OSHA Director, Dr. David Michaels, started 2012 off promising an increased focus on whistleblowing. News out of OSHA last week suggests Dr. Michaels is making good on his promise.
In an October 2 news release OSHA announced the formation of a new alternative dispute resolution (ADR) program that is designed to bring complainants and employers together in a “cooperative and voluntary manner.” The pilot program is launching in regions V and IX, Chicago and San Francisco respectively, and the hope is ADR can provide “immediate relief and finality to both parties.”
According to the OSHA Directive (DIR 12-01 (CPL 02) on ADR, the stipulations of ADR are that it must be voluntary and parties must participate in good faith. The two options for would-be participants are early resolution or mediation.
Early resolution is defined in the directive as “a voluntary process in which the parties to a dispute (whistleblower complaint) attempt to resolve the dispute (whistleblower complaint) prior to OSHA launching an investigation… The focus of early resolution is quick resolution of the dispute (whistleblower complaint) rather than an investigation to determine the validity of the charge.”
Mediation is defined as “a voluntary process in which the parties agree to utilize a neutral third party to assist them in resolving a dispute (whistleblower complaint) by mutual agreement.” Regarding mediation, OSHA says the process is confidential and information discussed is not disclosed to the agency and cannot be used in the investigation. (The mediators notes are to be destroyed after the session.)
While early resolution will be available throughout the year-long pilot, mediation should be considered a limited time only opportunity as OSHA has only approved up to 15 mediation sessions for each of the participating regions. It is expected that mediation will take place over the course of one day and participants are allowed to bring representation; additional time can be allotted if warranted.
If parties fail reach a resolution via the ADR, OSHA would continue to investigate the complaint as it normally does. However, OSHA will allow parties to complaint to settle at any time during the investigation.
More information is available on ADR and other whistleblower topics on OSHA's Whistleblower Protection Program website, www.whistleblowers.gov
Note from whistleblower.gov: OSHA's Whistleblower Protection Program enforces the whistleblower provisions of twenty-one whistleblower statutes protecting employees who report violations of various workplace safety, airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health care reform, nuclear, pipeline, public transportation agency, railroad, maritime, and securities laws. Rights afforded by these whistleblower acts include, but are not limited to, worker participation in safety and health activities, reporting a work related injury, illness or fatality, or reporting a violation of the statutes.