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OSHA expands whistleblower 'early resolution' process

Only nine days old, the U.S. Occupational Safety and Health Administration has put in place a new "early resolution" process intended to resolve whistleblower disputes under the agency's regional Alternative Dispute Resolution, or ADR, program.

"OSHA enforces the whistleblower provisions of 22 statutes protecting employees who report violations of various securities laws, trucking, airline, nuclear power, pipeline, environmental, rail, maritime, health care, workplace safety and health regulations, and consumer product safety laws," according to the agency's Aug. 19 statement about the new policy and procedures.

An OSHA official said the agency annually receives "several thousand" whistleblower complaints for investigation. The agency ran pilot early resolution ADRs in its San Francisco and Chicago regions from October 2012 through September 2013 before making it available in all regions. Apparently, neutral and confidential negotiation staff took some pressure off of OSHA's investigative staff.

"The pilot program demonstrated that having staff dedicated to facilitating settlement negotiations provides an efficient and effective service that is highly desired by complainants and respondents alike," according to an agency statement. "The success of the early resolution ADR process has resulted in the agency making it available to all of its regions. This directive does not prohibit OSHA whistleblower offices from offering complainants and respondents other alternative dispute resolution processes, such as third-party mediation."

When the parties decide to talk it out, the investigation option remains open. As the agency's Aug. 18 directive reads, "Before an investigation is initiated, OSHA will offer the parties the option of submitting their dispute to the early resolution process instead of assigning the case for investigation. But, if parties choose not to engage in early resolution before an investigation begins, they may still seek early resolution at any point while OSHA's investigation is ongoing."

There is nothing against efforts to resolve disputes. Keep in mind though that one of two things must go right for the worker:

1. The corporation must be in the mood to negotiate rather than retaliate. How often do you think that happens?

2. Early resolution may be off the table, but OSHA will investigate and the outcome is favorable to the whistleblower.

These are the facts. First, OSHA investigations don't always vindicate the worker. Second, many companies are more inclined to retaliate than negotiate. Third, there are times when a skilled employment lawyer is the "alternative" that produces the ideal result for the whistleblower. And the government, in accordance with the False Claims Act, has created cash incentives for whistleblowers to speak up whenever a corporation takes money from the government that it is not entitled to. Indeed, there have been instances in which Medicare or Medicaid was overbilled, the whistleblower pointed out the fraud, and the whistleblower went to court and was awarded up to 30 percent of the amount that the government recovered from the exposure of false claims.

There is a branch of law that the employment lawyers at Reich & Binstock and many attorneys elsewhere practice that is dedicated to protecting the worker in:

1. Whistleblower cases involving criminal activities or defrauding of the government by an employer

2. Retaliation claims against employers who terminate, discharge, reduce pay or benefits, reduce opportunities, create a hostile work environment or otherwise discriminate against a whistleblower

When the whistleblower shines light on cheating the federal government, employment lawyers do not apologize for both ensuring that justice is served and seeing to it that the worker is compensated accordingly, under federal law, for serving the best interests of the taxpayers.

The U.S. Justice Department announced that in the fiscal year and ended Sept. 30, 2014, it had "obtained a record $5.69 billion in settlements and judgments from civil cases involving fraud and false claims against the government."

As the department's statement read, "In fiscal year 2014, the department recovered an unprecedented $3.1 billion from banks and other financial institutions involved in making false claims for federally insured mortgages and loans. False claims against federal health care programs such as Medicare and Medicaid accounted for another $2.3 billion. These amounts reflect federal losses only. In many of these cases, the department was instrumental in recovering additional billions of dollars for consumers and state treasuries ... Most false claims actions are filed under the act's whistleblower, or qui tam, provisions that allow individuals to file lawsuits alleging false claims on behalf of the government. If the government prevails in the action, the whistleblower, known as a relator, receives up to 30 percent of the recovery. The number of qui tam suits filed in fiscal year 2014 exceeded 700 for the second year in a row. Recoveries in qui tam cases during fiscal year 2014 totaled nearly $3 billion, with whistleblowers receiving $435 million."

The Employment Law Division at Reich & Binstock deals with a range of actions, including but certainly not limited to, whistleblower cases. These matters include:

1. Fair Labor Standards Act violations, which may involve hourly or salaried worker claims of nonpayment, employee misclassification claims or minimum wage (wage and hour) claims

2. Discrimination claims involving hiring, pay, opportunities for advancement based on race, skin color, national origin, religion, age, gender, pregnancy, sexual orientation or disability

3. Civil rights violations in the workplace

4. Hostile workplace environments and harassment claims

5. Wrongful discharge and wrongful termination claims

When you believe your workplace has violated your rights, consider at least talking to an employment lawyer to find out what your legal options are.

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