OSHA has updated its policies and procedures for Alternative Dispute Resolution (ADR) to resolve whistleblower retaliation complaints. The OSHA directive, CPL 02-03-008, amends an earlier ADR directive, replacing CPL 02-03-006, issued August 18, 2015, and makes changes to terminology and confidentiality procedures for the ADR process.

OSHA’s many whistleblower responsibilities

OSHA is responsible for investigating and resolving whistleblower complaints of retaliation not only under Section 11(c) of the Occupational Safety and Health Act of 1970, but also under 21 other federal statutes, including:

• Federal environmental protection, nuclear safety, and transportation laws;
• Consumer Product Safety Improvement Act;
• FDA Food Safety Modernization Act;
• Sarbanes-Oxley Act;
• Consumer Financial Protection Act; and
• Affordable Care Act.

Under the various whistleblower protection statutes, employers are prohibited from retaliating against an employee for filing a complaint, participating in or cooperating with an investigation, or engaging in other activities protected by the statutes. Employees who believe they have experienced retaliation—which can consist of firing, loss of pay or benefits, intimidation, demotion, and other adverse actions—can file a discrimination complaint with OSHA.

Upon receiving a complaint, OSHA conducts an interview to determine the need for an investigation. If an investigation determines that a complaint has merit, employers are typically required to restore the employee’s job, earnings, and benefits. Such remedies can be very costly for employers.

ADR: An alternative to investigation

OSHA offers the ADR process as an alternative to a whistleblower complaint investigation. Under the ADR program, the parties involved in a whistleblower dispute can choose to participate in an early resolution process leading to a settlement agreement with the assistance of a neutral OSHA whistleblower expert. The process is voluntary; both parties must agree to ADR and both must submit a written “Request for Alternative Disputes Resolution (ADR)” form.

If only one party agrees to ADR, an investigation proceeds and both parties are notified that the investigation will proceed. Both parties can agree to start the ADR process at any point in an investigation, and the investigation halts while the ADR process proceeds.

Even if both parties may agree to ADR, the agency may decline to accept a case for ADR if it believes one or more parties doesn’t intend to negotiate a settlement in good faith. OSHA also can terminate the ADR process if any of the parties engages in abusive behavior, fails to negotiate in good faith, or if the agency believes the process has reached an impasse and no agreement is possible. The agency also may terminate ADR if any of the parties decides to end the process for any reason.

Latest developments

In the new ADR directive, changes include:

• Revising the confidentiality section, explaining circumstance in which the OSHA official facilitating the ADR may share information with other agency officials;
• Making minor changes in the terminology used to describe the process and the OSHA personnel involved in the program; and
• Revising the ADR request form to incorporate new procedures and terminology.

The agency now refers to the staff member who facilitates ADR as “the Neutral.” It previously referred to the neutral, OSHA expert who facilitated ADR as the Regional ADR Coordinator (RADRC).

Under the changes to its confidentiality policies for the ADR process, the Neutral now may share information with other OSHA personnel for administrative and supervisory purposes or to seek legal or policy guidance on novel or complex questions that arise during the ADR proceeding.

The Neutral still may not share information obtained during the ADR process with OSHA investigative staff. However, the parties involved may share their own ADR communications with investigative staff if a whistleblower investigation begins or resumes.

The OSHA Regional Offices retain all documents and other information collected during the ADR process, and those files are exempt from Freedom of Information Act (FOIA) disclosures. Those files must be kept separate from any investigative files related to a whistleblower complaint.

All parties to dispute resolution proceedings, including the Neutral, may not disclose and cannot be compelled to disclose any information about the ADR proceedings through a legal discovery process. The whistleblower complainant and respondent may waive confidentiality or agree to less restrictive conditions of confidentiality, but they must do so at the beginning of the ADR process.

If a settlement agreement is reached, the written settlement agreement must be included in the investigative file. Investigative files are not exempt from FOIA disclosure.