By Adam R. Young and Craig B. Simonsen

shutterstock_144257470Seyfarth Synopsis: The Affordable Care Act faces an uncertain future under the Trump administration, which will affect whistleblower provisions enforced by OSHA.

In October 2016, the Occupational Safety and Health Administration published a final rule that established procedures and time frames for handling whistleblower complaints under the Patient Protection and Affordable Care Act (ACA), also known as ObamaCare. 81 Fed. Reg. 70607 (October 13, 2016).

In its news alert, OSHA explains that Section 1558 of the ACA gives employees a cause of action based on any adverse employment action in retaliation for receiving marketplace financial assistance when purchasing health insurance through an Exchange. It also protects employees’ right to raise concerns about employers’ conduct that they believe violates the consumer protections and health insurance reforms in Title I of the ACA.

Concerning the rules, Dr. David Michaels, the then OSHA Administrator, said “this rule reinforces OSHA’s commitment to protect workers who raise concerns about potential violations of the consumer protections established by the Affordable Care Act or who purchase health insurance through an Exchange.”

The new rule established procedures and time frames for (1) hearings before Department of Labor administrative law judges in ACA retaliation cases; (2) review of those decisions by the Department of Labor Administrative Review Board; and (3) judicial review of final decisions.

In 2013, OSHA had sought public comments on an interim final rule. The Preamble to the final rule responds to those public comments and updates the rule to “clarify the protections for workers who receive financial assistance when they purchase health insurance through an Exchange.”

OSHA’s Affordable Care Act fact sheet is intended to provide more information regarding who is covered under the ACA’s whistleblower protections, define what is protected activity, list types of retaliation, and explains the process for filing a complaint.

It remains to be seen what will happen with the ACA under the Trump administration. If Congress repeals the ACA, this will necessarily include all related whistleblower provisions enforced by OSHA.  Employers should stay attuned to developments in new health care legislation.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Whistleblower Team or the Workplace Safety and Health (OSHA/MSHA) Team.

By Brent I. Clark, James L. Curtis, and Craig B. Simonsen

Seyfarth Synopsis: Employers that are regulated under any of the 22 federal whistleblower protection laws are encouraged to review company policies, procedures, and training systems to examine conformity with this guidance.

The Occupational Safety and Health Administration has just issued its Recommended Practices for Anti-Retaliation Programs to help guide employers in creating “workplaces in which workers feel comfortable voicing their concerns without fear of retaliation.” The recommendations will apply to all public and private sector employers covered under the 22 whistleblower protection laws that OSHA enforces.

The Recommended Practices outline five elements that OSHA believes make up an effective anti-retaliation program, including:

  1. Management leadership, commitment, and accountability.
  2. System for listening to and resolving employees’ safety and compliance concerns.
  3. System for receiving and responding to reports of retaliation.
  4. Anti-retaliation training for employees and managers.
  5. Program oversight.

OSHA’s twelve page Recommended Practices provide some discussion on each of these “key elements.” Jordan Barab, OSHA acting Director, said that “these recommended practices will provide companies with the tools to create a robust anti-retaliation program.”

OSHA had published an initial draft of the Recommended Practices for review and comment in the November 2015. Differences from the proposal may be reviewed in OSHA’s Response to Public Comments.

Employers that are regulated under any of the 22 federal whistleblower protection laws are encouraged to review closely company policies, procedures, and training systems to examine conformity with this guidance. We note that their Recommended Practices tie into OSHA’s Amended Injury and Illness Standards form 2016. We expect OSHA inspectors to begin including these issues in their inspections.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

By James L. Curtis, Benjamin D. Briggs, and Craig B. Simonsen

shutterstock_150166427Seyfarth Synopsis: The DOL announced this week its new Whistleblower expedited Case review pilot process, to be conducted in its Region 9. Employers in this region may now anticipate even more cases going to the ALJ’s, and should watch these cases closely.

The U.S. Department of Labor (DOL) is launching a new “Expedited Case Processing Pilot” process in its Region 9. The process will allow complainants covered by certain statutes to ask the  Occupational Safety and Health Administration to cease its investigation and issue findings for the DOL’s Office of Administrative Law Judges to consider.

In piloting this process, the DOL stated that “OSHA’s investigation process can take time, and complainants may be able to receive a determination more quickly without losing their rights to a hearing by electing to expedite OSHA’s processing of their claims.” Barbara Goto, OSHA’s Regional Administrator in San Francisco, noted that “the ultimate goal is to bring about quicker resolution for whistleblowers and their employers regarding claims of retaliation for reporting safety and other concerns on the job.”

Under the pilot, in Region 9, once a complainant requests expedited processing, the case may be assessed for these criteria:

  • The claim is filed under a statute that allows for de novo review by an administrative law judge.
  • Depending on the statute, 30 or 60 days have passed from the date the complainant first filed with the claim with OSHA.
  • OSHA has interviewed the complainant.
  • Federal investigators have evaluated the complaint and the complainant’s interview to determine whether the basic elements of a retaliation claim exist.
  • Both the complainant and the respondent have had the opportunity to submit written responses, meet with an OSHA investigator and present statements from witnesses.
  • The complainant has received a copy of the respondent’s submissions and had an opportunity to respond.

If these criteria are met, a determination will be made on the complainant’s request for expedited processing – including “whether reasonable cause exists to believe that a violation of the statute occurred.” Under the pilot, OSHA officials may then take one of three actions: dismiss the claim and inform the complainant of the right to proceed before an administrative law judge; issue merit findings as expeditiously as possible; or deny the request.

The pilot became effective on August 1, 2016, in Region 9, including California, Nevada, Arizona, Hawaii, and the islands of American Samoa, CNMI and Guam.

Employers in this region may anticipate now even more cases going to the DOL’s ALJ’s, and should watch these cases closely.

OSHA enforces the whistleblower provisions of twenty-two statutes protecting employees who report violations of various workplace, commercial motor vehicle, airline, nuclear, pipeline, environmental, railroad, public transportation, maritime, consumer product, motor vehicle safety, health care reform, corporate securities, food safety, and consumer financial reform regulations.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Whistleblower Team or the OSHA Compliance, Enforcement & Litigation Team.

By Benjamin D. Briggs, Adam R. Young, and Craig B. Simonsen

shutterstock_150166427Seyfarth Synopsis: The Tenth Circuit held that a trucking company unlawfully retaliated against a truck driver after he abandoned a trailer on a public highway, finding that his actions constituted a protected refusal to operate a vehicle in unsafe conditions.

The Tenth Circuit Court of Appeals denied a petition for review of a retaliation finding by the Administrative Review Board (ARB), finding that the employee had been retaliated against in violation of the Surface Transportation Assistance Act (STAA). TransAm Trucking, Inc. v. Department of Labor, No. 15-9504 (Tenth Circuit August 8, 2016),

The Court explained that the driver parked a tractor-trailer on the shoulder of an interstate highway. After sitting in sub-freezing temperatures, the brake lines on the trailer froze and rendered the trailer immobile. When a service vehicle failed to arrive and the driver’s heating unit stopped functioning, the driver detached the trailer and drove away in the tractor.

After his termination, the employee filed a whistleblower complaint with the Occupational Safety and Health Administration (OSHA), an agency within the Department of Labor (DOL) that administers STAA claims, asserting that the employer violated the whistleblower provisions of the STAA when it discharged him. After OSHA dismissed the driver’s complaint, the employee requested a hearing before a DOL administrative law judge (ALJ).

The employer argued that the driver’s actions were not protected under the STAA, which only creates a whistleblower claim for an employee who “refuses to operate a vehicle because … the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle’s hazardous safety or security condition,” 49 U.S.C. § 31105(a)(1)(B)(ii). Because the trailer was inoperable and the driver drove off without it, the employer argued that the driver could not have refused to “operate” in unsafe conditions; but, rather, he abandoned company property.

The ALJ concluded that the driver had engaged in protected activity when he reported the frozen brake issue to the employer, and again when he refused to obey the instruction to drive the truck while pulling the trailer. The ALJ further concluded that the protected activity was a contributing factor in the employer’s decision to terminate his employment because his refusal to operate the truck while pulling the trailer was “inextricably intertwined” with the employer’s decision to terminate him for abandoning the trailer at the side of the highway. The employer appealed to the DOL Administrative Review Board (ARB) (which affirmed the ALJ’s decision) and then to the Tenth Circuit Court of Appeals.

In denying the employer’s appeal, the Tenth Circuit noted that the Administrative Procedure Act (APA) “standard of review is narrow and highly deferential to the agency.” Compass Envtl., Inc., v. Occupational Safety & Health Review Comm’n, 663 F.3d 1164, 1167 (10th Cir. 2011).  The Court concluded that the driver had refused to operate the vehicle when he left the trailer behind.  Consequently, the Court upheld the ARB decision and ordered the driver to be reinstated with backpay.

This case should remind employers that the DOL takes an expansive view of the whistleblower statutes enforced by OSHA, and the kind of actions that constitute protected activity under those statutes. In this case, the employer advanced a seemingly non-retaliatory reason for the termination — abandonment of company property — as the reason for the challenged decision.  However, the close connection between the trailer abandonment and the report that the brakes had frozen/refusal to pull the trailer was enough to tip the scales in the employee’s favor.  Employers should exercise extreme caution when making employment decisions under circumstances in which a legitimate reason for discipline bears a close relationship to conduct that may constitute protected activity under a whistleblower statute.

OSHA enforces the whistleblower provisions of twenty-two statutes protecting employees who report violations of various workplace, commercial motor vehicle, airline, nuclear, pipeline, environmental, railroad, public transportation, maritime, consumer product, motor vehicle safety, health care reform, corporate securities, food safety, and consumer financial reform regulations. For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Whistleblower Team or the OSHA Compliance, Enforcement & Litigation Team.

By Mark A. Lies, II and Adam R. Young

iStock_000018246812_MediumSeyfarth Synopis: Employers may face liability for retaliation charges from employees who report food safety issues under the Food Safety Modernization Act (FSMA).

Employers in the food industry have a new headache to worry about. On April 18, 2016, the federal Occupational Safety and Health Administration released final rules establishing standards and procedures for whistleblower and retaliation complaints. Employees now may file whistleblower complaints with OSHA based on their reports of food safety concerns. 

Protected Activities

The FSMA protects employees who provide information relating to any action that the employee reasonably believes to be in violation of the Federal Food, Drug, and Cosmetic Act.  The Act protects internal reports to management, even if made in the ordinary course of the employee’s duties.  If an employee works as a food safety professional, the employee’s regular job duties (reporting food safety issues to the employer) are “protected activities.”  Any adverse employment action against a food safety professional could result in a retaliation claim with OSHA, and subject the employer to an Agency investigation.

The FSMA further protects employees who testified or assisted in a proceeding about the violation, or refused to participate in any activity or assigned tasks reasonably believed to be in violation of the law.

Burdens of Proof

Under the regulations, an employee complainant need only present “direct or circumstantial evidence” to give rise to “an inference” that (1) the employer suspected that the employee engaged in protected activity, and (2) the protected activity was a “contributing factor” in the adverse action. Mere “temporal proximity” to the protected activity is sufficient to meet the complainant’s burden.  OSHA will conduct an investigation, unless the employer can demonstrate by “clear and convincing evidence” that it would have taken the same adverse action in the absence of the protected activity.

After OSHA completes its investigation, the Agency will have to prove to an Administrative Law Judge by a preponderance of the evidence that protected activity was a contributing factor in the adverse action alleged in the complaint. An employer can avoid liability if it demonstrates by “clear and convincing evidence” that it would have taken the same adverse action in the absence of any protected activity.

Statute of Limitations

The rule provides a 180-day statute of limitations for retaliation claims, beginning when the employee is aware or reasonably should be aware of the employer’s decision to take an adverse employment action.

Remedies and Settlement

The regulations provide for damages, reinstatement with back pay and interest, and litigation costs.  OSHA retains the right to review and reject any settlement agreement between the complainant and the employer.

Recommendations

Employers must be vigilant to promptly address food safety issues and prevent retaliation claims from employees. Employers should diligently record their rationales for adverse employment actions.  If an employer receives a retaliation claim, the employer should take immediate action; a position statement is due to the OSHA investigator within 20 days of receipt of notice.  To avoid an inspection, that position statement must meet a high bar of proof that no retaliation took place.

By James L. Curtis and Meagan Newman

shutterstock_144257470Following through on its April 2015 “clarification” of the investigative standard in whistleblower matters, OSHA issued a new whistleblower investigations manual overnight restating the mission of its investigators.

The former manual instructed investigators to dismiss a case if complainant could not establish the prima facie elements of the relevant whistleblower statute.  The former manual went on to state that even where the prima facie elements are present, an investigation of the complaint should not be conducted if the respondent demonstrates, by clear and convincing evidence, that it would have taken the same adverse action in the absence of the complainant’s protected activity.

The new manual now instructs investigators that the burden of proof is simply whether “OSHA has reasonable cause to believe a violation occurred.”  This change is consistent with the April 2015 memorandum issued by the Directorate of Whistleblower Protection Programs.  The memorandum stated: “The threshold OSHA must meet to find reasonable cause that a complaint has merit requires evidence in support of each element of a violation and consideration of the evidence provided by both sides during the investigation, but does not generally require as much evidence as would be required at trial.  Thus, after evaluating all of the evidence provided by the employer and the complainant, OSHA must believe that a reasonable judge could rule in favor of the complainant.”

The question now is not whether the complainant can establish the elements of her claim, but rather whether a reasonable judge could rule in complainant’s favor after weighing all the evidence.  Yet, the deletion of the instruction that a case should be dismissed when the employer presented clear and convincing evidence that the adverse action would have been taken regardless of protected activity is potentially troubling for employers.

The manual also includes a new chapter concerning public disclosure of information obtained during whistleblower investigations.  Employers facing current or potential claims under any of the 22 whistleblower statutes investigated by OSHA should carefully evaluate the new manual and consult with their defense counsel.

By James L. CurtisMeagan Newman, and Craig B. Simonsen

shutterstock_150166427The Occupational Safety and Health Administration (OSHA) and the Federal Aviation Administration (FAA) recently completed a Memorandum of Understanding (December 1, 2015), which will permit the sharing of information under the anti-retaliation provision of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21), 49 U.S.C. § 42121.

AIR21 prohibits air carriers and air carrier contractors and subcontractors from firing or retaliating against airline workers who complain about violations of aviation regulations. Dr. David Michaels, in a December 23, 2015, press release, indicated that “airline industry employees have a right to speak out about unsafe workplaces and practices without fear of losing their jobs.” “Through this agreement with the FAA, we are reinforcing the message that silencing workers who try to do the right thing is unacceptable for workers and also unsafe for the public.”

Under the MOU, the FAA will refer employees who complain of retaliation to OSHA, and OSHA will provide FAA with copies of complaints, findings, and preliminary orders filed under the AIR21 whistleblower provision. In addition, OSHA and FAA will jointly develop training materials to assist “FAA enforcement staff in recognizing retaliation complaints and OSHA enforcement staff in recognizing potential violations of airline safety regulations revealed during investigations.”

The MOU was effective on December 1, 2015.

OSHA enforces the whistleblower provisions of twenty-two statutes protecting employees who report violations of various workplace, commercial motor vehicle, airline, nuclear, pipeline, environmental, railroad, public transportation, maritime, consumer product, motor vehicle safety, health care reform, corporate securities, food safety, and consumer financial reform regulations.

If you would like further information on this topic, please contact a member of the Whistleblower Team, your Seyfarth attorney, Meagan Newman at mnewman@seyfarth.com, or Craig B. Simonsen at csimonsen@seyfarth.com.

By James L. Curtis, Meagan Newman, and Craig B. Simonsen

shutterstock_144257470The Occupational Safety and Health Administration has published a draft document intended to “help employers” to develop a program to protect employees from retaliation when issues or concerns about workplace conditions or activities that could harm workers or members of the public are raised.

The draft, Protecting Whistleblowers: Recommended Practices for Employers for Preventing and Addressing Retaliation, the Agency believes, will assist employers in creating a “non-retaliatory environment” in the workplace by providing “practical guidance on protecting whistleblower rights for public, private, and non-profit employers.” The draft document contains sections on how to include leadership commitment, foster an anti-retaliation culture, respond to reports of retaliation, conduct anti-retaliation training, and monitor progress and program improvement.

OSHA prepared this draft document based on recommendations of the Whistleblower Protection Advisory Committee’s Best Practices for Protecting Whistleblowers and Preventing and Addressing Retaliation. The Agency indicates that it is especially interested in comments related to:

  • How anti-retaliation concepts are described;
  • Important features of an anti-retaliation program;
  • Challenges to implementation of the recommended practices; and
  • Issues specific to small businesses.

While the OSH Act prohibits employers from retaliating against employees for exercising their rights under the OSH Act, OSHA also enforces the whistleblower protection provisions of 21 other statutes relating to asbestos in schools, cargo container safety, aviation safety, commercial motor carrier safety, consumer product safety, environmental protection, consumer financial protection, food safety, health insurance reform, motor vehicle safety, nuclear safety, pipeline safety, public transportation safety, railroad safety, maritime safety, and securities laws.

Comments on the draft document will be accepted until Jan. 19, 2016. Comments should be submitted to Docket No. OSHA-2015-0025.

By James L. Curtis and Craig B. Simonsen

shutterstock_144257470In a recent Federal District Court OSHA 11(c) retaliation case, Perez v. Sandpoint Gas N Go, 14-cv-357 (9-29-2015), Chief Judge B. Lynn Winmill provides a strong reminder that the Courts will protect from retaliation employees who raise workplace safety issues.

In this case, the whistleblower had contacted OSHA in 2012 to complain about workplace safety issues. OSHA conducted an on-site inspection and issued citations. After receiving the citations, the employer fired the complaining employee. Judge Winmill found for the Secretary of Labor, and awarded both compensatory and punitive damages to the whistleblower.

While the Court only awarded about $980 in compensatory damages for lost wages and interest, the Court also awarded $100,000 in punitive damages. This punitive damage award should serve as a strong reminder that employers need to take safety complaints seriously and cannot retaliate against the employee who raised the complaint in the first place.

By James L. Curtis and Meagan Newman

OSHA released an updated version of its Whistleblower Investigations Manual (CPL 02-03-005) on May 21, 2015–the first update since September 2011.  The manual now reflects procedures for investigating MAP-21 whistleblower claims (protecting workers who report defects in automobiles), as well as substantive changes to Chapter 6 which covers settlement agreements and remedies.

One of the most significant changes is the level of detail regarding punitive damages, including a recognition of an employer’s good faith defense to such damages.  Additional substantive guidance is also provided on the topic of damages for emotional distress.

With respect to settlement agreements, the manual instructs investigators for the first time to consider including a requirement in a settlement that the employer provide training for employees or managers about whistle-blowing rights.   The revised manual also makes clear, on the issue of front pay in lieu of reinstatement, that front pay may be appropriate when an employee would face “debilitating anxiety” or other risks to their mental health.  Previously, investigators were instructed to consider front pay when returning the employee to work would be too disruptive.

There are a number of other changes in the revised manual that will impact how OSHA investigates whistleblower claims and how the parties may resolve them.  Employers facing current or potential claims under any of the 22 whistleblower statutes investigated by OSHA should carefully evaluate the new manual and consult with their defense counsel.