The Department of Labor (DOL) issued a news release on August 16, 2016 announcing the launching of a new pilot process in its Western region. The new process, the “Expedited Case Processing Pilot,” allows a complainant covered by certain statutes to ask OSHA to cease its investigation and issue findings for the department’s Office of Administrative Law Judges (ALJ) to consider. The ALJ may order the same remedies as OSHA, including: back pay, compensatory damages, punitive damages where authorized, attorneys’ fees and reinstatement.
“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,” said Barbara Goto, OSHA’s regional administrator in San Francisco. The pilot became effective August 1st in the agency’s San Francisco region, which includes California, Nevada, Arizona, Hawaii, and the islands of American Samoa, CNMI and Guam.
The case must meet certain criteria to be included in the pilot program. The case will be assessed for the following criteria once the complainant requests expedited processing:
- • 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 the claim with OSHA.
- • OSHA has interviewed the complainant.
- • Federal investigators have evaluated the complaint and the complainant’s interview to determine if 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.
Once OSHA officials determine that these criteria are met, they will evaluate the claim to determine – based on the information gathered up to the date of the complainant’s request for expedited processing – whether reasonable cause exists to believe that a violation of the statute occurred. OSHA officials will 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.
This process, while not identical, is similar to the EEOC’s procedure allowing the complainant to seek a right to sue letter to expedite resolution of the case. The goal is to bring about quicker resolution of these cases, for the benefit of both the complainant and his/her employer. As always, employers should make sure that their responses to the complaint are thorough and that their witnesses are well prepared for the interview process.
