Episode 25

Transcript

Chris Koehler:
Welcome to another episode of Frantz Ward Podcast Series, Shoveling Smoke. I'm Chris Koehler, your
host for today's podcast.

Today, we're talking to my partner Christina Niro, about the recent increase in whistleblower claims
under OSHA.

Hi Christina.

Christina Niro:
Hey Chris.

Chris Koehler:
Thanks for joining me once again. We're about ready to hand over the reins to you, so you can take
the lead on these, if you don't mind.

Christina Niro:
No pressure.

Chris Koehler:
Well, today's your last audition, so we'll see how it goes.

Christina Niro:
Excellent.

Chris Koehler:
I've interviewed Christina multiple times in the past on employment-related issues. She's a member
of our labor and employment group, and advises employers in a broad range of employment matters
from discrimination, retaliation, wrongful discharge and harassment claims, to cases involving
contract disputes and non-competes and other restrictive covenants.

But most importantly, for today's purposes, she spearheads our firm's OSHA investigation and
compliance activities. Christina is OSHA 30 certified and maybe you could tell us what that is in a
minute, and regularly advises employers regarding OSHA compliance, and with the preparation in
implementation of written safety programs.

Hi Christina, and thanks for being here.

Christina Niro:
Absolutely, happy to be here.

Chris Koehler:
What's OSHA 30?
 
Christina Niro:
People use the word “certified” — OSHA really doesn't kind of certify or put their stamp on anything
but if you hear OSHA 10 or OSHA 30, it's a 10-hour or a 30-hour course that is taught to give you the
basics underlying foundation of what OSHA regulations are. Most of the times, it's not specific to
construction, it's kind of general industry, like I said, baseline.

Chris Koehler:
Okay, it seems like OSHA and particularly safety and compliance issues seem to be at the forefront of
people's minds lately.

Christina Niro:
Yeah, you and I were talking about this actually and I heard the other day on the radio as I was
driving in a statistic, the number of declared majors at colleges and universities for degrees in safety
and compliance has just exploded the last two to three years.
 
It’s not anything new for healthcare or manufacturing if you're in some other heavily regulated
industry, but now, it's starting to seep into other industries, regulations are getting more complex.
OSHA took center stage during the pandemic, they've taken steps to ramp up their enforcement
efforts under President Biden, they're hiring a bunch of new compliance officers. So, OSHA's trying to
be on your radar right now.

Chris Koehler:
Is that something that ebbs and flows based just on the administration? For instance, if there was a
change in the administration in a year and a half, would that change?

Christina Niro:
Yeah, I mean, lawyers know not to guarantee outcomes of course, but safe bet that things were going
to be very different under a Republican administration.
 
The rulemaking process takes years under OSHA, so anything that's currently in the works, for
example, a lot of people are worried about the heat stress final rule, that's probably going to be
halted. It's harder to roll back changes that have been made statutorily, but there's always possibility
of congress even changing statutes under pressure from the executive.
 
So, again, depending on how the wind blows and the numbers shake out, not only with the
executive, but congressional races, safe bet to say we would see some rolling back of the Biden
administration's kind of aggressive enforcement efforts.

Chris Koehler:
So, that's OSHA generally; what about whistleblower investigations specifically? Why has there been
increased activity there?

Christina Niro:
My guess is you’ve got, again, OSHA, which was front and center during the pandemic. You've got
lots of news coverage of whistleblowers, this national dialogue about whistleblowers who are
sharing highly confidential information, all the way up to very sensitive military intelligence. So, it's
kind of on people's minds.
 
Again, very pro-employee executive branch, you've got lots of pro-union activity in the news. So, this
is kind of the way the pendulum has swung. And as we know, after doing this for as long as we have,
kind of to be expected.

Chris Koehler:
What is a whistleblower, and how are they protected?

Christina Niro:
This is for purposes of OSHA whistleblower activities, one of the ways that my labor and employment
practice kind of overlaps with safety and compliance.

Whistleblowers are employees who complain about some kind of illegal or unsafe or fraudulent
activities within their workplaces. They can do that formally, they can do that informally. They can do
that internally within their company, they can also do that externally through OSHA.

But a whistleblower is someone who raises those concerns and then is retaliated against for making
those complaints. We have retaliation kind of in the traditional employment context for complaining
about discrimination and harassment, that's the one that we're kind of most familiar with.

But then that parallels to OSHA, and the OSHA Act protects whistleblowers from retaliation after
they've engaged in these kind of protected activities by the act.

Chris Koehler:
So, is the scheme that OSHA uses similar to the ones that are used for whistleblowers for
discrimination or harassment claims?

Christina Niro:
Parallels, they're similar, not exactly the same. If you hear me say “Section 11,” that's the statute
under the OSHA act that protects employees. It's going to be different conduct though, that
constitutes the protected activity. So, under Title VII, you've got an anti-retaliation provision that
protects employees if they complain about race discrimination, for example.

In the OSHA context, under section 13, employees are protected from retaliation if they, for example,
refuse to perform a dangerous task or they report a workplace injury, or they go ahead and they do
file an OSHA complaint. So, the protected activity is kind of the difference here, but the response
from the administrative agency is very, very similar.

Chris Koehler:
Is the scope of what OSHA is doing with respect to whistleblowers any wider or deeper than it might
be by an agency investigating it, EEOC or discrimination claim?

Christina Niro:
I think that's a question about resources, and again, a difference in kind of approach politically,
depending on who's in the executive branch.

OSHA does have a dedicated whistleblower team. They investigate not only health and safety
retaliation under the OSHA Act, but they've got responsibility for I think, more than 20 federal laws
that also have these other retaliation provisions.

So, all of those investigators, those compliance officers, those all sit under OSHA. And there are quite
a few, if we're talking about the trends here, quite an increase in whistleblower complaints OSHA's
been fielding over the last couple years.

Chris Koehler:
It seems like if there's over 20 federal laws that could be an issue, OSHA has pretty wide birth to
come in and investigate whistleblower claims?

Christina Niro:
Yeah, it's their compliance officers who were investigating all of these different laws, whether it's
health and safety or fraud in the finance context.

They certainly do have, we'll call it a lien, but mean kind of force of investigators. They've got a wide,
I guess breadth of experience, and these various federal laws, yeah, they can come in and cause
problems in your workplace if they want to.

Chris Koehler:
So, let's talk nuts and bolts then. What can an employer expect when an OSHA whistleblower claim is
made?

Christina Niro:
So, I mentioned employees can complain externally to OSHA. OSHA will also accept complaints that
are made by former employees as long as those employees were on the payroll, so to speak, when
the retaliation took place.

But basically, OSHA's fielding complaints by these employees, and they talk to the employees. They
normally call to let the employer know that Section 11(c) complaint has been lodged and then they
investigate, and they can do that in a couple of different ways.

OSHA has a list of inspection priorities, ways in which they kind of triage how they're using their
resources.

The first kind of priority is, is there death or serious physical harm? Is there imminent danger? Those
get the top priority, and employee complaints kind of fall down towards the middle of the list. But
those employee complaints can kind of move up the ladder if, for example, that complaint involves a
hazard that may result in imminent danger or death, or if it's a complaint that relates to a national
emphasis or a regional emphasis program. So, fall protection is an example of something that might
trigger an onsite inspection.

So, they can come on site right off the bat if it's serious or more often, OSHA does what I like to call
letter investigations, OSHA might call them like facts investigations. But they basically send a letter
saying, “Here are the allegations, please respond to these within 20 days.”

Chris Koehler:
Does the disgruntled employee or the whistleblower (maybe I'm showing my bent there) — but the
whistleblower will say, is that person anonymous to the company or do they have to be disclosed?

Christina Niro:
No, that's one of the protections that the OSHA Act affords the employee or former employee. They
can submit complaints anonymously when OSHA's talking to them. OSHA will not tell you as the
employer the name of the person who's complained to them.

Chris Koehler:
You mentioned that OSHA writes the employer a letter setting forth the allegations and asking you to
respond. Is that like a position statement to the EEOC?

Christina Niro:
Similar process, but you can kind of get away sometimes with being late with the EEOC. The EEOC
might take a couple of months to realize that you've blown the deadline. You don't want to ignore a
Section 11(c) letter from OSHA.

They'll give you, like I said, normally it's like a 20-day deadline, and if you don't respond in some
fashion, whether that's, “Hey, need some extra time, but we're on it.” Or submitting the actual
response, OSHA will take you up that priority letter, and they will come on site and do an onsite
investigation, and you don't want to ever give OSHA excuse to come out onto your property. So,
important not to lose track when you get those.

Chris Koehler:
And why don't you want to give OSHA an excuse? I think I know the answer, but …

Christina Niro:
The difference here between the EEOC who may get around to issuing a notice of right to sue letter
— the difference between that and OSHA coming on site and potentially issuing a citation on the
spot, shutting down part of your business, all of your business, the danger is significantly higher with
OSHA than with other administrative agencies.

Chris Koehler:
Well, that's a pothole. What other potholes are there? What else can employers maybe do to either
position themselves better to avoid these or limit their exposure?

Christina Niro:
You'll hear some familiar refrains from me, more parallels to your traditional employment advice that
I give, but it applies equally. The first thing that OSHA is going to ask you for, is show me your written
policy.

If you've heard me talk before, you've heard me say, if it's not in writing, OSHA doesn't believe it ever
happened. So, dust off your policies, make sure you not only have an anti-retaliation policy and a
reporting structure applying to discrimination, but you've got either the same one or separate one
that's specifically relates to safety concerns.

They're separate issues, it would be fine to have separate reporting processes. But you want to make
sure that that's in writing, your employees know about it, they have a sign off acknowledging that
they've seen that.

And the second thing …

Chris Koehler:
Let me before, we get to the second thing, I assume your advice would be not to just have a policy,
but to follow it and follow it consistently.

Christina Niro:
Exactly. And if you want to take advantage of certain defenses, if and when OSHA does cite you,
OSHA will expect that, like you said, not only have the policy, but enforce it, and that you have
documented your enforcement efforts, which my second point was going to be make sure that you're
documenting.

You need a valid non-retaliatory reason in the employment context. You need a valid non-retaliatory
reason for taking actions against employees in the OSHA context. And the better you document the
fact that it had nothing to do with an employee complaining about a safety issue, the stronger your
defenses are going to be with OSHA.

Chris Koehler:
So, do people often get in trouble because they either ignore these or let them sit?

Christina Niro:
Yeah, and that can be twofold. You're not only ignoring it internally for purposes of addressing the
issue and making sure it doesn't happen again, and ignoring OSHA if and when they've made a
request for information. Those can escalate if you don't take internal complaints seriously, people
feel — this is, again, same in the context of discrimination or harassment complaints.

If employees don't feel like they're being heard or the company is addressing those issues, they're
more motivated to take those concerns outside of the organization. Whether that's to an attorney or
whether that's picking up the phone and calling OSHA.

Chris Koehler:
So, bottom line, don't give people an excuse to become a whistleblower.

Christina Niro:
Exactly right.

Chris Koehler:
Nip that in the bud. Does OSHA give you any guidance as to, I don't know, best practices or how you
might address these?

Christina Niro:
Sure, they have their own anti-retaliation program, I don't know elements they call them. But
basically, your goal is for your employees to know what your policy is, to know how to raise concerns
without fear of retaliation.

Your managers should know how to handle those concerns, how to document those concerns, how
to run those up the ladder. And then you've got to have, like you said, compliance with those policies
and monitoring those policies, auditing those policies, doing retraining on those policies.

Chris Koehler:
Christina, is there any way for an employer to kind of blindly or anonymously call OSHA and get an
opinion or get some information once there's been a whistleblower complaint made?

Christina Niro:
So, OSHA allows you to file a FOIA request, a Freedom of Information Act request. You have to be a
party to the investigation, but you can ask OSHA for non-confidential information.

That's a process that normally takes a while, you're not going to get an instantaneous result when
you're in the heat of an investigation, but for purposes of subsequent litigation, if you're contesting a
citation, that's a tool you can use to get information from OSHA if you want.

Chris Koehler:
Now, in responding to an OSHA complaint, at what point do you like to be involved in the process? I
assume different clients have gotten you involved at different stages. I think I probably know what's
best, but can you help at any stage.

Christina Niro:
Any stage, earlier, the better. I've certainly been brought in at the very end. And we defend, we
counsel, we can do that at any stage, but obviously, the earlier, the better.

I am often brought in right after the employee injury happens. If there is a reportable, in other
words, a fatality, or a more serious injury that requires reporting within 24 or 8 hours for the more
serious ones, that's normally when I get my first call.

Those are going to be your catastrophic injuries, your injuries that can potentially evolve into VSSR
intentional tort claims. And why it's important for counsel to get involved at that point is that that
documentation and those investigation steps, those witness statements, all of that information not
only applies to the OSHA investigation phase and whether or not you're going to get cited by OSHA.
But all of that documentation carries through to VSSR intentional tort litigation. It can also apply
frankly to any employment litigation that follows based on the discipline that's issued or the actions
that are taken against an employee.

And HR and EHS kind of functions. Human resources and environmental health and safety, those
functions can sometimes be siloed in organizations and kind of run at cross purposes, but a company
is best situated defense-wise to employment claims and OSHA claims if those two functions work
together and work collaboratively.

Again, you're not going to be able to take advantage of OSHA defenses if you don't have a disciplinary
component, and you want to have your HR function involved in that disciplinary component.

Chris Koehler:
So, if you get contacted by HR, you'll get a hold of your client's EHS people and vice versa?

Christina Niro:
My preference is to have both involved, yeah.

Chris Koehler:
Is there a general timeline for this process when an OSHA whistleblower complaint is made? Or is it
entirely fact-dependent?

Christina Niro:
So, an employee, and this is one of the positives, has 30 days, only 30 days, to file a whistleblower
complaint. So, that's a pretty short timeframe. But again, with these more serious injuries,
catastrophic injuries, that's plenty of time for OSHA to get out, start an investigation. If it's going to
happen, it's going to be within that first 30 days.

Chris Koehler:
Well, you've scared me and hopefully, you haven't scared away too many employers. I always ask our
guests at the end to highlight two or three key points for people to take away. What do you have
here?

Christina Niro:
I guess, I would just reiterate, dust off your policies, make sure that they're still relevant, make sure
that when your policy says that your first point of contact after a workplace injury is human
resources, make sure you still have a human resources person. Make sure that the policy is still
accurate and that your reporting functions are still working.

Make sure you've got somebody, your OSHA contact person, your front desk receptionist, somebody
who knows what to do when that letter comes in from OSHA, how to run that up the flagpole so that
those letters don't get missed. And then again, document, document, document.

[Music playing]
Chris Koehler:
Well, thank you, Christina, you always teach me something about employment loss, so I don't have to
learn it myself.

Christina Niro:
And the goal is not to scare you, is to prepare you, right?

Chris Koehler:
Okay. Well, I'm prepared.

Christina Niro:
Good.

Chris Koehler:
That wraps up another episode of Shoveling Smoke. Thanks for joining us and we hope you listen in
next time.

Shoveling Smoke is a production of Evergreen Podcasts. Our producer and audio engineer is Sean
Rule-Hoffman. Thanks for listening.