The Occupational Safety and Health Administration (“OSHA”) announced in a May 17, 2012 notice published in the Federal Register that it will establish a Whistleblower Protection Advisory Committee (“Committee”) in an effort “to improve the fairness, efficiency, effectiveness, and transparency of OSHA’s whistleblower protection activities.” Creation of the Committee follows OSHA’s March 2012 reorganization providing for direct reporting to the Department of Labor’s Office of the Assistant Secretary, and further evidences the agency’s intention to devote increased efforts and resources to this area in the future. 

Committee Will Make Recommendations to the Secretary of Labor, Hold Public Meetings

The Federal Register announcement explained that the Committee’s “duties will be solely advisory and consultative.” The Committee “will advise, consult with, and make recommendations to the Secretary [of Labor] and the Assistant Secretary [of Labor for Occupational Safety and Health] on ways to improve the fairness, efficiency, effectiveness, and transparency of OSHA’s whistleblower protection activities.” 

In particular, the Committee will be asked to make recommendations in several key areas:

  • Better customer service to both workers who raise complaints and employers who are the subject of investigations
  • Improvement in the investigative and enforcement process, and the training of OSHA investigators
  • Improvement of regulations governing OSHA investigations
  • Cooperative activities with federal agencies responsible for areas also covered by the whistleblower protection statutes enforced by OSHA
  • Other matters concerning the fairness, efficiency and transparency of OSHA’s whistleblower investigations as identified by the Secretary or Assistant Secretary

The Committee will be governed by the Federal Advisory Committee Act, 5 U.S.C. Appx. 2. Among other things, this will require that the Committee’s meetings be open to the public, that its records be publicly available pursuant to the Freedom of Information Act, 5 U.S.C. § 552, and that “interested persons” be provided the opportunity to appear before and file statements with the Committee on matters under its consideration. 

The announcement did not provide information, however, on such details as the number of members who will be on the Committee, whether any seats will be specifically reserved for employee or employer representatives, how OSHA will go about seeking individuals to serve on the Committee, or when the Committee’s first meeting would be held. 

Assistant Secretary David Michaels, who oversees OSHA’s Whistleblower Protection Program, said in a statement that “establishing a federal advisory committee is another important effort to strengthen protections for whistleblowers.” Michaels added that the Committee “will help our agency sustain an open dialogue with stakeholders and experts, and will promote the transparency and accountability that are the cornerstone of this administration.” 

Employers would be well advised to closely monitor the establishment of this Committee. Taken together with other recent developments, many of which we have discussed in earlier articles, OSHA’s announcement may suggest a tendency to tilt the field in favor of whistleblower complainants. For example, OSHA’s March 2012 restructuring of its Whistleblower Protection Program, was described by Assistant Secretary Michaels as demonstrating the agency’s “steadfast commitment to strengthening a program that is critically important to the protection of workers’ rights.” Now, Michaels has described creation of the Committee as “another important effort to strengthen protections for whistleblowers.” Likewise, recent decisions from the ARB – including, for example, Brown v. Lockheed Martin Corp. (February 2011), Sylvester v. Parexel International, LLC (May 2011), and Saporito v. Publix Super Markets, Inc. (March 2012) – suggest a tendency to favor complainant-oriented interpretations of the federal whistleblower statutes, often at the cost of greater fidelity to either statutory language or Congressional intent. As we have noted in earlier postings, whether these interpretations will withstand Circuit Court review remains to be seen.      

As did the March restructuring, establishment of the Committee strongly indicates OSHA’s intention to bring more resources to bear in its enforcement of the whistleblower protection statutes it oversees. Employers can expect to see a growing emphasis on the Whistleblower Protection Program as a tool in the government’s law enforcement efforts, and a continued vibrancy in this area of employment litigation.