The Occupational Safety and Health Administration (OSHA) issued a new Whistleblower Investigations Manual last year. The new manual includes some improvements for whistleblowers, such as accepting oral complaints (which is particularly helpful in meeting the short 30-day time limits for environmental and Section 11(c) cases), using digital recording for interviews, and providing more guidance in determining if protected activity caused the adverse action. The manual, and OSHA’s creation of its Office of the Whistleblower Protection Program (OWPP), leave intact the decision-making authority of the Regional Administrators (RAs). With the new administration in 2009, OSHA has increased the number of press releases it has issued about decisions in favor of whistleblowers. However, this manual does not provide information about a whistleblower’s odds of winning a favorable determination.
Practitioners may find particular benefit in the OSHA policies for “non-public disclosure.” Starting at page 1-16 (page 35 of the PDF file), this policy explains how parties should ordinarily receive information in OSHA’s files upon request:
While a case is under investigation or appeal, information contained in the case file will be disclosed to the parties in order to resolve the complaint; we refer to these as non-public disclosures. Once a case is closed at the agency level, any and all records not otherwise protected from disclosure may be disclosed to the parties, upon their request. This non-public disclosure may also occur at any level after the investigative stage, through the course of any administrative or judicial proceedings, until the final disposition of the case, either through the administrative or judicial process.
For non-management witnesses, the policy explains how their statements can be kept confidential:
In taking statements from individuals other than management officials representing the respondent, the investigator must specifically ask if confidentiality is being requested, and must document the answer in the case file. ***
For trucker cases under the Surface Transportation Assistance Act (STAA) and Section 11 (c) cases under the OSH Act, the manual provides at page 4-5 (p. 94 of the pdf) that the staff must check with the Regional Solicitor of Labor (RSOL) before issuing a “merit” decision in favor of the whistleblower. Advocates in these cases, therefore, may wish to consider whether to reach out to the RSOL once the fact-finding portion of the investigation draws to a close.
This manual is a useful reference for whistleblowers and their advocates in understanding OSHA procedures and using them to make their best case.