Last Friday, OSHA published an interim final rule, and invited public comment on whistleblower protections for reporting violations of Affordable Care Act’s health insurance reforms.  The Affordable Care Act contains various provisions to make health insurance more affordable and accountable to consumers. Among the policies to achieve its goals, the Affordable Care Act’s Section 1558 provides protection to employees against retaliation by an employer for reporting alleged violations of Title I of the act or for receiving a tax credit or cost-sharing reduction as a result of participating in a Health Insurance Exchange or Marketplace.

 

The interim final rule can be viewed at www.dol.gov/find/20130222/. Comments, which will be accepted for 60 days, may be submitted electronically via the federal e-rulemaking portal at http://www.regulations.gov, or by mail or fax. Faxed submissions, including attachments, must not exceed 10 pages and should be sent to the OSHA Docket Office at 202-693-1648. Comments submitted by mail should be addressed to the OSHA Docket Office, Docket No. OSHA-2011-0193, U.S. Department of Labor, Room N-2625, 200 Constitution Ave. NW, Washington, DC 20210.

A fact sheet about filing whistleblower complaints under the Affordable Care Act is available at http://www.osha.gov/Publications/whistleblower/OSHAFS-3641.pdf.

OSHA’s press release on this issue can be found here.

 

Last week OSHA published interim final rules on the Seaman’s Protection Act procedures governing whistleblower complaints under the Act. The Seaman’s Protection Act protects seamen from retaliation for engaging in protected activity under the Act, including providing information to the government about an alleged violation of maritime safety laws or regulations.

Individuals are encouraged to review the interim final rules and submit comments about them to OSHA. Comments may be submitted in the following ways:  Submit electronically at http://www.regulations.gov, the Federal eRulemaking Portal. Submissions may also be sent via facsimile or mail. See the Federal Register notice for details. Submissions must be submitted by April 8, 2013. Faxed submissions, including attachments, must not exceed 10 pages and should be sent to the OSHA Docket Office at 202-693-1648. Comments submitted by mail should be addressed to the OSHA Docket Office, Docket No. OSHA-2011-0841, U.S. Department of Labor, Room N-2625, 200 Constitution Ave. NW, Washington, D.C. 20210.

 

For more information see the OSHA press release.

 

On January 10, 2013, the U.S. Department of Labor filed a lawsuit in federal court against S.E.M. Villa II Inc., a nonprofit corporation that operates S.E.M. Terrace, a retirement facility in Milford Ohio. The lawsuit claims that S.E.M. Villa violated the whistleblower provisions of the Occupational Safety and Health Act of 1970.  The alleged violation occurred when the employer terminated a resident manager for filing a complaint with the Clermont County General Health District stating that S.E.M. Villa II had been ineffective in handling a bedbug infestation at the retirement home.

The manager was dismissed Oct. 5, 2011. The suit seeks reinstatement of the worker, in addition to an undetermined amount of back wages and benefits, and the removal of all derogatory information related to the dismissal from the worker’s employment record. The suit also seeks to permanently enjoin the employer from violating the OSH Act in the future and require that a notice be posted for employees regarding their rights under the act.

“The Occupational Safety and Health Administration is committed to protecting the rights of America’s workers who are penalized or terminated for filing complaints seeking to improve the safety and health of their work environment and those affected by it,” said Nick Walters, OSHA’s regional administrator in Chicago.

OSHA Press Release 

In a January 15, 2013 press release, the U.S. Department of Labor announced that OSHA and BNSF Railway Co. had reached an agreement for the company to revise personnel policies that violate the whistleblowers provisions of the Federal Railroad Safety Act and discourage employees from reporting work-related injuries.

"Protecting America’s railroad workers who report on-the-job injuries from retaliation is an essential element in OSHA’s mission. This accord makes significant progress toward ensuring that BNSF employees who report injuries do not suffer any adverse consequences for doing so," said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. "It also sets the tone for other railroad employers throughout the U.S. to take steps to ensure that their workers are not harassed, intimidated or terminated, in whole or part, for reporting workplace injuries."

The major terms of the accord are listed in the OSHA press release.

Today, the U.S. Department of Labor issued a summary of the September 2012 decisions of its Administrative Review Board (ARB).  The twelve decisions issued in September cover important procedural issues involving the time limits for filing complaints and petitions for review to the ARB, considering motions for summary decision, and approving settlement agreements. Read more about these decision in the continuation of this blog post.

Continue Reading ARB issues decisions on summary decision, settlements and timeliness

We are pleased to repost, with permission, this blog entry by Charlie Goetsch from trainlawblog.com, announcing a favorable and precedent-setting decision by the Department of Labor’s Administrative Review Board (ARB). Congratulations to Charlie Goetsch for obtaining the outstanding result for his client, and for ending the era of railroad interference in the medical care of its workers.

By Charlie Goetsch:

In a decision that will send shock waves reverberating throughout the railroad industry, railroad medical departments now are prohibited from doing anything that directly or indirectly interferes with the treatment prescribed by an injured worker’s treating doctor for the entire period of medical treatment, not just immediately after an injury. Once again, thanks to the Federal Rail Safety Act, the balance of power is shifting from management to rail labor, and railroad medical departments will never be the same.

Here’s the context. When a chair at his Metro North Railroad work place collapsed as he sat down, my client Anthony Santiago suffered an injury to his low back. Metro North ordered him to go to its Medical Department, which confirmed he had an occupational back injury and advised him to see an orthopedic physician. For two months Metro North followed its policy of paying the medical bills for occupational injuries. However, when a MRI scan confirmed Santiago had a herniated disc and his doctor prescribed treatment for the disc, Metro North’s Medical Department immediately reclassified Santiago’s occupational back injury as “non-occupational” and refused to pay for the treatment. As a result, Santiago suffered a four month delay in his prescribed treatment and was forced to pay $16,520 in medical expenses out of his own pocket.

Continue Reading FRSA ALERT! Railroads Lose Power To Interfere With Injured Workers’ Medical Treatment!

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.

Continue Reading DOL issues final regulations for consumer product whistleblowers

Today, attorney Stephen Kohn (Executive Director of the National Whistleblowers Center) and I are filing an amicus brief with the U.S. Department of Labor’s Administrative Review Board (ARB). The brief urges the ARB to affirm a decision of an Administrative Law Judge (ALJ) in favor of Christopher Bala, a signalman for the PATH railway that carries commuters between New Jersey and New York City. As one of the first cases the ARB will address under the 2008 amendments to the Federal Rail Safety Act (FRSA), this case could set the tone for railroad workers cases for years to come.

Christopher Bala suffered a back injury at home in June 2008. His doctor ordered him to rest and refrain from work through the end of the next month. PATH’s doctor agreed that he should not work. Still, his supervisor decided to launch a disciplinary hearing against him for violating PATH’s absenteeism policy. In October 2008, Congress amended the FRSA to protect rail workers when they follow their medical treatment plans. The 2007 version of the FRSA already protected rail workers who raise concerns about safety or refuse to perform duties they reasonably believe are unsafe. Notwithstanding the change in the law, PATH proceeded with the disciplinary hearing against Bala. PATH eventually found him guilty of absenteeism and imposed a suspension. Bala complained to OSHA which ruled in his favor. PATH requested a hearing, and the ALJ again found that PATH violated the FRSA by imposing discipline on Bala. The ALJ held that the FRSA protects rail workers when they follow medical treatment plans for injuries that occurred on or off the job.

On appeal to the ARB, PATH has argued that the FRSA was only meant to encourage workers to report on-the-job injuries. PATH ignores portions of the congressional record showing that Congress wanted to reduce the number of rail accidents. PATH is asking the ARB to adopt an interpretation of the FRSA that would add a limitation that is not in the words Congress used. PATH is also asking to be exempt from the FRSA in cases where the disciplinary process was started before the effective date of the 2008 amendments to the FRSA. The Association of American Railroads (AAR), submitted its own amicus brief supporting PATH. It argued, without supporting data, that the ALJ’s holding would impose costs on railroads, and go against the holdings of arbitrators and courts applying other laws.

The NWC amicus focuses on the plain language of the FRSA which explicitly protects railroad workers when they are following medical treatment plans. The brief reviews the legislative history behind the FRSA and shows that members of Congress wanted to save lives by reducing accidents. The brief explains how the FRSA fulfills the safety purpose by preventing management from pressuring workers to work when their medical condition could make them impaired. The brief sets out how similar laws for truck drivers (STAA) and airline workers (AIR21) protect them when they refuse to work due to medical impairments. The NWC amicus challenges the AAR’s claims about costs, and the holdings of courts under other laws. It challenges the PATH brief for arguing that it should be allowed to continue its discipline of Bala even after the FRSA was amended to make that discipline unlawful.

I am particularly pleased to submit this amicus brief in one of the first cases under the new FRSA. Corporate fraud whistleblowers suffered for years when the ARB’s initial decisions under the 2002 Sarbanes-Oxley Act (SOX) required a high standard for whistleblowers to win. The ARB finally abated that problem in last year’s Sylvester case. With a good decision for Bala, rail workers may find the protection they need to avoid untold future accidents.  For that, we will all be safer.

OSHA

In a notice published in yesterday’s Federal Register, Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, announced the formation of the Whistleblower Protection Advisory Committee (WPAC). The notice explains:

WPAC’s duties will be solely advisory and consultative. WPAC will advise, consult with, and make recommendations to the Secretary and the Assistant Secretary on ways to improve the fairness, efficiency, effectiveness, and transparency of OSHA’s whistleblower protection activities. In particular, WPAC will make 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.

“Workers who expose securities and financial fraud, adulterated foods, air, and water pollution, and 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,” Dr. Michaels said in a press release. “Establishing a federal advisory committee is another important effort to strengthen protections for whistleblowers.”

OSHA enforces the whistleblower provisions of the Occupational Safety and Health Act and 20 other statutes protecting employees who report violations of various workplace, airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health care reform, nuclear, pipeline, public transportation agency, railroad, maritime and securities laws.

Under these various whistleblower provisions enacted by Congress, employers are prohibited from retaliating against employees who raise various protected concerns or provide protected information to the employer or the government. Some federal whistleblower laws have surprisingly short time limits to file complaints.  Environmental whistleblowers, for example, have only thirty (30) days to file their complaint with OSHA.  Those seeking to make a claim of retaliation can find a lawyer through the Attorney Referral Service of the National Whistleblowers Legal Defense and Education Fund.