On September 18, 2014, the ABA’s Labor & Employment Law Section sponsored a program called “SOX, OSHA and Beyond:  Litigating Whistleblower Claims at the DOL.”  M. Patricia Smith, Solicitor of the Department of Labor, Connie N. Bertram, Partner and Co-Chair of the Proskauer Whistleblower Group, and Jason Zuckerman of Zuckerman Law participate in the program’s panel.  The panelists discussed DOL’s recently-expanded Whistleblower Protection Program and offered practical insights on litigating claims before OSHA, including whistleblower’s right to remove and use confidential company documents to attempt to support their claims and considerations involved in deciding whether to invoke the “kick out” provisions available under a number of the whistleblower laws administered by OSHA.

During the program, the Solicitor explained the scope of OSHA’s authority, the procedures involved in initiating and prosecuting a claim, and the deference afforded to decisions of the DOL’s Administrative Review Board.  She explained that the whistleblower program is one of the highest priorities of OSHA.  She said that, based on a recent GAO audit and a comprehensive top-to-bottom review, OSHA is implementing steps to improve the investigative process, including hiring 35 additional investigators and the implementation of new training programs.  She said that OSHA is also reinvigorating their programs for protecting employees who report corporate fraud.  She explained that although a number of claimants have opted to “kick out” their claims to federal court, DOL is advocating through amicus briefing to try to keep federal case law consistent with recent rulings by the Administrative Review Board (ARB).

Among other things, Ms. Bertram explained the current state-of-the-law concerning self-help discovery by claimants.  She explained that, given the current state of the law, it is critically important for employers to understand the law in their circuit and from the ARB if it determines that an employee or former employee removed confidential documents in violation of a company policy.  Depending on the circumstances, the employer may have the right to terminate the employee or, if litigation is pending, assert an after-acquired evidence defense, seek sanctions or assert a counterclaim.  She also address the factors that employers should consider in investigating and deciding whether to settle a claim before OSHA, both pre- and post-filing.  She emphasized that employers must consider the myriad of claims and investigations that may flow from the claimant’s allegations of fraud or illegal conduct, including whether and how they can be included in parties’ release.