In the continuation of this post, I provide the full text of my comments to OSHA about its whistleblower program. OSHA is conducting a public session to hear from stakeholders on March 4, 2010, at its Washington, DC headquarters. My comments are presently scheduled for 5:30 p.m.
My attached comments focus on the benefits of consolidating whistleblower investigators into a single national office. I also make suggestions for changes to the investigations manual, on how to train investigators, and in appreciating developments in whistleblower law. If you have comments about my comments, I would be happy to hear from you.
National Whistleblowers Center
3238 P St. NW
Washington, DC 20007
(202) 342-6980, Ext. 112
(202) 342-6984 FAX
rr@whistleblowers.org
February 22, 2010
OSHA Docket Office, Docket No. OSHA-2010-0004
U.S. Department of Labor, Room N-2625
200 Constitution Avenue, NW.
Washington, DC 20210
By Facsimile: (202) 693-1648
Re: Docket No. OSHA-2010-0004
Dear Madam or Sir:
A. The big picture.
The new administration has a historic opportunity to improve
OSHA’s whistleblower program. I am pleased to offer these
comments to help us accomplish the public purpose of assuring all
employees in America that they will be protected if they raise
concerns about health, safety, environmental, nuclear, or other
matters of public interest.
The purpose of the employee protections is to afford protection
for those who help to protect the environment, assist the
government in obtaining compliance, and participate in other
activities that promote the statutory objectives. Devereux v.
Wyoming Association of Rural Water, 93-ERA-18 (Sec’y, October 1,
1993); Tyndall v. U.S. Environmental Protection Agency, 93-CAA-6,
95-CAA-5 (ARB, June 14, 1998). Employees can play an important
role in protecting the public from environmental and nuclear
safety dangers. They can keep managers and government officials
honest by exposing attempts to cover up dangers. Discrimination
against whistleblowers obviously deters such employee efforts on
behalf of the public purposes. Accordingly, the federal statutes
prohibit such discrimination.
In enforcing the employee protection of the Energy Reorganization
Act, a prior Secretary of Labor said that "employees must feel
secure that any action they may take" furthering "Congressional
policy and purpose, especially in the area of public health and
safety, will not jeopardize either their current employment or
future employment opportunities." Egenrieder v. Metropolitan
Edison Co./GPU, 85-ERA-23, Order of Remand by SOL, pp. 7-8 (April
20, 1987). The whistleblower protection laws were passed in order
to "encourage" employees to report safety violations and protect
their reporting activity. English v. General Electric Co., 496
U.S. 72, 110 S.Ct. 2270, 2277 (1990); Wagoner v. Technical
Products, Inc., 87-TSC-4, D&O of SOL, p. 6 (November 20,
1990)(the "paramount purpose" behind the whistleblower statutes
is the "protection of employees"). Accord, Hill, et al. v.
T.V.A., 87-ERA-23/24, D&O of Remand by SOL, pp. 4-5 (May 24,
1989). Consequently, there is a need for "broad construction" of
the statutes in order to effectuate their purposes. DeFord v.
Secretary of Labor, 700 F.2d 281,286 (6th Cir. 1983). In Passaic
Valley Sewerage Comm. v. Department of Labor, 992 F.2d 474, 479
(3rd Cir. 1993), the Third Circuit stated:
. . . from the legislative history and the court
and agency precedents . . . it is clear that
Congress intended the `whistleblower’ statutes to
be broadly interpreted to achieve the legislative
purpose of encouraging employees to report hazards
to the public and protect the environment by
offering them protection in their employment.
The protection of whistleblowers is a necessary component of any
program to protect worker and public safety. "If employees are
coerced and intimidated into remaining silent when they should
speak out, the result can be catastrophic." Rose v. Secretary of
Department of Labor (6th Cir. 1986), 800 F.2d 563, 565.
A 2008 University of Chicago study determined that whistleblowers
are the best tool for fighting corporate fraud. One unfortunate,
but not surprising, finding was that of whistleblowers whose
identity was revealed, 82% of them were either forced from their
position or quit under duress. In 2009, the accounting firm of
PriceWaterhouseCoopers issued its Global Economic Crime Survey.
It confirmed that the most effective way to detect corporate
fraud is though whistleblowers. PWC concluded that fraud
detection depends on protecting those whistleblowers and
punishing those who commit fraud, "regardless of their position
in the company."
B. Introduction
I have been a lawyer for 28 years, and I have practiced before
the US Department of Labor (DOL) since 1995. I have handled over
20 environmental, nuclear and other whistleblower cases before
the DOL. Since 2002, I have also served as Secretary of the
National Whistleblowers Center. In 2008, I moved from Ohio to
Washington, DC, to become Legal Director of the National
Whistleblowers Center.
I urge OSHA to think creatively in shaping a Whistleblower
Program rooted in the public interest. A successful program
assures all employees that their activities in furtherance of
legislative objectives will provide them with an effective
protection against retaliation.
C. OSHA can best address the GAO’s concerns (from Report
09-106) by reorganizing whistleblower investigators into a
new national office.
On January 27, 2009, the Government Accountability Office (GAO)
issued its Report GAO-09-106, called, "Whistleblower Protection
Program: Better Data and Improved Oversight Would Help Ensure
Program Quality and Consistency." The report says what many
whistleblower practitioners have long known: the Department of
Labor’s whistleblower program needs more resources and better
quality. Investigators do not have the equipment, training, legal
counsel or oversight needed to assure quality investigations.
The GAO discovered that OSHA does not have the systems in place
to assure the accuracy of case statistics, the agency’s
processing time, reasons for screening out complaints, and the
outcomes of settlements. GAO found that the Office of
Administrative Law Judges (OALJ) did have reliable and verifiable
case tracking data, and its average processing time for a
whistleblower appeal was nine (9) months. The Administrative
Review Board (ARB) considers appeals from ALJ decisions, and its
processing time can range from thirty (30) days to five (5)
years. GAO found that the ARB does not have reliable data of its
docket flow and lacks oversight of its data quality.
Overall, the GAO found that whistleblower caseloads are
increasing, and the cases themselves are becoming more complex.
GAO recommended that each OSHA Regional Office conduct an
independent audit of its whistleblower program to identify
program deficiencies and the corrective actions needed. As I
explain below, I believe that it would be better to remove
whistleblower cases from the Regional Offices and to provide
instead for a national whistleblower office within the Department
of Labor.
For outcomes, GAO found that OSHA’s report of a 21 percent
success rate for whistleblowers could be misleading. OSHA
includes all settled cases in the "successful" category. As a
result, "nearly all" of the successful cases were settlements,
rather than OSHA decisions on the merits. GAO found that even
some of the settled cases were not properly recorded, and the
actual success rate is more likely 19 percent. These statistics
suggest that OSHA investigators work with employer’s lawyers and
encourage settlement in cases where OSHA would otherwise find
merit. In cases were OSHA is accepting the employer’s word about
its motives for an adverse action, most investigators simply
issue a determination to dismiss the whistleblower’s complaint.
In appeals to OALJ, whistleblowers win less than a third of the
contested cases.
GAO found that OSHA has not even established a minimum equipment
list saying what investigators should have. Some, but not all,
have laptop computers and portable printers to take written
statements in the field. This equipment is necessary for
investigators to make an accurate written record of a witness’
first statement about a complaint.
The GAO report arrives at an opportune moment. The new
administration has an opportunity to give the whistleblower
program new leadership that reflects a commitment to protecting
whistleblowers. This can be done most effectively by reorganizing
existing personnel into a national whistleblower office.
Having a single national office to review investigators’ reports
is the only way to assure a consistent standard for evaluating
investigations and outcomes. Too often, when investigator are
overworked, and lacking in training, equipment and professional
counsel, they will rely on an employer’s claims about the true
motives for an adverse action against a whistleblower.
Whistleblower cases, like other discrimination cases, requires an
evaluation of all the surrounding circumstances to assess whether
they point to a legitimate employer action or to a pretext for
unlawful retaliation. A national office will also provide an
added layer of separation between adjudicators and local
employers. It would add prominence to the Department’s
whistleblower program and create a single national office that
could speak for the needs of whistleblowers. This added
independence and attention would further encourage whistleblowers
to come forward.
Whether or not OSHA determines to consolidate whistleblower
investigators into a single national office, OSHA can improve the
policies by which investigators conduct their work. I urge the
adoption of policies that call on investigators to get recorded
statements from the employer’s decision makers as early as
possible during the investigation. It is an embarrassment for
OSHA when a case progresses to the ALJ hearing and the record
shows that the key decision maker was never interviewed by the
investigator. Recording the decision maker’s stated reasons for
an adverse action is the best way to focus the investigation on
the true reasons for the adverse action. The recorded statement
of the decision maker is also necessary for subsequent review and
evaluation of the employer’s decision and the OSHA investigation.
That said, OSHA needs to respect the role of attorneys during an
investigation. I would hope that we have heard the last of OSHA
investigators attempting to contact represented parties without
the knowledge or participation of legal counsel. However, the
OSHA investigations manual still does not require investigators
to communicate strictly through legal counsel for represented
parties. This requirement is necessary to raise the level of
professionalism in OSHA’s whistleblower program.
OSHA can also improve the quality of its final reports if it
would submit proposed findings to the parties for comment and
rebuttal. The iterative process would deepen the analysis of the
final report. To the extent that disclosure of proposed findings
might encourage the parties to enter into a settlement of the
claim, that can only be helpful.
The depth of investigation and analysis must become deeper as
employers become more sophisticated. One federal judge explained,
"Today’s employers, even those with only a scintilla of
sophistication, will neither admit discriminatory or retaliatory
intent, nor leave a well-developed trail demonstrating it. … It
is a simple task for employers to concoct plausible reasons for
virtually any adverse employment action ranging from failure to
hire to discharge." Raymond v. U.S.A. Healthcare Center-Fort
Dodge, LLC, 468 F. Supp.2d 1047, 1054 (N.D. Iowa 2006). In Desert
Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003), Justice Thomas
said that "[t]he reason for treating circumstantial and direct
evidence alike is both clear and deep-rooted: `Circumstantial
evidence is not only sufficient, but may also be more certain,
satisfying and persuasive than direct evidence.’" If
investigators are not provided sufficient training, equipment and
direction, then their determinations will fail in the primary
public purpose of assuring employees that they will be protected
when they blow the whistle.
D. OSHA needs to review its interim rules, address public
comments and make its rules final.
On August 10, 2007, OSHA published interim rules amending 29 CFR
Part 24, 72 Fed. Reg. 44956. Mr. Jason Zuckerman and myself
submitted comments to the amended regulations on October 9, 2007.
Mr. Zuckerman is an attorney with The Employment Law Group here
in Washington, DC. At the time, Mr. Zuckerman and I co-chaired
the Whistleblower Committee of the National Employment Lawyers
Association. OSHA still has not published final rules, or
responses to the public comments.
E. Limiting federal court jurisdiction in ERA cases.
One error in the interim rules adds a hurdle to a whistleblower’s
decision to remove a case from DOL and file it in U.S. District
Court. The Energy Policy Act of 2005, Public Law 109-58, was
enacted on August 8, 2005. Among other provisions, this new law
amended the employee protection provisions for nuclear
whistleblowers under Section 211 of the ERA, 42 U.S.C. 5851. The
2005 amendment added a provision for de novo review by a United
States District Court in the event that the Secretary has not
issued a final decision within one year after the filing of a
complaint, and there is no showing that the delay is due to the
bad faith of the complainant. Congress obviously wanted to expand
the avenues of relief available to nuclear whistleblowers. The de
novo process in district courts is available as an option for
complainants, but is not required. As such, rules intended to
accomplish the congressional purpose should respect the
complainant’s options, and work in their favor, not to their
detriment.
The Fourth Circuit recently reaffirmed that the statutory
language means just what it says. In Stone v. Instrumentation
Laboratory Co., (No. 08-2196, Dec. 2009), the Court stated,
"Starting, as we must, with the text of the statute, we find the
above quoted language to be plain and unambiguous." The Court
added, "The text of the statute is clear – if the DOL has not
reached a final decision within the time period established by
Congress, a complainant has the statutory right not merely to
undefined relief in another forum, but to "de novo review" in
federal district court. 18 U.S.C. 1514A(b)(1)(B). A plaintiff’s
right to pursue such relief is not circumscribed in any manner by
the statute." [Emphasis in original.]
The interim final rule has altered Part 24 to deter complainants
from seeking relief in district courts in a way that hampers all
complainants in the preparation of their cases. I suggest that
the Department would better serve the statutory goals by
demonstrating that it is a superior forum for these specialized
cases. The Department should compete on the quality of its
determinations rather than sacrifice quality for the sake of
speed. DOL simply lacks authority to rewrite the 2005 amendments
to the ERA by striking the phrase de novo and restricting a
complainant’s ability to remove a complaint to federal court.
F. ERA burdens should be described correctly.
The Department’s Summary and Discussion of Regulatory Provisions
overgeneralizes when it states, "The burdens of proving a
retaliation claim are the same as those of a standard
discrimination claim." In Burlington Northern & Santa Fe Railway
Co. v. White, 126 S. Ct. 2405 (June 22, 2006), the Supreme Court
noted how the purpose of anti-retaliation laws goes beyond the
purpose of anti-discrimination laws. Accordingly, the Court held
that a broader range of adverse actions can be remedied with the
anti-retaliation provision of Title VII than is addressed through
its anti-discrimination provisions (which are limited to adverse
employment actions).
Congress improved the burdens for whistleblowers in the 1992
amendments to the Energy Reorganization Act. Once the employee
shows that the protected activity was a "contributing factor" in
the adverse action, the burden is on the employer to prove by
"clear and convincing" evidence that it would have taken the same
personnel action absent the employee’s complaint. 42 U.S.C.
5851(b)(3)(D). A contributing factor includes "any factor which,
alone or in connection with other factors, tends to affect in any
way the outcome of the decision." Halloum v. Intel Corp.,
2003-SOX-7, at 18 (ALJ Mar. 4, 2004) (emphasis added) (citing
Marano v. Dep’t of Justice, 2 F.3d 1137, 1140 (Fed. Cir. 1993))
(noting that under the Whistleblower Protection Act, 5 U.S.C.
1221(e)(1), the "contributing factor" test is "specifically
intended to overrule existing case law, which requires a
whistleblower to prove that his protected conduct was a
`significant,’ `motivating,’ `substantial,’ or `predominant’
factor in a personnel action in order to overturn that action.").
For further background on the origin and significance of the
"contributing factor" burden of proof, I recommend Judge Dorsey’s
article, "An Overview of Whistleblower Protection Claims at the
United States Department of Labor," 26 J. Nat’l Ass’n Admin. L.
Judges 43, 66 (2006), and also R. Vaughn, "America’s First
Comprehensive Statute Protecting Corporate Whistleblowers", 57
Admin. L. Rev. 1 (Winter 2005).
The Energy Reorganization Act (ERA), 42 U.S.C. 5851(b)(3), now
provides:
(3)(A) The Secretary shall dismiss a complaint filed
under paragraph (1), and shall not conduct the
investigation required under paragraph (2), unless the
complainant has made a prima facie showing that any
behavior described in subparagraphs (A) through (F) of
subsection (a)(1) of this section was a contributing
factor in the unfavorable personnel action alleged in
the complaint.
(B) Notwithstanding a finding by the Secretary that the
complainant has made the showing required by
subparagraph (A), no investigation required under
paragraph (2) shall be conducted if the employer
demonstrates, by clear and convincing evidence, that it
would have taken the same unfavorable personnel action
in the absence of such behavior.
(C) The Secretary may determine that a violation of
subsection (a) of this section has occurred only if the
complainant has demonstrated that any behavior described
in subparagraphs (A) through (F) of subsection (a)(1) of
this section was a contributing factor in the
unfavorable personnel action alleged in the complaint.
(D) Relief may not be ordered under paragraph (2) if the
employer demonstrates by clear and convincing evidence
that it would have taken the same unfavorable personnel
action in the absence of such behavior. [Emphasis
added.]
The McDonnell Douglas framework no longer applies to ERA nuclear
whistleblower claims because Congress provided an independent
evidentiary framework for that statute in 1992. See Doyle v. U.S.
Sec. Labor, 285 F.3d 243, 249-50 & n. 9 (3rd Cir. 2002), Williams
v. Administrative Review Bd., 376 F.3d 471, 476 and n.3 (5th Cir.
2004), Trimmer v. U.S. Dep’t of Labor, 174 F.3d 1098, 1101 (10th
Cir. 1999), and Stone & Webster Engineering Corp. v. Herman, 115
F.3d 1568, 1572 (11th Cir. 1997).
In Doyle, 285 F.3d at 249-50, the Court of Appeals for the Third
Circuit reviewed the new evidentiary framework, noting: "[t]he
Energy Policy Act of 1992, Pub.L. No. 102-486, 106 Stat. 2776,
effective October 24, 1992, amended section 210 to incorporate a
burden-shifting paradigm whereby the burden of persuasion falls
first upon the complainant to demonstrate that retaliation for
his protected activity was a `contributing factor’ in the
unfavorable personnel decision." "Clear and convincing" is an
evidentiary standard that "requires a burden higher than
`preponderance of the evidence’ but lower than `beyond a
reasonable doubt.’" Getman v. Southwest Securities, Inc.,
2003-SOX-8, at 10 (ALJ Feb. 2, 2004) (citing Yule v. Burns Int’l.
Security Service, 1993-ERA-12 (Sec’y May 24, 1995)); see also
Taylor v. Express One International, Inc., 2001-AIR-2 (ALJ Feb.
15, 2002). The ARB has relied on the Black’s Law Dictionary
definition: "Clear and convincing evidence is `[e]vidence
indicating that the thing to be proved is highly probable or
reasonably certain.’" Peck v. Safe Air Int’l, Inc. d/b/a Island
Express, ARB 02-028, 2001-AIR-3 (Jan. 30, 2004).
There appears to be some confusion about the key elements of a
whistleblower retaliation claim, which confusion results in
investigators incorrectly assuming that a complainant must have
"smoking gun" evidence of retaliation, that any reasonable
explanation for an adverse action meets the "clear and convincing
evidence" standard, and that an act of retaliation is actionable
only where it has a tangible economic consequence. Accordingly, I
suggest that the Department define the following terms:
An "unfavorable personnel action" includes any recommended,
threatened, or actual discrimination, including, but not
limited to, termination, demotion, suspension, or
reprimand; involuntary transfer, reassignment, or detail;
referral for psychiatric or psychological counseling;
investigation, provision of benefits; taking or failing to
take any personnel action, including failure to promote or
hire or take other favorable personnel action; engaging in
any conduct that would dissuade a reasonable employee from
engaging in activities protected by this statute; or
retaliating in any other manner against an employee because
that employee makes a protected disclosure or refuses to
comply with an illegal order.
"Clear and convincing evidence" is evidence indicating that
the thing to be proved is highly probable or reasonably
certain and is a higher burden than preponderance of the
evidence.
A "contributing factor" is any factor which, alone or in
connection with other factors, tends to affect in any way
the outcome of the decision.
The Department can assist all parties, and its own staff, by
making clear that the burdens of proof for ERA cases are those
set out in 42 U.S.C. 5851(b)(3) and not the burdens of
traditional discrimination claims. The Department should be
mindful that Congress used the same improved burdens in the
Wendell H. Ford Aviation Investment and Reform Act for the 21st
Century (AIR 21), 49 U.S.C. 42121(b)(2)(B), the Sarbanes-Oxley
Act ("SOX"), and the recent Consumer Product Safety Improvement
Act ("CPSIA"). It is time to get it right.
It would be a mistake to follow the Supreme Court’s 5-4 decision
in Gross v. FBL Financial Services, Inc., 129 S.Ct. 2343 (2009).
In Gross, the Supreme Court held that since Congress did not
modify the burdens of proving causation in age discrimination
cases in the 1991 Civil Rights Amendments, the previous burdens
still apply. In other words, the development of "mixed motive"
methods of providing causation do not apply to claims under the
Age Discrimination in Employment Act (ADEA). Justice Thomas made
clear in his majority opinion that he was focused on the "text of
the ADEA." This holding should have no effect on proving
causation in whistleblower cases which have traditionally
followed the federal case law developed under Title VII.
Moreover, the Gross decision is controversial and has been widely
criticized. There is legislation pending in Congress to correct
it.
Since Dartey v. Zack Company of Chicago, 82-ERA-2 (Sec’y Apr. 25,
1983), slip op. at 6-9, the Secretary has followed federal Title
VII case law in determining causation in retaliatory adverse
action cases arising under 29 C.F.R. Part 24 and the statutes
enumerated there, and therefore applying Gross would be a
departure from well-established DOL precedent. The two leading
cases used by the Secretary to establish the framework for Part
24 whistleblower cases were Texas Dep’t of Community Affairs v.
Burdine, 450 U.S. 248 (1981) (Title VII case) and Mt. Healthy
School Dist. Bd. of Education v. Doyle, 429 U.S. 274 (1977)
(Constitutional adverse action case). He noted that Mt. Healthy
had been applied to section 5851 cases by the Second Circuit.
Consolidated Edison Co. of New York v. Donovan, 673 F.2d 61 (2d
Cir. 1982); Jaenisch v. United States Dep’t of Labor, 697 F.2d
291 (2d Cir. 1982); Carroll v. Bechtel Power Corp., Case No.
91-ERA-0046, D&O of Remand by SOL, at 10, (Feb. 15, 1995),
affirmed Carroll v. USDOL, 78 F.3d 352 (8th Cir. 1996).
The Eleventh Circuit recently made clear that the Supreme Court’s
holding in Gross v. FBL Financial Services, Inc., has no effect
on Title VII and laws following its burdens of proof. In
construing the Florida Civil Rights Act (FCRA), the Court
explained:
The Florida courts have held that decisions
construing Title VII are applicable when
considering claims of discrimination under
the Florida Civil Rights Act, because the
FCRA was patterned after Title VII. Harper
v. Blockbuster Entm’t Corp., 139 F.3d 1385,
1387 (11th Cir. 1998) (citing Ranger Ins.
Co. v. Bal Harbour Club, Inc., 549 So. 2d
1005, 1009 (Fla. 1989)); Fla. Stat.
760.10(1)(a). n2 Therefore, we analyze cases
under the FCRA in the same manner as those
brought under Title VII. See Harper, 139
F.3d at 1387. Jiles v. UPS, 2010 U.S. App.
LEXIS 435 (11th Cir. Fla. Jan. 7, 2010)
In the previous decade, the ARB, still following Title VII
standards, made it increasingly difficult for whistleblowers to
prevail. Even under the "contributing factor" test, the prior
administration’s ARB required complainants to do more than show
that the protected activity was a "motivating factor" in the
adverse action. Lopez v. Serbaco, Inc., ARB No. 04-158, ALJ No.
2004-CAA-5 (ARB Nov. 29, 2006). There, the Board observed that a
complainant "must prove more when showing that protected activity
was a `motivating’ factor than when showing that such activity
was a `contributing factor.’" This decade of ARB caselaw was a
departure from the trend of improvements developed during the
previous two decades. It was also in stark contrast to the
lessening burdens Congress was creating in new whistleblower
statutes, including AIR 21, SOX, PSIA, STAA, FRSA, NTSSA, CPSIA,
and the ARRA.
G. Service of complaint and respondent’s response.
In Section 24.104(b), I suggest that it would be helpful if the
final regulation provided that OSHA serve the respondent’s
response on the complainant’s representative. The practice among
OSHA field offices is uneven on this point. Respondents are
entitled to a copy of the complaint once it is filed.
Complainants will have a right to the response once OSHA closes
its investigation and the complainant submits a FOIA request.
However, the complainant could assist OSHA in its investigation
if the complainant has a copy of the respondent’s response.
Providing the employer’s responses to the complainant is
consistent with the OSHA policy for non-public disclosure. Still,
respondents should know that their response will not be
confidential so they are not caught by surprise when their
response is used as an exhibit in the ALJ hearing.
In an effort to promptly complete investigations, some
investigators are inclined to accept whatever justifications for
an adverse action that are offered by the employer without
probing whether such justifications are in fact credible. This
approach cannot be considered an "investigation." To serve the
critical objectives of these whistleblower protection statutes,
OSHA investigators should provide a complainant with the
respondent’s submissions and should not close the investigation
until the complainant has had an opportunity to respond.
H. Permitting Witnesses to Meet Privately with OSHA
Investigators.
Employees of respondents are often reluctant to speak candidly,
if at all, to investigators for fear of reprisal. Accordingly,
the presence of a respondent’s representative (typically an
attorney) at an OSHA interview can have a chilling effect that
prevents the investigator from discovering important evidence.
Unless the witness is in a level of management such that
communications must be made through the corporation’s attorney
pursuant to Rule 4.2 of the Model Rules of Professional
Responsibility, investigators should specifically inform
witnesses of the opportunity to meet privately with an OSHA
investigator or to speak with an OSHA investigator by phone.
I. Service of OSHA determinations on counsel of record.
In Section 24.105(b), I suggest that the rule should specifically
require service on the attorney of record for each party (if the
party has counsel). Mr. Renner has one case where OSHA sent the
determination directly to a complainant with limited English
proficiency, even though he signed and filed the original
complaint. He did not learn about the determination until OSHA
sent him a copy – more than a month later. Even though he filed
the objection and request for hearing immediately upon his
receipt of the determination, the ALJ dismissed the objection and
request for hearing on grounds that it was not made within thirty
days, counting from the original issuance directly to the
complainant. This case is currently pending at the Sixth Circuit
in Smith v. Solis, Case No. 08-4058 (ARB Case No. 06-146). We
could avoid these types of problems if the rule specifically
required service on the attorney of record, or alternatively, if
the rule allowed objections within thirty days of the last
service when the party and his or her attorney are served at
different times.
J. Imposing Undue Limitations on Discovery.
I particularly object to the last sentence of Section 24.107(b)
("Administrative law judges have broad discretion to limit
discovery in order to expedite the hearing."). It had been well
established that the time limits for adjudication can be extended
or waived to allow for the completion of discovery. Timmons v.
Mattingly Testing Services, 95-ERA-40, D&O of Remand by ARB, pp.
5-6 (June 21, 1996). An initial request to extend the time limits
is routinely granted. Tracanna v. Arctic Slope Inspection
Service, 97-WPC-1, ARB No. 97-123, D&O of Remand by ARB, at 5
(Nov. 6, 1997). Adequate time is absolutely necessary to
accomplish proper discovery in a manner consistent with the
Federal Rules of Civil Procedure. Accord, Malpass v. General
Electric Co., 85-ERA-38/39, D&O of SOL, slip op. at 12 (March 1,
1994). The Secretary of Labor has stated that parties to DOL
whistleblower proceedings have "all the discovery mechanisms of
the Rule of Practice" available to them to assist in preparing
for a hearing. Malpass v. General Electric Co., 85-ERA-38/39, D&O
of SOL, slip op. at 12 (March 1, 1994). In Holub v. H. Nash
Babcock, Babcock & King, Inc., 96-ERA-25, Discovery Order of ALJ
(March 2, 1994), the ALJ ruled that "the law is well settled
regarding the appropriateness of extensive discovery in
employment discrimination cases. Further, the courts have held
that liberal discovery in these cases is warranted." Id., slip
op. at 6. Also see McDonnell Douglas Corp. v. Green, 411 U.S.
792, 804-05 (1073) (extensive discovery in employment
discrimination cases is necessary and the refusal to adhere to
the "liberal spirit" of discovery would be an abuse of
discretion); Duke v. University of Texas at El Paso, 729 F.2d
994, 997 (5th Cr. 1984) ("procedural technicalities" to impede
liberal discovery are improper). One member of the ARB explained:
In employment discrimination cases, the courts have held
that discovery should be permitted "unless it is clear
that the information sought can have no possible bearing
upon the subject matter of the action." Marshall v.
Electric Hose & Rubber Co., 68 F.R.D. 287, 295 (D.Del.
1975) (citations omitted). "In such cases, the plaintiff
must be given access to information that will assist the
plaintiff in establishing the existence of the alleged
discrimination." Lyoch v. Anheuser-Busch Companies,
Inc., 164 F.R.D. 62, 65 (E.D. Mo. 1995) (citations
omitted). Accord Trevino v. Celanese Corp., 701 F.2d
397, 405 (5th Cir. 1983) (vacating protective order
which limited discovery in part because, "imposition of
unnecessary limitations on discovery is especially
frowned upon in Title VII cases."); Flanagan v.
Travelers Insurance Co., 111 F.R.D. 42, 45 (W.D.N.Y.
1986) (same). Consistent with this body of case law, the
Secretary of Labor and the ALJs have recognized the
broad scope of discovery to be afforded parties in
whistleblower cases. See, e.g., Malpass v. General
Electric Co., Case Nos. 85-ERA-38/39, Sec’y Dec., Mar.
1, 1994, slip op. at 12; Holub v. Nash, Babcock, et al.,
Case No. 93-ERA-25, ALJ Disc. Ord., Mar. 2, 1994, slip
op. at 6. See generally Timmons v. Mattingly Testing
Services, Inc., ALJ Case No. 95-ERA-40, ARB Dec. & Ord.
of Rem., June 21, 1996, slip op. at 4-6 (discussing the
"full and fair presentation" of a whistleblower case by
the parties).
Khandelwal v. Southern California Edison, ARB No.
98-159, ALJ Nos. 1997-ERA-6 (ARB Nov. 30, 2000),
concurring opinion of E. Cooper Brown.
It is ironic that Congress created the judicial bypass for ERA
cases out of a perception that the DOL process was not adequate
to protect whistleblower interests, and now the DOL is using the
bypass provision as a basis to make its process even less
suitable. I urge the Department to make its process better so
that complainants are encouraged to bring their claims to the
Department and allow the Department to complete its process.
The 2005 amendment affects only ERA whistleblower complaints.
However, the new Part 24 affects all the environmental
whistleblower cases, even though the complainants there have no
right of de novo review in district court. The current
legislation provides no logical basis to restrict their rights of
discovery in any way.
If the Department was intent on limited discovery for the sake of
speed, it could make clear that ALJs can make an adverse
inference of unlawful discrimination based on a respondent’s
failure to make full and complete discovery responses. Accord,
Malpass v. General Electric Co., 85-ERA-38/39, D&O of SOL, slip
op. at 12 (March 1, 1994). The Department could add a requirement
for initial disclosures (reference FRCP 26(a)(1)). The Department
could expedite discovery by shortening the time to respond to
interrogatories, requests for documents or admissions.
K. Encouraging E-Discovery.
I specifically suggest that the Department require parties to
provide discovery responses in searchable electronic forms when a
party has the responsive information in such forms. I have
noticed numerous parties printing out emails, for example, and
producing the hard copies to frustrate an opponent’s ability to
save and search the responsive documents for key names or
phrases. The companies go to extra effort to make their
electronic records harder for complainants to use. The searchable
electronic form is necessary to properly search and manage the
documents. It is not fair that respondent can search the relevant
emails, policy files, and other documents electronically while
complainant and his counsel would have to read through all the of
pages of paper to get the same information. I mention a
searchable electronic form because some respondents’ counsels
have been converting documents to PDF forms by scanning the
hardcopy or otherwise making the PDF file non-searchable. That
frustrates the purpose of electronic discovery. Courts that have
considered the issue have held that production of electronic
documents in their electronic form is proper. Armstrong v.
Executive Office of the President, 1 F.3d 1274 (D.C. Cir. 1993),
reversed on other grounds, 90 F.3d 553 (D.C.Cir. 1996). See also
Anti-Monopoly, Inc. v. Hasbro, Inc., 1995 U.S. Dist. LEXIS 16355
(S.D.N.Y.) "Production of materials in hard copy form does not
preclude a party from receiving the same information in
electronic form."; see also Cobell v. Norton, 2002 U.S. Dist.
LEXIS 5291 (D.D.C.) (request for permission to produce emails on
paper draws sanctions). Production electronically is easier for
the producing party and more useful to the receiving party. It is
the right thing to do. The ALJ erred in failing to compel
respondent to produce its electronic versions of its documents.
The modern practice of maintaining electronic records means that
businesses typically have more records than they did in times
past. They will need the time to identify the location of all
electronic data, to retrieve such data, and to prepare the data
for production. Limiting the period for discovery prejudices
complainants in that it will effectively deny them the
opportunity to obtain the documents necessary to prove their
claims. ALJs are generally reluctant to impose discovery
sanctions. Limiting the period for discovery gives respondents a
tremendous advantage in that they can spend months withholding
documents and by the time the discovery motions are before an
ALJ, the case will be going to trial and the complainant will not
have had access to documents and information that can prove the
claim. DOL precedent establishes that the reason for encouraging
expeditious hearings is to benefit the complainant. Johnson v.
Transco Prods., Inc., 85-ERA-7, slip. op. of ALJ at 2 (Mar. 5,
1985). The employee is likely to be out of a job or otherwise
economically disadvantaged by the employer’s alleged retaliation.
The time limits are not designed to provide the employer with a
means of pressuring or harassing an employee who has "blown the
whistle." Bullock v. Rochester Gas & Electric Corp., 84-ERA-22
(ALJ June 8, 1984) (interim order) (Respondent had opposed
continuance for Complainant to obtain an attorney). DOL appears
to have lost sight of this precedent and appears to be more
concerned with protecting respondents from the burden of
discovery than in assuring a fair adjudication of a complaint. I
urge the Department to remove the sentence that encourages ALJs
to limit discovery, and instead specify that discovery should
include initial disclosures, searchable electronic production of
electronic records, and adverse inferences upon a showing of
failure to make timely and complete responses.
L. Role of DOL in enforcing whistleblower protection statutes.
The summary of changes to Section 24.108 states that "in most
whistleblower cases, parties have been ably represented and the
public interest has not required the Department’s participation."
This statement is an unfortunate reflection of DOL’s stance on
whistleblower protection laws. This orientation has grave
consequences for public health and safety. Just last week, a
hearing held by the House Committee on Education and Labor
revealed that the six miners who died in a mine cave-in on August
6, 2007, had concerns about mine safety issues but were reluctant
to raise them for fear of losing their jobs. Also in 2007, the
Nuclear Regulatory Commission (NRC) concluded that personnel at
the Peach Bottom Atomic Power Station in Pennsylvania did not
report concerns about the sleep inducing conditions for guards
because of fear of retaliation. "If employees are coerced and
intimidated into remaining silent when they should speak out, the
result can be catastrophic." Rose v. Secretary of Department of
Labor (6th Cir. 1986), 800 F.2d 563, 565. Instead of focusing on
limiting discovery in these cases, the Department should be
focused on enforcing whistleblower protection laws that enable
employees to raise concerns without fear of reprisal.
Accordingly, the Department should consider intervening on behalf
of complainants in these cases, especially where a complainant is
pro se.
Ironically, it appears that under the prior Administration, the
Solicitor intervened in whistleblower cases almost exclusively
when there is an opportunity to narrow or undermine whistleblower
protection laws. For example, Ambrose v. U.S. Foodservice, Inc.,
ARB Case No. 06-096, the Assistant Secretary submitted a brief
proposing that the ARB construe coverage under the whistleblower
provision of the Sarbanes-Oxley Act very narrowly. The brief
proposed a standard that conflicts with the Department’s
regulations implementing Section 806 of SOX and it disregarded
the remedial purpose of Section 806 and Congressional intent.
Similarly, in Sasse v. Department of Labor, the Department
submitted a brief to the Sixth Circuit arguing for a narrow
construction of the range of adverse actions that are actionable
under the environmental whistleblower laws. And in Ede v. Swatch
Group, ARB No. 05-053, the Assistant Secretary again argued for a
narrow construction of SOX. Hopefully, the Department will
reverse this trend.
M. Deciding cases on the merits.
Finally, I suggest modifications to Section 24.110 that would
further the goal of deciding cases on their merits. Specifically,
the Department can allow a party to set out sufficient grounds
for the ARB review, but then add additional grounds in the brief.
The previous rule had allowed parties to make a simple request
for review, and then set out the grounds in the brief. In appeals
to the federal circuit courts, the process of writing the brief
is when counsel is obligated to review the entire record to set
out the assignments of error. To require that a party review the
entire record to identify all the errors in less than ten
business days (since the ten days run from the date of the
decision, not the date counsel receives it) is unrealistic and
unfair. I notice that in Section 24.105(c), the Department has
expanded the time to file a simple objection and request for de
novo review from five (5) days to thirty (30) days. I support
this change in Section 24.105(c). However, it is uneven that
parties are allowed thirty (30) days to file a simple request for
hearing, but less than ten (10) days to review the entire record
to identify all the assignments of error. From time to time, each
of us might be in a hearing or take a vacation that is longer
than ten (10) days. I suggest that thirty (30) days would be a
better time limit for Section 24.110(a). To the extent that the
ARB needs to determine that there are good issues present for
briefing, this goal can be achieved without limiting a party to
assign only those issues identified in the petition for review.
The Department can require that a party file a petition that
identifies good grounds for the review, and then permit the party
to raise additional assignments of error in their brief. This
later alternative would still allow the ARB to screen the
petitions for meritorious issues for briefing, and preserve the
fundamental goal of deciding cases on their merits instead of
adding more technical grounds to defeat claims.
If Department personnel or other interested parties have any
questions about my comments, they are welcome to call on me.
Very truly yours,
Richard R. Renner
Legal Director
National Whistleblowers Center
1 Available at:
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