Occupational Safety and Health Administration (OSHA) Moves to Cut Whistleblower Claim Settlement Time

By: Bradford T Hammock and WAKEUP CALL

OSHA has made huge improvements in the way they handle Whistleblowing claims. It will no longer take months at a time to resolve an employee/employer dispute. For more about the modifications OSHA has made, read Bradford T Hammock’s summary below.

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Looking to shorten from months to weeks the time needed to settle whistleblower complaints, OSHA is expanding use of an alternative dispute resolution process that has been judged a success in two of its regions.

In October 2012, the agency announced it would devote at least a year to testing a pilot program to settle whistleblower claims. Region 5, in the upper Midwest, and Region 9, which covers three Western states, Hawaii, American Samoa and Guam, were selected. During fiscal year 2013, 289 requests were made by employers or employees in those regions to attempt a settlement through alternative dispute resolution. Both parties consented in 87 of those cases, and 54 settlements resulted.

That data was reason enough for OSHA to expand the alternative dispute resolution process into other regions, starting with Region 2, in the Northeast, Richard Mendelson, acting director of OSHA’s Directorate of Whistleblower Protection Programs, told a whistleblower advisory committee in March, as reported by Bloomberg BNA.

The OSHA regional office plays a central role in the dispute resolution process. Once a complaint is filed, the office writes the worker and employer to offer to facilitate a settlement, according to the program’s directive. If both parties agree, the regional coordinator contacts them to determine if there is common ground.

If there is, the coordinator then writes a proposed settlement and assists the parties in reaching an accord.

The goal is to reach a settlement within 20 days of receipt of OSHA’s initial letter. If there is no agreement, OSHA’s investigation into the complaint continues.

A second pilot program involving mediation using the Federal Mediation and Conciliation Service was deemed less successful and has ended, Mendelson said. In that program, the goal was for the mediator to help negotiate a settlement during a day-long session.

Other than making contact with the parties, OSHA’s whistleblower staff played no significant role in the mediation process, which may have led to disappointing results, Mendelson speculated.

The agency also has tested the idea of designating an assistant administrator for whistleblower protection. After testing in Region 5 and in Region 4, in the Southeast, last year, the change is being implemented in all 10 OSHA regions, the acting director said. The purpose of designating administrators is to ensure consistency in policies throughout OSHA. Mendelson noted that administrators will have no direct oversight of field investigators.

Finally, Mendelson reported that 742 complaints were filed in the three months since OSHA began accepting whistleblower complaints online in December 2013.

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