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Whistleblower Law Blog

OSHA Encourages Nationwide Adoption of “Early Resolution” ADR in Whistleblower Cases

On August 18, 2015, the Occupational Safety and Health Administration released a directive to its regional offices to adopt “early resolution” alternative dispute resolution in whistleblower cases.  The directive follows a successful pilot program by OSHA in its Chicago and San Francisco regions.

From October 1, 2012, to September 30, 2013, OSHA ran a pilot ADR program in regions V (Chicago) and IX (San Francisco).  The program provided two options for settling disputes: (1) an “early resolution” process offering parties the assistance of a “neutral, non-decision-making OSHA whistleblower expert;” and (2) a one-day, in-person mediation with a “professional third-party mediator.”

OSHA found the early resolution process a “very effective and viable alternative” to the normal OSHA investigative process.  As a result, OSHA is expanding the pilot program to all of its regional offices, though OSHA did leave regional offices the choice to offer parties additional ADR options.

OSHA Directive CPL 02-03-006 laid out policies and procedures for the early resolution process, and will apply to cases filed pursuant to the whistleblower provisions of the Occupational Safety and Health Act and 21 other federal statutes, including the Sarbanes-Oxley Act.

The directive touts that the neutrals provided through the early resolution process have subject matter expertise in whistleblower investigations.  But these neutrals cannot impose settlements on the parties or make a determination on the merits of a case.

Parties can initiate the early resolution process before a case has been assigned for investigation or during an ongoing investigation.  If parties begin early resolution but fail to settle within a reasonable time, OSHA will transfer the cases to a Whistleblower Investigator to start or resume investigation.  Confidential information from the early resolution process will not be delivered to investigators.

Regional Administrators will be responsible for staffing their ADR program with a Regional ADR Coordinator (the neutral).  The Regional Administrators are must ensure (1) dissemination of ADR program information to parties, (2) compliance with the directive, (3) proper tracking of ADR program activity, and (4) that settlements achieved through the program are properly reviewed and approved.

The OSHA Directorate of Whistleblower Protection programs will provide technical and other assistance to the regional offices and will monitor the overall outcomes of the ADR program.

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