On January 18, 1995, the Department published in the Federal
Register a Secretary's order,
establishing a pilot project to delegate responsibility for
handling nuclear and environmental
whistleblower complaints to OSHA. The pilot project will last
until December 31, 1995, and will be
confined to the Dallas Region, Southwest Division (excluding New
Mexico), unless modification is made
as provided in the Secretary's order. 60
Fed. Reg. 3655 (1995).
INVESTIGATORY RESPONSIBILITIES; PERMANENT TRANSFER
TO OSHA
[N/E Digest V A]
Effective February 3, 1997, Secretary's Order 6-96 grants the Assistant
Secretary for OSHA permanent authority to investigate and resolve allegations
of discriminatory actions taken by employers against employees in violation of
the nuclear and environmental whistleblower protection provisions
The following is an excerpt from the preamble to Secretary's Order 6-96:
[T]his Order, in conjunction with Secretary's Order 5-96,
effects an exchange of particular authorities and responsibilities
between the Assistant Secretary for Employment Standards and the
Assistant Secretary for Occupational Safety and Health. The exchange
was tested in a pilot project for Region VI established by Secretary's
Order 6-94 (extended by Secretary's Order 1-96), that granted these
Assistant Secretaries limited concurrent authority to enforce certain
laws establishing labor standards affecting field sanitation and migrant
housing, which had been delegated to the Occupational Safety and
Health Administration (OSHA) under Secretary's Order 1-90, and
certain environmental and public health-related whistleblower
protection laws, which had been delegated to the Employment
Standards Administration (ESA) under Secretary's Order 1-93. The
pilot project resulted in a determination that the respective agencies
would make better use of their program expertise, and, therefore, that
the Department of Labor would more effectively and efficiently utilize
its resources, by a permanent transfer of specific enforcement activities
between the Assistant Secretaries for OSHA and ESA.
INVESTIGATIONS; EXTENSION OF PILOT PROJECT TO CREATE
CONCURRENT OSHA AND ESA AUTHORITY AND RESPONSIBILITY
[N/E Digest V A]
On January 26, 1996, Secretary Reich extended the pilot
program of Secretary's Order 6-94 (published at 60 Fed. Reg.
3655 (Jan. 18, 1995)), granting OSHA and ESA concurrent
authority to enforce certain whistleblower laws. The
extension of the pilot program is to last "until
further Order of the Secretary."
[Nuclear & Environmental Digest V A]
COLLATERAL ESTOPPEL; OSHA INVESTIGATION
In McLaughlin v. Federal Research, Inc., 1997-TSC-7 (ALJ Aug. 21,
1998), the ALJ reported a bench ruling during a pre-hearing conference in which he ruled that an
OSHA investigation resulting in a finding of no violation, purportedly on the same facts asserted
in the instant environmental whistleblower matter, did not rise to meet the legal standards for
invocation of the collateral estoppel doctrine.
The 1992 amendments to the ERA include a requirement that the
complainant make a prima facie showing before the Department may
investigate, with a further requirement that even if the prima
facie showing is made, the complaint will not be investigated if
the employer can establish by clear and convincing evidence that
it would have taken the adverse personnel action in the absence
of the complainant's protected activity. See 42 U.S.C. §
5851(b)(3)(A). For an markup showing changes made by the 1992
amendments to the ERA, click here.
[N/E Digest V B]
IF COMPLAINANT FAILS TO ESTABLISH PRIMA FACIE CASE, WAGE &
HOUR OR OSHA INVESTIGATION IS TERMINATED IN ERA,
POST-1992-AMENDMENTS COMPLAINT
In Majors v. ASEA Brown Boveri, Inc., 96-ERA-33 (ARB Aug. 1,
1997), Complainant asserted that Respondent reduced his long term disability payment to offset
his Social Security disability payments in retaliation for whistleblower activity nine years earlier.
Wage and Hour terminated its investigation after determining that Complainant had not
established a prima facie showing that his protected activity was a "contributing
factor" in any action taken by Respondent.
The ALJ ruled on summary decision that the complaint was untimely; this ruling was
adopted by the ARB. The ARB, however, also observed that this case "is a paradigm of
the type of case that can properly be rejected without further investigation." The Board
noted that the 1992 amendments to the ERA added new requirements for the termination of
investigation of complaints by the DOL: a sort of gatekeeper test. The Board found that
Complainant's complaint was "patently unreasonable and ... precisely the kind of frivolous
claim which the amendment to the ERA was intended to address."
The Board also noted that once a hearing is requested, the investigative findings carry no
weight either before the ALJ or the Board.
In Gibson v. Arizona Public Service, 90-ERA-22 (ALJ
Mar. 16, 1990), the ALJ remanded the matter to Wage and Hour to
conduct an investigation. Wage and Hour had originally issued
its determination stating simply that Complainant's complaint
"contain[s] insufficient information to determine the
timeliness and coverage under applicable statutes." The ALJ
agreed that the complaint was singularly uninformative, but found
that Wage and Hour had no authority to determine a complaint not
in conformance without an investigation -- only to assess whether
the complaint is with or without merit. 29 C.F.R. §
24.4(d)(1), (d)(2)(i) and (d)(3)(i).
[Editor's note: This case came up later and was inadvertently
given docket number 90-ERA-53. Apparently, the ALJ's intention
was to keep the case number 90-ERA-22 active. Apparently no
party questioned whether the ALJ had the authority to remand a
case for investigation by Wage and Hour. This case was later
consolidated with 90-ERA-29 and 53.]
[Nuclear and Environmental Whistleblower Digest V C 1]
OSHA INVESTIGATION; REMEDY FOR PURPORTED DEFICIENCIES IN INVESTIGATION IS DE NOVO HEARING BEFORE ALJ, NOT A REMAND FOR A NEW INVESTIGATION
In Slavin v. UCSB Donald Bren School, 2005-CAA-11 (ALJ June 8, 2005), the ALJ denied the Complainant's motion for a remand for a new administrative investigation holding that "[e]ven assuming that an investigation was not conducted properly, the due process protection for either side is a fair and impartial de novo hearing before an ALJ. Consequently, as long as the agency addressed and made a determination on the merits of the complaint, as it did in this case, remand is not an appropriate remedy."
[Nuclear and Environmental Whistleblower Digest V C 1]
REMAND TO OSHA; FURTHER INVESTIGATION
In Lunsford v. University of Missouri-Rolla, 2000-TSC-1 (ALJ Apr. 7,
2000), the ALJ remanded the matter to OSHA for further investigation and determination where
the representations of counsel for both Complainant and Respondent indicated to the ALJ that a
timely complaint may have been filed, that timely receipt of properly filed documents was not
recorded, and that the appropriate parties were not properly notified or served.
[N/E Digest V C 1]
WAGE AND HOUR INVESTIGATION; REMAND
In Jones v. Pacific Gas & Electric Co., 97-ERA-3 (ALJ Mar. 19, 1997)(order
denying
motion for reconsideration), the Wage and Hour division found that Complainant was not an
employee, and never reached the merits. Respondent conceded before the ALJ that Complainant
was, in fact, an employee, and moved for a remand for Wage and Hour to complete its
investigation. The ALJ denied the motion finding that Complainant would be prejudiced
because Congress had intended that ERA complaints be expeditiously resolved, and because the
proceeding before the ALJ is de novo. The ALJ rejected Respondent's contention that
there is a distinction between merely flawed investigations, in which case a remand is not
necessary, see Billings v. Tennessee Valley Authority, 91-ERA-12 (ARB June 26, 1996),
and an incomplete investigation.
REMAND; ALLEGATION OF INADEQUATE WAGE AND HOUR
INVESTIGATION
[N/E Digest V C]
In Billings v.
Tennessee Valley Authority, 91-ERA-12 (ARB June 26,
1996), Complainant sought remand of the matter to the Wage and
Hour Division for further investigation. The Board affirmed the
ALJ's ruling denying remand because Complainant did not establish
a legitimate reason for remand, but only attacked the merits of
Wage-Hour's findings of nondiscrimination. The Board added that
Wage-Hour's findings were not binding because the regulations
accord complainants a right to de novo hearings on the
merits of complaints. The Board wrote: "Accordingly, any
arguable flaws in Wage-Hour's investigation or findings would not
adversely affect litigation of his case before the ALJ."
Slip op. at 8-9 (citations and footnote omitted).
V C After hearing is requested, Wage and Hour
determination has no force or effect
After a hearing is requested on an ERA whistleblower complaint,
the case is received de novo. The Wage and Hour determination is
of no force or effect, and is not legally prejudicial. Hobby v. Georgia Power Co., 90-ERA-30 (Sec'y Aug.
4, 1995) (rejecting the Respondent's contention that it was
prejudiced by irregularities in the Wage and Hour
investigation).
V C Wage and Hour finding of violation despite
settlement in which
Respondent did not admit violation; once
Respondent requests hearing,
Wage and Hour finding has no legal effect
In McClure v. Interstate Facilities, Inc., 92-WPC-2
(Sec'y June 19, 1995), the parties
settled the case while it was pending before the Wage and Hour
Division, the Respondent refusing to
admit a violation, but agreeing to reinstatement of the
Complainant. The District Director issued a
Notice of Determination finding a violation of the FWPCA,
attaching a copy of the settlement, and
directing reinstatement as provided in the agreement. The
Respondent objected to issuance of the
Notice of Determination and requested a hearing. Before the ALJ,
the parties and the Acting
Administrator agreed that the settlement should be accepted, but
the Acting Administrator disagreed
with the Respondent whether the Notice of Determination should be
withdrawn. The ALJ vacated the
Notice.
The Secretary concluded that it was unnecessary to vacate the
Notice of Determination because upon
the request for a hearing, the District Director's determination
was rendered of no force or effect by
operation of law, and is not legally prejudicial to the
Respondent. See 29 C.F.R. §
24.4(d)(3)(i).
The Secretary declined to accept the Respondent's assertion that
the Complainant's consent to the
settlement agreement ended all allegations of discrimination.
The Secretary wrote:
This is not an ordinary lawsuit where a plaintiff's
consent to settle a complaint ends the
inquiry. The Department of Labor does not simply provide a
forum for private parties to litigate
their private employment discrimination suits such that the
parties are free to resolve the case
as they choose. Protected whistleblowing may expose not
just private harms but health and
safety hazards to the public, and the Secretary of Labor has
been entrusted by Congress to
represent the public interest in keeping channels of
information open. . . . Consistent with that
trust and to assure that whistleblowers are adequately
protected, the Secretary has permitted
parties to resolve complaints under the FWPCA by settlement
where the Secretary finds that
the settlement is fair, adequate, and reasonable under the
circumstances. . . .
Slip op. at 3-4 (citations omitted).
V C 1 Remand where Wage & Hour refused to
investigate
In Floyd v. Arizona Public Service Co., 90-ERA-23
(ALJ Mar. 19, 1990), the administrative law judge remanded the
matter to the Assistant District Director for further
investigation where the complaint had originally been dismissed
on the ground that it "contain[ed] insufficient information
to determine the timeliness and coverage under applicable
statutes." The motion to remand was based on the decision
in Bassett v. Niagara Mohawk Power Co., 86-ERA-2 (Sec'y
July 9, 1986), in which the Secretary issued a remand after
ruling that a "Complainant is not required to set forth
proof in his complaint" and that a complaint cannot be
dismissed "on the ground that it fails to state a cause of
action." Although acknowledging that Niagara Mohawk was not
on all fours with the instant matter, the ALJ concluded that the
regulations did not contemplate rejecting a complaint solely on
the basis of nonconformity. See 29 C.F.R. §
24.4(d)(1) ("the Administrator shall complete the
investigation..." (emphasis added)).
[Editor's note: The decision did not discuss the ALJ's authority
to issue an order of remand rather than simply a recommended
order of remand]
V C 1 Remand to Wage & Hour
In Kamin v. Hunter Corp., 89-ERA-11 (Sec'y Mar. 12,
1990), the Secretary permitted the complainants to rescind their
motion for withdrawal of their joint complaint. In Kamin,
the Wage and Hour Division had not conducted an investigation
because it had concluded that the complainants were not covered
by the ERA inasmuch as they had never been employed by the
respondent. Noting that the complainants were proceeding pro se,
the Secretary remanded the matter "in the interest of
justice" to the Wage and Hour Administrator for an
investigation.
[The ALJ had recommended an order finding that the complainants
were not entitled to relief under the ERA because the
complainants had never responded to the respondent's motion for
summary judgment on the ground that the complainants were not,
and never had been, employees of the respondent. Kamin v.
Hunter Corp., 89-ERA-11 (ALJ Jan. 24, 1989).]
In Love v. United States Environmental Protection Agency, 2008-CAA-5 (ALJ Aug. 27, 2008), the Complainant filed a document with the Office of Administrative Law Judges stating that she was initiating an appeal because OSHA had constructively denied her complaint because over six months had passed since she had filed her whistleblower complaint under the CAA, SWDA, SDWA and CERCLA. The Complainant argued that the delay had resulted in a loss of access to witnesses, emotional upset and increased litigation expense. Although finding several of the Complainant's arguments to be well taken, the Chief ALJ noted that the statutory and regulatory scheme clearly contemplated an investigation prior to a hearing, that docketing a case at OALJ based on a constructive denial had only been invoked once in the history of the whistleblower program, and that counsel for the Respondent represented that OSHA had informed her that its determination was expected shortly. Consequently, the Chief ALJ denied the motion for the initiation of an ALJ hearing process prior to OSHA's issuance of written findings under 29 C.F.R. 24.105 without prejudice to renew the motion if further efforts to resolve or expedite the matter provided unsuccessful.
V C 2 Failure to issue a determination
for five months is a constructive
denial
In Plumley v. Federal Bureau of Prisons, 86-CAA-6
(ALJ Dec. 31, 1986) (order denying motion to dismiss),
Complainant filed a complaint with the Wage and Hour Division.
Wage and Hour obtained a 30-day extension to issue a
determination. Five months later, no determination had been
issued, and Complainant appealed to the Office of Administrative
Law Judges. The ALJ held that Wage and Hour constructively
denied the complaint as it refused to respond for over five
months.
Subsequently, Respondent filed a motion to dismiss on the ground
that Complainant was not an employee, maintaining therein that
Complainant had failed to exhaust his administrative remedies,
and that the motion to dismiss was properly before the
Administrator. The ALJ rejected this contention based on his
previous ruling that Wage and Hour's inaction constituted a
denial of the complaint, and therefore Complainant did exhaust
his administrative remedies.
[Nuclear & Environmental Whistleblower Digest V C 2]
EMPLOYER; OSHA
In Saporito v. USDOL, ARB No. 03 063, ALJ No. 2003 CAA 9 (ARB Mar. 31, 2004), the Complainant alleged that OSHA violated several environmental whistleblower statutes because it did not complete a mandated investigation within 30 days and did not properly investigate that complaint. The ARB found that the Complainant, having failed to establish that OSHA was his employer, did not establish that OSHA was a covered employer. Thus, the complaint was dismissed.
[Nuclear & Environmental Digest V C 2]
TIMELINESS OF OSHA INVESTIGATIONS
On March 16, 2001, the U.S. Department of Labor Office of Inspector General issued a report, "Evaluation of OSHA's ERA and EPA Whistleblower Investigations," Report No. 2E-10-105-0001 (Mar. 16, 2001) [PDF document], which focused on the 30-day statutory time frame for conducting investigations. OIG found that OSHA was not meeting the 30-day time frame, and made a series of recommendations on how OSHA could reduce the amount of time it takes to conduct investigations. OSHA agreed with the OIG findings and recommendations, and implemented or presented plans for implementing the OIG recommendations.
The failure of the Administrator of the Wage and Hour Division to
(1) give the Respondent timely notice of the filing of the
complaint in a TSCA employee protection matter, and (2) make a
timely investigation, does not deprive the Secretary of
jurisdiction over the complaint. Sawyers v. Baldwin Union
Free School District, 88-TSC-1 (Sec'y Oct. 5, 1988)
(citing Poulos v. Ambassador Fuel Oil Co., 86-CAA-1 (Sec'y
Apr. 27, 1987) (as amended by Amendments to Decision and Order of
Remand (Sec'y May 6, 1987)).
In Staskelunas v. Northeast Utilities
Co., 1998-ERA-8 @ n.5 (ARB May 4, 1998), the ARB declined to adopt the ALJ's
use of 29 C.F.R. Part 18 to calculate constructive receipt of the OSHA determination letter by
Complainant. The ARB indicated that OALJ's rules of practice should not be applied to events
taking place prior to OALJ's gaining jurisdiction over the matter.
V D Applicability of Part 18 to proceedings before
Wage and Hour Division
In Douglas v. Tennessee Valley Authority, xx-xxx-xx
(ALJ Feb. 3, 1994), the Chief ALJ
granted Respondent's motion to quash a subpoena that had been
issued bearing the seal of the Office
of Administrative Law Judges. The complaint was still under
investigation by the Wage and Hour
Division, and the Chief ALJ concluded that regulation under which
subpoenas are issued by OALJ may
only be applied in proceedings before OALJ. 29 C.F.R.
§§ 18.1 and 18.24.
[Editor's Note: The Secretary has indicated that the Department of Labor does
not have subpoena power in ERA proceedings. See Malpass v.
General Electric Co., 85-ERA-38 and 39 (Sec'y Mar. 1, 1994).]