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OSHA – Whistleblowing, VPP

The budget proposal appropriates approximately $571 million to the Occupational Safety and Health Administration. Rep. Rodney Alexander (R-LA) mentioned that he has asked employers about their experiences working with OSHA, and said that by and large, they have not been positive. He said that employers claim the audit process is “exhausting,” and that inspectors seem to focus more on generating fines than helping employers comply with workplace safety laws. Additionally, the “many layers” of OSHA regulations all but ensure that the agency will find a citable offense during the inspection, he said.

In response, Harris said that he has heard many of these same complaints from small employers, and promoted the agency’s small business consultation program.

Ranking subcommittee member Rosa DeLauro (D-CT) argued that the pace of issuing OSHA regulations is “at near paralysis,” and asked Harris what can be done to expedite the process. Harris responded that “much of OSHA’s regulatory process is not under OSHA’s control,” and that he hopes to continue regulatory development. He said that there is a “norm-setting value” to OSHA standards. He claimed that most compliance comes from employers that voluntarily bring themselves into compliance with new regulations.

DeLauro mentioned the Voluntary Protection Program (VPP), OSHA’s cooperative program whereby employers with established and effective safety and health systems and comparatively low injury and illness rates can be eligible for exemption from OSHA programmed inspections. DeLauro cited several examples involving serious injuries and fatalities that occurred at VPP worksites, raising concern about the program’s effectiveness. Harris defended the program, saying that “VPP has a good bit of value,” but a review is underway and certain issues need to be addressed.

With respect to OSHA’s whistleblower protection program, DeLauro asked Harris why an increase in funding is necessary. Harris explained that “Congress keeps giving us work and no money to do the work.” Specifically, he noted that there have been five new laws enacted since 2009 that include whistleblower protection provisions, including the Affordable Care Act, but no additional resources to enforce them. The additional $5.9 million will allow OSHA to enforce these new laws, said Harris. These funds will “ensure the laws that Congress passes will be complied with.” He said that OSHA has developed an internal system to enforce all 22 whistleblower statutes under its jurisdiction, but no resources to carry it out.

Wage and Hour Regulations

Harris touched on the DOL’s proposed rule that would extend minimum wage and overtime requirements to many home care workers. Specifically, this proposal would amend the Fair Labor Standards Act’s (FLSA) companionship and live-in worker regulations to limit the types of duties that render a home caregiver exempt from FLSA requirements, clarify the type of activities and duties that may be considered “incidental” to the provision of companionship services, amend the recordkeeping requirements for live-in domestic workers, and specify that the exemption is limited to care givers employed by the individual, family or household using the services only. Harris spoke in favor of pursuing a final rule on this issue, as “in home caregivers are not babysitters.” He said that in many instances they provide professional care, and that “the idea that they are not entitled to minimum wage and overtime is not what Congress intended.” He did not say when a final rule would be issued.

Federal Contractor Rules

Harris was also asked about other rules under development, including the Office of Federal Contract Compliance Programs’ proposal issued in December 2011 that would amend the nondiscrimination and affirmative action requirements regarding individuals with disabilities for federal contractors and subcontractors. Among other things, this proposal would set a hiring goal for individuals with disabilities at 7%. Harris claimed that this rule is still under development, but that the 7% goal is aspirational. Therefore, under the proposed rule a federal contractor of subcontractor that could not meet that goal would not be fined or penalized, although the agency would work with the contractor to make sure that it has the resources to try to achieve that hiring goal.

State Paid Leave

The budget proposal includes an allocation of $5 million to encourage the establishment of state paid family leave laws. This allotment would go towards a State Paid Leave Fund to provide technical assistance and support to states that are considering paid leave programs. Rep. Lucille Roybal-Allard (D-CA) asked about the goals and requirements of this program. Harris explained that he has not seen as much interest from states as he would have liked because of the administrative costs involved in implementing such programs. He said that some states have, however, expressed interest, and that with increased funding they would be able to provide working parents with paid leave.

Misclassification

Rep. DeLauro asked Harris how widespread the problem of employee misclassification is, and what the DOL is doing to combat this problem. Harris claimed that in the construction industry in particular, the misclassification rate is as high as 30%. He said that the DOL is working with the unemployment insurance system to find employers that are misclassifying employees as independent contractors, and therefore are avoiding UI payments. He said that the DOL intends to audit these employers more aggressively. In addition, he said the Wage and Hour Division is working with state labor departments and workers compensation departments to share information to more readily target miscreant employers. He emphasized, however, that “more could be done.” He noted also that responsible contractors who play by the rules are harmed by those that do misclassify workers, as they are often underbid.

H-2B Visa Program Rule

Rep. Alexander questioned Harris about the status of the H-2B visa program, which governs temporary, seasonal, nonagricultural workers. On April 2, 2013, the USCIS temporarily suspended adjudication of most H-2B petitions following a federal court order issued in Comite de Apoyo a los Trabajadores Agricolas et al v. Solis. In this matter, the court granted a permanent injunction against the enforcement of a portion of a 2008 DOL wage rule regarding prevailing wage determinations applicable to H-2B visas. The court gave the DOL 30 days to revise the rule. Harris explained that the agency “is now caught between an act of Congress and two judicial decisions.” Specifically, through an amendment to an earlier appropriations bill, Congress has enjoined the DOL from using any federal funds to enforce its much-maligned final rule issued in February 2012 governing H-2B visas. In addition, Harris said that the aforementioned case prevents the DOL from using the 2008 wage rule, and that the Eleventh Circuit in a separate case has said that the DOL has no authority over the H-2B program at all. He claimed, however, that the agency is trying to keep the program operating, and intends to meet the court’s April 22 deadline to issue an interim final rule. Once that is complete, the agency can restart the process for issuing H-2B certifications, he said.

More information on the House Appropriations Committee hearing, including a link to an archived webcast of the hearing, can be found here.

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According to the notice posted in the May 17, 2012 edition of the Federal Register, the new Whistleblower Protection Advisory Committee (WPAC) will be charged with making recommendations regarding the development and/or implementation of:

• Better customer service to both workers who raise complaints and employers who are the subject of investigations;
• Improvement in the investigative and enforcement process, and the training of OSHA investigators;
• Improvement of regulations governing OSHA investigations;
• Cooperative activities with federal agencies responsible for areas also covered by the whistleblower protection statutes enforced by OSHA; and
• Other matters concerning the fairness, efficiency and transparency of OSHA's whistleblower investigations as identified by the Secretary or the Assistant Secretary.

In a news release, OSHA’s Assistant Secretary of Labor David Michaels said:

Workers who expose securities and financial fraud, adulterated foods, air and water pollution, or workplace safety hazards have a legal right to speak out without fear of retaliation, and the laws that protect these whistleblowers also protect the health, safety and well-being of all Americans . . . Establishing a federal advisory committee is another important effort to strengthen protections for whistleblowers.

Federal agencies have increased their efforts to target whistleblower violations in recent months. On March 1, 2012, OSHA announced its plans to have the Office of the WPP report directly to OSHA’s Office of the Assistant Secretary instead of to its Directorate of Enforcement Programs. Later that month, OSHA Deputy Assistant Secretary Richard E. Fairfax issued a memo directing field compliance officers and whistleblower investigators to keep an eye out for workplace policies and practices – including employer safety initiatives – that could discourage employees from reporting injuries. On March 28, the DOL’s Administrative Review Board (ARB) released a decision finding that the whistleblower protections afforded under the Consumer Product Safety Improvement Act of 2008 are not limited to “consumer products” nor to matters strictly under the Consumer Product Safety Commission’s jurisdiction.

To support these enforcement initiatives, the DOL’s proposed budget for fiscal year 2013 would allocate an additional $5 million over last year’s OSHA funding to carry out its whistleblower programs.

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The memo explains “while OSHA appreciates employers using safety as a key management metric, we cannot condone a program that encourages discrimination against workers who report injuries.” To this end, the document details four of what the agency considers the most common potentially discriminatory safety policies:

• Taking disciplinary action against employees who are injured on the job regardless of the circumstances surrounding the injury. Because reporting an injury is a protected activity, “OSHA views discipline imposed under such a policy against an employee who reports an injury as a direct violation of section 11(c) or the [Federal Railroad Safety Act (FRSA)]. . . . In addition, such a policy is inconsistent with the employer's obligation to establish a way for employees to report injuries under 29 CFR 1904.35(b), and where it is encountered, a referral for a recordkeeping investigation should be made.”
• Taking disciplinary action against an employee who reports an injury or illness, and the stated reason is that the employee has violated an employer rule about the time or manner for reporting injuries and illnesses. According to the memo, “such cases deserve careful scrutiny.” The memo acknowledges that employers “have a legitimate interest in establishing procedures for receiving and responding to reports of injuries,” but cautions that “to be consistent with the statute . . . such procedures must be reasonable and may not unduly burden the employee's right and ability to report.” The memo explains that an employer rule or procedure cannot penalize employees who may not immediately realize that they are injured or that their injuries are serious enough to report. The guidance states that in investigating these cases, field examiners may consider the following factors: “whether the employee's deviation from the procedure was minor or extensive, inadvertent or deliberate, whether the employee had a reasonable basis for acting as he or she did, whether the employer can show a substantial interest in the rule and its enforcement, and whether the discipline imposed appears disproportionate to the asserted interest.”
• Taking disciplinary action against an employee who reports an injury because the injury resulted from violation of a safety rule. According to the memo, while the agency “encourages employers to maintain and enforce legitimate workplace safety rules,” it cautions against using the work rule as a pretext for discrimination. Therefore, in such a case “a careful investigation is needed.” Factors an investigator should examine include whether the work rule is vague and how consistently the employer monitors and enforces the rule.
• Maintaining policies that intentionally or unintentionally provide employees with an incentive not to report an injury. By way of example the memo describes a scenario in which an employer makes employees eligible to receive a prize or bonus if there have been no injuries the previous year. According to OSHA, such a program – though well-intentioned – might discourage employees from reporting injuries, and could potentially discriminate against those who do report injuries, particularly if the employee or work group reporting the injury would be disqualified from receiving the incentive. This type of program could also result in an employer’s failure to record injuries in violation of OSHA’s recordkeeping and reporting requirements. The agency claims that there are “better ways to encourage safe work practices,” as outlined in OSHA’s Revised Policy Memo #5 – Further Improvements to VPP. 

During a recent Department of Labor budget hearing, Labor Secretary Hilda Solis said she would review this memo, but assured House committee members that OSHA does not intend to issue citations for employer safety programs in general. Regardless of the Labor Secretary’s assurance that OSHA will not penalize employers for maintaining safety policies, the new memo is a reminder that workplace policies and incentive programs must be carefully reviewed and consistently enforced.

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An assessment published last year by the Government Accountability Office (GAO) found OSHA’s Whistleblower Protection Program lacking. This report prompted an internal agency investigation of the whistleblower program, followed by an announcement in August 2011 that the program would undergo a major overhaul.  The following month OSHA released an updated Whistleblower Investigations Manual (pdf) containing revised case handling procedures and information on new laws – including the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 and the Affordable Care Act – enacted since the last manual was issued. OSHA has also launched pilot projects “to evaluate structural changes in 10 field regions that could further strengthen the whistleblower program.” According to Michaels, “OSHA's internal improvement initiatives, including this realignment, demonstrate the agency's steadfast commitment to strengthening a program that is critically important to the protection of worker rights."

The amount of funding allocated to the whistleblower program supports these new efforts. The Department of Labor’s proposed budget for fiscal year 2013 would provide a $5 million increase in OSHA’s funding for whistleblower enforcement.

According to OSHA’s announcement, Sandra Dillon, who had been serving as OWPP’s acting director since May 2011, will now serve as its director.

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To this end, the main changes to the Investigations Manual include the following:

• New chapters are added to provide information on investigating and processing whistleblower complaints filed under the Federal Railroad Safety Act (FRSA), National Transit Systems Security Act (NTSSA), and the Consumer Product Safety Improvement Act (CPSIA). In addition, the manual includes significant updates to the Surface Transportation Assistance Act (STAA) and to the Sarbanes-Oxley chapters, which reflects amendments made in the Dodd-Frank Wall Street Reform and Consumer Protection Act.
• The manual requires investigators to attempt to interview the complainant in all cases.
• The manual contains an expanded discussion of causation, burdens of proof, and the elements of a violation. As part of the intake process, the supervisor must verify that applicable coverage requirements have been met and that the prima facie elements of the allegation have been properly identified.
• The instruction specifies that whistleblower complaints under any statute may be filed orally or in writing, in any language, and that OSHA will be accepting electronically-filed complaints on its Whistleblower Protection Program website.
• The manual clarifies certain aspects of the investigation process, including the method and recording of interviews, and the processing of dually-filed 11(c) complaints in state plan states.
• The manual includes changes in procedures for handling Privacy Act files and Freedom of Information Act requests.
• The manual explains that interest on back pay and other damages is to be computed by compounding daily the IRS interest rate for the underpayment of taxes.
• Finally, the manual sets forth additional guidance addressing uncooperative respondents and the process of issuing administrative subpoenas during whistleblower investigations.

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• Restructuring. Moving forward, OSHA's Whistleblower Protection Program will report directly to the Assistant Secretary instead of being housed in the Directorate of Enforcement. According to the agency, doing so will “increase consistency, timely investigations, and better customer service.” In addition, OSHA notes that since FY 2011, the agency has hired more than 25 new investigators and appointed a new Acting Director. For its FY 2012 budget, OSHA established a separate line item for the whistleblower program “to better track and hold accountable its activities and accomplishments,” and requested a $6.1 million increase to fund an additional 45 investigators.
• Training. OSHA has and will continue to host training sessions for its whistleblower investigators. Next month, OSHA will hold a national whistleblower training conference that will be attended by all whistleblower investigators from both federal and state plans, as well as by DOL solicitors who work on whistleblower cases.
• Program Policy. OSHA has revised and plans to issue a new edition of the Whistleblower Investigations Manual that updates current procedures and includes information on the new laws enacted since the manual was last updated in 2003. According to OSHA, the new manual “will provide further guidance on the enforcement program to help ensure consistency and quality of investigations.” Significant changes include:
  • Requiring investigators to make every attempt to interview the complainant in all cases, and mandating that as part of the intake process supervisors verify that applicable coverage requirements have been met and that the prima facie elements of the allegation have been properly identified.
  • Clarifying that whistleblower complaints under any statute may be filed orally or in writing, and in any language.
  • Including new chapters for processing complaints filed under Federal Railroad Safety Act (FRSA), National Transit Systems Security Act (NTSSA), and Consumer Product Safety Improvement Act (CPSIA), as well as significant updates to the Surface Transportation Assistance Act (STAA) and SOX chapters, which incorporate statutory amendments and developments in the law.
  • Expanding guidance on dealing with uncooperative respondents and issuing administrative subpoenas during whistleblower investigations.
• Internal Systems. OSHA has revised its information database (IMIS) to include additional information about screened-out whistleblower complaint cases, and their reasons. The agency also has amended its Management Accountability Program (MAP) to include a more expanded section on its whistleblower complainant activities to better track the progress of investigations.

In a news release, OSHA Assistant Secretary Dr. David Michaels said of these efforts: “The ability of workers to speak out and exercise their legal rights without fear of retaliation is crucial to many of the legal protections and safeguards that all Americans value,” adding “The new measures will significantly strengthen OSHA's enforcement of the 21 whistleblower laws that Congress charged OSHA with administering.”

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