX cases filed last year jumped back up from the year before.  I noted that the number of FRSA cases dropped dramatically.  But I don't think it -- I don't know where we're going with this, you know, what's more important, safety cases or business retaliation cases.  I think they're both important.  I think they're both very important.  And I think they're also both very different.  And one of the things that in the best practice group that I worked with Jon on that we really struggled with and Nancy and I had a lot of discussion about this, was, you know, these are animals that share certain things, but also have very different angles to them.  And I think that something to at least consider going forward in the directorate is whether there is to be a kind of a distinct focus on what I'd call, I guess, the business retaliation cases and the safety retaliation cases.

And one more thing to note is that I'm not that surprised that the SOX cases have gone down a bit over a last 10 years because there are a whole raft of new remedies that have been created in other statutes.  So for example, Dodd-Frank. 

Unlike SOX, which has 180-day statute of limitation, has a three-year statute of limitations.  And there are new state whistleblower remedies.  There's the false claims act that has been amended dramatically to make it much more employee friendly.  So I'm not surprised. 

And I also am not surprised it jumped up and I think it will jump up in future years in the wake of the Lawson decision, which held that SOX applies not just to public companies, but to all of the contractors and subcontractors of those companies.

MR. ROSA: Okay.  Good point.  JJ?

MS. ROSENBAUM: Yeah.  I just wanted to go back.  This feels like a smaller issue in a way, given the difficulties of adding one field, and at the same time, I think it is data that the agency needs.  So questions around primary language of the complainant and whether interpreters are being used, I think is important.

I think the question of whether they are guest workers that are being used, which is, you know, programs that are being certified by the Department of Labor in another arm, but there is data to suggest that there is a higher incidence of health and safety violations.  Is that also the case in the whistleblower arena or not? 

Potentially questions about the structure and whether there is a temporary staffing agency, for instance, in the workplace, where, again, on the health and safety side, there is data increasingly showing that that leads to a higher level of violations.  And these are structures which I think in the field, we hear that they limit complaint in ways and I think it would be helpful to see the data about whether that's true and it would help with outreach.

MR. ROSA: I'm glad you raised that also because one of the things we have been looking at, and I think it was in my notes, but it's something I didn't mention, is that we're also looking, similar, again, going back to the safety and health side and all the experience I've had working on that database is emphasis programs, special emphasis programs.

You look at immigrant workers.  You look at temporary workers.  You look at, you know, these staffing agencies.  You're looking at language issues.  So you want to be able to look to see is there a trend of those type of workers experiencing greater retaliation than workers that don't fall within those categories.

Eric, and then Dave, and then Ken.  It's 11:39.  I'm not sure if there is any public comment, but we're kind of getting into that.

MS. NARINE: I'd like to make a comment in the public comment section, at least to what Greg said.

MR. ROSA: Right.  Go ahead, Eric.

MR. FRUMIN: Just on the employer size, as with OSHA, there are a number of employees at the establishment and then the number for the employer overall.  So you don't want to forget the two indicators.

MR. ROSA: Okay.

MR. EHERTS: I just want to bring up a point is that I think it's way too premature to make any decision based on this data.  I just don't think there's enough information here.

A quick example is I joined a company a few years ago who told me that there were very, very few injuries in their fleet sales force.  And I said is it because you've got a fantastic defensive driver program or is it because the employees don't know they're supposed to report.  And it was the latter.

MR. ROSA: Right.

MR. EHERTS: And I think in these cases, we don't whether the numbers are going down because people don't understand that you can file SOX claims or it's because they've got better programs in place driving the numbers lower.  So I think there is a basic piece of information missing here and it's that, what's the reason for low numbers in certain cases and high numbers in others.

MR. ROSA: Right.  One thing I wanted to point out, we recently met -- like, Mary Ann had mentioned, we met -- I'm going to get to you again -- when you raised about the number of complaints.  We met with every single one of our partner agencies.  This is a big undertaking we did in FY '15. 

We have at least directly involved to deal with the underlying issues of the complaints, 15 partner agencies that we have to work with, plus other agencies like NRLB and others that we don't have a direct relationship because of the statutes.  But we have 15 agencies and we've met with every single one of them this past year.

So it's a huge undertaking the first time we were able to get that and now we have contacts to continue this.  One of the things that came to light, to my surprise, is you would see in here the ISCA, the International Safe Container, and you pretty much see zero all the way across.  When we met with the Coast Guard, the first thing that the gentleman from the Coast Guard said was well, I know for sure that there's retaliation in the ports.  And I said okay, now we obviously have a gap.  We have something going on.  Is it outreach?

So on one hand, we were saying our number of cases are going up and our backlog is going up because we need resources.  On the other hand, we're not necessarily given the protections to workers because we're not reaching out to them.

MR. EHERTS: Right.

MR. ROSA: So lowering the number of complaints is not necessarily the solution.  The solution can be, you know, it's a combination of the two.  Are you increasing the number of complaints?  That means that you're actually getting the message across. 

So our charge now is to go to the labor unions and to the associations dealing with the intermodal containers to make the call that these workers do have these rights.

MR. EHERTS: Yes.  My caution is these are incredibly interrelated, though, because as we reach out, the claims are going to go up.

MR. ROSA: Right.

MR. EHERTS: So as employees understand they have these rights, the claims are going to go up.  It doesn't mean that industry is getting more demonic.

MR. ROSA: Exactly.

MR. EHERTS: It means that now employees know.  But as employees know they can file claims, they'll be more claims, so employers will start to act.

MR. ROSA: Right.

MR. EHERTS: And so I think these things are interrelated.  You have to drive both ends of that --

MR. ROSA: Absolutely.

MR. EHERTS: -- employee and employer outreach.

MR. ROSA: And by getting all of these complaints or these continuous complaints for the different, especially the railroad as the rate is growing, it doesn't necessarily mean that the message is not getting across.  You got to look at the outcome.  Has the case really resolved in the settlement?

Has it probably been a very good dismissal?  It could be that the company has been doing better at documenting whatever actions they have taken.  Or it could be that if there is still a lot more merit cases, then maybe there's a potential that the message is not getting across.  And again, when we issue a merit case, it's because we have not been able to get a settlement.

So a lot of times people say the difference between settlement and merit.  Honestly, the best course of action would be to get the case settled because the matter is resolved.  Issuing a merit finding doesn't give the complainant the relief that they are seeking.  It just makes the case that yes, we did find that there's reasonable cause to believe that a violation existed, but the complainant still doesn't get any type of relief. 

So when we look at this data, having a consistent trend or having an increase doesn't necessarily mean that the program is going backwards.

MR. EHERTS: Exactly.  That's my point.  In fact, I cautioned leadership to my companies.  As we shine light on things, the numbers are going to go up.

MR. ROSA: Right.

MR. EHERTS: That doesn't mean the drivers are getting worse.

MR. ROSA: That's right.

MR. EHERTS: Right.  But you have to get it up before you can get it down.

MR. ROSA: Exactly.  Ken?

MR. WENGERT: Yes.  Just kind of a comment.  I've heard a lot of one-offs.  It would be interesting if we had that data.  It would be interesting if we had that data.  We'd like to have that data.  I haven't heard a strategic plan around data.  All right.

So to me, data is a supporting element to reach your strategic plans.  How does it support?  And if you started with that strategic plan instead of what data do we actually need to move that peanut forward, I think is a more interesting question than what data do you want to see because everybody sitting around this table is going to come up with a laundry list of data that we want to see. 

Does that add any value to your program, your process, your trying to move this forward?  I don't know, but I think if we continue to do this data thing, kind of this on-off piece, we're just going to spin.  I think Dave hit it early on.  This is critical to make this program more effective and more efficient.  But let's take a more strategic look at this --

MR. ROSA: Sure.

MR. EHERTS: Than just this one-off, we add a field here; we add a field there.  What's the strategy behind this?  That would be my suggestion.

MR. ROSA: And I truly appreciate that.  Thank you.  Thank you.  I mean we have worked with a list of things that -- we have a vision of what we want the system to look like and now we're trying to find -- we're working on the mechanism to get to that vision.  So yeah, it's a point well taken.

Now, I know you wanted to make a comment.

MS. NARINE: So I wanted to pick up of what Greg said and I'm not going to ask Jason Zukerman, who is in the room, to say anything, but it goes off of something that I had mentioned earlier.  We were on our panel this weekend at the ABA Labor Employment meeting and we used a case study on whistleblowers and it was a SOX claim and it was Dodd-Frank and it was other kinds of things.  And it goes, again, to a more macro-concern about what Greg was mentioning and how to get this document that we're going to put out disseminated and how to get OSHA's work out there. 

As a former compliance officer, I had to think about compliance for the entire company, so it wasn't just 11(c).  It wasn't just our drivers, it was the finance people.  It was everybody.  So if I'm thinking about how strategically we want OSHA's message to get out, I had to worry about if we were going to have a Dodd-Frank violation, a SOX violation and an 11(c) violation an everything.

So whether we change the title of that and add compliance in there, I also think we want to think about whether SOX claims are going down or up, marginally or not.  How can we get more people to think about this?  I do think there is a benefit to having some more work in this committee on a going forward basis, even if it's a small, very short timeline, business retaliation subgroup maybe that meets twice or something like that, that can give guidance to employers and to plaintiffs whereas about how SOX relates to the other business retaliation because one of the things that we were talking about is, again, not to use your name is vain, Jason, but I think it was very important when he was talking strategically about I bring SOX and I think about Dodd-Frank and I think about this, and there are people out there who think the claims are the same.  And so they are not bringing Sox as much anymore and they're bringing this, but they don't realize it was an advantage to bringing SOX. 

So I think Jason has single-handedly educated a whole bunch of plaintiff's lawyers and you may see a number of more SOX claims coming up because I think there is confusion out there about when you might bring certain claims and how the other people are saying and the SCC and OSHA are often working together on some of these. 

And so I think Greg is right; you will start to see more SOX, especially because of Lawson.  You know, I'm not saying that the financial community is going to have more recessions coming forth, but it could happen.  And I think at some point, even though it's not a large proportion of the caseload now, I think our committee does a disservice if we don't put out some guidance to the world about where SOX fits in with OSHA and how it fits in with other agencies. 

So if there is just a small working paper guidance, something about the interrelationship between SOX and Dodd-Frank and the other whistleblower lawyers, I think there will be some help, whether it's an FAQ, et cetera. 

MR. KEATING: Just to piggyback on that, Marcia, I was talking to Jason at the break and he wrote a --

MS. NARINE: He has fantastic materials out there. 

MR. KEATING: Yeah.  He wrote a very nice article on this topic, which just last week I published an article in Corporate Counsel magazine, which really flushes out in detail why I think plaintiffs who think that going into court for Dodd-Frank are ignoring the many advantages to the Department of Labor and OSHA as a far more friendly field. 

I think that there is a growing wave of people realizing that the best place to go and file a claim from the plaintiff's side is here at OSHA.  And I think you're going to see more claims coming down the pipe.

MR. ROSA: Absolutely.  All right.  Thank you.  That will kind of bring us into the public comment period.  I understand that Jason Zuckerman wants to have a moment.

MS. NARINE: This was not planned and I didn't mean to put you on the spot.

MR. ZUCKERMAN: This will be very quick, actually, and I just want to say something on the program.  Overall, really about the OIG report really quickly.  And when you ask why some of the complaints have actually gone down, I think it's because of your excellent work. 

I've handled a lot of these claims.  I was handling them when we had a whole other ARB when we had other people who were heading up OSHA, who I'm sure also worked hard in order to build the program.  But I have to say from my own experience, and I've handled a lot of these claims at OSHA from about 2001 until about now.  It is night and day.  It's a whole other world now when you're at either OSHA, the ALJ or ARB. 

And because of all the hard work of OSHA and where the law has gone with the ARB, it's been my experience that more and more employers are actually open to trying to get these claims resolved early.  If you went back to the holdings of the ARB, let's say, prior to 2009, at least my view is they add a lot of loopholes to these laws that made it very easy for employers to prevail. 

Where the law is now, it's much easier to get these claims all the way to a hearing.  And I think that OSHA is far more active.  Years ago, I and I thought that this was utterly absurd and I advocated on the issue again and again, and I'm glad to see where OSHA is now, but OSHA would not require the employer to provide its answer to the complainant, to the employee. 

So OSHA would make all these allegations about my client and I didn't even know what they were.  I certainly did not have an opportunity to respond to them.  That's not how it is any more.  I felt that prior to 2009, when I would ask OSHA to interview people, that really did not go anywhere. 

Now, it's been my experience that OSHA is very active.  I mean, if I asked them to interview certain people, I think they will.  I find, and again, I don't want to badmouth any hardworking people at OSHA; I have a lot of respect for all of the staff, but I think prior to 2008, there were a lot of people at OSHA.  Again, not all.  There were some very hardworking people who I think went out of their way to build claims, but there were, I thought, a lot of people at OSHA who would look at the employer's answer, see what was there, and of course, it's the employer who has access to all of the documents, all of the witnesses and just say well, that's probably what happened.  That's the end of the matter.  It's not like that at all now.  It's been my experience that OSHA will actually go out there, will interview people; will make the employer hand over documents.  It's really a whole other world and that's why I believe that that OIG report was not really accurate because it honed in on just a few issues.  But if you look at the big picture and speak with people, whether it's on the employee side or on the employer side, you'll see that OSHA now, is just in a whole other place.  There's always room for OSHA or for any other agency to improve, but I mean, it's my view that it's a whole new world.

One other thing; prior to 2008, it was very rare that OSHA would order an employer to reinstate an employee.  Now there are orders out of OSHA all of the time and it's just a huge, a huge improvement for employees.  It's also just to note that.  And the ARB has just been very helpful.  I mean, the law is a lot better for employees and I think that's having a big impact and that might help explain why more of these claims get resolved early and there are not as many of these claims now at OSHA.

MR. KEATING: So can I just follow-up?


MR. KEATING: Am I hearing you correctly, and I would agree with you, by the way, that because of the draconian expansion of what is a cognizable claim under SOX, under the current ARB, we've got a lot more demand letters that are resulting in a settlement before a charge is filed?

MR. ZUCKERMAN: Oh, yes.  Absolutely.  That's my experience.

MR. KEATING: Okay.  And just as a comment from the employer side, you know, I have to say that I believe strongly in the concept of stare decisis.  In other words, the rule of law is the rule of law.  And I think it's very dangerous when we have abrupt 180-degree changes in the law just because a new administration comes in and an ARB is staffed with people who tend to feel that the law is too narrow.  And I don't think anybody can dispute that the law, under SOX, in certain key areas, has flipped 180-degrees in the last five years. 

So just from a standpoint of having fairness out there, I could even accept the argument that from 2002 to 2008, when SOX was first passed, I mean, there are statistics.  There is a proven study that shows out of the first 1,000 SOX charges, 17 were found at (2:31:16).  And I'll acknowledge, that's crazy and it's crazy because the statute had a 90-day statute of limitation and there was a very narrow pinhole that whistleblowers had to jump through in order to get in the gate. 

But I think it's equally dangerous when we start relaxing so dramatically the standards and creating a 180-degree shift because employers deserve to know what's the landscape and rely on that.

MR. ROSA: Thank you.  Thank you, Mr. Zuckerman.  Any other comments or questions?  It's 11:56, so we will break for lunch.

(Whereupon, at 11:56 a.m., a luncheon recess was taken.)

* * * * *

A F T E R N O O N  S E S S I O N

(1:05 p.m.)

MR. ROSA: We're going to get started.  All right.

MR. EHERTS: Hit that thing.  Come on, like you mean it. 

(Bang the gavel.)

MR. EHERTS: There you go.

MR. ROSA: Okay.  Good afternoon.  We're going to get started.  I just wanted to do a quick roundup on any new individuals that have joined us this afternoon to introduce yourselves.

MR. SWICK: It doesn't appear that we have any members of the public that are here.  If they were, they would need to sign in.  We're going to pass the mic around to our guests here.

MR. KALINOWSKI: Good afternoon.  I'm Doug Kalinowski, the Director of the Directorate of Cooperative and State Programs.

MR. LAHAIE: And I'm Eric Lahaie.  I'm the Deputy Director for the Directorate of Cooperative and State Programs.

MS. SMITH: Hi.  I'm Suzanne Smith.  I'm the Acting Director of the Office of State Programs.

MS. YOUNG: And Rebecca Young.  I'm a project officer in the Office of State Programs.

MS. STRATTON: I'm Melanie Stratton.  I'm with the Solicitor's Office. 


MR. ROSA: Okay.  Thank you.  According to our agenda, we are now moving into a presentation on OSHA's state plans.  And with that we have, as we mentioned earlier, they have introduced themselves, Doug Kalinowski, who is the Director for the Directorate of State Programs.  And beside him is the Eric Lahaie, who is the Deputy Director.  So I pass the floor onto Doug.

MR. KALINOWSKI: Well, once again, good afternoon.  I should speak into this, correct?

So I kind of want to have a conversation.  I'll give you an overview, but I know you have heard that you've had concerns before and we'd like to hear what you have to say of what your concerns are.  Whistleblower is only one part of the overall state plan monitoring we do.

We had a state plan meeting.  We meet with the state plan three times a year with OSHA and all the state plans in different parts of the country.  Dr. Michaels spoke a couple of weeks ago.  We met in Maryland and what he said was, you know, we could talk about as effective as, which we should, but he said we should also talk about how can we be the best we can be. 

A number of the state plans are beyond "at least as effective," but how do we keep pushing them forward?  And for some states, it's kind of operating in a continuous improvement mode and for some of the state plans, whether it's a whistleblower issue or whether it's a penalty issue or a program inspection issue, just getting to at least as effective as would be continuous improvement.  And every state is unique.  Every state is unique. 

Dr. Michaels asked me that question at one point too.  He said, "What are you going to do to move them all forward?"  And it's like, well, you know, everyone is unique.  They all have different issues, different perspectives and different political types that they report to as well.  So we have to deal with them each on a kind of an individual basis, in general, and that's what we do.

You know, they are required to have the whistleblower under the OSHA Act that is required to establish and include as part of their state plan is an 11(c) program that is at least as effective as OSHA's.

And as you know, she still has the authority to investigate whistleblower complaints, 11(c) complaints in those states that also already have their own requirements.  In fact, states are expected, required to tell a complainant when they call in, if you don't know this, that they had that right and give them an option to do a file.  So they have that right going in.

There are currently 28 state plans.  There was a new state plan added in August of this year, Maine.  It is a state and local government program, but they're also required to have an 11(c) program as well.  Most to the states process their 11(c) complaints. 

As a primary agency, they have their own staff to do it.  Some of them have, actually, whistleblower investigators.  Some of them use their own safety and health people if they are all specially trained to do that as well.  I think it depends on the state and the size. 

Obviously, the larger states are more likely to have specialized people to deal with whistleblower issues.  And a handful of states also designated another agency to actually do those whistleblower, you know, investigations.  OSHA investigates things beyond 11(c), so they have other agencies that do that for the whole state.  Every year, you know, we evaluate the state programs and we do a comprehensive evaluation every other year through the Federal Annual Monitoring Evaluation. 

And every other year, it's more comprehensive, it's case file reviews.  When it comes to like, whistleblower, they look at the cases.  They look at a lot of the metrics around those cases and they actually do hands-on case file reviews.  They sometimes talk to the investigators themselves.  We used to do it every year. 

The problem is by the time the evaluation came out, it's already probably more than halfway through the following fiscal year and if they have things they need to correct, they have like, two or three months before they get those corrected. 

So it really just didn't make sense to keep doing that and try to do a full evaluation.  So we changed that to an every other year full evaluation.  So the in between years, the less comprehensive years, we're looking at issues that were expected to be corrected because when we do the full evaluation, the state creates a corrective action plan.  And some states may have one or two items in their corrective action plan and other states may have 12 or 13 and we monitor those in the off years more closely.  But that doesn't mean other issues can't come up because while you're monitoring as people raise issues, other things could get included as well.  We still don't do as comprehensive of an evaluation every year.

You know, we worked hard to try find consistency.  You know, because really, the monitoring happens and even though the national office kind of sets up policy and probably provides direction, you know, the monitoring happens in each of the 10 regions for the state plans.  And obviously, you probably know, if you look at Region 9, that is, for the most part, all state plans. Region 8 and Region 7 is one state plan.  So we try to find consistency across.  So keep that in mind when we try to do that.

I think in recent years, we've kind of improved not just a FAME process, the evaluation process, but how we specifically look at whistleblower cases as well too.  We've maintained a database and tried to find consistency across the -- and working with the Directorate of Whistleblower Protection Program as well, trying to find consistency so that when we're looking at Iowa versus looking at Michigan, we can have a consistent evaluation.  So we work towards that as well.

And I think a lot of states have made, since we've been doing that, improvements have been made.  Some of the issues that have come up are like, data entry and how they enter data.  How timely they enter data.  So those are -- they seem like minor issues, but when you're trying to evaluate a program, it's key that the data is entered so that you can evaluate those things and so that they can evaluate it themselves as well too.  And I think that we've also improved the quality of their investigations because some of the things that came up are, you know, acceptable investigative training, et cetera. 

And I think that all the states, at this point, for the most part, are onboard with making sure they go to the whistleblower training.  They also go to other types of training to help them determine or to help them better improve how they do their whistleblower investigations.

And of course, just like OSHA, state plans have a certain level of turnover as well.  And so that's a challenge they always have.  Some of the things that came up, if you're not aware, maybe you already are aware, there are a couple of key issues that arose in recent years. 

South Carolina, a couple of years ago, basically eliminated a provision to do whistleblower 11(c) investigations.  So we worked with them.  And that was actually a legislative change.  So we worked with them to get those provisions put back in their legislation.

At one point, Nevada had a state law that required the complainants to inform their employers of their intent to file a complaint before they filed one, you know.  These aren't necessarily the program people that are stimulating these type of legislative or regulatory changes.  It's the state legislators and other interest groups that do that.  So we worked with Nevada to give that change as well. 

Maryland recently revised their regulations to accept oral whistleblower complaints.  There was a point a few years ago where there was probably a handful, six or eight states that would not oral, they would only accept written complaints and we worked with them. 

For the most part, I think all of them are onboard now to accept oral complaints or that's when it starts the tolling.  They may, when they meet with the person, ask them to sign something as part of the process, but they may do that anyway as an interview statement.  So we've gotten to that point.  Because there was a point where six or eight of them would say if we didn't have a written complaint, they would not respond to something and we worked very hard to make that happen.

New York was in the same boat.  They were not accepting oral complaints for whistleblower complaints.  At this point in time, they now do.  They changed their operations manual, their policies and procedures manual to do that.

And some of the states do have, as many of you are already of, too, they do have extra provisions or different provisions that actually probably make it more effective in terms of whistleblower.  A number of the states have, you know, in lieu of a 30-day period to file a complaint.  Some have longer periods.  If you look at California, Connecticut, New Jersey, North Carolina.  They all have 180 days.  Obviously, I think a number of other people would like to change the federally as well too. Hawaii is 60 days.  Kentucky is 120 days; Oregon 90 days; and Virginia 60 days.  So that is a benefit.

Another example is, you know, some of the state plans allow a right to sue the employer over these issues: California, Hawaii, Minnesota, North Carolina and Oregon.  If you look at those, a lot of those are the larger, outside of Hawaii, the larger, probably most longstanding states as well too.  And the other thing you have to keep in mind when it comes to state plans is that, you know, OSHA has received some increased funding for whistleblowers, okay.  State plans have not. 

In fact, the overall budgets, I think over the last 17 years, the total increase has been around 10 percent.  Not each year; over 17 years, 10 percent.  And so the state plans are actually, when it comes to inflation, you know, and the increased cost of health benefits and other things, they're actually losing ground.  I think outside of just whistleblower, if you look at their inspection numbers, the inspection numbers are going down.  Why are their inspection numbers going down?  Because their staffing is going down. 

I think the other pressures the states have as well is many of the states overmatch, in terms of total budgets.  It's usually, roughly $100 million in federal money and $180 million in state overmatch.  Okay.  There has been lots of pressure in recent years, I think by the states, to decrease some of that overmatch and that doesn't just apply to OSHA.  I think that applies to a lot of other programs -- federal programs that are funded.  A lot of the states have budget issues, so they cut back on their overmatch funding.  So it further puts pressure on the administrators of those programs to try to maintain the staffing they had.

So overall, staffing in state programs has gone down, I think, over the last five or six years.  Two years ago, most state plans did 50,000 or more inspections, historically, as far back as we can remember and it went below that two years ago for the first time.  And I guess it all revolves around staffing. 

Like I said, OSHA has gotten some increases for whistleblower staffing and administration and state plans have not, even though I think in the president's 2016 budget -- I don't think, I know that in the president's 2016 budget, I think right around $1.3 million was recommended for whistleblower programs.  That's a little over 1 percent, but it can be a significant amount of money.

Do we have these handouts?  Are they out there?

MR. LAHAIE: That's the one we got.  The data handouts they're supposed to have, yeah.


MR. ROSA: I think you all should have this.  Yes?

MS. BETTS: Should we put that in the record?

MR. ROSA: Yes, we want to put that in the record.  You have a series of slides that says state plan data on the second slide.  That would be Exhibit No. 4.  Exhibit No. 4.

MR. KALINOWSKI: I was just going to walk through this data real quick.  It reveals the number of 11(c) cases in Slide 3, state plan versus federal.  And this doesn't include, for the federal, this does not include all the other statutes that are covered by OSHA.

MR. EHERTS: Question.  How many state plans?

MR. KALINOWSKI: Twenty-eight state plans.  And you have the number of cases completed in 2015.  I think it depends on how you count them. 

And we actually look at three metrics related to whistleblower.  They're actually right around 26, Eric?  Total metrics we look at for state plans that were worked on between a group of -- really, the State Plan Association board members, as well as a team of federal people.  Looked at 20-some measures, beginning about --

MR. LAHAIE: Eighteen.


MR. LAHAIE: Eighteen.

MR. KALINOWSKI: Eighteen.  Eighteen measures.  Sorry.  I want to measure about more things.  So when we started, I think about eight years ago or six years ago, somewhere in that range, instead of looking at, okay, what are we measuring here?  And it's not necessarily a pass/fail system.  It's really more of an indicator.  It's kind of like doing a blood test and something looks a little funky, then you dig deeper, right?

I mean, some blood tests are pretty clear, but you might have some type of bloodwork into the loft and you do a little bit of deeper digging to figure out what the issue might be, and the same thing with kind of some of these measures.  It's not necessarily a pass/fail, but if you're outside of some range of a national average, it just says, well, maybe we should look a little deeper into things.  And so these were negotiated and so have these three.  We basically started with all the measures that have been used over the years. 

Back 25 years ago, there was like, 60 different measures that state plans were evaluated at.  So we worked on looking at these measures again.  We actually had a public meeting in 2012 to get input on these measures, not just the whistleblower, but the other metrics as well, too.  Things we look at are like, number of inspections they do, which is really a negotiated measure.  You know, how quickly they respond to complaints.  We look at what their penalty levels are and the different size of employers and these are the three whistleblower measures that were discussed. 

I say negotiated, when OSHA really could say you have to this, but I think these are the ones we all agree were probably important.  And if you look at the range, you look at the next slide, it shows you the range from Connecticut to -- and Maine and Illinois.  Maine is a new state in which we don't have any data on them yet as well.  I think Illinois hasn't had any whistleblower -- Illinois is also a state and local government state plan as well.

MS. LESSIN: Can I just ask a question?

MR. KALINOWSKI: Yes.  Don't hesitate to ask.

MS. LESSIN: This one slide, the percent of 11(c) investigations completed within 90 days, it seems that if a state had three complaints that they could all be completed within 90 days.  And if a state had 300 complaints, it would be a very different story.  And so this graph isn't telling that picture.  It doesn't say how many complaints came into Connecticut. 

Now, when I look at this other data, there's something about pending cases in Connecticut.  It's very, very small, but it doesn't tell me, you know, just this idea of what was completed in 90 days.  You know, if you have 300 complaints, if you have three complaints, it's going to be different.  So is there a graph that says how many complaints?

MR. KALINOWSKI: We do have those data, but these are not the things we necessarily publish in their FAME, but if their expectation is that the monitors will evaluate them and look at much more data which is actually in the mandated measures.  Does that make sense?

And we can get that data for you as well.

MS. LESSIN: Yeah, it would be -- it's just -- you know, you look at Connecticut and 100 percent get done within 90 days and here is California third from the bottom, but then over here you kind of get a glimpse that there's something else going on because it says number of pending cases, and California is way up there in the 500 range and Connecticut in down there -- oh, I can't tell what that is.  Maybe 10.  You know, whatever.

So it's just -- it's not really -- this isn't a good picture of what's really going on, right.  It kind of skews it and it doesn't, you know, I'd like to see some other things so that I can put it together better.

MR. KALINOWSKI: Because you're absolutely right.  I think California, the reason their number is so high is because they have such a backlog.  And I think when the monitors go in, they look at all those things.  They look at all that data as a picture. 

Now, if we wanted to look and evaluate each state in this room, we have to spend two or three days looking at lots of data.  The expectation is that monitors do that.  So let's just say there's a huge backlog in a state, then the monitors try to work in the states to figure out okay, what are you going to do to get rid of this backlog.  And I'm not sure if meritorious is a great example.  Don't we have a slide on -- average number of calendars days to completion, which is the third one in, I believe, on the bar charts.  And that kind of gives you a feel as to who long it has taken to do that. 

But you're absolutely right; this does not give the entire picture of a state, but I didn't think that we were in the position today to actually -- maybe that's what we should've done and we can do that in the future is actually take one or two states and have a discussion, a more detailed discussion on one or two states, but that would still take quite some time.

MS. ROSENBAUAM: I guess we reviewed earlier these metrics for OSHA federal and it's also hard to figure out if they're just as effective when we don't have the same metrics for the state plan.  So what would be interesting to me would be to have this data, taking off everything except OHSA 11(c), and then adding the states and then we could compare.  We might find some states have better metrics and we want to know why.  Some are worse, but it feels a little bit hard to assess whether they're at the standard when we don't have the data that we were using to assess 11(c).

MR. ROSA: So what you're suggesting that for the state plan data to use similar to what we discussed earlier for our type of determination that we have in our data?


MR. ROSA: Okay.  Because what Doug is mentioning are the three different measures that they have specifically under the state activity mandated measures, or the SAM measures.  But we can work with Doug's office and see how the data compares with each other.

MR. KALINOWSKI: And Mary Ann Garrahan did speak to the state plans two weeks as well and shared some of the federal metrics being used.  Like I said, they were negotiated -- if all of a sudden we started measuring the states out of the blue on some different metrics, I think we have a challenge in dealing with them because we're changing what we would do.  I think we have to have a discussion.  Mary Ann did speak with them.  They seemed really receptive and I think it is probably time to relook at that.

MR. ROSA: Right.

MR. EHERTS: So how many total standard measures do you have?  SAM 16.  Does that mean you have 16 of them?

MR. KALINOWSKI: Eighteen total. 

MR. EHERTS: Eighteen total.  Is one of them cases per inspector?

MR. KALINOWSKI: No.  They negotiate every year how many inspections they will do as a state.  We don't try to do cases per inspector.  But that metric is not for 11(c), that's for safety and health inspections.

MR. EHERTS: I see.

MR. KALINOWSKI: We don't look at -- try to say you have to do 100 cases.  Because the expectation would be, I think, if all of a sudden there was a huge rise in whistleblower complaints, they would try to find some way to either increase staffing or modify some things to make sure they got to those complaints is some reasonable timeframe.  You know, I came from the State of Michigan and we had an issue with a supervisor and two investigators and at some point, the complainants got where I could never keep up with them. 

So we actually took and borrowed a CSHO that was already trained in whistleblower investigation and that person ultimately had three so that we could keep up.  For some reason, it still seemed like it took a lot longer than it should've, but we did it to keep up with those --

MR. EHERTS: I just think there's this incredible potential to answer a lot of questions based on the stated data.  For instance, OIG just came out with a report that said that the optimum number is six to eight cases per investigator.  The federal is now at 23 per investigator.  But if you could look at how many cases per investigator with different states and look at the outcomes, you'd be able to tell us what's the best number of cases for an inspector.

MR. KALINOWSKI: I don't have those details in my head, obviously, but I do know that 23 probably sounds typical for some of these large -- if they do that many in the course of a year, like, 23 is probably typical for the large states as well. 

MR. EHERTS: Right.

MS. LESSIN: I have a non-metrics question.  Can I ask that about whistleblower and state plan states?

MR. KALINOWSKI: Sure.  We'll do the best to answer it.

MS. LESSIN: Okay.  I was in California a year ago and was meeting with some folks and at that time, it looked that if there was a whistleblower complaint related to someone being retaliated against when they reported an injury, something that would be covered under what we call the Fairfax Memo, that, in fact, was shunted to California's workers' compensation system.  It was not dealt with at all under Cal OSHA or under the whistleblower complaints that come in through health and safety.  It went straight to workers' compensation, a completely different system with completely different ways of looking at things. 

I know a number of us raised issues at that time a year ago.  So I was just wondering if you could give me an update on how that is handled in California now.  Has that been adjusted so that the Fairfax Memo-related injury retaliation cases now go through the Cal OSHA whistleblower, or are they still shunted off, which would have us question whether things are at least as effective as?

MR. KALINOWSKI: Well, that issue was raised like, a year ago or more than a year ago and the region is actually working with the state to say look, you need to put them, you know, so that Cal OSHA is handling them or make sure they're handling it in an appropriate manner, just as the same way OSHA would.  So we are actually working with Cal OSHA to get that rectified. 

MS. LESSIN: So it's been a year.  Is it rectified?

MR. KALINOWSKI: I don't believe it has been totally, yet.  No.

MS. LESSIN: And what's the problem?

MR. KALINOWSKI: I think that changing regulatory process to policies in a large state like California is a great challenge for them.  It's a challenge for them as well.

MS. LESSIN: I'm concerned about the workers who are being retaliated against and whether they are getting any kind of justice.  I guess I would like an update on where things are at exactly and what the problem are.

MR. ROSA: And you raise a point.  I just wanted to reiterate, as Doug is mentioning, that the importance is not who is handling the particular complaint, but how it's being handled.  And it goes back to the "at least as effective" status.

I know that when I was doing state plans in Region 2, and it's probably still the case in New Jersey, where a portion goes to the health department.  So your designee is your labor department, but a portion goes to the health department.  So it gets, sometimes, you can call contracted or subcontracted or given to another agency. 

Particularly, the concern is not what is given to the other agency; the issue is, is it being handled at least as effective as.  And as Doug mentioned, I think they're working very hard with the folks in California to ensure that those complaints are being handled at least as effective as.  And it's an ongoing discussion and dialogue they've been having in California. 

MR. KALINOWSKI: And I can follow-up with Anthony and get you a more detailed status.

MS. LESSIN: Thank you.

MR. EHERTS: I have real basic question.  If 28 of the states have state plans and two of the larger states, New York and California do, then you'd think that 22 states don't.  They're in the federal program.  So you would think the majority of the cases coming in would be coming from state plan, wouldn't you?

MR. KALINOWSKI: Well, New York and California are state and local government only.


MS. LESSIN: California is --

MR. KALINOWSKI: No, no.  I said New York and New Jersey.  I'm sorry.  New York and New Jersey are state and local government.

MR. EHERTS: So is that difference based on population or number of businesses?

MR. KALINOWSKI: Well, you know, I don't know the answer to that because I thought that same thing.  Is it because people aren't aware they should be filing or the opportunity to file complaints?  That's something we need to look at because that's --

MR. EHERTS: I think we should.

MR. KALINOWSKI: Yes, yes, yes.  That's the other question is what do their websites look like?  Is it pretty obvious that -- Jordan Barab and I had this conversation in the last couple of weeks about what do their websites look like.

Should we be looking at those to make sure that -- it's obvious that they have rights --

MR. EHERTS: A place to know they have them. 

MR. KALINOWSKI: Right.  Yeah.  And I think we need to look at those kinds of things too.  And obviously, if they filed something online on OSHA's website, that would get transferred to them automatically.

MR. EHERTS: That might explain some of it.

MR. ROSA: Okay.  Any additional questions from members of the committee?

Yes, Eric?

MR. FRUMIN: So can you give an impression?  I'm not asking you to remember all the numbers of 28 or 27 different annual FAME reports, the last time you did an evaluation of the discrimination function, but can you give a general impression of how well the state annual retaliation efforts are working on their own steam and also in comparison to the metrics that are used by this directorate?

Maybe not.  I'm just asking.

MR. KALINOWSKI: Oh, no, I can give an impression.  I think most -- I think all the states and the investigators, they're committed to do it to the best they can and that's clear.  And I think many of the states, you know, probably do as good or better than OSHA does, depending on which state you are.  And then you even have the states that are doing the best they can.

If they don't have enough staff, then they can't get to them quick enough and that is an issue if it's going to take two or three years to resolve one of these.  So I think the impression is that is a wide variety of effectiveness, I think.  Some are very effective and then some are less effective and the goal is to get them all moving towards the more effectiveness.

And then like I said, the other issue is if you only get two or three complaints here, why is that?  I don't have that answer; I wish I did, but you got to ask the question if you only have two or three a year in a state, typically a small state, you just have to ask the questions because employees are afraid because when they do file, they don't get any results or because probably the likely answer, and this is my wild guess is because they don't know they have the right to do so.

MR. FRUMIN: The other question is that one of the things we've discussed here a lot is the relationship between OSHA's jurisdiction under one of the -- OSHA's jurisdiction to investigate a complaint in transportation.  Let's use the trucking and rail, for instance.

OSHA jurisdiction to investigate those under the 11(c) authority, as compared to which jurisdiction to investigate them under the other federal laws: FRSA and STAA.  It's clear that in probably not an insignificant number of cases, maybe not a majority, but in some number, the complaint could go either way.  The investigator could take it in and say oh, well, you know, this could be one or the other.  Could be a FRSA case or an OSHA case, a STAA case or sometimes both. 

So what opportunity is there for the state agency folks to have that relationship with federal transportation at DOT, FRA, or FMCSA, whatever.  Because we now have a referral system back and forth between the Labor Department and DOT agencies on these underlying issues.  The same way that whistleblower investigators and compliance inspectors have a referral system back and forth.  Have you explored that at all? 

Is that a policy question for the state monitoring or for DWPP to make sure that if a rail worker or a truck driver in South Carolina files a discrimination complaint and it turns out that there's all sorts of STAA related violations there that that South Carolina whistleblower investigator isn't blind to the opportunity to get the DOT help.

MR. KALINOWSKI: And Anthony, you can chime in as well.

MR. ROSA: Absolutely.

MR. KALINOWSKI: I think that's one of the things we need to be -- that's a very good question.  That's a very good observation or concern because I think we've talked about that internally as well, to make sure that if you have an 11(c) investigator in South Carolina, do they realize there are 23 other statutes that may apply, in lieu of saying no, there's nothing we can do.  Our goal is to make sure those investigators understand that there are other statutes that they refer to OSHA --

MR. ROSA: Right.

MR. KALINOWSKI: -- and work with the OHSA team.  And they oftentimes do.

MR. ROSA: Right.  And I just wanted to add into that -- and I want to come back specifically to South Carolina because that was a specific issue.  But in general, and we've done this with any other states, specifically if there is a private sector, 11(c) program like Kentucky or Tennessee that I've handled back in Region 4, if there is a STAA and an 11(c), we would have a dialogue with that particular state.  And most likely, the 11(c) portion is handled by the state and the STAA portion is handled by the federal investigator, but they work together in a team and they would work things together. 

Now, we do that to the best that we can that we're both working the federal investigator and the state investigators working on a particular case.  In some instances, federal OSHA will take the complaint in whole and do both the STAA and the 11(c) case.  In fact, that was the agreement we reached with South Carolina.  When South Carolina put the legislation back in --

MR. FRUMIN: Well, that's a special case, anyway.

MR. ROSA: Right.  But we're done that in other cases.  I've had instances in another state where the state will call me and say I have a case and I don't have subpoena authority outside of my state boundaries.  So if I want to collect information that is from headquarters that is in Missouri or in another state, I can't go outside my state boundaries, can you take the case?

And most likely, federal OSHA will take the case because we have subpoena authority nationwide.  So there are certain circumstances that we would take the entire complaint or that we would work together with the state on the particular investigation.  And to the extent that we can, I mean, the state doesn't need to be necessarily involved on the STAA portion of it, but as much as we can get them involved, sure, they would be involved as much as they need to be involved to handle their portion of the complaint.

MR. FRUMIN: To me, it's a question of whether the state investigators who have no authority outside of their own 11(c) legislation, whether they are aware an actively inclined to pursue those remedies, the other available remedies under those transportation laws or other laws for that matter. 

Is that part of their day job?  Do they know that that's there?  Okay, so you blew it.  You're 31 days on 11(c).  You're out.  Wait a minute.  You got six months under STAA; you could've easily done this.  I can't handle it, but I'm going to help you do that.  Is that their default reaction or do they just like, whup, 31 days, you know, in the trash?

MR. KALINOWSKI: That should not be because referral mechanism are in our state plan policies and procedures manual.

MR. FRUMIN: Okay.  So we look at those and that's the way it should be and I would think -- and I know of experienced state plan investigators that know this very well, right, but you get new people that -- can things fall through the cracks?  Yes.  And I think some of that is developing a relationship with the regional office as well too.

MR. FRUMIN: That's fine.

MR. KALINOWSKI: So they understand each other.  Because a lot of time they'll talk about even 11(c) issues to look at the legal issues, although they interact with OSHA people to say okay, what am I looking for?  And I think the effective ones do that.

MR. FRUMIN: Right.

MR. ROSA: And to add to that, and Robert has reminded me that we recently did in the past year or so, we did a webinar for all of our whistleblower investigators, both federal and state.

MR. EHERTS: And didn't you have a conference also where you brought them all in a couple of years ago?

MR. ROSA: That was several years ago we brought them all in, but we recently did a webinar and that also gave all the information and the tools to both investigators on both sides to know, especially on the state side, when a referral to the federal side is warranted or vice-versa.  So we always are in collaboration in finding ways to bring the information forward to the states about when a referral to the federal side is warranted.

Any additional questions?  I know we're kind of taking a few minutes into the best practices, so I just want to make sure that we have gotten questions.

(No response.)

Okay.  I wanted to thank Doug and Eric for coming to us and spending some time talking to us about state plans and 11(c) programs.  Thank you very much.

MR. KALINOWSKI: Okay.  Thank you.



MR. ROSA: And now I want to pass this on to Jon Brock and the Best Practices Work Group.  Yesterday, the group spent about three hours going over the dissemination portion of the charge.  I know there was some initial discussion about the best practices draft document of the recommended guidelines document that OSHA just published for public comment late last week.  If there is opportunity to have further discussion on that after the discussion on the dissemination portion, we would entertain that.

I understand that maybe one or two people may need to leave a little early, so hopefully, if we can wrap up sooner, we can do the wrap-up portion sooner so that nobody misses that portion.

And with that, I pass it on to Jon.

MR. BROCK: Okay.  Thank you.  There is a copy of the Best Practices Group draft.  Let me get this straight.  You'll find a copy of the draft that we've brought forward, which is in your packets.  It says, "Working Group Draft Outline 11/9/2015.  Dissemination Ideas for WPAC Discussion."

I'll try to summarize this and point out what the trend of what we're suggesting.  I want very much to invite my colleagues on the work group, whose ideas I've collected here as the scribe, but there is a lot of knowledge -- or the knowledge is within the work group.  So I want to encourage my colleagues to interject and --

MS. BETTS: Can I interrupt for just a moment?

MR. BROCK: I'm sorry.  Do you want to declare this into the record?

MS. BETTS: Yes. 

MR. BROCK: Please do.  By all means.

MS. BETTS: It'll be Exhibit No. 5.

MR. ROSA: Yes.

MS. BETTS: Okay.

MR. BROCK: Ready?

MR. ROSA: Yes.

MR. BROCK: So this began with about a dozen ideas that were in various meeting notes.  I circulated a list to the Committee.  And very quickly, members of the work group identified that there were some really core aspects that we should pay attention to.  We quickly got to the idea that you see in those first two bullet points, number one and number two that said let's look for things that OSHA could do with internal policies and programs that might encourage the application of what we had called, initially, best practice recommendations.  I'll use the term in the present draft, "recommended practices."  At least I will endeavor to do that for consistency.

And we also identified that there were many, many people in the employer community, and among them, in decision-making capacities, implementing capacities and advocacy capacities, who could probably have the most influence on bringing these programs and practices in the recommended practices into the workplace in order to create the various types of benefits and advances, which I'll articulate in a moment. 

We also pretty much simultaneously, with identifying those two avenues, recognize that a valuable service of our work would be to identify places where you could reach those groups of decision-makers, implementers and advocates.  So I want to call your attention to the pages at the back of this document that is a chart that I roughly pulled together to capture as best possible, at this stage of the work, the various organizations, for the most part, organization that were well known for disseminating information or were regarded as important sources of information for people in those three categories of influence. 

Much of what you'll hear me summarize here relates to how these groups can be reached, made aware and constructively influence to recognize what value might exist in the recommended practices and to be able to learn how to use them and where to get input about how to use them in employers and different industries, under different statutes, and of different sizes and character.

So we began to pay attention then to the audiences, and the middle part of page 1 further describes our sense of the audiences and how, in our notion, that we needed to find -- I apologize -- the most direct ways for OSHA to be able to reach out, recognizing, as we learn through the process, that there were significant constraints on the committee itself, as a committee, working in a coordinated or active way, although there were some opportunities for individuals to act.

So in trying to figure out how to reach out to the audiences, we summarized the basic message into three components, which you'll see here towards the bottom of page 1, in thinking that different employers would respond to the recommended practices for different reasons, depending on where they were in their own perceptions and actions in compliance and protecting whistleblower rights and reading them in the order that they're there, that there are business benefits and competitive advantage in this and that it wasn't strictly a compliance issue. 

Those positive programs that encouraged employees to come forward were beneficial to learning things about your business that can make it better, more efficient, more profitable, have a better reputation, more competitive and so on.

We also identified that there would be firms and non-profit organizations and other employers who had the notion that they simply wanted to do the right thing, it was the right thing to do to create workplace fairness and justice to ensure employee rights and that the third reason, these are not entirely distinct; they're certainly interrelated that you would simply reduce your liability and risk if you were more likely to be in compliance. 

And everyone heard some of the discussion this morning where a number of the committee members talked about the importance of using some of the terminology that was now having a great deal of appeal: compliance, transparency and those sorts of things. 

So the reason that we stopped and we paused for a moment to identify these messages is as OSHA prepares ways of outreach and making employers and others aware of the recommended practices that there would be a clear recognition that these different messages would appeal to different organization and to different groups that might be important to creating the awareness. 

So we then tried to pull out of our brainstorming activity, I suppose you could call it, the types of efforts that we hoped OSHA could strongly consider and hopefully, in most instances make, to have an effective outreach.  The first was that as a result of some briefing that staff gave us, related to the way in which they would normally roll out new requirements, recognizing that this is not a requirement, but also recognizing, as has been discussed in this committee over the past year or so, particularly hearing from Dr. Michaels, and we've heard a lot about it this morning, that there could be very significant impact by the voluntary adoption.  This is a program about voluntary adoption, voluntary movement.  That there could be quite a significant impact on improved workplace protections for whistleblowers. 

So without reading you this list, I'll highlight a few, looking at the websites that the staff made note of and in the briefings that we had from staff, these were some of the most attractive aspects of what OSHA seems to normally do when they roll out a new regulatory requirement.  Again, recognizing the distinction here that seem to provide easy avenues for information, attractive avenues for information.

I neglected to put the urls in this report.  I'll be happy to send them out to other members of the committee.  If you were to look at those, you'd find that these features are actually quite attractive and quite user friendly and really could be quite helpful for those that pay attention to the requirements and other resources that OSHA makes available. 

So we wanted to encourage the broader outreach that something more akin to new requirements would require.  I think the response yesterday was that the idea of putting the recommended practices document, as prepared by OSHA, out for comment, was a real positive step in that direction to create a much greater awareness, to invite input from a broad variety of audiences.  So certainly, going in the direction that we had hoped by pointing to this larger list.

The one item that I would point out here in particular is in that list of the open bullet points, there's one that says OSHA reach or appear at conferences.  That's very much connected to this list of organizations and you will hear, hopefully, from my colleagues in the work group about some of the organizations that are most prominent in the ways in which they're looked to for information and guidance. 

So a key thing is for the agency to be able to get people out, to be able to speak at these places and also to figure out how, in the instances where certain of the newsletters, certain of the training conferences were considered by the knowledgeable folks on this work group to be very high leverage in having an impact on the actions of employers. 

And particularly, in those cases, and we can probably do some more to prioritize or identify these -- particularly in those cases to be sure that there is some representation and articulation of the recommended practices and their potential value.

Let me pause there and see if any of the work group members might want to comment on any of these outreach efforts or anything that I've touched on so far.

MR. KEATING: I have a question.  And I don't want to put you on the spot, but on that exact point about conferences, and there is this attached list, buy there's actually a whole additional reservoir of conferences/big audiences of reaching many employer in different industries, which, admittedly, I don't want to say "for profit," but, you know, they're private employers who might have a 1,000 person conference.

And it's my understanding that historically, while -- this has always confused me a little because where I used to be, a very large law firm that would have these big conferences, they would sometimes have NLRB, EEOC, SEC, various government agency officials high up who would come and speak.  And on a number of occasions, I endeavored to try and see if I can get someone from the whistleblower directorate and what I heard was if it's any type of a private event where there are people paying to go there or whatever, it's out of bounds. 

Do you have any idea whether those types of restrictions could be relaxed to the extent that we're trying to get a message out like this to a group of people?

MS. BETTS: I'm not sure I'm really the best person to answer the question.  I'm not aware of legal restrictions on OSHA providing folks to speak at events like that.  Do I think if there is policy to that effect, that wouldn't be a question for me.

MS. SMITH: So this was actually a -- I think that there's a little bit that's being left out.  This was really more of a -- what Greg was actually proposing was that two of the members of the committee were going to speak and we were concerned that it was going to perceived as a committee event.  And if we brought in OSHA, that was a problem.  So it was having a committee event that wasn't being advertised to the public.  And so that was what the issue was.

We never said that there was a problem having some OSHA official come to speak.  The problem was making sure that there were proper FACA lines drawn.  When you are trying to advertise it as making it sound like a WPAC event, that's when it was a problem, and that's the only thing about it that was a problem.

MR. ROSA: Okay.  Good.  Nancy.

MS. LESSIN: In your global search and destroy that you left --

MR. BROCK: I missed a few. 

MS. LESSIN: -- you left out WBBP.

MR. BROCK: I know.  I saw it.

MS. LESSIN: So if we can change that for the final document, great.  Thanks.

MR. BROCK: Yeah.  I know.  I searched, but didn't full destroy.

MS. NARINE: Search and replace.

MS. LESSIN: Search and replace.  Sorry.  Sorry.

MR. BROCK: It depends on your point of view. 

MS. LESSIN: We're just now commenting on the selected outreach efforts.  We're going through chunk-by-chunk, right?

MR. BROCK: I'm trying to do that, yeah.

MS. LESSIN: Okay.  Go ahead.  Read on.

MR. BROCK: Feel free to interject if I go past something you want to talk about.

Moving on down the page, one idea that came up that seem to have really potential for high leverage in an area where it would be difficult for the agency to go out and have an impact, but where a lot of employers could be reached in a positive way would be through, at least I commonly understand as a supply chain or value chain conference or requirements.  I'm going to say two cents about it and then I'm going to turn it over to somebody who actually knows something about it. 

The notion is that large -- many large companies, not all, but many large companies levy requirements or advisory information or provide advisory information to those that supply them so that they don't have difficulties in the supply chain, either reputational or business-wise, in terms of interruptions or quality problems; and therefore, they have an incentive to cause the suppliers to be compliant with a variety of requirements. 

Certainly, with the messages about whistleblower protections, it could be a lot of value in conveying that.  So I want to ask Dave to initially comment because he was very articulate about this, and others, perhaps, would have something to say. 

Can you help us understand this, Dave?

MR. EHERTS: I think the best way to explain it is with an example.  So when I was at Sikorsky Aircraft, United Technologies, you know, we assembled aircraft, but of course, our supply chain was completely vertically integrated, so we had a lot of suppliers selling us parts, selling us radios and gears and wires and engines, and transmissions, and then we'd assemble it all.  And one big activity within the parent organization was supply chain risk. 

And I think the risk took a number of forms.  One is reputational.  So one of our suppliers could have an issue.  I think this has happened in the American industry over and over in the last decade, where they do something wrong.  They're identified in the press as one of our major suppliers and that splatters onto our reputation.  So that was one area.

The second area was interruption of supply.  So they make a key part for us and a hurricane knocks out their major plant.  So it would be very interesting in them having a hurricane preparedness plan.  But also what can happen is they can have a compliance issue which could stymie them.  And if they had a major compliance issue, then they're distracted from manufacturing for us.

And I think thirdly, and one of the things I thought was most important was we could make their businesses better.  And an example of that would be giving them an energy conservation program.  So they would implement the energy conservation program, reduce the amount of energy they're using.  They would save a lot of money.  Their profit margin would go up and they'd be able to bid lower on future project with us, win more business.  We could both make a good profit. 

So we were constantly looking back in our supply chain.  We had conferences every year and EHS, my department, was always invited to come and speak.  And we talked about things like hurricane preparedness and we talked about energy conservation and we talked about OSHA compliance and EPA compliance and things like that.  I just saw a big opportunity there to talk about whistleblower protection, anti-retaliation programs. 

And we explained to them that it makes their business stronger because first what it does, it encourages employees to come to you first.  So if there is an issue with your business that you desperately need to know about, having an anti-retaliation program would give you better odds of getting that raised internally first so you could fix it at early stages when it's easiest to fix.  So that's the first thing you could do.

Second, it would prevent a whistleblower, then from going, you know, a filing an official whistleblower complaint, which, of course, would distract you from manufacturing products for us.  So it'd defensive in one, offensive in another.  Your business gets better because you get the information you need to manufacture better and it's defensive from the point of view that you're not going to have claims brought against you which distract you from manufacturing for us.

So one of the other issues we had, and I know it's one of Dr. Michael's big things, is how do you reach the small companies?  How do you reach small, middle-size businesses?  One way is through chamber and another way would be through large corporations for that big supply chain.  So of you gave us a message to get out, we have a mechanism to reach out to small middle-sized companies that are suppliers.

MR. BROCK: So that's where the leverage is, is that you're dealing with a lot of companies who wouldn't as easily get the word and you have resources as a large company to say here's the stuff we research.  Here's the training stuff.  Here's the compliance information.  Here it is.

MR. KEATING: And we have a shared call.  Taking risk out of their business and making them better suppliers for us.

MR. BROCK: Okay.  Any others want to comment on this?  This isn't sort of a well-known phenomenon.

MS. NARINE: The other areas that where it helps reduce risk is labor risk.  You reduce the risk of strikes, and no for offense to -- you reduce the risk of potential labor unrest for those companies that, no offense, do not want to have unions or those kinds of things. 

To the extent that your employees are happy and they believe that they have a free and open workforce and they can get along with management and they feel that they can make complaints, they don't need anyone to come and help represent them.  So if they feel that they can go with their complaints and they're going to be treated fairly, et cetera, it's a better workforce that they need any outside intervention to come and help them.  So if we can say we've got a better workforce; you've got a code of conduct; you've got anti-retaliation policies.  You can come and make complaints without fear of reprisal, it's also something that strengthens their workforce in general. 

So again, for small and medium-sized companies that don't see the value in this, it's another thing that the larger companies, the mid-sized companies can help cascade down.  Some companies will have vendor codes of conduct.  And again, we were talking about yesterday, to address Greg's concerns, this is not a requirement to keep business, to retain business. 

Some companies may say this is something we expect you to adopt.  Some companies may say this is just something you might want to think about, but it's again, another tool to say this is something that we're looking at and again, I remember as a compliance officer, when we helped manage other company's supply chains, I received certifications all the time.  I was asked, do you have a code of conduct?  If not, we want you to look at ours.  And we'd say no, thank you; we already have a code of conduct.  But sometimes I was asked to sign off on other people's codes of conduct.  And if it was less restrictive than ours, we were like, that's fine.  If it was more restrictive than ours, we said no, thank you.

So this is something that companies are used t already.  And if they're not, again, it's a good -- an additional tool in the arsenal for companies.  And again, as Dave was saying, it's another way to get the message out because not every small or mid-sized company is a member of a local chamber of commerce, et cetera.  But if they are supplying things, if they are trying widgets and parts, they are dealing with other companies as part of the ecosystem.

MR. EHERTS: And another thing I can say is that I know that long-term labor contracts for suppliers was a big deal to us because we didn't want the interruption of a labor action for strike.  And so if we had two suppliers that were equal in every other case and one had a long-term labor contract and the other one had negotiations coming up very shortly, I knew which one we'd pick as our supplier.

MS. NARINE: You could have slow-downs.  You can have all kinds of things.  Sick-outs, you know, any number of things can happen.  Just keeping it real.

MR. EHERTS: Just theoretical. 

MS. LESSIN: That's all right.  I'm coming back at you in a little bit.

MS. NARINE: That's okay.  We're fine.

MR. BROCK: Okay.  So for these kinds of reasons, this seems like a really useful to get out the word through a mechanism that is already taking place that this would not be an unusual type of thing to talk about.  Now, we have potentially a document that we'd provide a lot of explanation and guidance.

All right.  So before going onto the other topics, I want to engage my colleagues on the work group in talking about some highlights of this chart because I think when we start to talk about at least some of the other things that are on this list, understanding the reasons why and how to reach these organizations helps to explain why some of the other things are on the list.

So let me invite any of the work group members to pick a couple of the examples off of this list that you think are high leverage.  You can a little bit about why and how they do their outreach and what organization and the kind of products or tools we can maybe help provide could make a difference.  Is anybody willing to do that?  I think it would be very illustrative.

MR. EHERTS: Well, I would just like to start the conversation.  One of the issues that I see is a problem for us is that a lot of these big companies have best practices.  How do we share those best practices when OSHA is not allowed to point to us directly?

One way to do it would be get presentations given at some of these major conferences by some companies that have best practices so that other smaller companies could come and see them and gain access to them.  So I think that's one thing that's really important on that list is that it gives us places to go to present.

MR. BROCK: Good.  What about the Compliance Week activity?  It seems like -- that and CHARM --

MR. KEATING: Yeah.  I think, Jon -- and Marcia can speak more to Compliance Week, but there are two that seem to jump out as logical candidates to reach a broad swath of large, medium, and small sized employers.  And conveniently, I think both are here in Washington. 

SHRM, which is the Society of Human Resource Managers, I believe is what it's referred to --

MR. EHERTS: Top of page 7.

MR. KEATING: Yes, sir.  Top of page -- no, the bottom of six.

MS. LESSIN: Bottom of six.

MR. KEATING: This is probably the largest organization that speaks to and provides extensive advice for human resources professionals.  And I know that there would be -- well, I suspect there would be genuine interest in having this topic be presented and discussed, more visibility around it at their annual conference, which, as I said, is in Washington and typically is quite large.  One of the largest out there.  And I think the benefit, as I said, is that is not targeted just at large employers.  It is targeted at small, medium, large, you know, a huge variety of industries.  And I think, you know, human resources professionals are going to be at least in the epicenter of all this.  So I think it would be a great way to get the message out.

You want to talk about Compliance Week?

MS. NARINE: Yeah.  Compliance Week, it is the largest gathering of compliance professionals every May.  I think this year it's May 5th -- I mean, 11th.  It has auditors, compliance professionals.  Lots of law firms go.  And the government agencies, NRLB is there, SCC is there, the Department of Justice is there.  Other government agencies go.  They typically have very well-seasoned compliance officers going, but also kind of the newbie compliance officers that go.  So it's a great way to get them there. 

Part of the reason, again, not to beat a dead horse, to add some more meat to the SOX bones there is because a lot of compliance officers, that's where their mind is right now is on the SOX/Dodd-Frank and it's less on the OSHA stuff.  So they need to get educated on some of the OSHA stuff.  They don't necessarily know that.  So if again, in the title document, there's something about enhancing your compliance program or something like that, that'll get them teed into this and they'll start talking to the safety people like, hey, what are we doing about this?  And you might learn a whole new world because in many companies, there's a lot of silos and people aren't really speaking to each other.  So I think that's going to be an important component.

But going back to the SHRM thing, I think another thing to remember is that in a lot of companies, a lot of people have outsources a lot their human resources functions.  And so there isn't always, especially in small and medium-sized companies, there is not a person that's really dealing with human resources.  Maybe there's somebody handling payroll and that's it. 

So the core human resources advice -- because I do some consulting, there is a company that they even have a whole lot of OSHA stuff, but they're calling an outsource provider and getting their HR advice/legal advice, should I put this person on FMLA?  Is this is a workers' comp issue, et cetera? 

So I'm assuming some of those people are also working with SHRM, but we should also make sure we're getting to kind of those staffing agencies as well and getting some of this information because many small companies are getting their advice from people that don't work for the companies themselves.  So we want to make sure that in this list of organizations, we're hitting that group of people as well.  I think SHRM might capture it, but we should make sure.

MR. BROCK: Yeah.  Jennifer had gave us some to add to the list.  You want to comment on that, Jennifer?

MS. ROSENBAUM: Sure.  Just to what Marcia is saying, I think the American Staffing --

MS. NARINE: Staffing Association, yeah.

MS. ROSENBAUM: -- Association and the National Staffing Association are important places.  And I think on the health and safety side, we've seen a number of problems and so it suggests an area where folks need more training and best practices experience.

I'd also emphasize the Mexican Consulate, which has a particular relationship with the Department of Labor and other consulates, which either may have those relationships or may be reachable.  I know Wage and Hour actually reaches out to the consulates pretty well when they do their outreach.  The consulates advise a lot small business folks from their countries.  And so I think they have a different reach than some of the other groups on the list.

MR. BROCK: I don't remember who had raised this, maybe several of you, besides the conference dimension, a number of you raised the newsletter and magazine dimensions.  I think that's a little bit different as a place to put things.  Can anybody address that?

Let me get Ken in first and I'll come back over here. 

MR. WENGERT: For an organization like the American Society of Safety Engineers, it's 36,000 people.  The conference is attended by about 2,000.  So if you present at the conference, you're going to touch a portion of those 2,000.  It depends on how you (1:07:11) would be on the conference.  It might be a couple hundred, it might be 2,000, if they're not at the bar.

If you did the articles in professional safety, that goes to all members that is part of the dues, so you get a much broader bang for the buck.  Is everybody going to read it?  No, but it's another avenue to get that message out through the membership of some of this organizations as well.

MR. BROCK: Marcia.

MS. NARINE: Yeah, I think that's true.  So even Compliance Week, by the way, comes out weekly.  There's also a magazine called Compliance Week. 

MR. BROCK: Every week?

MS. NARINE: Every week.  It should be every week.  So even if Dr. Michaels couldn't present, I still recommend he presents, but he could also -- the editor, Matt Kelly, does interviews and he can actually interview him.  I think he also does webcasts, but he also does interviews and that might be a nice way to kind of introduce him to the community, either before the Compliance Week conference or kind of just interview him in a way that he knows it's going to attract the attention of the readers. 

The Association of Corporate Counsel, that's kind of the Bar Association for in-house counsel.  You can only go to that meeting if you are in-house counsel, but that is a great way to get to in-house counsel of companies of all different sizes.

MR. BROCK: Through written means?


MR. BROCK: Through written means, you mean?

MS. NARINE: Excuse me?

MR. BROCK: A good way to get to them is by written means?

MS. NARINE: No, it's a meeting.  You have an annual meeting. 

MR. BROCK: Oh, so a member would have to go?

MS. NARINE: Well, no.  Dr. Michaels, he could go and speak is what I'm saying.

MR. BROCK: Oh.  Gotcha.  Okay.

MS. NARINE: He would speak.  You know, again, SEC, DOJ they go, but it's in-house counsel that go.  And again, he could say -- you have in-house counsel for a manufacturing companies and some people will be directly interested in again, not just the SOX stuff, but the 11(c) stuff because that's the stuff they're going to be focused on as well.  And ACC has a very good website.  They also have podcast.  So again, they have lots of written materials. 

SECE, they have conferences, regional conferences.  They have national conferences.  They have certifications, but they also have a monthly magazine.  They're always wanting people to write magazine articles.  So somebody could go write something for Dr. Michaels saying -- and even, I would recommend somebody even putting something in there saying we're looking for comments on the best practices or what is it called, recommended guidelines?

MS. EHERTS: Recommended practices.

MS. NARINE: Recommended practices.  It was best practices for two years, we were calling it. 

MR. BROCK: So you think it was easy to search and destroy, huh?

MS. LESSIN: Like the baby at the christening.

MS. NARINE: You can call it New Scott for all this time and now it's named something else.

MR. ROSA: That's good.  That's a great one.

MR. BROCK: All right.  So that gives everyone else -- so this provides a flavor for how this list came about and we hope that the agency will find it useful for identifying priorities and so on. 

So I want to come back then to page 3 of the category called tools.  Before I do this, anybody else want to comment on this chart?  I just want to give some examples out there.  Okay.  So come back to page 3 in the category that's entitled tools.

MR. KEATING: Sorry, Jon.

MR. BROCK: Oh, go ahead, Greg.

MR. KEATING: I just need one last comment.  And it relates to the issue that I raised a moment ago, and thank you for the clarification on that issue.  I guess I was mistaken, but in any event, there's a whole host of private entities that hold very large conferences.  Whether they're law firms or they're consulting -- big consulting companies or for profit compliance solution companies that they're very aware of this as a burgeoning area and I don't want to suggest certain names, but I think there's an entry sort of saying, you know, large private company conferences or events might be something to consider. 

MR. BROCK: Okay.  I've been making notes for adding useful information.  That's down there.

MS. NARINE: Yeah, because big law firms will have conferences for their clients to attend.  So maybe he's not trying to pitch his firm, but I used to go them when I was a client and they would often have speakers.  I know that, as a client, I would always flock to wherever a government person was going to speak because I don't want here from the horse's mouth what was important to them. 

So it would be a natural audience where the in-house counsel or the HR people would flock to hear Dr. Michaels say these are our enforcement priorities is what we're looking for, et cetera.  So you would only get the clients from that law firm, but that might be 400 people.

MR. BROCK: It might be a very large impact employers.

MS. NARINE: It would be a large captive audience.

MR. BROCK: Just like "as effective as," it's --

MS. NARINE: So it's not an open meeting, per se, but it doesn't have to, from a FACA perspective, it wouldn't be a problem; is that correct?

MS. SMITH: If it's just Dr. Michaels, no.

MS. NARINE: Right.

MR. KEATING: And just for the record, I'm not suggesting my current law firm because we don't even do this, nor my former.

MS. NARINE: Correct.

MR. KEATING: But I'm just saying there's probably, you'd agree with me I think, five or six --


MR. KEATING: -- logical candidates that have close to 1,000 people who come to these conferences --


MR. KEATING -- and they are, like Marcia said, people will flock to the session where the government is going to speak, and I think it can be really helpful.


MR. BROCK: Duly noted.  Good.  All right.  So let's go over to the tools portion.  And again, not to read all the things in the list, but we tried to identify after making up this chart, I tried to take a sweep through it and said well, what are the things that are coming up commonly where there would be things that would be important to have prepared as templates and --

MS. NARINE: I don't know if there are conferences that advocates go to that should be on this list.  Are they --

MR. FRUMIN: We do it in secret.

MS. NARINE: Is it like, a secret handshake?  It is where a crow flies a midnight and then you get in and --

MR. FRUMIN: It was at the table when these guys were sitting there.  We do, but they're not --

MS. NARINE: But you don't want the government to come; is that it?

MR. FRUMIN: No, no.  The steelworkers hold a big conference and half of OSHA shows up.

MS. LESSIN: This says on here, "Union Safety Organizations."

MS. NARINE: Exactly.

MS. LESSIN: It's really union organizations, and we do a health and safety conference every 18 months.  We have over 1,500 delegates show up.  Part of the conference invites management in.  So we have management counterparts coming to a part of that meeting.  So it brings it up to 1,800.  And I believe that Dr. Michaels has been at every single one of these conferences, as have other government folks.

MS. NARINE: But I guess this says union safety and labor centers, but I don't know if it needed to be more broken down more specifically or is that something we're going to do at another go around.  I'm assuming, is that the universe of advocacy organizations?

MS. LESSIN: There's probably, you know, within labor organizations or union organizations, and again, I'd probably take out the word "safety" so that --

MR. BROCK: So union conferences.

MS. LESSIN: You know, union conferences, union organizations that there are specific ones within that.  There are a number of unions that hold conferences and such and I think in the worker center world, there's, you know, possible kinds of conferences.  There's a big COSH conference, the Coalition or Committees for Occupational Safety and Health is in here.  They do a conference every year-ish.  You know, so I think the broad outlines are covered and whatever specifics, you know, any of us can give to, like you did, the conference for Compliance Week is coming up on May 5, 2016, you know, we can provide that as needed.

MR. BROCK: Okay.  So for now, hopefully it's in a helpful state for staff and we can add details or you can come back to people who have specific knowledge of the organizations for contact information.  I think it seems useful.  Okay.  We hope this will be useful.

So back to the tools for a moment.  Again, without reading down the list, as you heard in the description of some of these groups, conferences, journals and so on, there's potential for use of some sort of a template for articles that might appear that could be adapted to the audience and to the author.  There's potential value in FAQs that could be maybe used on some of the websites.  We had some conversation about whether members could have input.  It needed to be, you know, OSHA has to write and bless FAQs that go on their site.  Could we provide input, possibly?

Maybe some basic PowerPoint material and other things that are on here, obviously, to try to arrange for Dr. Michaels to show up.  I'll come to that in a second.  We had a useful, but not entirely conclusive conversation, which has FACA implications. 

So that would have to be worked out, about the extent to which OSHA could call upon, either individuals on this Committee or in ways that the Committee might be able to produce material that you could consider for use.  So we would obviously want to be compliant and useful.

So we identified that there were tools.  We identified that we could be helpful in preparing them and hope that you'll be able to obtain what you need and put it where it needs to be. 

So going down the list, then, senior leadership involvement.  Dr. Michaels' name was taken in vain but usefully here, a number of times.  He volunteered yesterday, quite expansively to be available in the remaining 430 or so days that he expects to be in office, according to him.  Not my prediction; according to him.  And obviously, his visibility, perhaps that of others, in agency leadership within the directorate or elsewhere could generate important visibility.  And you've had some of the particularly useful places to show up.

We also identified and don't have anything especially concrete to recommend about it, but it does have implications, I think, for the product.  The value of the unanimous consensus that produced what was called, at that time, the best practices document, the fact that that was enthusiastically, unanimously produced out of here, gives it an enormous credibility in these kinds of organizations among the professionals on all sides of the aisle, all sides of the labor management table.  And that, combined with an endorsement by the agency, through the document that gets put out, creates, in some ways, the foundation for why anyone should pay attention to this. 

So we wanted to make that point.  You've already gone a nice distance in the draft that you produced in making note of what it's based on and that creates a real value.  But recognizing that value, I'm going to make an editorial comment here; this was not discussed in the Committee that finding a way for us to be able to provide comment of a substantive, constructive, valuable nature to you on the document, I believe there will be some comments on it. 

First, to be able to do that beyond reacting today to a document that we got two days ago, recognizing you have lots of other stuff to do in order to produce it, even as quickly as you did.  It would be very important so that when that comes out, everybody here is standing behind it as enthusiastically as they were at the time.  So we want to work with you. 

My stance is we want to work with you as effectively as possible to make sure those kinds of comments come through, consistent with FACA opportunities and restrictions, and hopefully that can be chatted about here before the day is over.

We also raised the issue here about acting in individual capacities.  Everyone almost certainly wants to be active in helping to create the awareness.  And it seems everybody in this group can be active as individual professionals in areas where they have access and influence to call attention to the best practices.  And as long as that doesn't becoming committee meetings, there's wide opportunities as individual professionals.

We also identified, but didn't have a great deal of discussion about it that in private advising work that probably everyone around this table does with employers or unions or workers or others, to try to encourage attention to the best practices.  There may be ways that the agency can do that, but more likely that comes from members.  Those are places where employers and employees turn to in deciding what actions they'll take in getting an employer to use best practices in the future.  It seems like a good idea.

Moving on, we're fortunate to get some briefings from people that are close to the SHARP program and the VPP program.  VPP being the Voluntary Protection Program where employers can seek a kind of certification for the value of their safety and health programs.  And SHARP being a roughly similar certification or recognition that's done through the onsite consultation programs.  We had a very constructive conversation with the individuals representing those, recognizing they may not be the final decision makers, and came up with the statement here, which I'll read.

"The OSHA SHARP and VPP programs should strongly consider the explicit addition of whistleblower protections and include references to the recommended practices."  It became our understanding after those briefings that is it not required for VPP or SHARP certification, which is this sort of high level voluntary recognition that companies seek, which, perhaps conveys some competitive advantages or communicates to employees something about safety consciousness that neither of them required whistleblower protections to be part of what gets certified.  So they seemed amenable to considering that and also to providing other kinds of guidance and materials. 

So we've made an explicit reference in here, hoping that that will become the case.  And I want to emphasize that these are voluntary programs.  It's not a new requirement that gets let in all companies to follow the recommended guidelines.  So it's not a nose under the camel's tent, it's just to take these important, well-recognized voluntary programs and say this is important too; you should be talking about it.  We got a positive response and hope that that that might carry into the decision-making phase. 

And then a similar recommendation that the onsite consultation program, apart from the SHARP certification aspect, different than what seems to be the current practice, be explicit about the review of the whistleblower protections in employers, where they're asked to consult and to review that and provide advice and information about available sources when they do that.  Again, it's a voluntary activity that employer engage in.

We did have a look at the OSHA Inspector's Manual and found that there is an opportunity for considering mitigating factors when looking at penalties and settlements and that there was room to consider the state of the programs in the employer organization.

The last one, we're a little bit at a disadvantage.  This was something that our distinguished Chair, Emily Spieler suggested on one of our calls that seemed like quite a useful idea, but I've been waiting for her to have the opportunity to speak about it.  So we have not had a more substantial discussion about it and hopefully, when she gets back to the regular activities, she can suggest whether that still seems timely or potentially valuable and we can consider it at the time.

So that's the summary, and I'd like to invite the rest of the Committee to comment or otherwise, and then see what other thoughts there may be from others?

Does anybody else on the Committee want to --


MR. BROCK: Eric, let me just see if anybody else wants to say something.  You're good with that summary for now?

MR. ROSA: Very good.

MR. BROCK: Okay.  Eric, please.

MR. FRUMIN: So on the last page of it, it talks about the new Executive Order for federal contractors --

MR. BROCK: Yes, sir.

MR. FRUMIN: -- on the top of page 4.  And it discusses here, it quotes from the proposed DOL Guidance that's been out for public comment, which is linked, of course, to the proposed regulation by the Federal Acquisition Regulation (FAR), regarding the minimum requirements for settlement agreements to remedy labor violations when federal contractors with labor violations -- when companies with labor violation are bidding on federal contracts. 

So your possible or existing contractor, a contract is put out for bid and you want to bid on it and you've got labor law violations, including prominently OSHA violations.  So this mentions in the text here, this quote from the DOL Guidance, which is effectively a binding regulation that contractor will need to have a health and safety program as a mitigating factor to allow them to be properly considered as a bidder if they have labor law violations, especially if they have the kind of serious labor law violations like repeat and willfuls that would raise a flag.  This talks about the need for a safety and health program. 

So what this doesn't mention in what comes from the same section of the Guidance is the specific requirement for programs that promote worker reporting the violations in the following language.  So I think we need to add this language to this document.  So it's just a continuation of the section you quoted from.

"An enhanced settlement agreement or other compliance programs to foster a corporate culture in which workers are encouraged to raise legitimate concerns that would, under other circumstances, go unreported."  Excuse me.  "Raise legitimate concerns about labor law violations without fear of repercussions.  Such programs and procedures made proper is to report violations that would, under other circumstances, go unreported.  Therefore, the implementation of such programs and procedures will be considered a mitigating factor, particularly as to violations that might otherwise be deemed repeated or pervasive."

So there's now a kind of joined at the hip intention from the -- starting with the Executive Order because this all flows from the Executive Order.  The Executive Order is a specific mandate to promote open environments for workers to report violations, down through the DOL guidance.  Down through the proposed FAR regulation.

For settlement agreements in OSHA compliance cases, not whistleblower cases, necessarily, but OSHA compliance cases to have detailed provisions on protection of workers from retaliation, which never goddamn happens in existing OSHA practice, much to our dismay, over the many years.  If you'll allow the motion that accompanies my comment, which we've been complaining about for a long time. 

Why have the anti-retaliation provisions have not been included in settlement agreements on a regular basis, escapes me.  But now the Executive Order from the President, as reflected in the proposed DOL Guidance, mandates that in order for a settlement agreement to be considered a mitigating factor, to allow Lockheed Martin to bid on a $20 billion weapon system in the presence of serious OSHA violations, they have to have an anti-retaliation program in their settlement agreement to correct the serious OSHA violations.

So I think it's incumbent upon this group to make it very clear to the rest of the agency, including the people in enforcement who work on this DOL Guidance that they need to take seriously the substance of a real anti-retaliation program, since they have almost no experience in doing that in settlement agreements.  Next to never. 

And of course, to look at the anti-relation provisions in whistleblower settlement agreements, particularly the creative one, which have gone above and beyond the normal back pay or whatever, and force companies to cut the bullshit like at BNSF or Western Truckers or the major innovative settlement agreements that dealt with corporate wide problems, et cetera; not just the run-of-the-mill back pay or even punitive damages because this is really about promoting an ongoing worker reporting the violations in companies who are already out on the limb and promising to fix everything so that going forward, Uncle Sam isn't cutting checks by the billions to contractors who continue to violate federal labor law, whether it's OSHA or the Feds. 

So if we can amend this italicized section to include the rest of the provisions from that same paragraph that I was reading from in the DOL Guidance.  That would be great.  And more important, if the WB -- WB the directorate --


MR. FRUMIN: If the directorate could report back to us about its future contract with the people in the agency and DOL who are working on implementing the Guidance, that would be good.  Is that clear?

MR. BROCK: Anthony, what's the appropriate procedure?  Can we just discuss that here?  Do we need a motion or can we discuss it and state the motion for a directorate or --

MR. FRUMIN: No, it's not a motion.  I'm just offering it as a suggestion for revising the document.

MS. BETTS: Well, I think if it's going to be an amended recommendation, I guess we want a motion to amend the regulation and a second discussion --

MS. LESSIN: Second.

MS. BETTS: Okay.

MS. NARINE: Is it a recommendation or is it an amendment to the draft --

MR. FRUMIN: It's an amendment to the draft document.

MS. NARINE: -- dissemination idea?

MS. BETTS: Yeah.  I mean, we're making a lot of recommendations to change this document before it's finalized, right?  So what I hear Eric saying is that this should be included just like we as we've been discussing. 

MS. NARINE: Just like the search and destroy.

MR. BROCK: I just asked for a protocol.  Okay.  No, go ahead.

MS. LESSIN: They're figuring it out.

MR. BROCK: I'm not trying to interfere with the discussion.

MR. ROSA: No, no, I know. 

MR. BROCK: Okay.  So we can just discuss this as we've discussed everything else?

MR. FRUMIN: And when we ultimately have a lot of revisions that we're going to vote to whether -- these are ideas.  I mean, ultimately, we'll need a motion to approve all the things that have been put in, but I don't think we're there yet.  I mean, I think --

MR. EHERTS: We're having the discussion.  So this is now part of the discussion.

MR. BROCK: But I would support that.

MS. ROSENBAUM: I want to echo, I just think the point of this document on dissemination of the underlying document is about building up best practices.  And in the low age workforce, that particularly vulnerable workforce, where I have the most experience, we often see whistleblower and safety and health investigations going forward together. 

In many cases, the whistleblower investigations fall aside the health and safety violations go forward, but everyone knows by the end of the citations that these3 violations have been in place a long time and workers had not come forward.

And as Dave said, you want people to come forward early.  And because the whistleblower investigation isn't there, the whistleblower issues get lost, but it's in everyone's interest when you're having these compliance discussions to bring this in.  It doesn't feel to me like the employers or the workers are at odds in that moment when you're trying to really effect a culture shift and you have a very concrete example, albeit in the health and safety citation.  So this is my first time to this conversation, but I would really encourage it and I think it's very much in line with the texture of the conversation that we're having.

MR. BROCK: Other comments.

MS. NARINE: I don't have an objection to the language.  I'm just curious as to why wasn't in there in the first place.  Do you know?

MR. BROCK: You mean in our document?


MR. BROCK: Emily sent an email about this about two calls ago, and she hasn't been able to join for various reasons.  So I kept waiting for her to, perhaps, give the kind of explanation, perhaps, as what Eric just did.  I don't know the context.  I get the idea that if we're going to require this of contactors,

MS. NARINE: I think it's a requirement.


MS. NARINE: Well, I think that this is just a --

MR. BROCK: It's not us.

MR. ROSA: It's a recommendation.

MS. NARINE: It's a recommendation.

MR. ROSA: Recommendation.  Right.


MR. ROSA: So I guess the question that I have is -- and I'm just looking at 2:29 p.m., we have about 'til 3:30.  Is the plan of the full committee to go through the document, make any revisions and vote on the document before we adjourn for the meeting?  Because you may want to go ahead and make some of these revisions if you want to include those. 

Or is this just an ongoing conversation that you plan on having further discussions on?  I just want to get a better gage as to where we're heading.

MS. ROSENBAUM: Just to piggyback on Anthony; the reason I made the comment I made is just to the extent that this is a document that you want to transmit to the agency.  As a committee, you would either need to do it today or at the next meeting.

MR. ROSA: Right.

MS. ROSENBAUM: So if you wanted me to change it to this document and submit it to the agency, you know, we should be doing that as we go. 

MR. BROCK: Yeah.  What we did last time is we took the input, clarified that that's what we were going to do and those edits were put in, in typewritten format --

MR. ROSA: Correct.

MR. BROCK: And gave it to you a day or two later.

MR. ROSA: Right.

MR. BROCK: So we certainly could do that.  There were a couple of edits that were pointed out.  For example, on this couple of additions to the chart, which I was intending to make and which we can review before we close here and then as we did the last time, we'd say does everybody support this document.

So what we have here is an additional comment by committee members, which we had last time, suggesting something be considered for addition.  We did that the last time.  Some things made it in.  Some things go modified. 

MS. NARINE: I should know this, but is Emily a committee member?

MS. LESSIN: She's not a committee member.

MS. NARINE: She's not a committee member. 

MR. ROSA: Yes, she is.

MR. BROCK: She's a public -- she's a public member.

MS. NARINE: She's a public member.  Is she going to have time to vote?

MR. BROCK: Let me move these all down one.

MS. BETTS: I think Emily typically doesn't vote.

MS. NARINE: Okay.  That's why because she's not a voting member.  That's why I was confused.

MR. BROCK: She is, but she's opted marginally to vote.

MS. NARINE: She never votes.

MS. LESSIN: She can break a tie.

MR. ROSA: She's opted not to, but she a voting member.

MS. NARINE: Okay.  That's why I was confused.

MR. ROSA: And currently, we have 10 members because you have nine here and you have Christine on the phone.  So we have a total of 10 members right now.

MS. BETTS: So you have a quorum and could vote.


MS. BETTS: You know, my goals as counsel to the Committee is just to make sure that's it's clear on the record what the Committee is agreeing to.  If we need to type it up afterwards, that's fine, but we shouldn't be having further discussions about do we include this or do we include that on the substantive issues outside of the meeting.

So if, for example, you wanted to add language, we would want to be clear on the record what language that was when there was a vote.

MR. ROSA: Right.

MR. BROCK: As we did last time. 

MR. ROSA: We did it last time.  Correct.

MR. BROCK: We did a good job.  It was a little complicated and hard to keep notes, but we --

MS. NARINE: So are you, Jon, going to be able to -- do you have Emily's proxy to add language to her section?

MR. BROCK: I didn't have any particular discussion with her to gain her proxy.  What she described in the email in a brief conversation was that she thought this was an appropriate vehicle for potential comment by this Committee to encourage the inclusion of the best practices or recommended practices, along with the other requirements that are summarized here.  She thought it was worthy of consideration. 

She made a personal comment into the docket on that and hoped that we would find an opportunity to discuss it and proceed.  It's not an issue that I'm heavily familiar with, so I haven't -- I don't have lots of texture to add to it, but that's --

MS. NARINE: So cutting to the chase, as a practical matter, we have a lot of people.  We have a lot of passion, even if she was adamantly opposed to Eric's passion, she either doesn't vote or she has one vote.  So we could proceed whether she was here or not.

MR. BROCK: And I think --

MS. NARINE: Not to be crude but --

MR. BROCK: I mean, I left it on here even though it hadn't been discussed, substantively --


MR. BROCK: -- out of respect for her views.  That we are discussing, it would not disturb her that we're considering including -- something about it would not disturb her.

MS. NARINE: Okay. 

MR. BROCK: What she would say about any specifics or specific words, I don't have any way of telling.

MS. NARINE: Okay.  Thank you.

MR. ROSA: And the reason I mentioned the time is we have about 30 minutes of wrap up.  And in that discussion, I'm going to make some mention of some decisions that Emily and I had made with regard to work groups.  So I think that's very important.  And if we can even do that sooner, in case somebody has to leave early, I want to make sure that the information is not going to presented to about where we are going forward with these work groups.  That everybody gets that information.


MS. LESSIN: Okay.  I just wanted to get clear what exactly we're doing right now.  I have something that I want to raise when we're finished doing that is related to this, but it's not language.  It's not anything like that; it's a question for the group.  But the first piece of this is what do we need to do now?

Can we get this document such that we can vote on it?  My issue is January 19 is when comments are going to come in.  OSHA is going to do whatever it's comments --

MS. NARINE: Comments are due back.

MS. LESSIN: Right.  -- are due by January 19.  OSHA will take them on their recommended practices and will hopefully then be moving forward.  I don't know when our next meeting is.  It could be April, it could be May.  It would be nice to have this crisp document in OSHA's hands so that when they do finalize this, they could meet the May 5 deadline for, you know, whatever, of the Compliance Weekly.  Whatever.

So I would like to --

MS. NARINE: There's other priorities.

MS. LESSIN: -- see what it is that we would need to do to see if we can be finished.  Be done.

MR. BROCK: Okay.  Here's a way to maybe get us where we all want to get quickly.  The only edits that I am contemplating, based on what I heard in the last hour or two are to get the thing that I didn't search and destroy out, the WBBP, which is the old reference I was using, which is on the last page of the text, page 4.  And I'll say recommended practices instead.

MR. ROSA: And it's on page 2 as well.

MR. BROCK: Oh, is it on page 2?


MR. BROCK: Well, I better get busy with my search and destroy on the top of page 2.

MR. ROSA: Third line.

MR. BROCK: Yes, I see it.  Thank you.  And other than that, in terms of, as this document was processed by the working group, I had a variety of notes on the chart, Associations of Corporate Counsels to include Dr. Michaels' notation in that newsletter and Web, to include in Compliance Week, Dr. Michaels to take out the words -- it's about the fifth one down on the first page of the chart -- to take out "need good product," which doesn't tell us much, but put in, "article by Dr. Michaels webcast," and note that it's a popular weekly magazine.  To note under Compliance Week that many agencies go on Society of Corporate Compliance and Ethics to note that they have regional events as well. 

MS. NARINE: And the SCC attends those regional events as well, by the way.  Other government agencies go. 

MR. BROCK: Agencies attend to change the reference to union safety organizations, to union conferences.  Going onto the next page, the National Staffing and American Staffing Association to add in the larger box towards the middle that they have increasing impact, which I think references what we've been talking about. 

Mexican Consulate, to add "Mexican Consulate, others," and note that there are agency alliances in place.  Down at the bottom, American Society of Safety Engineers, to note that the safety journal is high impact.

Next page, I was going to include the acronym for SHRM, since that's more commonly the way it is known.



MR. BROCK: S-H-R-M?  Okay.  Thank you.  Glad I mentioned that.  And then in the next column to say that it's -- there are both large and small.  It includes contractors.  And then to add a line just near where it says "others," large private conferences, and then in the middle column, "to send speakers and materials."  And that's what I picked up.

MS. NARINE: The only thing to add -- and I don't know, again, whether -- if Dr. Michaels is basically going to be a one-man show or whether you could have regional people do stuff.

MR. BROCK: Or Mary Ann for that matter.

MS. NARINE: Right.  So a two-person show.  But the National Association of Manufacturers and the U.S. Chamber, they also, of course, have all their state arms.  So, you know, in Florida you have -- God, I used to go to the thing every year and tell OSSE.  But they have their regional stuff every single -- in every single state they have those and those are other very powerful industry organizations where messaging could get out.  So they might not be huge, 500-person meetings, but they are very powerful industry organizations where -- Associated Industries of Florida --

MR. BROCK: Sure.

MS. NARINE: -- is the one I'm thinking about.  So again, it might be maybe regional representatives could go and speak if they're deputized.

MR. ROSA: And you're actually correct.  A lot of times -- and just to clarify, when you make references about Dr. Michaels being the one to speak, it would may be Dr. Michaels, it may the regional administer in that particular region or the assistant regional administer for whistleblower programs, or Mary Ann or myself, or anyone within the directorate that will be speaking on behalf of the agency, yes.

MR. BROCK: So to take account for that, why don't I put on page 3, where it says senior leadership involvement of visibility, why don't I say senior DOL leadership involving visibility and what role in outreach could Dr. Michaels or other --

MS. NARINE: The other officials are there, b but I just want to make sure that -- the chart is not clear, it's just Dr. Michaels going.  Michael's article.  Because there might be other people that are -- because it might make more sense in a regional publication for the regional person to be the face of it.

MR. ROSA: That's right.

MR. BROCK: All right.  So I will put Michaels or others, wherever that seems relevant.

Nancy, comment on that?

MS. LESSIN: No.  I had two other things that I'm not seeing here, but maybe they're here and I missed them.

MR. BROCK: Okay.  Let's see.

MS. LESSIN: One is, I think that there are schools that taped HR.  Is there an association of --

MS. NARINE: I think it was a university program.

MR. ROSA: I think it's on there.

MR. EHERTS: University Labor program.

MR. ROSA: University programs. 

MS. BETTS: University of programs that train lawyers --

MS. LESSIN: -- professionals.  Okay.  Got it.  And then the other one -- is rail on here?  Given that they --

MR. BROCK: You know, I'm not sure it is.  I'm not sure it is.

MS. LESSIN: -- are the single largest --

MR. BROCK: What's the relevant industry --

MS. LESSIN: I don't know.  What's the -- employer organization?

MR. FRUMIN: American Railroad --

MS. LESSIN: American Railroad Association?

MR. FRUMIN: Association of American Railroads?  It's double AR. 

MS. LESSIN: So I would just sneak them on there to see what happens.

MR. BROCK: Well, they certainly should be reached out to.  Okay.  Duly done.

MS. ROSENBAUM: I have one other addition on here.  We have an ABA on here but --


MS. ROSENBAUM: Well, that's on here, but state bar associations might be another place to add.  I mean, I know, also, many state bar associations have labor and employment law sections.  I mean, from own experience in Michigan, we have a quarterly newsletter that comes out where it's widely disseminated.

MR. BROCK: Okay.  So I'll add state bar, labor and employment law next to the ABA meetings.

MS. ROSENBAUM: Yeah.  I mean, it might be a subset of that.

MR. BROCK: Okay.  That's a good reminder.  Okay.  So those are the changes.  I suggest we determine if we're adopting this and --


MR. BROCK: Then I want to come right to that and see what the discussion is. 

MS. BETTS: Just to note, the one problem with just doing this all orally is that, you know, we're not going to have a written document here reflecting the vote.  We're going to need to go back to the transcript and we're going to trust, you know, we'll do some checking and whatever.  I'm sure Jon will get the oral comments back into the record, but if you want to sort of this now, take that, you know, just think about how the best way it is to get it into the record.

MR. BROCK: What I was going to try to do is parallel what we did the last time, which seemed to --

MS. BETTS: Yeah.  Last time Emily wrote everything down and --

MR. ROSA: Last time we actually had --

MS. BETTS: -- then we put that in the record.

MR. ROSA: -- written addendums that we put into the record.

MS. BETTS: Yes.  So this is a little bit different than what we're done before, to the extent that all of these amendments are oral and we can have a motion to amend as orally described. 

MR. BROCK: As spoken.

MS. BETTS: And then a second and a vote.  That's fine.  It's a little messier, but it's all on the record.

MR. BROCK: Let's do it properly.

MS. BETTS: Let's do our best to be clear about if there's one thing you want to add or change.  So if it makes sense to vote on all of those changes and then talk about Eric's change, whatever you all think is the best way to accurately preserve what you're voting on.

MR. ROSA: Unless you want to discuss Eric's change and include that.  That's up to you.

MR. EHERTS: Why don't we do that.

MR. BROCK: Fine.  Fine with me.  Okay.  So let's get a sense of how you react to that.  Let's see how complicated the discussion might be or might not be and then we can see what specific language we might want to consider if that's where people are headed.

MS. NARINE: I'm in favor of adding the language directly as it's written in the statute to avoid any confusion.

MR. FRUMIN: It'd be nice if I could see the language.  I don't even know what it says.

MS. NARINE: Oh, I'm sorry.  The Executive Order.

MR. FRUMIN: Well, it's the Draft DOL Guidance.  It's actually in the Executive Order, but anyway it's the Labor Department's discussion --

MS. SMITH: Do you want me to make a copy?  I can quickly run a copy right now.


MR. FRUMIN: Okay.  That's good.


MR. BROCK: Okay.  Well, then we'll introduce that as an exhibit.

MS. SMITH: And if you could write down everything that you can remember.  That would be great.

MR. ROSA: If we can take every of the other changes and put that on the exhibit record.

MS. BETTS: So I know Jon has done that.  I was not able to keep up, so I think we have it orally.  If we want to have a written exhibit in the record, reflecting what people are voting on, we're going to need to go through those again.  I mean, you just had more time last time.  I think Emily went during a break and wrote everything down and then came back, read it all out as written and voted on it.  That's a little bit cleaner, a little bit safer, but we have everything spoken, so we should be able to vote --

MR. KEATING: I would submit that so far, they are semantic changes.  They're just adding minor -- and I have no problem trusting that Jon will implement this.  I don't think any of them are substantive.

I would note, however, that on the area that Eric raised, I mean, something that regardless of the rest of the language that I'd like to read, the bullet says, "Comment by WPAC on implementation of EO.  Should WPAC comment on EO, re: labor violations and federal contracting?"  And I'm a little bit at a loss as to sort of what are we voting on here?  That we should comment at some point?  Should we comment now?  Which I'm not comfortable with at all. 

So I don't really understand what this language -- or the suggestion on the bullet is intended for us to do.

MS. NARINE: I think if we're going to comment, we have to comment on the language without an ellipsis.  We have to comment on the language as written because I think my concern would be commenting -- the ellipsis leaves out an important part.  That's what my concern is.

MR. FRUMIN: We'll have the whole document in a second.  Greg's pointing out that the way it reads now, it's a question about whether we should comment on either this excerpt or the whole language rather than, you know, a specific recommendation, blah, blah, blah.  Right?


MR. FRUMIN: So that's a bit of a dilemma.  So if we want to change the thrust of what's on the paper, to not only expand it to include the stuff I talked about on anti-retaliation provisions, we also need to change the thrust of this to say that we are offering a comment, not should we.

MR. KEATING: And given, largely, the time constraints, for one, and two, the purpose of this document, which is dissemination ideas around the directorate's new guidelines, I mean, I just think this is branching into important, but completely separate territory.  That's my view.

MS. NARINE: I would also -- I could go either way on it, however, I would rather have the discussion with Emily here since it was her suggestion.  And we will also have, I guess at some point -- I think it's a very important issue that deserves a lot of discussion, especially since we will, at some point, have some fresh people on the committee that might have fresh ideas.

I would be interested in what Emily was thinking when she proposed this.  So think if one of us had proposed it, we could kind of flush it out a little bit more, and especially given the fact that Eric has such strong feelings about it.  Emily had very different -- I mean, I can't image her feelings are different.  Who knows?  But I can't speak for her.

So since she wrote about should we comment on it, I don't know -- she didn't say we should recommend that this be included.  So I don't -- and she's pretty precise. 

MR. BROCK: I just copied her email onto here.

MS. NARINE: So that's why I'm concerned that she might not have expected this to be a recommendation, but more of a discussion point --

MS. LESSIN: That's a question.

MS. NARINE: -- which means that she should be here to discuss it.  So my recommendation would be to table the discussion until she's here because it might lead to a much bigger discussion of what our position is on this and where this should go.

MR. ROSA: So do you suggest tabling the discussion on the entire document?

MS. NARINE: No, no, no.  On this --

MR. ROSA: Just this part.

MS. NARINE: Because she said should we comment on it.

MR. ROSA: Okay.  No, I just want to get clarification.  So you want to move forward with the rest of the --

MS. NARINE: Yeah.  I think these past two days have been a complete --

MR. ROSA: -- documentation and move the rest of the suggestions and recommendations forward and then table this until later.

MR. FRUMIN: That's fine.  Yeah.  Okay.  And then we can have a robust discussion.  We can review it and see --

MR. NARINE: But only Eric can do that same level of verve and passion again, right?

MR. EHERTS: I think he can.

MR. FRUMIN: My frustration won't have been abated by then, I can assure you.  I voice my cases rife with anti-retaliation provisions.

MS. BETTS: Just to be clear for the record, I think we would need a motion to remove this language from the document.  A second and a vote, if that's where the Committee --

MR. KEATING: I'll make a motion to remove the bullet, the second to last bullet of the document, beginning with, "Comment by WPAC on implementation of EO from --

MS. BRETT: I'm sorry.  Was there --

MS. ROSENBAUM: I just has a procedural question.  We haven't yet voted to approve this document as it --

MR. KEATING: That's the next vote.

MR. ROSENBAUM: So how are we voting to take something out of it before we voted to approve it?

MS. BETTS: I think we typically treat a working group document as a motion or a recommendation and then what we've been doing in past meetings is that if changes are made to the working group document, they're made a motion to amend and then the vote would take place after -- I mean, the vote would take place on the document, as amended. 

MS. ROSENBAUM: Okay.  I don't understand the procedure well enough, but we just orally proposed a bunch of changes that we didn't vote on one-by-one.  Can we add this change to the list and then vote on them in mass?  That feels the clearest to me, in terms of dealing with --

MR. ROSA: So you want one vote on all the additions, as well as this recommendation --

MR. KEATING: On the addition to the subtraction.

MS. BETTS: That's fine.  Procedurally, the only point of all this procedural mumbo-jumbo is just to have it clear on the record what you're voting on.  So that was my intention.  If it's clear to say all of the oral changes that Jon noted, plus removing this and just have one vote at the end of it, that's fine, as long as everyone sort of collectively understands they're voting on the same thing.

MR. BROCK: Is that comfortable?

MR. EHERTS: That's good.

MR. BROCK: Eric, comfortable to you?

MR. FRUMIN: Yeah, that's fine.

MR. BROCK: Okay.  With my red pen, as everything else, based on discussion, oral discussion, we're going to take out that point.  We are planning to take it up again, assuming any of us are reappointed.  And crossing it out here doesn't mean we're not interested it any longer, it just isn't part of this document.

So is that --

MS. NARINE: And for the record, that point being page 4 comment by WPAC on implementation of EO.

MR. BROCK: For the record.  Nancy, what do you have to say about this?

MS. LESSIN: It's not about this.  It's about the next dot that I think doesn't belong here. 

MR. BROCK: It doesn't belong here either.  Then I don't get accused of the search and destroy failure too, so that's good.

MS. LESSIN: So that's' what I'm thinking.  Both of the bullet points on page 4, I think, you know, then shouldn't --

MR. KEATING: All right.  So can I make a motion to remove the last two bullet points on page 4 and to incorporate all of the substantive changes Jon went over orally and approve the document for awarding OSHA as such.

MS. NARINE: Second.

MR. ROSA: Okay.  All those in favor.

(Committee voted collectively voted "aye.")

MR. ROSA: Christine?


MR. KEATING: Boy, talk about suspense.  Suspense.

MR. ROSA: Okay.  The motion passes.  Thank you. 

MR. BROCK: Okay.  So Nancy, what thoughts do you have to share?

MS. LESSIN: So this may be fitting into sort of where we're going, but I want to -- we've just talked about something for employers to get them to do the right thing.  We have also had a discussion that some employers are not going to be swayed by this.  And I wanted to make the comment and actually get it right this time.  In the online journal, Fair Warning, their October 21, 2015 article called, "For Big Railroads: A Carload of Whistleblower Complaints," this is the organization that got the -- I believe, FOIA data.  They went back eight years, from October 2007, through June 30, 2015.

The companies that were the top 10 for whistleblower complaints, three of them are not rail carriers.  The United States Postal Service, United Parcel Service and AT & T, seven of them are rail carriers.  These folks have gotten many, many complaints and have had, you know, fines and have had penalties and court cases.  We talk about here's something to get employers to do the right thing.  And then we have sticks for those who aren't doing the right thing. 

We are the Whistleblower Advisory Committee that is supposed to be advising OSHA on what is the best way to protect workers.  My question is I don't think we have anything right now that's dealing with this type of company that has gotten the sticks and is ignoring them.  Is ignoring the good guidance.  And if our role as the Whistleblower Protection Advisory Committee is advising OSHA on how workers can best be protected, there's a lot of workers out there that are, you know, escaping the protections. 

And what OSHA has it its trick back, you know, good guidance.  This is what you should do or here's what's going to happen to you if you do it, is not hitting this group of people, which for me means it's not hitting thousands, and thousands, and thousands of workers.  So the question is what advice can we give OSHA on situations like this where neither their carrots nor their sticks, nor their guidance, nor their advice, nor their penalties is working? 

Is it well, there's nothing we can do; so sad, too bad? 

Or is there something that we can look at in these very important situations?  So that is what I'm putting on the table.  And if somebody wants to make a copy of -- well, not mine because I've written it up, it is, you know, that can circulated, electronically.  I think it's an important thing for us to fulfill our role.  What do you do about this situation?

MR. ROSA: And, you know, I just want to say you are raising some very good points.  We have been discussing this.  In fact, right after we had our Advisory Committee the last time, had our assistant regional administrators have our own meeting.  You remember that they attended the last meeting.  And then we had three additional days of having discussions and strategizing as how do we address some of these issues.  And one of the things that we are kind of -- and we would seek to your advice and guidance to any ideas that you could bring to us. 

One of the things that we are looking at is similar, again to the safety and health side, where they have the Severe Violator Enforcement Program, the SVEP program.  We're looking to see can we have an SVEP program similar here on the whistleblower side.  The only issue that our program is pretty much reactive, a complaint has to come in.  But in the SVEP program, if you find a worksite that has serious hazards and you determine that these serious hazards could possibly be existing in other plants or facilities within that employer, you can expand and do programmed inspections.  Well, we can't do programmed investigations. 

So how do we create a program that's going to look at these serious violators when we depend on getting complaints coming in?

Yes, Eric?

MR. FRUMIN: On the other hand, the ground is shifting on this subject, on this very question because OSHA has proposed an amendment to its recordkeeping regulations to prohibit employer policies that result in discriminatory treatment of workers.  And the enforcement of those regulations could be carried out in the same way that other regulations are enforced.  And presumably, would be done, at least in cooperation with the work of the directorate.

MR. ROSA: Correct.

MR. FRUMIN: I won't ask the question: Are you guys involved in planning that regulation and anticipating the enforcement issues?  Don't answer that. 

But that could be, in effect, you know, within a year or two.

MR. ROSA: Right. 

MR. FRUMIN: So I think we have to think about this now in a forward looking way, which anticipates the enforcement side, the compliance enforcement side and the directorate, working more closely on targeting employers with regressive policies when it comes to a worker reporting violations, or hazards or injuries.

MR. ROSA: Right.  And that's similar to what we've done with other agencies, DOE and NRC.  They kind of -- we piggyback on them or they piggyback on us.  When we find that there's been reasonable cause.  That there's a violation on the worker protection side and they, on their end, can issue a fine against the employer while we issue a relief against -- I believe, for the employee, similar to what this proposal is in the 1904 regulation. 

So that's something that we are looking at, once get the -- the comment period just ended recently, so I'm sure the directorates that are working on this are compiling all those comments and I may take some time to get that through, but that's one avenue that we have an opportunity to have somewhat of a deterrent with employers.

Another thing that I'm even thinking, outside the box, is you know, on the safety and health side, depending on the egregiousness of the hazardous conditions, an employer may be held liable, criminally.  So is that something that we can do?  I don't know.  That's something we possibly can see if it's continuing on the same basis and is ongoing and we can issue the maximum punitive damages over, and over, and over again and it's just a check out of an insurance plan.  That maybe we need to step it up.  And that's part of the things we're looking at on our Severe Violator's Program to see if maybe we need to step this up a little bit more.

MS. NARINE: I remember when I used to do training on any number of things, whether it was the Fair Labor Standards, where I would say and you can to jail.  The first thing that somebody would say is when was the last time somebody went to jail?

I always get asked that question.  And so unfortunately, sometimes, you know, I will tell you, in my old company, when we used to move settlements to the P & L of the location, things very much changed.  When the law department took the settlement hit, it was no big deal.  When the locations took the settlement hit to the P & L, all of a sudden, super compliance. 

So it is what it is.  I'm just saying, that's the reality of the world.  So I think when people are worried that they might to go to jail when settlements start to hit the location, it's just the way of the world.  So I think if people started -- it's not that you're not being obviously excessively punitive, but if there are tools in OSHA's arsenal that they could use that is legitimate and warranted and proportionate that aren't being used, I think that is how you will get people's attention because I do worry -- and you'll talk about the subgroups.  I know we just bantered the rail subgroup, but I do worry that seven out of ten are rail.  And I was part of that rail subgroup and it was very difficult to get a lot to traction, you know, but that was really important work that really needed to get done.  I don't know if that's one of the subgroups that you say is going to be resuscitated, but I don't know what to with that.  But that's a huge problem and I don't know what you can do to improve that, but maybe somebody needs to go to jail.  I don't know.

MR. ROSA: Right.  Right.

MR. KEATING: I just think the key words in what you just said are, to the extent they're in OSHA's toolkit because, you know, one of the things that I think -- I mentioned this yesterday and I'll say it again that I have been personally very proud to be part of a group that has been incredibly hardworking.  A lot of very diverse perspectives and we've been able to come together and have unanimity on every occasion.  But I'm also cognizant, as a result of having read some recent reports that there have been, on at least one and I think two occasions where a group of U.S. senators has written OSHA and blasted them for, you know, issuing what was guidelines that really was changing the rules.  I think we should be very circumspect about not going too far out on a diving board to recommend stuff that there isn't statutory authority to do.

MS. NARINE: So I think this would be a combination of -- and this was talked about in the rail group and why we got very little traction as well, a combination of a lot more incentives and mitigation and something that rewards good companies and mixed companies want to do better.  And possibly, again, the use of the strongest possible penalties and criminal sanctions; again, when already justified by existing law, not going outside the bounds of the law and not changing the rules of the game because employers do need certainty and they need to know where the lines are.  And if they think the rules of the games are going to shift with whoever is in charge, then either they're going to game the system and say we'll outlast this Administration, but they need to know what the rules are.

MR. ROSA: But there is one issue that we did -- and I'll get to your comments, but we talk about to the extent of the law, we did that in one particular case in Region 4, specifically with Gaines Motor Lines, where there were four complainants, and instead of just issuing the maximum punitive damage once, we did it per person.  So similar to what OSHA does when it does its penalties per instance rather than just one time. 

So there are ways that we can expand our order without -- while still staying within the confines of the statute.

MR. EHERTS: I just want to make one point.  There's a law for increasing financial penalties, but the criminal side is very, very complicated.  And I know from investigating aviation accidents that if there were never criminal sanctions a part of it, the investigation stops prematurely.  And I think you also tend to keep very good people out of the field of VHS if you start adding criminal sanctions to it.  I mean, you take the best minds to go into some other business, go into law or something, but don't go in that safety.

So I just think it warrants a much longer discussion.

MR. ROSA: Absolutely.

MS. LESSIN: So the hour is late.  I don't think that this should necessarily be work group at this point, but I do want to put it on the table for this discussion.  And I think probably see criminal sanctions different from you and I would love to have that discussion, but it worries me that workers are out there and they are not being protected.

MR. ROSA: Absolutely.

MR. EHERTS: I definitely think it warrants more discussion.

MR. ROSA: Absolutely.  And thank you for that.  I just wanted to check with Jon.  Before we move into the wrap-up, I just wanted to make sure that -- is the group completed with the best practices discussion?

MR. BROCK: I think with the passage of the motion, I just need to spend a half-an-hour making those edits and provide them to you.


MR. ROSA: Okay.  So I can move on to the wrap up.  I had some discussions with Emily and even with Dr. Michaels. We actually had a conversation yesterday, the three of us, in fact, Jordan Barab and Mary Ann.  So the five of us had a conversation yesterday.  And as we move forward from this point with the work group, as Dr. Michaels mentioned yesterday, we are creating a new work group, with the training work group.  And I know that some individuals here had made mention in the past that they had some interest in being part of a training work group.  This is for in-house training.  And the charge, and I'm going to put this as an exhibit for the record, it says, "OSHA is revamping its training program for whistleblower investigators.  While we have figured out the general scope of the training, there are still some pieces that we would like to put into place.  That's why we are creating a new training work group."

Two bullets.  1) The focus of the work group's activity should be to develop training topics or suggestions that are not currently included in OSHA's recently published directive.  Mandatory training programs for OSHA whistleblower investigators.

Second bullet: Specifically, I would like you to identify existing training outlets, materials, venues and opportunities that could assist our training in such matters as interpersonal issues, labor management relations, systemic issues and industry-specific topics for the 22 statutes that OSHA administers. 

So I'm going to give this as Exhibit No. 6.  And again, in the coming weeks, Emily and I will have discussions as to who we want to put into this group, who will be chairing the group.  Any interest that you have, please let us know and hopefully we'll get that started right away and we'll have something ready for the next meeting.

In addition, as you mentioned, the transportation group, we have decided to formally sunset the transportation group.  We've had a lot of discussions.  Emily, I think she came to D.C. about three or four times in the summertime and we had a lot of discussion about what to do with regard to the railroads. 

We don't want to totally table it; we're just trying to find a way of how we can address the issue with the railroads.  But the transportation group, as it currently stands, is being sunseted.  And if we need to, we will repurpose a new group that would be targeted specifically to railroads.  And that's something we're going to have further discussions.  Any ideas that you have, please share them with Emily and me because we want to be able to get that going.

On the 11(c) work group, that's a group that we haven't had much activity in the past year, since September of last year.  We have decided that we want to sunset the group, unless you have any specific issues that you want us to consider.  And I just wanted to open that up to see if you have any specific issues on 11(c) that you want us to consider that we may want to keep having this dialogue and potentially, maybe repurpose the group to something else.


MS. LESSIN: I will say I think 11(c) isn't working.  There's a lot of reasons that it isn't working and some of them have to do with the statute and some of them have to do with things that need to change out there, but I do think that there are -- when we look at cases and I talk to others who are, you know, going through cases, I think that there are problems.  I'm not sure what all they are; cases that should be settled are languishing for two plus years.  So I'm thinking that there may be some specific kinds of things that are getting in the way of an imperfect statute being more imperfect than it needs to be.

I don't think that there needs to be a work group at this moment.  I think there's some exploration that needs to happen to look at what are those road blocks and then a committee can come together, thinking about, you know, what could happen to change that picture, or there could be a work group right now saying all right, let's hear from folks what are the issues.  But I do think that 11(c) should remain on the table for their being a work group, but perhaps, maybe some more thinking about what are those things that recommendations from a group like this might help OSHA make 11(c), as it's written now, more effective than it is.

MS. NARINE: Is there a benefit to having 11(c), the work group, focus on training for employers or do you think that there is enough information for the employer community on what they should and shouldn't do.

MR. EHERTS: Isn't that part of new working group?

MS. NARINE: Well, the new working group is focusing on OSHA training.

MR. ROSA: For internal training, yes.


MR. ROSA: And we have been discussing another group that deals with more external activities, but we haven't gotten to that point yet.  That may be the answer to what you're addressing.

MS. NARINE: Because that training group is only internal training.

MR. EHERTS: I got it now.  Okay.

MR. ROSA: Yeah.  The training is for our internal training.

MS. LESSIN: What I see is the recommended practices document for employers covers 11(c) and the other statutes.  And that we just had a whole conversation about getting out to employers all the things that they should do.

MS. NARINE: Yeah, but it doesn't tell them how to do it, it just tells them that they should do it.  So what I'm saying is if you are a big employer, you can hire Greg to tell you how to do this training.  If you are -- and again, because the problem is that you have to link to others --

MS. LESSIN: From my experience, I don't think training of employers is -- I think employers have to stop retaliating and training may be a piece of that in some situations.  I think the issue is within OSHA processing cases, there are pitfalls.

MR. ROSA: And that may be addressed through the training group, the in-house training group that we may be able to use that.  Because we're looking for different avenues and different outlets, and other materials, and other exercises or whatever it is that we can try to get the investigators to look at this in a different light.

MS. LESSIN: So I guess my recommendation at this point is given that 11(c) is the biggest bulk of problems that are coming into this agency and there are problems out there, and there's problems on how those cases get processed.  Some of may be better training of the whistleblower, you know, inspection folks, but some of it may be other things that we don't decide right now to have a work group, but we don't say we're done with it.  Let's leave it on the table.  Could there be a work group once we kind of, maybe get a better handle on what's going wrong and what this group might be able to provide advice on.

MR. EHERTS: We can open it up, but I felt that there should've been sunseted after we made our last set of recommendations.  They were voted upon, approved unanimously, the core groups would do it.  I thought at that point we were finished and we kept it open for Nancy's purposes in case something else came up, but unless we have a specific chart to work on something, I think we should just sunset that and start a new one later.

MR. LESSIN: And regroup when we're --

MR. ROSA: Similar to what we're doing with the transportation.  We can probably look at it that way where we can officially sunset both groups and then if we need to, we can repurpose them or resurrect them in a different way with a different charge and something more targeted. 

MS. LESSIN: And I guess my other question is didn't we just finish what we were supposed to do on our best practices work group?  Aren't we done?


MS. LESSIN: Was there anything else?  So we're done.

MR. KEATING: We're done, but we --

MS. NARINE: Not with best practices, we're just recommending guidelines.

MS. LESSIN: Yes.  Indeed.  Thank you.

MS. NARINE: We're demoted.

MS. LESSIN: Or elevated.

MR. KEATING: Well, we're done, but you should -- I mean, we need to individually, or otherwise, consider how to get useful comments in because I've heard informally that there's some things you'd like to see reconsidered for addition.

We have some duties.

MS. LESSIN: But that's individuals.

MR. ROSA: Yeah.  And on the best practices, I wanted to have a further conversation with Emily to make sure that we are both on target that we probably can sunset that group.  We have been talking about another group that kind of takes this and takes it to the next level, which is more of an outreach group that goes beyond just dissemination of this document and goes into a bigger picture, but we haven't gotten -- we're not ready to get to that point. 

So Emily and I are going to have some further discussions and possibly, by the next meeting, we may have some solid charge with regard to taking this and going to the next level and a more overarching outreach, you know, work group that can help with some of these tool because like you were saying, you know, Marcia, it's the thing where sometimes the employers don't know what to do.  So maybe we can develop some toolkits of what are the steps that you do.  And that's some of the things that we may ask the Committee to help us develop.

MR. EHERTS: There was one thing that came up this morning that maybe should be on the list as you consider those things.  Somebody else raised it, but I thought it was really worthwhile, to do something more, whether it's through a committee or otherwise. 

Marcia, you may have said have a committee that meets twice was kind of your framework to get us educated, but have something that could potentially be available for employers that weren't primarily engaged in manufacturing or other things that had safety and health whistleblower-related questions but that had the SOX and financial --

MS. NARINE: But by the way, everybody can have a safety and health thing, but they just might not prioritize it.  So it's not like everybody doesn't have safety and health, but it might not be a big deal to them.

MR. ROSA: Right.

MS. NARINE: But to think of kind of like, the business retaliation and see how they intersect with others.  So how SOX, Dodd-Frank, Consumer Financial Protection, how all that stuff intersects because even though it's not a big part of OSHA's caseload, it's more top of mind for some employers than others and again, that's the hook to get them to read the document because all the whistleblower stuff connects.

MR. ROSA: Right.  JJ?

MS. ROSENBAUM: Yeah.  I wanted to suggest another potential committee that goes back to something you said Marcia, and that I've been thinking about.  There has been a lot of work on this in other parts of the Department of Labor.  The question of the temporary staffing agencies and the outsourcing of human resource functions I think creates unique questions for enforcement of the similar laws in that context.  And I think having a working group with public management and labor to sort of make some recommendations on that could be really useful.

MR. ROSA: Okay.

MR. NARINE: The joint employer issue as well, at the joint employer outsourced, the contingent labor, all that is different because at some point, people will say that's not my employee, so I don't have to deal with it.  And I think that kind of guidance, obviously, the Department of Labor looks -- other parts of the Department of Labor are looking at that issue --

MR. ROSA: Right.

MS. NARINE: -- kind of who's responsible for dealing with that issue.

MR. ROSA: Eric?

MR. FRUMIN: Great minds think alike.  Ditto of those two.

MR. ROSA: Okay.  Thank you.  Any other comments as we move forward?

(No response.)

Well, wow.  We are a half-an-hour early.  I call this meeting adjourned.

(Whereupon, at 3:08 p.m., the meeting was adjourned.)

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