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Whistleblower Investigations Manual Whistleblower Investigations Manual DIRECTIVE NUMBER: CPL 02-03-007 EFFECTIVE DATE: 01/28/2016 SUBJECT: WHISTLEBLOWER INVESTIGATIONS MANUAL ABSTRACT Purpose: This Instruction implements the OSHA Whistleblower Investigations Manual, and supersedes the April 21, 2015 Instruction. This manual outlines procedures, and other information relative to the handling of retaliation complaints under the various whistleblower statutes delegated to OSHA and may be used as a ready reference. Scope: OSHA-wide. References: The whistleblower provisions of the following statutes: Occupational Safety and Health Act (OSHA 11(c)), 29 U.S.C. § 660(c); Surface Transportation Assistance Act (STAA), 49 U.S.C. § 31105; Asbestos Hazard Emergency Response Act (AHERA), 15 U.S.C. § 2651; International Safe Container Act (ISCA), 46 U.S.C. § 80507; Safe Drinking Water Act (SDWA), 42 U.S.C. § 300j-9(i); Federal Water Pollution Control Act (FWPCA), 33 U.S.C. § 1367; Toxic Substances Control Act (TSCA), 15 U.S.C. § 2622; Solid Waste Disposal Act (SWDA), 42 U.S.C. § 6971; Clean Air Act (CAA), 42 U.S.C. § 7622; Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. § 9610; Energy Reorganization Act (ERA), 42 U.S.C. § 5851; Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21), 49 U.S.C. § 42121; Sarbanes Oxley Act (SOX), 18 U.S.C. § 1514A; Pipeline Safety Improvement Act (PSIA), 49 i U.S.C. § 60129; Federal Railroad Safety Act (FRSA), 49 U.S.C. § 20109; National Transit Systems Security Act (NTSSA), 6 U.S.C. § 1142; Consumer Product Safety Improvement Act (CPSIA), 15 U.S.C. § 2087; Affordable Care Act (ACA), 29 U.S.C. § 218C; Consumer Financial Protection Act of 2010 (CFPA), Section 1057 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, 12 U.S.C. § 5567; Seaman’s Protection Act, 46 U.S.C. § 2114 (SPA), as amended by Section 611 of the Coast Guard Authorization Act of 2010, P.L. 111-281; FDA Food Safety Modernization Act (FSMA), 21 U.S.C. § 399d; and Section 31307 of the Moving Ahead for Progress in the 21st Century Act (MAP- 21), 49 U.S.C. § 30171. 29 CFR Part 1977 - Discrimination Against Employees Exercising Rights under the Williams-Steiger Occupational Safety and Health Act; 29 CFR Part 1978 - Procedures for the Handling of Retaliation Complaints Under the Employee Protection Provision of the Surface Transportation Assistance Act of 1982 (STAA), as Amended; 29 CFR Part 1979 - Procedures for the Handling of Discrimination Complaints under Section 519 of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century; 29 CFR Part 1980 - Procedures for the Handling of Discrimination Complaints under Section 806 of the Corporate and Criminal Fraud Accountability Act of 2002; 29 CFR Part 1981 - Procedures for the Handling of Discrimination Complaints under Section 6 of the Pipeline Safety Improvement Act of 2002; 29 CFR Part 24 - Final Rule, Procedures for the Handling of Retaliation Complaints under the Employee Protection Provisions of Six Federal Environmental Statutes and Section 211 of the Energy Reorganization Act of 1974, as amended; 29 CFR Part 1982 – Procedures for the Handling of Retaliation Complaints Under the National Transit Systems Security Act and the Federal Railroad Safety Act; 29 CFR Part 1983 - Procedures for the Handling of Retaliation Complaints under Section 219 of the Consumer Product Safety Improvement Act of 2008; 29 CFR 1984 – Procedures for the Handling of Retaliation Complaints Under Section 1558 of the Affordable Care Act; 29 CFR Part 1985 – Procedures for Handling Retaliation Complaints Under the Employee Protection Provision of the Consumer Financial Protection Act of 2010; 29 CFR Part 1986 - Procedures for the Handling of Retaliation Complaints Under the Employee Protection Provision of the Seaman’s Protection Act; 29 CFR 1987 - Procedures for Handling Retaliation Complaints Under Section 402 of the FDA Food Safety Modernization Act. OSHA Instruction CPL 02-00-148, OSHA Field Operations Manual (FOM), November 9, 2009. ii OSHA Instruction CPL 02-02-072, Rules of agency practice and procedure concerning OSHA access to employee medical records, August 22, 2007. OSHA Instruction CPL 02-00-098, Guidelines for Case File Documentation for Use with Videotapes and Audiotapes, October 12, 1993. Cancellations: OSHA Instruction CPL 02-03-005, Whistleblower Investigations Manual, April 21, 2015 State Plan Impact: Notice of Intent and Equivalency Required. See Chapter 1, paragraph VI Action Offices: National, Regional and Area Offices. Originating Office: Directorate of Whistleblower Protection Programs Contact: Directorate of Whistleblower Protection Programs 200 Constitution Avenue, NW, N4618 Washington, DC 20210 202-693-2199 By and Under the Authority of David Michaels, PhD, MPH Assistant Secretary iii Executive Summary OSHA Instruction CPL 02-03-005, Whistleblower Investigations Manual, dated April 21, 2015, provided revised guidance for issuing damages and reviewing settlement agreements. This Instruction updates the previous Whistleblower Investigations Manual to revise Chapter 1, “Preliminary Matters” to remove its Non-Public Disclosure discussion and incorporate it into a newly-added chapter. Chapter 3, “Conduct of the Investigation” has been updated to provide clarification on the investigative standard for whistleblower investigations. Chapter 23, “Information Disclosure” has been added to provide detailed instructions on how whistleblower-related documents may be publically disclosed or disclosed pursuant to OSHA’s Non-Public Disclosure policy, the Privacy Act, or the Freedom of Information Act. Significant Changes ● Chapter 1, Sections X “Investigative Records” and XI “Statistics” have been deleted. ● Chapter 3, “Conduct of the Investigation,” has been updated. ● Chapter 23, “Information Disclosure,” has been added. iv Disclaimer This manual is intended to provide instruction regarding some of the internal operations of the Occupational Safety and Health Administration (OSHA), and is solely for the benefit of the Government. No duties, rights, or benefits, substantive or procedural, are created or implied by this manual. The contents of this manual are not enforceable by any person or entity against the Department of Labor or the United States. Statements which reflect current Administrative Review Board or court precedents do not necessarily indicate acquiescence with those precedents. v Table of Contents CHAPTER 1 PRELIMINARY MATTERS I. PURPOSE. 1-1 II. SCOPE. 1-1 III. REFERENCES. 1-1 IV. CANCELLATIONS. 1-2 V. ACTION INFORMATION. 1-2 A. RESPONSIBLE OFFICE 1-2 B. ACTION OFFICES 1-3 C. INFORMATION OFFICES 1-3 VI. STATE PLAN IMPACT. 1-3 A. NOTICE OF INTENT AND EQUIVALENCY REQUIRED. 1-3 B. APPEAL PROCESS. 1-3 C. DUAL FILING. 1-4 D. REOPENING CASES. 1-4 E. REFERRALS. 1-4 F. ACTION. 1-4 VII. SIGNIFICANT CHANGES. 1-5 A. CHAPTER 1. PRELIMARY MATTERS 1-5 B. CHAPTER 23. INFORMATION DISCLOSURE 1-5 VIII. BACKGROUND 1-7 IX. FUNCTIONAL RESPONSIBILITIES. 1-9 A. RESPONSIBILITIES. 1-9 vi CHAPTER 2 INTAKE AND EVALUATION OF COMPLAINTS I. SCOPE. 2-1 II. RECEIPT OF COMPLAINT. 2-1 III. INTAKE AND DOCKETING OF COMPLAINTS. 2-2 A. INTAKE OF COMPLAINTS. 2-2 B. DOCKETING. 2-4 IV. TIMELINESS OF FILING. 2-6 A. TIMELINESS. 2-6 B. DISMISSAL OF UNTIMELY COMPLAINTS. 2-6 C. EQUITABLE TOLLING. 2-7 D. CONDITIONS WHICH WILL NOT JUSTIFY EXTENSION OF THE FILING PERIOD INCLUDE: 2-7 V. SCHEDULING THE INVESTIGATION. 2-8 VI. CASE TRANSFER. 2-8 VII. INVESTIGATIVE ASSISTANCE. 2-9 CHAPTER 3 CONDUCT OF THE INVESTIGATION I. SCOPE. 3-1 II. GENERAL PRINCIPLES. 3-1 III. CASE FILE. 3-2 IV. PRELIMINARY INVESTIGATION. 3-2 A. INTAKE AND EVALUATION. 3-2 B. EARLY RESOLUTION. 3-3 C. THRESHOLD ISSUES OF TIMELINESS AND COVERAGE. 3-3 D. PRE-INVESTIGATIVE RESEARCH. 3-4 E. COORDINATION WITH OTHER AGENCIES. 3-4 F. OTHER LEGAL PROCEEDINGS. 3-4 vii V. WEIGHING THE EVIDENCE. 3-5 A. INVESTIGATIVE STANDARD. 3-5 B. CAUSATION STANDARDS. 3-6 VI. THE FIELD INVESTIGATION. 3-9 A. THE ELEMENTS OF A VIOLATION. 3-9 B. CONTACT WITH COMPLAINANT. 3-13 C. ON-SITE INVESTIGATION. 3-15 D. COMPLAINANT INTERVIEW. 3-16 E. CONTACT WITH RESPONDENT. 3-17 F. UNCOOPERATIVE RESPONDENT. 3-19 G. EARLY INVOLVEMENT OF THE RSOL. 3-20 H. FURTHER INTERVIEWS AND DOCUMENTATION. 3-21 I. RESOLVE DISCREPANCIES. 3-22 J. ANALYSIS. 3-22 K. CONCLUSION OF INVESTIGATIONS OF NON-MERIT COMPLAINTS. 3-22 L. DOCUMENTING THE INVESTIGATION. 3-23 CHAPTER 4 CASE DISPOSITION I. SCOPE. 4-1 II. PREPARATION. 4-1 A. INVESTIGATOR REVIEWS THE FILE. 4-1 B. INVESTIGATOR AND SUPERVISOR DISCUSS THE CASE. 4-1 III. REPORT OF INVESTIGATION. 4-1 IV. CASE REVIEW AND APPROVAL BY THE SUPERVISOR. 4-1 A. REVIEW. 4-1 B. APPROVAL. 4-2 C. LEGAL REQUIREMENTS. 4-6 V. AGENCY DETERMINATION. 4-6 VI. APPEALS AND OBJECTIONS. 4-7 A. OSHA, AHERA, AND ISCA CASES. 4-7 B. OTHER CASE TYPES. 4-8 viii VII. APPROVAL FOR LITIGATION 4-8 CHAPTER 5 DOCUMENTATION AND SECRETARY’S FINDINGS I. SCOPE. 5-1 II. ADMINISTRATIVELY CLOSED COMPLAINTS. 5-1 III. CASE FILE ORGANIZATION. 5-1 IV. DOCUMENTING THE INVESTIGATION. 5-4 A. CASE ACTIVITY/TELEPHONE LOG. 5-4 B. REPORT OF INVESTIGATION (FORMERLY CALLED FINAL INVESTIGATION REPORT OR FIR). 5-4 C. CLOSING CONFERENCE. 5-6 V. SECRETARY’S FINDINGS. 5-6 A. PURPOSE. 5-6 B. WHEN REQUIRED. 5-6 C. ORDERS AND PRELIMINARY ORDERS IN CASES WHICH MAY BE HEARD BY OALJ. 5-7 D. FORMAT OF THE SECRETARY’S FINDINGS. 5-7 E. PROCEDURE FOR ISSUING FINDINGS UNDER OSHA 11(C), AHERA, AND ISCA. 5-9 F. PROCEDURE FOR ISSUING FINDINGS UNDER STAA, ERA, CAA, CERCLA, FWPCA, SDWA, SWDA, TSCA, AIR21, SOX, PSIA, FRSA, NTSSA, CPSIA, ACA, CFPA, SPA, AND FSMA. 5-9 VI. DELIVERY OF THE CASE FILE. 5-10 VII. DOCUMENTING KEY DATES IN IMIS.
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