Seyfarth Synopsis: The DOL announced this week its new Whistleblower expedited Case review pilot process, to be conducted in its Region 9. Employers in this region may now anticipate even more cases going to the ALJ’s, and should watch these cases closely.

The U.S. Department of Labor (DOL) is launching a new “Expedited Case Processing Pilot” process in its Region 9. The process will allow complainants covered by certain statutes to ask the Occupational Safety and Health Administration to cease its investigation and issue findings for the DOL’s Office of Administrative Law Judges to consider.

In piloting this process, the DOL stated that “OSHA’s investigation process can take time, and complainants may be able to receive a determination more quickly without losing their rights to a hearing by electing to expedite OSHA’s processing of their claims.” Barbara Goto, OSHA’s Regional Administrator in San Francisco, noted that “the ultimate goal is to bring about quicker resolution for whistleblowers and their employers regarding claims of retaliation for reporting safety and other concerns on the job.”

Under the pilot, in Region 9, once a complainant requests expedited processing, the case may be assessed for these criteria:

  • The claim is filed under a statute that allows for de novo review by an administrative law judge.
  • Depending on the statute, 30 or 60 days have passed from the date the complainant first filed with the claim with OSHA.
  • OSHA has interviewed the complainant.
  • Federal investigators have evaluated the complaint and the complainant’s interview to determine whether the basic elements of a retaliation claim exist.
  • Both the complainant and the respondent have had the opportunity to submit written responses, meet with an OSHA investigator and present statements from witnesses.
  • The complainant has received a copy of the respondent’s submissions and had an opportunity to respond.

If these criteria are met, a determination will be made on the complainant’s request for expedited processing – including “whether reasonable cause exists to believe that a violation of the statute occurred.” Under the pilot, OSHA officials may then take one of three actions: dismiss the claim and inform the complainant of the right to proceed before an administrative law judge; issue merit findings as expeditiously as possible; or deny the request.

The pilot became effective on August 1, 2016, in Region 9, including California, Nevada, Arizona, Hawaii, and the islands of American Samoa, CNMI and Guam.

Employers in this region may anticipate now even more cases going to the DOL’s ALJ’s, and should watch these cases closely.

OSHA enforces the whistleblower provisions of twenty-two statutes protecting employees who report violations of various workplace, commercial motor vehicle, airline, nuclear, pipeline, environmental, railroad, public transportation, maritime, consumer product, motor vehicle safety, health care reform, corporate securities, food safety, and consumer financial reform regulations.