Parties to whistleblower disputes have a new way to resolve their differences using the Occupational Safety and Health Administration’s “early resolution” process.
OSHA defines early resolution as a process under the agency’s Alternative Dispute Resolution (ADR) program in which parties to a whistleblower complaint mutually agree to attempt to resolve the complaint with help from a neutral, confidential OSHA representative. The focus of early resolution is to achieve quick and voluntary resolution of the complaint, rather than going through an expensive, time-consuming OSHA investigation to determine the validity of the charge and potential statutory violations, the agency said.
The ADR program stems from a federal statute requiring agencies to adopt a policy addressing the use of alternative means of dispute resolution and case management. From October 2012 through September 2013, OSHA offered early resolution as one of two new approaches for resolving whistleblower disputes through an ADR program the agency piloted in its Chicago and San Francisco regions. A mediation process, also offered, allows parties the opportunity to participate in a one-day, in-person mediation session with a professional third-party mediator.
“The ‘early resolution’ process proved to be a very effective and viable alternative to the investigative process and an invaluable asset to OSHA’s whistleblower protection programs,” the agency said in a directive effective August 18 that explained the new approach and announced its expansion to all OSHA regions. “The early resolution process demonstrated that adding staff dedicated to the coordination and facilitation of settlement negotiations provides valuable relief to OSHA’s whistleblower investigative staff, and provides a highly-desired service to the program’s customers.”
OSHA will offer parties the option of submitting their dispute to early resolution instead of assigning the case for investigation. According to the directive, both parties must voluntarily agree to pursue the early resolution process, and either party may choose to terminate it and return the case to investigation for any reason. Moreover, other ADR processes, such as third-party mediations, may be available to the parties in some regions. Generally, parties may submit their case for early resolution only once, unless the coordinating OSHA official grants an exception and allows for additional attempts, the agency said.
OSHA encourages parties to use the new process as early as possible, although the parties may request it at any point during an investigation. An expert in OSHA whistleblower cases sounded a cautionary note, however. He observed that ADR often is not helpful during the early stages because the complainant typically approaches the case without benefit of legal counsel and with unrealistic expectations. Frequently, it takes time for the facts of a case to become clear, and premature ADR could be counterproductive and result in the parties becoming more entrenched in their respective positions, he stated.
OSHA cautioned that the early resolution process is effective only when both parties participate in good faith. The agency considers “good faith” participation to exist when the parties engage with openness toward complaint resolution and “treat each other, the process, and any third-party neutrals with respect.” Parties to the process must have full authority to settle the dispute, OSHA noted.
The role of the OSHA ADR coordinator is to work with the parties to explore whether common ground for settlement exists. The coordinator may suggest how an agreement might be reached, and may provide an objective perspective on the strengths and weaknesses of the parties’ positions. However, the coordinator may not offer an opinion on the merits of the complaint or the amount of damages a complainant should seek. “The [OSHA coordinator] has no decision-making authority and does not represent either party,” the directive stated.
OSHA said it reserves the right to terminate the early resolution process under certain circumstances or at the discretion of the Regional Administrator or his or her designee. Such circumstances could include either party’s ground rules for participation, including engaging in abusive behavior or failing to participate in good faith, or if the parties reach an impasse and cannot come to an agreement within a reasonable time. OSHA must bring the process to a close if one or both parties decide to end it for any reason. If the parties can agree upon a framework for settlement, either the OSHA coordinator or the parties may draft a proposed settlement agreement, which OSHA must approve.
According to the directive, ADR case files are to remain separate from whistleblower investigative case files. ADR files generally are exempt from disclosure under Freedom of Information Act (FOIA). However, approved settlement agreements reached in the early resolution process will go into the investigative case file because they are not considered confidential dispute resolution communications. Settlement agreements are subject to FOIA, but may be exempt from disclosure under FOIA and Executive Order 12600, the directive stated.
The new process is seen as a way for OSHA to handle expeditiously a portion of the thousands of whistleblower complaints it receives every year. The agency enforces whistleblower protections for millions of employees in healthcare, food, finance, air travel, pipeline, transit, rail, and other industries.