Standard on Merit of Whistle-Blower Claims Is Being Updated, Michaels Tells Committee

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By Bruce Rolfsen

Sept. 4 — Several changes to the handling of whistle-blower cases are being developed and should soon spread across the Occupational Safety and Health Administration, agency administrator David Michaels told the Whistleblower Protection Advisory Committee on Sept. 3.

The changes include revising the standard for deciding whether a whistle-blower complaint has merit and assigning regional-level administrators to oversee whistle-blower efforts.

Currently, to make a determination as to whether a whistle-blower case has merit, OSHA requires that a “preponderance of evidence” show a worker was retaliated against for reporting safety or other violations covered by 22 whistle-blower laws. OSHA intends to lower the standard to a “reasonable cause,” Michaels said.

OSHA and the Department of Labor's Office of the Solicitor are working on a policy memo explaining the change, and the memo should be released soon, Michaels said.

If OSHA decides a case has merit, the agency typically attempts to reach a settlement with the employer or refers the case to the solicitor for administrative or federal court proceedings. Cases determined to lack merit are typically dismissed, although complainants often appeal the decisions.

The effect the change would have on the number of cases dismissed by OSHA as lacking merit isn't clear. Of the 3,274 whistle-blower cases in fiscal 2013 in which OSHA made a determination, 49 percent (1,596 cases) were dismissed. However, not all were dismissed because of merit.

Changing the merit requirements is separate from proposals to revise the standard of proof required for Section 11(c) Occupational Safety and Health Act cases. The proposed changes to the standard of proof lower the burden from having to show a worker was retaliated against because of voicing safety concerns to showing the worker's actions were a “contributing factor”.

Reducing Backlog

Michaels also said that as part of OSHA's efforts to improve its handling of Section 11(c) whistle-blower cases, OSHA is working through a backlog of requests to review determinations on whether a case had merit. The average time to complete a review has declined from 279 days a year ago to 89 days, Michaels said. Today, about 33 cases await decisions.

Because Section 11(c) doesn't allow for workers to take their cases to federal or administrative courts if they aren't satisfied with OSHA's administrative decisions, OSHA's handling of merit determinations continues to be a concern for the agency and whistle-blower rights groups.

Regional Oversight

OSHA is also changing its day-to-day oversight of whistle-blower investigations. OSHA plans to assign to each of OSHA's 10 regions an assistant regional administrator focused on whistle-blower issues, Michaels said.

The assistant administrators will work on strategic planning and program goals, not on investigations, Nancy Smith, acting director of OSHA's Directorate of Whistleblower Protection Programs, told the advisory committee. The agency also expects the added oversight will provide more consistency among the regions' case determinations.

OSHA was criticized by the Government Accountability Office in 2010 for inconsistent whistle-blower practices among the regions.

While OSHA has overhauled management of whistle-blower investigations and conducted its own regional audits, the agency hasn't brought in an outside group to review the program.

In April, two senior Republican lawmakers, Sens. Charles Grassley (Iowa), ranking member of the Committee on the Judiciary, and Lamar Alexander (Tenn.), ranking member of the Committee on Health, Education, Labor & Pensions, asked OSHA to provide data on the agency's whistle-blower performance, including audit information.

To contact the reporter on this story: Bruce Rolfsen in Washington at brolfsen@bna.com

To contact the editor responsible for this story: Jim Stimson at jstimson@bna.com

Michaels's comments to the advisory committee are available at http://1.usa.gov/1qLKHrF.

More information about the committee is available at http://www.whistleblowers.gov/wpac.html.