Date: May 9, 2018

Bloomberg Environment interviewed TELG's R. Scott Oswald about possible changes to how whistleblower retaliation complaints are handled by the U.S. Occupational Safety and Health Administration. Scott said that OSHA's priority should be to speed up its investigations — and to make it easier for whistleblowers to move their cases to federal court, if they prefer that route.

"OSHA doesn’t have the resources to do its job effectively. I don’t think this funding issue is going to change."

R. Scott Oswald

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Wells Fargo Fraud Case Could Help Reshape Whistleblower Program

Whistleblowers may face new options for how their retaliation complaints for reporting safety and fraud issues are investigated by federal worker safety regulators.

Changes to how the Occupational Safety and Health Administration handles whistleblower complaints — on issues ranging from dangerous working conditions to financial fraud — are up for discussion as the agency begins a series of public meetings following a review of the program.

The initial discussions, starting June 12 in Washington, are OSHA’s latest move to improve enforcement of the 22 laws it’s responsible for enforcing across several different industries, while grappling with a whistleblower caseload of more than 3,300 annual investigations and a stagnant budget.

“Based on my experience, OSHA has a lot on its plate,” employer-side attorney Steven Pearlman, co-head of Proskauer Rose LLP’s whistleblower and retaliation group in Chicago, told Bloomberg Environment.

OSHA reviewed its whistleblower program following allegations in 2016 that it didn’t adequately investigate Wells Fargo & Co. employee complaints that they were punished for raising financial fraud concerns. While the agency’s review of the Wells Fargo case began during the Obama administration, decisions on implementing changes will be up to Trump administration appointees.

Internal Ideas

A 2017 review summary, obtained by Bloomberg Environment through a Freedom of Information Act request, laid out several recommendations for the agency. Among the ideas were:

  • create a new Labor Department agency outside of OSHA to conduct whistleblower investigations;
  • improve the application process and initial review of complaints to weed out cases that should be handled by other agencies or were filed too late;
  • focus resources on complaints where a strong case can be made for the worker;
  • refer less favorable cases to arbitration;
  • establish performance goals for investigators, such as whether the investigation report was completed on time and the case file included a “well-written and succinct” explanation; and
  • designate some investigators as experts for statutes often involving complex investigations, such as finance whistleblower laws.

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