Whistleblower Investigations Manual

It is highly desirable to obtain a signed interview statement from the complainant during the interview. A signed interview statement is useful for purposes of case review, subsequent changes in the complainant's status, possible later variations in the complainant's account of the facts, and documentation for potential litigation.

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The investigator must attempt to obtain from the complainant all documentation in his or her possession that is relevant to the case. Relevant records may include, but are not limited to:. The restitution sought by the complainant should be ascertained during the interview. If discharged or laid off by the respondent, the complainant should be advised of his or her obligation to seek other employment and to maintain records of interim earnings. Failure to do so could result in a reduction in the amount of the back pay to which the complainant might be entitled in the event of settlement, issuance of merit findings and order, or litigation.

The complainant should also retain documentation supporting any other claimed losses resulting from the adverse action, such as medical bills, repossessed property, etc. Assertions made in the respondent's position statement do not constitute evidence, and generally, the investigator must still contact the respondent to interview witnesses, review records and obtain documentary evidence, or to further test the respondent's stated defense.

At a minimum, copies of relevant documents and records should be requested, including disciplinary records if the complaint involves a disciplinary action. If the respondent requests time to consult legal counsel, the investigator must advise him or her that future contact in the matter will be through such representative.

A Designation of Representative form should be completed by the respondent's representative to document his or her involvement. In the absence of a signed Designation of Representative, the investigator is not bound or limited to making contacts with the respondent through any one individual or other designated representative e. If a position letter was received from the respondent, the investigator's initial contact should be the person who signed the letter. Witnesses must be interviewed individually, in private, to avoid confusion and biased testimony, and to maintain confidentiality.

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Witnesses must be advised of their rights regarding protection under the applicable whistleblower statute s , and advised that they may contact OSHA if they believe that they have been subjected to retaliation because they participated in an OSHA investigation. If the respondent has designated an attorney to represent the company, interviews with management officials should ordinarily be scheduled through the attorney, who generally will be afforded the right to be present during any interviews of management officials.

Any witness may, of course, have a personal representative or attorney present at any time. It must be made clear to the witness that:. If at any time during the initial or subsequent meeting s with respondent officials or counsel, respondent suggests the possibility of an early resolution to the matter, the investigator should immediately and thoroughly explore how an appropriate settlement may be negotiated and the case concluded.

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The Agency has two types of subpoenas for use in these cases: A Subpoena Ad Testificandum is used to obtain an interview from a reluctant witness. A Subpoena Duces Tecum is used to obtain documentary evidence. They can be served on the same party at the same time, and the Agency can require the named party to appear at a designated office for production, at Agency costs.

Subpoenas Ad Testificandum may specify the means by which the interviews will be documented or recorded such as whether a court reporter will be present. If the respondent decides to cooperate, the Supervisor can choose to lift the subpoena requirements.

The request must be made in writing to DEP within 15 calendar days of the complainant's receipt of the region's dismissal letter, with a copy to the RA. This review is not de novo. Rather, a committee constituted of National Office staff Appeals Committee reviews the case file and findings for proper application of the law to the facts.

If the decision is supported by articulate, cogent, and reliable analysis, the Appeals Committee generally recommends to the Director that the determination stand. The agency-level decision is the final decision of the Secretary of Labor. Under all whistleblower statutes enforced by OSHA, reinstatement of the complainant to his or her former position is the presumptive remedy in merit cases and is a critical component of making the complainant whole. Where reinstatement is not feasible, such as where the employer has ceased doing business or there is so much hostility between the employer and the complainant that complainant's continued employment would be unbearable, front pay in lieu of reinstatement should be awarded from the date of discharge up to a reasonable amount of time for the complainant to obtain another job.

RSOL should be consulted on front pay. Such a preliminary order may be issued any time after the Assistant Secretary has investigated a retaliation complaint and before issuing a final order which is achieved after all appeals within the Department of Labor have been exhausted. To ensure respondent's due process rights under the Fifth Amendment of the Constitution, this notification is accomplished and documented by means of a "due process letter. This evidence includes any witness statements, which will be redacted to protect the identity of confidential informants where statements were given in confidence; if the statements cannot be redacted without revealing the identity of confidential informants, summaries of their contents will be provided.

Due process letters must be sent via certified U. Back pay is available under all whistleblower statutes enforced by OSHA. Back pay is computed by deducting net interim earnings from gross back pay. Usually, the hourly wage is multiplied by the number of hours a week the complainant typically worked.

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If the complainant has not been reinstated, the gross pay figure should not be stated as a finite amount, but rather as x dollars per hour times x hours per week. Net interim earnings are interim earnings reduced by expenses. Interim earnings are the total taxable earnings complainant earned from interim employment other employers. Expenses are 1 those incurred in searching for interim employment, e.

Unemployment insurance is not deducted from gross back pay. Compensatory damages may be awarded under all the OSHA whistleblower statutes. Compensatory damages include, but are not limited to, out-of-pocket medical expenses resulting from the cancellation of a company health insurance policy, expenses incurred in searching for a new job see paragraph B above , vested fund or profit-sharing losses, credit card interest and other property loss resulting from missed payments, annuity losses, compensation for mental distress due to the adverse action, and out-of pocket costs of treatment by a mental health professional and medication related to that mental distress.

RSOL should be consulted on computing the amount of compensation for mental distress. Complainant's attorney must be consulted to determine the hourly fee and the number of hours worked. Most attorney fees awards, however, are determined by the ALJ and the ARB because they reflect the attorney's work in litigating the case. Interest on back pay and other damages shall be computed by compounding daily the IRS interest rate for the underpayment of taxes. That underpayment rate can be determined for each quarter by visiting http: The press releases for the interest rates for each quarter will appear.

The relevant rate is the one for underpayments not large corporate underpayments. A definite amount should be computed for the time up to the date of calculation, but the findings should state that in addition interest at the IRS underpayment rate at 26 U.

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Providing the complainant a neutral reference for potential employers. This summary is provided for the convenience of the reader and should not substitute for a careful review of the statutes themselves and the applicable regulations. Voluntary resolution of disputes is desirable in many whistleblower cases, and investigators are encouraged to actively assist the parties in reaching an agreement, where possible. The draft, Protecting Whistleblowers: The Agency indicates that it is especially interested in comments related to:.

While the OSH Act prohibits employers from retaliating against employees for exercising their rights under the OSH Act, OSHA also enforces the whistleblower protection provisions of 21 other statutes relating to asbestos in schools, cargo container safety, aviation safety, commercial motor carrier safety, consumer product safety, environmental protection, consumer financial protection, food safety, health insurance reform, motor vehicle safety, nuclear safety, pipeline safety, public transportation safety, railroad safety, maritime safety, and securities laws.

Comments on the draft document will be accepted until Jan. Comments should be submitted to Docket No. The manual now reflects procedures for investigating MAP whistleblower claims protecting workers who report defects in automobiles , as well as substantive changes to Chapter 6 which covers settlement agreements and remedies. Additional substantive guidance is also provided on the topic of damages for emotional distress.

With respect to settlement agreements, the manual instructs investigators for the first time to consider including a requirement in a settlement that the employer provide training for employees or managers about whistle-blowing rights. Previously, investigators were instructed to consider front pay when returning the employee to work would be too disruptive.

There are a number of other changes in the revised manual that will impact how OSHA investigates whistleblower claims and how the parties may resolve them. The Recommended Practices outline five elements that OSHA believes make up an effective anti-retaliation program, including: December 10 - 14 and December 17, Gary De Waal More Time! Leeds and Jean C. Swartz and Jason D. John Ahern and Carolyn H. Where Did It Go? Hennion and Jun Qiu.

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