The Department of Labor today issued final regulations for handling whistleblower complaints under the Consumer Product Safety Improvement Act (CPSIA), 15 U.S.C. § 2087. On behalf of the National Whistleblowers Center (NWC), I submitted comments on the proposed regulations in 2010. Today, DOL adopts some of my recommendations, and adopts a change in response to another recommendation. DOL also added a new change that was not in the interim regulations, and is worthy of objection. Specifically, DOL is making explicit that Administrative Law Judges (ALJs) may limit discovery to expedite a whistleblower case. 29 CFR § 1983.107(b). This provision could be used to deny whistleblowers the full opportunity to obtain the discovery that would win their cases. In cases where discovery is necessary, for example, to show that the employer's stated reasons are pretextual, the whistleblower would likely waive the time limits for adjudication so that discovery can be completed. It is unfortunate that DOL is adding this unnecessary line that would work a disservice to the whistleblowers who have a hard enough time proving their cases.
Helpfully, DOL now provides in 29 CFR § 1983.104(c) that complaints or their attorneys should receive employer submissions (except for material protected by confidentiality laws), and should have an opportunity to respond. At page 40497 of the summary, OSHA states that it agrees with the comments about the importance of keeping the complainant informed and giving the complainant an opportunity to help the investigation. On page 40498, OSHA states that it, "anticipates that the vast majority of respondent submissions will not be subject to confidentiality laws." It also links to the OSHA Whistleblower Investigations Manual where OSHA provides a list of the applicable confidentiality laws. See pages 1-19 to 1-21 for the discussion on confidentiality laws.
In another innovation, DOL is creating a new option for OSHA, allowing it to order an "economic reinstatement" rather than the unlimited "reinstatement" provided by the statute. The CPSIA, at 15 U.S.C. § 2087(b)(3)(B)(ii) provides that when OSHA finds a violation, it shall order the violator, "to reinstate the complainant to his or her former position together with compensation (including back pay) and restore the terms, conditions, and privileges associated with his or her employment; . . .." Now, OSHA is saying that in "appropriate circumstances," it may find that a productive and amicable working relationship would be impossible. In my experience, there is usually a period of awkwardness when a whistleblower is reinstated after a discharge. It usually wears off after a short time. In one case, a reinstated whistleblower later received the "employee of the year" award. In cases where the whistleblower does not feel safe returning, he or she might agree to an "economic reinstatement." In all other cases, Congress made clear that reinstatement must include "the terms, conditions, and privileges associated with [the] employment." Congress naturally feels that the public interest would be served by having whistleblowers in the positions where they can observe and stop wrongdoing.
At 29 CFR § 1983.107(d), DOL makes clear that the Rules of Evidence do not apply, so whistleblowers and employers can use hearsay evidence. At page 40500, DOL states, "whistleblowers often appear pro se and may be disadvantaged by strict adherence to formal rules of evidence. Furthermore, hearsay evidence is often appropriate in whistleblower cases, as there often are no relevant documents or witnesses other than hearsay to prove discriminatory intent." This provision is helpful to whistleblowers.
My biggest gripe about the DOL rules for whistleblower cases is the requirement that a petition for review state all the grounds on which review is sought. DOL regulations provided that failure to list an issue would ordinarily lead the ARB to consider it waived. DOL only allowed ten (10) days from the date of an ALJ decision to prepare and file the petition for review. For me, this is not enough time to analyze all the ALJ orders, rulings during the hearing, and findings in the decision and write even a list of the issues I might raise. Myself, I do not recall the ARB ever saying I waived an issue, but I do recall one time when they let an employer object to my fee claim which had been unopposed before the ALJ. To me, the rule on listing the issues in the petition for review is oppressive, and serves no purpose other than to create a hurdle that will allow the ARB to avoid some issues on a technicality. The ARB's legitimate interest in reviewing the petition to assure that there are good grounds for briefing is served by requiring a petition to state some good grounds for review. For this purpose, the petition would not need to list all the grounds that might be raised later in the brief. The opponent will have plenty of time to respond to issues in the briefs. In response to my objection, DOL has changed 29 CFR § 1983.110(a) to provide that the ARB "may" deem an issue waived. This provision leaves employers and whistleblowers alike wondering when the ARB will enforce a technicality and when it will decide an issue on the merits. All parties deserve a process that focuses on the merits, and I remain in waiting for the day when DOL will say so. At page 40501 of the discussion, DOL notes that the ARB has considered the merits of some issues in some cases that were not raised in the petition for review. DOL also extended the time to file a petition for review from ten (10) to fourteen (14) days. I had asked for thirty (30) days. DOL also states that parties can seek an extension of the fourteen day period.
Thankfully, DOL has eliminated the requirement that parties serve notice of intent to file in U.S. District Court at least fifteen (15) days before filing. This rule created another unnecessary technicality that could trip up whistleblowers. Now, 29 CFR § 1983.114(b) requires that complainants give DOL notice of filing with a District Court within seven (7) days after such filing. This change eliminates the prospect that giving OSHA fifteen (15) days advance notice of intent to go to federal court could allow OSHA to hurry up and issue a determination that could be used against the complainant. At page 40502, DOL credits NWC's comment as the inspiration for this change.
With the two exceptions noted above (about limiting discovery and economic reinstatements), these rules are an improvement over the rules of years gone by. Strangely, though, the CPSIA has not been a popular choice for whistleblowers. According to OSHA's latest statistics, it has received only 17 CPSIA complaints in the last five years. Of those, OSHA has dismissed ten (10), and settled two (2). One (1) was withdrawn and that leaves four (4) still pending. By comparison, last year OSHA ruled on 1,277 complaints under OSH Act Section 11(c), 244 truck driver cases, 173 railroad cases and 156 SOX cases. All tolled, it found merit in 55 cases, dismissed 1,103 cases, and settled 399 cases. Under the CPSIA, OSHA still has not found its first meritorious case. Work remains to be done to educate the public about the variety of whistleblower laws that might protect them, including the CPSIA.