Last month the Occupational Safety and Health Administration (OSHA) announced a pilot program it is currently field-testing in the Department of Labor’s Western region (covering Arizona, American Samoa, Guam, Nevada, Hawaii, and California). Recognizing that the processing of some whistleblower claims is time consuming, the process (called Expedited Case Processing Pilot) allows a complaining whistleblower whose claim meets certain criteria to can ask OSHA to forward his or claim along with any findings of fact made by OSHA to an administrative law judge for consideration.
Criteria for Expedited Processing and How the Process Works
Not all whistleblower claims OSHA are eligible for the expedited process. In order to qualify, the following facts and circumstances must be true:
- The statute under which the claim is filed is one that would allow for de novo review of the claim by an administrative law judge if the claim went through traditional avenues of processing;
- Thirty to sixty days (depending on the type of claim and the statute under which it is brought) have passed since the claim was filed with OSHA by the complainant;
- OSHA has interviewed the complainant;
- Federal investigators evaluated the claim and the complainant’s interview in order to establish that the basic elements of a retaliation claim are present;
- The complainant and the respondant have had an opportunity to provide written explanations and responses to OSHA, to present witness statements in support of their respective positions, and to meet with an investigator from OSHA;
- The complainant has had an opportunity to respond to any submissions made by the respondant.
If these criteria are met, the complainant can request that OSHA halt any investigation it is currently undertaking and instead process the claim under Expedited Case Processing. Upon receipt of the request and verification that the claim meets the basic eligibility requirements for expedited processing, OSHA will next evaluate the information it has at that time and determine whether reasonable cause exists to believe there has been a violation of a statute. If so, OSHA can then:
- Deny the request. If OSHA chooses to do this, then its investigation will continue and resolution of the claim will proceed through the existing claims resolution process (which would be considerably longer);
- Dismiss the claim. If OSHA believes there is insufficient evidence to support the complainant’s assertions, OSHA may dismiss the claim outright. If OSHA chooses this option, OSHA will inform the complainant of his or her ability to challenge the dismissal before an administrative law judge.
- Make findings. If there is reasonable cause to believe a violation of the statute has occurred, OSHA can issue findings based on the evidence before it and submit these findings to an administrative law judge for consideration. The claim is then decided by an administrative law judge who has the power to award the same type of relief and damages that OSHA would have had.
The success of the pilot program in the Western region will dictate whether all other regions will soon have expedited processing available, which can help whistleblowers who have experienced retaliation for their actions obtain justice quicker.