September 27, 2023

MEMORANDUM FOR:

REGIONAL ADMINISTRATORS
WHISTLEBLOWER MANAGERS

THROUGH:

JAMES S. FREDERICK
Principal Deputy Assistant Secretary

AMANDA L. EDENS
Deputy Assistant Secretary

FROM:

LEE D. MARTIN
Director, Directorate of Whistleblower Protection Programs

SUBJECT:

Procedures for Significant Whistleblower Cases

This memorandum revises the procedures for OSHA national office review of significant whistleblower cases. DWPP personnel, Regional Administrators (RAs), and Whistleblower Managers must ensure that all personnel adhere to the procedures established in this memorandum when processing significant whistleblower cases.¹

1. Definition of a Significant Whistleblower Case

   A significant whistleblower case is a meritorious case which meets one or more of the following criteria:

   1. Punitive damages being ordered (or sought by DOL in litigation) exceeding $100,000;
   2. Compensatory damages (including emotional distress) being ordered (or sought by DOL in litigation) exceeding $75,000;
   3. Total damages being ordered (or sought by DOL in litigation) exceeding $250,000;
   4. Merit Secretary's Findings ("Findings") were issued (or complaint filed by DOL in litigation in U.S. District Court) against the same respondent on two or more previous occasions in the preceding three years;
   5. The protected activity results in a noteworthy outcome by OSHA or another enforcement agency;
   6. The case is against a federal agency; or,
   7. A meritorious whistleblower case that has novel issues such as:
      1. Protected activity, coverage, or the Secretary's enforcement authority is due to a statute enacted within the previous five years or there is conflicting legal precedent;
      2. There is reason to believe that the case may attract significant regional or national public attention (e.g., a case involving a subject of congressional interest; a case involving the subject of a Government Accountability Office (GAO) and/or an Office of the Inspector General (OIG) audit);
      3. The adverse action is uncommon or notorious (e.g., respondent caused complainant to be deported or arrested; respondent filed a Strategic Lawsuit Against Public Participation or other civil proceedings);
      4. Merit cases within a particular industry as determined by DWPP; or,
      5. The case concerns any other issue that the RA considers to be novel.
2. Regional / Office Responsibilities

   Regional Administrators must:

   1. Review each whistleblower case to ensure that proposed meritorious determinations are supported by the evidence.
   2. Ensure that the proposed Secretary's Findings comply with Chapter 5, sec. VIII. of the Whistleblower Investigations Manual, including ensuring that the Findings:
      1. Contain Findings of fact (not just summaries of the evidence);
      2. Cite the statutes correctly;
      3. Order damages that are permissible under the statute and supported by the evidence;
      4. Award damages that are properly calculated (e.g., not double counted, transposed, etc.); and,
      5. Are generally free of typographical or grammatical errors.
   3. Consult with the Regional Solicitor (RSOL) to resolve all factual and legal issues. (The Region may not request clearance for significant whistleblower cases unless the RSOL has reviewed the Secretary's Findings for legal sufficiency).²
   4. Submit the Secretary's Findings to DWPP for review at least three weeks prior to the expected issuance date to allow for the clearance process to be completed at the national level.
      1. For cases filed under Section 11(c), AHERA and ISCA, the Regional Office shall submit the RSOL litigation memo instead of Secretary's Findings. In some cases, DWPP may request additional case file documentation.
      2. If the parties reach a settlement before the clearance process is completed, the Regional Office shall notify the DWPP Director so that the clearance process can be terminated.
   5. The Regional Office will work with its Regional OPA to generate the news release for issuance at either the Regional or National level, depending on the significance of the case. DWPP will be involved in the clearance process of the news release.
      1. The news release should not be included in the significant case submittal to DWPP, as this should be processed through OPA and OSHA's Office of Communication.
      2. All news releases should be drafted in English and Spanish, and other languages deemed appropriate.
      3. No news release will be issued until the Secretary's Findings have been received by Respondent in administrative (ALJ) cases and until the release is cleared by OSHA's Office of the Assistant Secretary. For district court cases (Section 11 (c), AHERA, or ISCA), no news release will be issued until suit has been filed in U.S. District Court.
3. National Office Responsibilities

   DWPP personnel and Director must:

   1. Ensure the case meets the requirements of a significant case.³
   2. Review the draft Secretary's Findings, focusing on the following issues:
      1. Worker coverage;
      2. Respondent coverage;
      3. Timeliness;
      4. Prima facie elements properly addressed;
      5. Remedies supported by the evidence;
      6. Use of terminology; and,
      7. Verification that the documents are accurate, clear, and consistent with OSHA's policies and interpretations of the whistleblower protection statutes.
   3. Draft a Significant Whistleblower Case Briefing Memorandum and prepare the documents for Office of the Assistant Secretary (OAS) approval. Obtain RA and the Director of DWPP concurrence on the documents.
   4. Coordinate, as appropriate, with NSOL to ensure timely clearance of the case
      1. If needed, schedule a joint conference call with the Region, the RSOL, and the NSOL to resolve any issues or concerns identified during the clearance process.⁴
   5. Submit the significant case briefing package to OAS through the Controlled Correspondence Unit (CCU) for processing and tracking. If appropriate, request that the Region present the case to OAS. The Region shall make the presentation via Microsoft Teams and invite OSHA and SOL staff who may wish to attend.
      1. In the event that OAS does not approve the Findings, work with the Regional Office to resolve any identified concerns; or,
      2. Upon notification from OAS that it approved the case, DWPP shall promptly notify the Regional Office that it can proceed with issuance or filing and provide the Regional Office with a copy of the approved package.
   6. Ensure that the news release is highlighted on the Whistleblower Protection Program Webpage at www.osha.gov following issuance of the case's news release by OPA (whether regional or national).
   7. Maintain a Whistleblower Protection Program Spotlight page on the DWPP intranet. The page will host spotlight briefs featuring the investigator of the significant case, as well as the case summary. OSHA will highlight the spotlight brief on both the OSHA and DWPP intranet home pages.

¹ This memorandum supersedes the memorandum dated February 2, 2016, from MaryAnn Garrahan, then Director, DWPP, "Procedures for Significant Whistleblower Cases."

² The Regional Office/RA should encourage preliminary communication between the RSOL and the appropriate division of the National Office of Solicitor (NSOL) prior to submittal to expedite the clearance and approval process. The Occupational Safety and Health Division (OSH) of NSOL is responsible for the Asbestos Hazard Emergency Response Act (AHERA); International Safe Container Act (ISCA); Section 11(c) of the Occupational Safety and Health Act (Section 11(c)); Surface Transportation Assistance Act (STAA); and Seaman's Protection Act (SPA). The Fair Labor Standards Division (FLS) of NSOL is responsible for the remaining OSHA whistleblower protection statutes.

³ DWPP will inform the region within 2 business days of receipt if the case does not fall within the significant case criteria and return it to the region to process as normal.

⁴ If during the review process it is determined the case no longer meets the significant case criteria, the case will be returned to the region for a determination.