WHISTLEBLOWER PROTECTION ADVISORY COMMITTEE (WPAC)
Minutes of Tuesday, January 29, 2013, Meeting
U.S. Department of Labor
Frances Perkins Building
200 Constitution Avenue, N.W.
The meeting of the Whistleblower Protection Advisory Committee (WPAC) was called to order by Chairman Spieler at 10:30 a.m., Tuesday, January 29, 2013. The following members and OSHA staff were present:
|TITLE & ORGANIZATION|
|Public||Edwin W. Hadley Professor of Law, Northeastern School of Law|
|Richard Moberly||Public||Associate Dean, University of Nebraska|
|David Eherts||Management||Vice President and Chief Safety Officer, Sikorsky Aircraft Corporation|
|Gregory Keating||Management||Shareholder, Co-chair of the Whistleblowing Practice Group and Member of the Board of Directors, Littler Mendelson P.C.|
|Marcia Narine||Management||Visiting Professor, University of Missouri; Compliance Consultant, MDO Partners|
|Kenneth Wengert||Management||Director of Safety, Environment and Business Continuity Planning, Kraft Foods|
|Ava Barbour||Labor||Associate General Counsel, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America|
|Eric Frumin||Labor||Health and Safety Director, Change to Win|
|Nancy Lessin||Labor||Program Director, United Steelworkers’ Tony Mazzocchi Center for Health, Safety and Environmental Education|
|Christine Dougherty||OSHA State Plan States||Minnesota Department of Labor and Industry|
|Rina Tucker Harris||Federal Agency||Enforcement Attorney, Consumer Financial Protection Bureau|
|Jason Zuckerman||Federal Agency||Senior Legal Advisor, U.S. Office of Special Counsel|
|David Michaels||OSHA||Assistant Secretary, U.S. Department of Labor, Occupational Safety and Health Administration|
|Ed Baird||OSHA||WPAC Counsel Office of the Solicitor, USDOL|
|Beth Slavet||OSHA||Designated Federal Official for WPAC Director, Directorate of Whistleblower Protection Programs, USDOL OSHA|
|Michael Mabee||OSHA||Regional Supervisory Investigator, Region I, USDOL OSHA|
|David Baskin||OSHA||Regional Counsel for Whistleblower Litigation, Region I, Office of the Solicitor, USDOL|
|Rob Swain||OSHA||Counsel for Legal Advice, OSH Division, Office of the Solicitor, USDOL|
Introductions and Opening Remarks
Chairman Spieler welcomed the attendees and asked all persons present to introduce themselves, including WPAC members, OSHA staff and observers in the audience. The following WPAC members were unable to attend the meeting: Billie Garde (employee representative), John Van Steenburg (federal agency representative) and Jonathan Brock (public representative). Approximately 24 members of the public attended the meeting. Following introductions, Ms. Spieler reminded members that the Advisory Committee is controlled by its Charter, which states that WPAC will advise the Secretary and Assistant Secretary on ways to improve the fairness, efficiency and transparency of the OSHA Whistleblower Program. She commented that she believes WPAC can bring outside perspectives and creative ideas intended to improve the whistleblower program.
Changing the Environment for Whistleblowers: Lessons Learned, Challenges Ahead
Dr. David Michaels expressed his gratitude to WPAC members, in particular to Chairman Spieler, for their commitment to public service and to helping OSHA fulfill its important charge of protecting whistleblowers. He also thanked OSHA and SOL staff for their work in preparing the first WPAC meeting. He noted that OSHA views its whistleblower protection activities as a true collaboration between OSHA and the Office of the Solicitor. Finally, Dr. Michaels thanked Regional OSHA and SOL staff and praised their good work.
Dr. Michaels opened his remarks on "Changing the Environment for Whistleblowers" with the story of the April 2010 Deepwater Horizon oil rig explosion. The explosion killed eleven workers and caused the largest oil spill in U.S. history. Following the spill, the Presidential Commission investigating the incident released a report stating that several weeks before the explosion, many workers had safety and health concerns, but they felt they could not bring them forward. Dr. Michaels stated that the workplace culture on the Deepwater Horizon did not support workers exercising their right to voice safety and health concerns. If that culture had been different, he said, perhaps lives could have been saved and environmental catastrophe averted. Dr. Michaels shared his belief that we can do better and that we must ensure that the culture of corporations allows workers to raise concerns without fear of retaliation.
Dr. Michaels then addressed the scope and volume of OSHA's whistleblower authority. First, he read section 11(c) of the OSH Act and explained why section 11(c) is a very logical component of the OSH Act. Last year, OSHA received more than 1,700 11(c) complaints and that number is increasing each year. He noted the 30-day filing period imposed by the OSH Act, and stated that many workers do not even learn of their rights until after 30 days has passed. Dr. Michaels told WPAC members that OSHA needs their help in thinking about how the statute is written and whether it provides workers with an adequate level of protection.
Dr. Michaels addressed incentive policies aimed at keeping injury rates low. While there are many sensible reasons to track injury rates and aim to keep rates low, sometimes these policies create incentives to overlook injuries, such as management bonuses, industry awards, and eligibility for contracts. Dr. Michaels pointed to OSHA's experience with the railroad industry and incentive policies or practices. He was pleased that both management and labor representatives from the railroad industry were in attendance at the WPAC meeting. After 11(c), OSHA receives the largest number of complaints under FRSA (353 in FY2012) and more than sixty percent of FRSA complaints allege retaliation for reporting an injury. OSHA and SOL recently decided to take a corporate-wide approach to these complaints. For example, OSHA recently approached Burlington Northern Santa Fe (BNSF) about 94 pending FRSA complaints against the employer. As a result of the discussions with OSHA, BNSF voluntarily revised its policies concerning injury reporting and OSHA and BNSF settled a number of cases. OSHA hopes BNSF's actions are a model for other employers to follow. At some point, we will discuss this enforcement method with WPAC.
Another widespread problem is employer programs that provide a benefit to workers who do not report an injury to be widespread. The problem, Dr. Michaels stated, is that these programs say that changing worker behavior is the key to preventing injuries; rather, the primary component must be abatement of hazards. The goal of safety programs must be to eliminate hazards and not simply change behavior. In addition, by discouraging workers from reporting injuries, injured workers are less likely to get workers compensation and employers and employees are less likely to learn about and correct dangerous conditions in the workplace. Dr. Michaels recognized that OSHA may seek the Committee's input on how to deal with employer incentive and disincentive policies.
Dr. Michaels discussed the 22 whistleblower statutes enforced by OSHA. He thinks Congress understands that workers play a very important role in protecting themselves and the public. In FY2012, OSHA received almost 2,800 complaints, receiving the most complaints under 11(c), FRSA and SOX, respectively. He added that OSHA is a small agency and the whistleblower staff is small, and he recognized that in the past, the Agency has not done its job as well as it should. This point was recognized by the General Accounting Office and the Inspector General, both of which noted inadequate staffing levels and training. This administration, however, has made the Whistleblower Protection Program a high priority. Already, the agency has ensured that all investigators receive mandatory training. He noted that improving the program has support of both Democrats and Republicans, evidenced by the 2011 letter from Senator Patrick Leahy and Charles Grassley, in which the Chairman and ranking member of the Senate Judiciary Committee praised OSHA's efforts in the area of protecting whistleblowers.
Dr. Michaels concluded by telling WPAC members that OSHA is looking for their help to improve the Whistleblower Protection Program, and specifically at this meeting, the 11(c) program. He asked: how could OSHA best to work with other agencies whose laws we enforce; how could OSHA best to work with workers and employers to resolve disputes quickly and fairly; how is it able to get the worker back to work and make that person whole as quickly as possible. More importantly, he stated, was looking at the big picture of how to change employer attitudes so that they embrace and listen to whistleblowers. "How do we change that culture? How can we get OSHA out of the business whistleblower investigations?" Dr. Michaels asked.
Beth Slavet, Director, Office of the Whistleblower Protection Programs, OSHA, USDOL, thanked Dr. Michaels and Chairman Spieler and stated that she and her staff were honored to be a part of the first WPAC meeting. She repeated the charge given to WPAC by Dr. Michaels: first, to focus on section 11(c) of the OSH Act and second, to think about changing the corporate culture and the attitudes of employers toward whistleblowers.
Ms. Slavet noted that there has been a sea change in society's attitude towards whistleblowers, e.g., Time Magazine's cover story of 2002 naming three prominent whistleblowers as Persons of the Year. Whistleblowers, she said, are societies' first line of defense in keeping workers and the public free of workplace injuries and illnesses. In addition, because of OSHA's lack of resources and inability to be in all workplaces at all times, whistleblowers are the Agency's eyes and ears.
Ms. Slavet spoke of the recent accomplishments in the Whistleblower Protection Program, emphasizing how important the visions and undertakings of Dr. Michaels and his staff. For example, OSHA revamped its 11(c) Appeals Program and eliminated a three-year appeal backlog. In September 2011, OSHA held a three-day conference for federal and state whistleblower professionals that included 150 attendees and whistleblower managers and investigators from all OSHA regions. OSHA has completed providing basic 11(c) training to all investigators, and the Agency also offers this training to state investigators. The Whistleblower Protection Program has strengthened its relationship with USDOL Office of the Solicitor (SOL) and enhanced cooperation between regional OSHA and SOL offices. OSHA has added over 35 positions for whistleblower field staff nationwide and for whistleblower supervisors to more effectively manage resources. Dr. Michaels made the Whistleblower Protection Program a directorate, creating the Directorate of Whistleblower Protection Programs (DWPP). This change was significant in that the status of being a directorate eliminates some of the bureaucracy of DWPP's daily functions. Lastly, Dr. Michaels created the Advisory Committee as a way to continuously improve the whistleblower program.
Ms. Slavet also spoke of upcoming milestones. DWPP expects to promulgate seven whistleblower rules in FY2013 related to statutes covering food safety, health insurance and consumer financial services. The Directorate has been working on a corporate-wide accord with Burlington Northern Santa Fe (BNSF) in which BNSF voluntarily agreed to settle many complaints, to change its improper policies and to provide training programs for managers and other staff. DWPP is piloting an alternative dispute resolution program in two regions, and Ms. Slavet recently extended the pilot for an additional 120 days. The office is developing a more comprehensive and better audit program. Finally, Ms. Slavet has been working closely with OSHA's office of information technology to ensure that the Agency's tracking of complaints is reliable, comprehensive, credible and accessible to anyone reading OSHA statistical reports.
Ms. Slavet again spoke of her desire that the Committee will assist OSHA in addressing the problem of changing the corporate culture; regardless of what employer or corporation is involved, it is the culture of retaliation that must change.
Ed Baird, Attorney, Office of the Solicitor, USDOL, identified nine documents provided to the WPAC members for the record. These documents are accessible to the public through a docket located at regulations.gov. WPAC's docket number is OSHA-2012-0020. The documents are listed at the end of these meeting minutes.
Questions/Discussion WPAC Members
Chairman Spieler invited committee members to ask questions or make comments with regard to the overall picture of OSHA whistleblower investigations addressed by Dr. David Michaels and Beth Slavet.
Eric Frumin, Health and Safety Director, Change to Win, commended OSHA on its efforts to improve the handling of whistleblower complaints. Then, he characterized discussions of "creating a corporate culture of workplace safety" as "a pretty vague question." He expressed more interest in seeing OSHA maintain "from an enforcement perspective" effective "sticks" to deter employers from failing to protect workers' safety and health. He said that because State Plan states play an important part of federal OSHA, federal OSHA should "not lose focus" on ensuring consistency among the State Plan states as they carry out their whistleblower protection efforts. "Some states do a better job [of protecting whistleblowers] than others; we need to see where the problems are and help the states."
Nancy Lessin, Program Director, United Steelworkers' Tony Mazzocchi Center for Health, Safety and Environmental Education, expressed concern about how backlogs of whistleblower complaints are resolved, citing the "law of unintended consequences" that could cause OSHA to focus too much on eliminating complaints and not enough on addressing those complaints properly. She asked whether the Advisory Committee could learn more about how successful the various pilot programs were that OSHA instituted in the regions to resolve complaint backlogs. She also asked what the Committee could learn about the efficacy of resources and training that OSHA has invested in these pilot programs.
Ms. Lessin also spoke in favor of OSHA maintaining a strong enforcement strategy. She related how in 1845 the Massachusetts legislature chose to encourage employers to behave ethically toward the many "mill girls" who suffered from respiratory diseases in textile mills, and many worker deaths continued for more than a century until OSHA introduced the cotton dust standard in 1978. It was this enforcement effort that made the difference in saving lives, she said. It is the same with whistleblower protections, she said: "If there is no threat of punishment, no regulation [to protect whistleblowers], many workers are still afraid of retaliation. We need regulations and "stick - enforcement" to back up the voice of workers."
Gregory Keating, shareholder, co-chair of the whistleblowing practice group and member of the board of directors, Littler Mendelson P.C., observed that change in how whistleblower complaints have been handled under Dr. Michaels is "palpable." He asserted that "there is a desire, a willingness, an eagerness among many employers" to change their workplace culture and improve their worker safety and health record. While a few employers are not acting in their best interests to protect workers, many more "employers are yearning for tools to learn how to be more ethical" in the treatment of workers. He expressed a hope that among OSHA's tools for protecting workers are incentives – "carrot" – and not just deterring "sticks." He urged OSHA to "get word out to employers that there are concrete tools available to help them comply with OSHA" regulations.
David Eherts, Vice President and Chief Safety Officer, Sikorsky Aircraft Corp., noted the increased number of "near misses" reported in his industry lately as an example of workers feeling more welcome to alert management to safety problems. He said that, in the short term, it's good to see workers responding to OSHA's increased efforts to promote whistleblower protections, but "long-term success comes from reducing the number of complaints" when management learns to listen to workers and abates hazards internally — without complaints ever reaching OSHA. Ms. Slavet responded by stating that she though the "Gawandi List," based on a pilot's checklist, could be very important to the discussion of changing corporate culture.
Christine Dougherty, Discrimination Investigator, Minnesota Dept. of Labor & Industry, said that State Plan states "are often the first line of contact with workers" with whistleblower complaints, and that these State Plan states generally have good communication and cooperation with federal OSHA and share information on cases. She said that State Plan states are concerned about enforcing "11(c) and other Acts" covered by OSHA's whistleblower protection statutes.
Chairman Spieler stated that four individuals had requested in advance time to speak to the Committee. She emphasized that the Committee does not consider or make any determination about individual complaints. As to the members of the public who posted comments in the docket relating to individual concerns, DWPP will respond appropriately.
Richard Renner, Attorney, believes one of the key problems with 11(c) is that workers do not own their own whistleblower claim. Rather, said Mr. Renner, OSHA makes the decision as to whether to file suit. He advocated the Protecting America's Workers Act (PAWA), which would give 11(c) complainants a right to a hearing before an ALJ, and if they prevailed, the whistleblower's attorney could recover attorney's fees. With that provision, private attorneys could take on the role of enforcing OSHA 11(c). He said this provision has made a big difference in the environmental field, under SOX and in other more modern whistleblower statutes.
Another concern expressed by Mr. Renner is that state courts often provide employees a tort remedy for wrongful discharge, but many states disallow the tort claim where state or federal law provides an adequate remedy. Several states have said that the OSHA 11(c) remedy is adequate, because there is some possibility of relief, although arguably inadequate. Mr. Renner proposed that OSHA declare that 11(c) remedies are not adequate. Mr. Renner also said that he would like to see more statistics, particularly as to settlement numbers.
Bill Kojola, Safety and Health Director, AFL-CIO, expressed his pleasure that OSHA is giving heightened focus on whistleblower issues. He indicated that 11(c) and recordkeeping rules of the OSH Act have been weak. He said the AFL-CIO has been collecting examples of policies where workers discriminated against for whistleblower complaints have been sent to OSHA. He mentioned several needs related to the whistleblower program including:
- Assertive defense of whistleblowers that report hazards and a need for notices to be sent to employers reiterating that retaliation against workers who report workplace hazards are not tolerated.
- Recommend statutory, regulatory and policy solutions to whistleblower retaliatory acts.
- Investigators should be well-trained and feel that OSHA "has their backs" when dealing with large employers.
- There should be a coordinated national strategy that is uniformly applied nationwide.
- Coherence between national and field efforts.
- Assessing effectiveness of whistleblower strategies.
- Make sure all sectors have the ability to be heard by the committee. For example, the transportation industry, of which the committee has no representative.
- 11(c) is the weakest statute OSHA has; the advisory committee needs to give it attention and recommend changes to strengthen it.
Rick Inclima, Safety Director, Brotherhood of Maintenance of Way Employees Division of the Teamsters Rail Conference said BMWED looks to help OSHA end intimidation of railroad workers. He indicated that the railroad industry has its own labor laws and is not covered by Social Security or subject to workers' compensation laws. Virtually every single injury in the rail industry is met with a formal investigation, where the railroad is "judge, jury and jailor," he said. BMWED has an agreement with the Union Pacific Railroad company that has helped to reduce whistleblower cases, reduce injuries and create a joint labor-management committee. Mr. Inclima agrees that OSHA has made strides in helping railroad workers but needs to improve uniformity in application of laws among all regions. Mr. Inclima agreed to share with the Committee the agreement between BMWED and Union Pacific Railroad.
Vince Verna, Director of Regulatory Affairs, Brotherhood of Locomotive Engineers and Trainmen, Division of the Teamsters Rail Conference, said that members of his union are concerned about becoming whistleblowers due to possible retaliation. He said railroad management should commend — rather than punish — whistleblowers for raising awareness of hazards. He said there is a culture of harassment and intimidation in the railroad industry, but it is becoming better with OSHA's efforts.
OSHA 11(c) and Lessons Learned from Other Statutes
Mike Mabee, Regional Supervisory Investigator, OSHA Region I, USDOL, provided a brief background on OSHA and the OSH Act. In 1981, the whistleblower program had 61 investigators and completed a case in an average of 131 days. In 1983, the program obtained authority to investigate STAA cases and in 1997 gained seven additional statutes. At this time, the average case was completed in 100 days or less. Since 2000, the program has received many more statutes and has about 95 investigators. In 2012, investigators carried an average of 25.8 cases and completed a case in an average of 286 days. Mr. Mabee discussed the Whistleblower Investigations Manual and the procedures for intake of complaint, complainant interview and prima facie cases. He stated that investigators also spend time writing Secretary's Findings and negotiating settlements. OSHA settles approximately 21 percent of cases, including 22 percent of 11(c) cases.
David Baskin, Regional Solicitor, SOL Region I, USDOL, described SOL's involvement with OSHA in whistleblower cases. He stated that when cases are under investigation, there is informal contact between regional offices of both SOL and OSHA. SOL, he said, acts as a sounding board and provides suggestions, provides legal and factual analysis and if warranted, will file in district court after approval of DOJ. The statute allows the courts to award "all appropriate relief" which may include punitive and compensatory damages. In his experience, most employers are small employers and non-union shops, so OSHA is the only recourse. A new issue he is encountering is social media discovery. Employers go after Facebook and Twitter posts, which can have a chilling effect.
Mike Mabee then discussed the differences between 11(c), OSHA's first whistleblower statute, and other statutes enforced by OSHA.
|30 day statute of limitations for 11(c)||Typically 180 day statute of limitations|
|No private right of action||Complainant has private right of action|
|Must file lawsuit in fed. court for merit cases||Findings issued for merit cases|
|No de novo hearing available on appeals||de novo ALJ hearing available in appeals|
|Resource intensive to file lawsuit for merit||Not as resource intensive to issue merit findings|
|"Motivating Factor" burden of proof||"Contributing Factor" burden of proof|
|No preliminary reinstatement||Most provide for preliminary reinstatement|
|No attorney’s fees recoverable||Provides for attorney’s fees & expenses|
|Complainant has no further appeal if OSHA and the Solicitor find the case has no merit.||Complainant can appeal any DOL determination at any level. Final orders can be appealed to circuit courts and supreme court.|
|Subpoena authority||No, except ACA.|
|Punitive damages||Some allow.|
Mr. Mabee also provided a summary of lessons learned from other statutes:
- Different industries present different challenges. Example:
- 6% of 11(c) cases have the allegation: "retaliation for reporting injury"
- 60% of FRSA cases have the allegation: "retaliation for reporting injury"
- Preliminary reinstatement is a powerful provision
- Many cases settle after issuance of a "due process letter"
- Being able to issue punitive damages in statutes such as FRSA appears to be a powerful enforcement tool and clearly got the attention of the railroad industry; in contrast, 11(c) punitive damages are assessed by the court.
- Some statutes require a great deal of additional training (e.g., SOX).
- Being advised that OSHA may draw an adverse inference is helpful in statutes where OSHA does not have subpoena authority.
- Few 11(c) complainants are represented by attorneys (no attorney's fees).
- "Motivating factor" can be a high burden for Complainants in largely circumstantial cases.
- Preponderance is easier burden for Respondents than "clear and convincing evidence" under the modern statutes.
- Many 11(c) complaints are untimely – at least 310 in FY2012.
- Work refusal protections under some recently enacted statutes allow an employee to refuse to violate a law. e.g., STAA: A driver can refuse to drive a truck that violates any DOT regulation. In FSMA, an employee can refuse to violate a food safety regulation, etc.
Chairman Spieler then asked WPAC members if they had questions for Mr. Mabee and Mr. Baskin.
Greg Keating asked, when OSHA gets a SOX complaint, do they notify SEC? Mr. Mabee replied yes, for all statutes, OSHA sends a copy of the complaint and final disposition.
Richard Moberly asked, (1) do you know if SEC investigates, to which Mr. Mabee replied that he did not know, and (2) do you know if OSHA investigates the safety and health issue involved in an 11(c) complaint? Mr. Mabee stated that the whistleblower program refers safety and health hazards to the appropriate OSHA Area Office.
Eric Frumin asked, (1) do you treat complaints differently if there is also an OSHA safety and health complaint, to which Mr. Mabee replied, there are no marching orders, but it does not make a difference to the 11(c) investigation. (2) Do area offices do their inspection any differently if a whistleblower complaint is under investigation? Mr. Mabee stated that he did not believe it made a difference. Mr. Frumin believed that it should make a difference; however, Chairman Spieler asked to move on.
Mr. Mabee and Mr. Baskin answered several questions about punitive and emotional damages, training and OIG reports.
Mr. Frumin asked if, where there was a favorable outcome to the worker under 11(c), how is the employer required to notify other workers; is there a posting requirement? Mr. Mabee replied that in some settlements, the employer does not admit to violating the OSH Act. In other settlements, OSHA may include language that requires the employer to make a whistleblower posting. Where OSHA found merit, the settlement would include a more specific posting requirement.
The group discussed the organizational structure of OSHA in which whistleblower investigators report to OSHA Regional Administrators, rather than to the National Office.
Following the break, Chairman Spieler recognized two strands to the WPAC conversation, and asked the group to think about these. She described the first strand as managing complaints internally in OSHA, both 11(c) and non-11(c) complaints. The second strand was changing employer behavior towards workers who exercise their whistleblower rights.
Marcia Narine, in discussing the first strand (managing complaints), asked if OSHA has been able to measure effectiveness of staff training in whistleblower protection investigations.
Michael Mabee responded that OSHA does not have any metrics in place to measure effectiveness of training or webinars. He said that, anecdotally, the number of requests coming into the National Office from Regional and Area Offices for clarification on whether specific companies were covered under the whistleblower provisions of the Sarbanes Oxley Act diminished significantly once the staff in these offices completed SOX webinar training.
David Eherts expressed concern that OSHA might not have the resources to process the increased volume whistleblower complaints as workers become more familiar with their rights to make complaints through the agency's outreach efforts.
Chairman Spieler replied that the hope is that as employers become more aware of their responsibilities, more complaints will be handled within companies, without employees having to file complaints with OSHA. Chairman Spieler revised her previous statement and said she actually noticed three strands of the Committee's conversation: 1) managing complaints, 2) encouraging complaints, 3) changing employer culture to reduce complaints.
Eric Frumin asked if there were mechanisms in place to protect workers who make complaints related to compensation or other workplace issues not covered by OSHA. He suggested a management system solution to track employers who violate any health and safety requirement.
Greg Keating stated that many companies are aware of the new landscape due to the many new whistleblower statutes and increased enforcement. He recognized that companies have a higher awareness of the whistleblower laws, and there are new integrated complaint procedures available to companies. These systems enable employers to track whistleblowers to ensure no adverse action occurs.
David Eherts agreed, stating that in some companies, workers have one place to go to make complaints and procedures are described in a complaint handbook.
Marcia Narine stated that most employers know that retaliation is illegal, but the problem is that if employers know that workers are likely to lose (due to OSHA's low merit rate) then there is no risk for the manager. Ms. Narine again asked if so many cases could truly be non-merit, as OSHA finds, or perhaps could training be insufficient.
Michael Mabee replied that he believes that there can never be enough training, but that OSHA has done the best it can with its resources. He stated that most whistleblower cases are largely circumstantial cases and it is rare that a case will have a "smoking gun." The low merit rate is due to circumstantial nature of the evidence; there is often conflicting testimony with no corroborating evidence.
Next Steps, Requests for Information
Chairman Spieler asked committee members to suggest next steps and to think about how to move forward after the meeting. She asked the Committee to state what kind of information would be useful.
Nancy Lessin requested that WPAC be provided with the final report on OSHA's whistleblower protection pilot programs so members can develop best practices to follow in future whistleblower investigations.
Richard Moberly asked to see MOUs and suggested that OSHA communicate with other agencies to see how they investigate/process whistleblower complaints.
Marcia Narine requested information on how SEC and OSHA work together with information learned from a whistleblower complaint.
Eric Frumin suggested that since the vast number of whistleblower cases are settled, and these records are not generally accessible (even under FOIA), this information would help the Committee to analyze whistleblower investigations.
Chairman Spieler said she knows that OSHA is developing performance metrics and it would be useful for OSHA to inform WPAC on that development so that WPAC does not work against those metrics.
Nancy Lessin replied that she would like to see the "thinking behind" developing the performance metrics and the data. She suggested an analysis of OSHA whistleblower investigations by region to help determine best practices. Chairman Spieler agreed that she would like to see more extensive data that is region-based.
Dr. Michaels clarified that OSHA is working on improving the whistleblower data, but cautioned that underlying questions are difficult to answer. For example, there is no correct "merit rate." He said that we must think about innovative ways to measure the quality of our work.
Nancy Lessin suggested establishing work groups on issues of rail and retaliation for reporting injuries, i.e., Employer Incentive/Disincentive Programs. Regarding the latter, she would ask the work group how to move forward with the March 2012 Fairfax Memo.
Richard Moberly suggested forming an outreach work group to develop whistleblower education programs for employers and workers. For employers, the work group could provide state of the art best practices, i.e., things that great companies are doing to encourage and protect whistleblowers.
Eric Frumin suggested that the rail work group (suggested by Ms. Lessin) include transit rail, because although transit rail is not covered under the FRSA, OSHA State Plans may cover that industry. Regarding the outreach work group (suggested by Mr. Moberly), he agreed that WPAC could also help OSHA expand its view of safety and health management systems to focus specifically on managing the threat of retaliation.
Chairman Spieler pointed out that even though there are no representatives of the Rail industry in WPAC, they could be included in the rail work group.
Greg Keating stated that in regards to the outreach work group, there are many cutting edge vendors (industry or non-profit) and these vendors could assist the work group. Chairman Spieler suggested that the vendors could either be a part of the work group or speak to all WPAC members on their products.
Chairman Spieler asked if the Committee had any work group proposals relating to managing 11(c) complaints.
Christine Dougherty mentioned that the meeting had not touched on OSHA's draft online complaint form. She asked if OSHA would be able to handle an increased number of complaints once the online complaint form was activated. Ms. Dougherty thought of several issues with the online complaint system and thought this should be discussed more. Beth Slavet replied that Ms. Dougherty was also touching on the whistleblower program's "screen-out process," and this was something the Committee had not yet discussed.
Jason Zuckerman suggested a work group to look closely at how complaints are processed in OSHA and to look at every step of the process. Mr. Zuckerman stated that his agency, Office of Special Counsel, has had a huge influx of claims of reprisal. They have had success with ADR. He thinks the work group could develop practical solutions for dealing with new whistleblower complaints.
Patricia Smith, Solicitor of Labor, USDOL joined the group and provided brief remarks. Ms. Smith stated that she had come from a meeting with EEOC and that retaliation is the number one complaint filed with EEOC. They have more retaliation complaints than they have discrimination complaints, and this is true across DOL agencies. Ms. Smith added that in MSHA, SOL filed more retaliation reinstatement complaints last year than it had ever filed.
Marcia Narine asked if OSHA has any data on what percentage of the total national workforce believes that they have been subjected to retaliation for whistleblower activities. She also suggested creating some type of recognition program for companies that are extremely responsive to whistleblower complaints.
Dr. Michaels responded that there has been discussion on including such a question in a national survey, but OSHA currently has no data. He also pointed out that OSHA offers recognition programs for companies with exceptional safety and health policies, and OSHA would consider similar programs related to whistleblower policies.
Nancy Lessin asked if WPAC could recommend that OSHA promote revised legislation to improve whistleblower protections.
Chairman Spieler confirmed that WPAC can make such a suggestion, but it would be up to the Assistant Secretary to determine how to act on it.
Chairman Spieler suggested that the Committee halt the work group discussion, and leave it to the Assistant Secretary and Director, in consultation with Chairman Spieler, to propose working groups. Chairman Spieler stated that OSHA may decide to hold the next WPAC meeting between June and September 2013.
David Eherts moved to adjourn and Marcia Narine seconded. The Chairman adjourned the meeting at 4:49 p.m.
Exhibits from the January 29, 2013, WPAC Meeting
Ex. 1 January 29, 2013, Meeting Agenda
Ex. 2 Letter from Senators Leahy and Grassley to David Michaels, dated Sept. 20, 2013
Ex. 3 Whistleblower Acts Desk Reference
Ex. 4 GAO Report Summary, dated January 2009
Ex. 5 Federal OSHA Whistleblower Statistics, FY2005 – FY2012
Ex. 6 Comment from Edna Fordham, dated December 20, 2010
Ex. 7 Memorandum from Richard Fairfax to Regional Administrators and Whistleblower Program Managers on Employee Safety, Incentive and Disincentive Policies and Procedures, dated Mar. 12, 2012
Ex. 8 Draft Whistleblower Complaint Form, subject to OMB Approval
Ex. 9 BNA News Article entitled, "Record Number of Whistleblower Cases Filed, Resolved by OSHA in Fiscal 2012," dated January 24, 2013