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SAFETY / OSHA - 10/3/11

OSHA issues revised whistleblower investigations manual

OSHA has issued Directive CPL 02-03-003, OSHA Whistleblower Investigations Manual, to be used as a reference by OSHA personnel. The manual outlines procedures, and other information, related to the handling of retaliation complaints under the various whistleblower statutes delegated to OSHA. The manual supersedes OSHA Instruction DIS 0-0.9, Whistleblower Investigations Manual, August 22, 2003; and OSHA Instruction DIS .7, Referral iii of Section 11(c) Complaints to "State Plan" States, February 27, 1986. OSHA currently has responsibility for investigating whistleblower complaints under twenty-one statutes, each containing various differences and distinctions in the way the cases are processed and investigated. The revised Instruction updates the previous Manual to include the new statutes and includes minor corrections and enhancements to the previous version.

Significant changes include:

• Three chapters were added, and various other chapters updated, to provide guidance for the processing and investigation of whistleblower complaints under the Federal Railroad Safety Act, the National Transit Systems Security Act, and the Consumer Product Safety Improvement Act.
• In order to achieve greater consistency among the various statutes, this instruction adopts the approach of including "global" sample letters, with prompts that can easily be modified for use in whistleblower investigations under any statute within OSHA's jurisdiction.
• This instruction incorporates changes in procedures for handling Privacy Act files and Freedom of Information Act requests that have been previously transmitted to the field and posted on OSHA's public website, and provides that, throughout the investigation, OSHA will provide to the complainant a copy of the respondent's submissions to OSHA, redacted, if necessary, in accordance with applicable confidentiality laws.
• This instruction clarifies that whistleblower complaints under any statute may be filed orally or in writing, and in any language, and that OSHA will be accepting electronically-filed complaints on its Whistleblower Protection Program website, http://www.whistleblowers.gov.
• This instruction requires that, as a part of the intake process, the Supervisor will verify that applicable coverage requirements have been met and that the prima facie elements of the allegation have been properly identified.
• This instruction contains an expanded discussion of causation, burdens of proof, and the elements of a violation.
• This instruction specifies that the investigator must attempt to interview the complainant in all cases.
• This instruction renames the Final Investigation Report (FIR) to the Report of Investigation (ROI), to be consistent with the terminology for internal investigation reports used by several other DOL agencies, and streamlines the report-writing process to eliminate redundancy in report-writing.
• This instruction specifies that interest on back pay and other damages shall be computed by compounding daily the IRS interest rate for the underpayment of taxes.
• This instruction requires that Secretary's Findings be issued in all dismissals of complaints investigated under Section 11(c) of the Occupational Safety and Health Act, the Asbestos Hazard Emergency Response Act, and the International Safe Container Act.

The manual is available at: http://www.osha.gov/OshDoc/Directive_pdf/CPL_02-03-003.pdf.

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