The U.S. Department of Labor has finally issued its responses to comments submitted in 2007 about its interim regulations for nuclear and environmental whistleblowers. Codified at 29 CFR Part 24, these regulations have been trendsetters for regulations affecting other whistleblower statutes. The Department had issued interim regulations in 2007, and received a variety of comments, including comments made by the National Whistleblowers Center (NWC), and comments that attorney Jason Zuckerman and I made (before I came to work for NWC in 2008).
One of the most significant new changes is that oral complaints to OSHA will now be allowed. This is particularly helpful in environmental cases where the statute of limitations remains terribly short at 30 days. Still, it will be advisable for whistleblowers or their advocates to make out a written complaint and fax it in to OSHA to document how they are meeting the time limit. Where a whistleblower has merely called into OSHA, OSHA is now required to reduce the complaint to writing and document the date of the call. 29 CFR § 24.103(b). If the call was within the 30 day time limit, it can save a case that would otherwise be dismissed. Complaints can also be made in languages other than English.
The final regulations became effective on January 18, 2011, and they are published at 76 FR 2808 (page 2808 of volume 76 of the Federal Register).
The Department is standing by its policy of allowing whistleblowers to establish a claim by showing that their protected activity was a "motivating factor" in the adverse action. This policy follows the Supreme Court's standard for Title VII claims announced in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977), and Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The Department rejected application of Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009). Gross limited the means of proving age discrimination due to the legislative history of the Age Discrimination in Employment Act (ADEA). Therefore, Gross will not apply in DOL whistleblower matters. The "motivating factor" test also means that whistleblowers do not have to prove that the employer's stated reason is false. Even if an employer's stated reason is true, a whistleblower can still prevail if the employer was also motivated by retaliation against the protected activity. It will be up to the employer to prove that the reasons can be separated, and that the adverse action would have happened even without the protected activity.
Jason Zuckerman and I had asked the Department to require OSHA investigators to meet privately with witnesses who are still employed by the respondent. Too often, company lawyers insist on being present with all company employees when OSHA interviews them. The presence of the boss's attorney can have an intimidating effect on employees who just saw one of their buddies get fired. While the Department decided against a formal regulation, it did announce that OSHA policy is to conduct private meetings with non-management employee witnesses. If anyone has a contrary experience, it would be good to track that here. Just leave a comment to this blog using the form below.
Bowing to the improved legal standard for adverse actions, the regulations now use the phrase "adverse action" instead of "unfavorable personnel action." In Burlington N. & S. F. R. Co. v. White, 548 U. S. 53 (2006), the Supreme Court made clear that adverse actions outside of employment could be unlawful. Without citing to Burlington, the Department adopts this reasoning. This could support a whistleblower when an employer acts outside of employment relationship by filing criminal charges of a civil lawsuit, or by threatening violence or other harm to the whistleblower.
In 29 CFR § 24.105(c), the Department has helpfully made clear that the 30 days to object to an OSHA finding can run from the party's receipt of the finding, or the receipt by that party's attorney. If this rule had been in effect in 2006, my client Harry Smith would not have had to appeal all the way to the Court of Appeals to get a hearing in his trucker driver case against CRST.
In 29 CFR § 24.107(b), the Department took out a sentence that the comments had objected to. This sentence said, "Administrative law judges have broad discretion to limit discovery in order to expedite the hearing." Now that this sentence is removed, parties should be able to argue for completion of discovery, even if it takes longer.
For state employees, the Department of Labor says that OSHA will consider intervening in their whistleblower cases. Such intervention is not required, but when OSHA does intervene, the state will not be able to use the Eleventh Amendment to duck compliance with the law. I expect that such intervention is more likely in cases where the OSHA investigation resulted in a finding of a violation by the state.
In my biggest disappointment about the new regulations, the Department is keeping the requirement in 29 CFR § 24.110(a) that a petition for review to the ARB must state all issues the petitioner will raise, and must do so within ten (10) days of the ALJ's decision. This is very different from the Federal Rules of Appellate Procedure where a party has 30 days to file a notice of appeal, and does not have to state the issues until the brief is submitted. This 10-day time limit remains a serious burden for parties and attorneys practicing before the Department of Labor. Jason Zuckerman and I had suggested that it would be sufficient for the Department to require some statement of good cause for the petition, and then allow additional issues to be raised in the brief. The Department rejects this idea. It says ten days is enough. It says that the ARB needs to know all the issues from the beginning. It adds, however, that:
it is not necessary that the petition identify each factual finding to which the party objects. Rather, it is sufficient that the petition generally identify the legal conclusions that are alleged to be erroneous. OSHA has amended these regulations accordingly.
The Department also rejected NWC's suggestion that the ARB should use a de novo standard, just as ALJ's do. The ARB wants to be more of an appellate body setting policy rather than a fact finding body. Given the wide variety of attitudes among the ALJs about whistleblower claims, this decision is a disappointment. Whistleblowers who get an unluck draw of an ALJ will suffer more as a result.
For 29 CFR § 24.114, the Department has removed language from the preamble that urged federal courts to respect the decisions of ALJs in cases removed to federal court. Although the Department does not cite to it, this change is in accordance with Stone v. Instrumentation Laboratory Co., 591 F.3d 239 (4th Cir. 12-31-2009). The federal court process is de novo. The Department is sticking with the rule that requires 15 days advance notice of going to federal court. The ERA statute does not provide for any such limitation on going to federal court. The Department's response fails to explain how this rule is authorized by law, or in furtherance of the remedial purpose. All the Department says is, "OSHA believes that this notice provision falls within the scope of these procedural rules." This is somewhat like an encyclopedia saying, "we don't know if an aardvark is an animal or not, but we are confident that it belongs in the first volume for words starting with A."
Putting these disappointments aside, the remainder of the rules and the Department's explanations, are helpful to the cause of protecting whistleblowers and advancing the law. I thank the Department's staff for their tedious and thoughtful work in explaining their responses to our comments. The new regulations are certainly a must read for whistleblowers and their advocates.