JAN 28 2016

MEMORANDUM FOR:

REGIONAL ADMINISTRATORS
WHISTLEBLOWER PROGRAM MANAGERS

THROUGH:

DOROTHY DOUGHERTY
Deputy Assistant Secretary

THROUGH:

JORDAN BARAB
Deputy Assistant Secretary

FROM:

MARYANN GARRAHAN
Director, Directorate of Whistleblower Protection Programs

SUBJECT:

Tolling of Limitation Periods under OSHA Whistleblower Laws by Private Agreements and for Other Reasons

The whistleblower statutes that OSHA enforces generally require an employee to file a whistleblower complaint within 30 to 180 days, depending on the statute, of the adverse action alleged in the complaint. This memorandum clarifies that OSHA will accept an otherwise untimely whistleblower complaint where the complainant and respondent have made a private agreement that tolls (extends) the deadline for filing a whistleblower complaint. The memorandum also describes other situations in which equity may permit OSHA to accept an untimely filing.

Private Agreements

OSHA will recognize private agreements that expressly toll (extend) the filing deadline. This policy is consistent with recent Administrative Review Board (ARB), administrative law judge (ALJ), and federal court cases. Accepting such agreements may encourage private resolution of disputes, and the whistleblower laws offer no reason to reject such agreements.

As a general rule, statutory limitations periods can be tolled by the parties or modified by the adjudicator (often termed "equitable modification"), unless Congress clearly indicates to the contrary. The common forms of modification are equitable tolling, where the employee's excusable ignorance of the facts underlying the claim lead the adjudicator to toll the deadline, and equitable estoppel, where the employee understands his or her rights but misses the deadline due to reasonable reliance on confusing or misleading statements or conduct by the employer. The parties may also simply agree to waive the statute of limitations.

The ARB has recognized equitable modification in past cases, and has suggested that parties can toll the 180-day deadline for filing a SOX complaint by private agreement. In Turin v. AmTrust Financial Svcs., Inc., ARB No. 11-062, ALJ No. 2010-SOX-018 (ARB March 29, 2013), the ARB accepted an untimely filing in a SOX whistleblower case where the former employer and employee had made a "standstill" agreement. The agreement prohibited either party from filing a complaint or initiating any action until the earlier of a) ten days after delivering written notice, or b) 30 days from the date of agreement. Though the ARB had not explicitly accepted such an agreement in the past, it likened the standstill agreement to other equitable modification situations in which the defendant's conduct induces the complainant to refrain from filing within the limitations period (see below). Though the ARB limited its decision in Turin to the facts of that case, and offered no blanket statements concerning private tolling agreements, the decision's rationale indicates that the ARB is open to extensions of the filing deadline based on private agreements.

In reaching its decision the ARB considered "the totality of the undisputed facts surrounding the standstill agreement," and emphasized that the agreement "clearly demonstrates that both parties affirmatively negotiated a moratorium on litigation."  In order to justify equitable modification, a private agreement must actually operate to extend the deadline to file a whistleblower complaint, and must reflect the mutual assent of the signatories. Also, such an agreement will only toll the limitations period with respect to the parties that are actually covered by the agreement. See Hammond v. Citrix Systems, Inc., ALJ No. 2008-SOX-00037 (June 11, 2008) (dismissing claims against named individual and "Doe" defendants because tolling agreement only covered corporate entities).

Existing whistleblower regulations and OSHA guidance reinforce the ARB's position in Turin. They generally recognize that equitable principles, as developed case by case, may justify tolling a filing deadline. See, e.g., 29 CFR § 1980.103(d) (in SOX cases, "[t]he time for filing a complaint may be tolled for reasons warranted by applicable case law"); § 24.103(d)(1) (environmental statutes); § 1978.103(d) (STAA); § 1982.103(d) (NTSSA and FRSA); § 1983.103(d) (CPSIA); § 1986.103(d) (SPA). See also OSHA Whistleblower Investigations Manual, Section 2-7.

Equitable Modification without a Private Agreement

As explained in Chapter 2 of OSHA's whistleblower investigations manual, ARB and federal cases identify a number of situations that may justify equitable modification, even where there is no explicit agreement to toll the statute of limitations. In Turin, the ARB described four situations that might justify equitable modification, though it emphasized that the list is not exclusive. Paraphrased, they appear below:

1. the employer actively misleads or conceals information such that the employee is prevented from making out a prima facie case;
2. some extraordinary event prevents the employee from filing on time;
3. the employee timely files the complaint, but with the wrong agency or forum; and
4. the employer's own acts or omissions induce the employee to reasonably forego filing within the limitations period.

Note that the mere occurrence of settlement negotiations is not enough to justify equitable modification. Beckman v. Alyeska Pipeline Servs. Co., ARB No. 97-057, ALJ No. 1995-TSC-016 (ARB Sept. 16, 1997). However, repeated assurances that the employee will be reinstated, compensated, or made whole, with or without any bad faith on the employer's part, could induce a reasonable employee to forego filing a complaint, and thus justify equitable modification. Hyman v. KD Res., ARB No. 09-076, ALJ No. 2009-SOX-020 (ARB Mar. 31, 2010). OSHA will have to draw the line between settlement negotiations, in which the parties presumably hope to reach a resolution, and employer promises of the type that would cause a reasonable employee to refrain from filing a complaint. In doing so, OSHA should consider what exactly the employer communicated to the employee, in what context, and whether it can fairly be said that the parties reached an agreement final enough to persuade a reasonable employee that filing a complaint would be unnecessary.

Finally, there are several situations in which equitable modification is not appropriate. Ignorance of the statute of limitations, on the part of the employee or counsel, will not justify equitable modification. Neither will participation in the employer's internal complaint or grievance process, unless the employer actively conceals or misleads during that process, or otherwise induces the employee to reasonably forego filing. Finally, an employee's ignorance of the employer's retaliatory motive generally will not justify equitable modification.

Enclosures