OSHA Directive Gives Whistleblowers New Privacy, Route to Resolution

OSHA has continued to affirm its commitment to whistleblower protections by releasing a new directive (CPL 02-03-006) outlining a process for resolving whistleblower disputes with the aid of an intermediary. The directive will use a regional Alternative Dispute Resolution (ADR) program which offers whistleblowers the chance to negotiate a settlement through the assistance of a confidential OSHA representative.

OSHA believes that many whistleblowers will find this approach preferable to traditional process, which can often involve time, expense, and even litigation. The new program will also add new levels of confidentiality and privacy for whistleblowers. According to the directive, ADR case files are usually exempt from disclosure under the Freedom of Information Act, and cannot be released in response to a FOIA request. (However, the parties involved are empowered to waive these protections if they so choose.)

OSHA stresses that its confidential ADR representatives will help parties reach a resolution, but will not act as an advocate for either side. OSHA also says that while its representative “may give the parties an objective perspective on the strengths and weaknesses of their positions, he/she may not offer judgment on the merits of the case.” OSHA says the confidential negotiations can take place in person, or over the telephone, whichever is easier for the parties involved.

In a prepared statement, OSHA head Dr. David Michaels claimed this process would “provide whistleblower complainants and respondents the option of exploring voluntary resolution of their disputes outside of the traditional investigative process.”

OSHA first tested the ADR program with two pilot projects in 2012 and 2013, and claims it proved to be “a successful method for helping parties to reach a mutual and voluntary outcome to their whistleblower cases” and was a “highly-desired service.”

States with State OSHA plans are now required to notify federal OSHA within two months as to whether or not they intend to adopt their own policies mirroring the ADR program. If State plans choose not to do so, they must provide documentation to federal OSHA identifying exactly what their policies will be.

OSHA administers over twenty whistleblower statues and protections which are intended to prevent retaliation — in any form — against employees who complain about unsafe conditions or bring these conditions to OSHA’s attention.

There is evidence that whistleblower protections will continue to be an ongoing priority for OSHA. Last week, OSHA and the Directorate of Whistleblower Protection Programs convened the Whistleblower Protection Advisory Committee (WPAC) Best Practices and Corporate Culture Work Group to review “ways to improve the fairness, efficiency and transparency of OSHA's whistleblower investigations.”  The meeting was open to the public, and OSHA’s review is ongoing.

For more information about OSHA’s whistleblower protection programs, you can visit www.whistleblowers.gov.

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