OSHA made revisions to 29 C.F.R. § 1983.104, which deals with OSHA’s investigation of CPSIA whistleblower complaints. Specifically, in an effort to ensure that OSHA reaches a fair outcome from its investigation, the final rule contains certain safeguards aimed at ensuring that complainants and respondents have equal access to information during the course of the investigation.
29 C.F.R. § 103(b) now specifies that both the respondent and the complainant must be given an opportunity to submit a written response to the complaint; and 29 C.F.R. § 104(c) provides the complainant with an opportunity to respond to all of the respondent’s submissions to OSHA that are responsive to the complainant’s whistleblower complaint. More significant, however, is a revision of 29 C.F.R. § 1983.104 that OSHA declined to make. 29 C.F.R. § 104(f) provides that, if the Assistant Secretary of Labor has reasonable cause to believe that the respondent violated the CPSIA and that preliminary reinstatement is warranted, the Assistant Secretary of Labor must provide the respondent notice of the relevant evidence supporting the complainant’s allegations and the opportunity to submit a written response, to meet with investigators, to present witness statements, and to present legal and factual arguments—all prior to the issuance of a preliminary order. During the public comment period, the Government Accountability Project requested that OSHA remove the language providing the respondent notice and opportunity to respond; OSHA declined to do so, cognizant that blindsiding employers as to the basis for ordering a complainant to be reinstated with full back pay would constitute a denial of due process.
In addition, employers and their counsel will want to pay attention to OSHA’s revisions to 29 C.F.R. § 1983.106, which governs proceedings before the Office of the Administrative Law Judges after a preliminary order has been issued. In a revision to the interim final rule, 29 C.F.R. § 1983.106(b) now grants the Administrative Law Judge (“ALJ”) broad authority to limit discovery by, for example, limiting the number of interrogatories, requests for production of documents, and/or depositions in order to expedite the hearing. As employers and their counsel are well aware, discovery can be extremely burdensome and expensive; and OSHA’s revision of 29 C.F.R. § 1983.106(b) shows that it is not oblivious to those burdens and expenses. Thus, employers and their counsel should take advantage of the final rule to limit discovery and to push for expeditious hearings.
The final regulations also include some minor revisions of the interim final rule, such as specifying that the formal rules of evidence will not apply to proceedings before the ALJ (29 C.F.R. § 1983.107(d)), permitting complainants to withdraw their complaints orally (29 C.F.R. § 1981.11(a)), and eliminating the requirement that complainants provide OSHA with fifteen (15) days’ advance notice before filing a de novo complaint in district court (29 C.F.R. § 1983.114(b)).
Although as of early May 2012, the Department of Labor had received just seventeen (17) CPSIA whistleblower complaints, those numbers are expected to rise. Thus, familiarity with the final regulations should be of paramount importance to both employers and their counsel.
For more information about this topic, please contact the author or any member of the Williams Mullen Whistleblower Defense Team.