Today the Department of Labor has issued new regulations for whistleblower claims under four new laws. These laws include two laws included in the 2007 law that adopted recommendations of the 9/11 Commission, the National Transit Systems Security Act (NTSSA) and the Federal Railroad Safety Act (FRSA). This law also updated provisions of the Surface Transportation Assistance Act (STAA) which protects truck drivers, and DOL has announced new interim regulations on STAA whistleblower cases. Finally, DOL has issued new regulations for whistleblower claims under the 2008 Consumer Product Safety Improvement Act. The Occupational Safety and Health Administration (OSHA) issued the regulations, and will receive public comments until November 1, 2010. You can access all the rules through the Federal Register.
I have complained before to OSHA about rules that add hurdles for whistleblowers, and can derail a case away from being decided on the merits. The one that irks me the most is the rule in 29 CFR 24.110 that requires parties appealing an judge’s decision to the Administrative Review Board (ARB) to list in the petition for review every issue they will raise on appeal. This listing of issues is not required in appeals from federal court. The time to list all the issues is when the lawyer has finished reviewing the record to write the brief. If the ARB wants to assess from the petition whether the case is worthy of further review, then it is sufficient to require that an appellant list enough issues to justify review. There is no reason to add that any issue omitted from the petition is waived — other than to create a hurdle that can justify dismissing some issues or cases on grounds other than the merits. That is a purpose contrary to the remedial purpose of protecting employees who put the public interest ahead of their own job security. Sadly, the new rules expand the requirement for detailed petitions for review, and the waiver of issues not raised. See, for example, 29 CFR 1983.110(a) for CPSIA claims. Perhaps more significant, the new rules prevent the ARB from reversing an ALJ’s factual findings whenever the ARB finds “substantial evidence” to support the ALJ’s position. The Secretary of Labor used to conduct de novo review of the whole record, which provided better assurance that the DOL’s final decisions reflected the remedial purpose of protecting whistleblowers. The only reason for the narrower standard of review is to make the ARB’s job easier. I think protecting whistleblowers is more important. I am also sad to see that the new rules require giving the DOL 15 days notice before a whistleblower files a lawsuit in U.S. District Court. The purpose of this rule is to give DOL a chance to issue a final order before the case goes to District Court. That is contrary to the legislative purpose of giving whistleblowers a fresh bite at the apple if DOL has taken too long to decide a case. While it is helpful to have rules for the many FRSA, NTSSA, STAA and CPSIA cases in the pipeline, these rules fall short of the change I was hoping for. The full OSHA statement about the interim rules follows in the continuation of this post.
OSHA announces interim final rules and
invites public comment on whistleblower procedures
WASHINGTON – The U.S. Department of Labor’s Occupational Safety and Health Administration published in the Aug. 31 Federal Register interim final rules that will help protect workers who voice safety, health, and security concerns. The regulations, which establish procedures for handling worker retaliation complaints, allow filing by phone as well as in writing and filing in languages other than English.
“When workers believe their employers are violating certain laws or government regulations, they have the right to file a complaint and should not fear retaliation. Silenced workers are not safe workers,” said Assistant Secretary of Labor for OSHA David Michaels. “Changes in the whistleblower provisions make good on the promise to stand by those workers who have the courage to come forward when they believe their employer is violating the law and cutting corners on a variety of safety, health and security concerns in the affected industries.”
The regulations, which cover workers filing complaints in the railroad, public transit, commercial motor carrier, and consumer product industries, also create greater consistency among various OSHA complaint procedures. The interim final rules establish procedures and time frames for handling complaints under the whistleblower sections of the Implementing Recommendations of the 9/11 Commission Act of 2007 and the Consumer Product Safety Improvement Act of 2008.
These regulations are effective immediately. Comments must be submitted by Nov. 1, 2010, and can be sent to www.regulations.gov, the Federal eRulemaking Portal, or by mail or fax.
OSHA enforces the whistleblower provisions of the OSH Act and 18 other statutes protecting employees who report violations of various commercial motor carrier, airline, nuclear power, pipeline, environmental, railroad, public transportation, securities, and health care reform laws. New fact sheets on these statutes and additional information will be available at http://www.whistleblowers.gov.
Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to assure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.