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Straight
Track #260
RAILROAD
RETALIATION
REPORT
Part 7:
OSHA INVESTIGATIONS OF WHISTLEBLOWER CLAIMS
By James L. Farina,
Alan J. Fisher and Steven P. Garmisa
What does OSHA do
when it investigates a retaliation claim?
Although OSHA has
not yet the issued regulations that specifically deal with retaliation
claims filed by railroad employees, we do know how the OSHA typically
investigates retaliation claims. Therefore, the following discussion
must be taken as general guidance, pending any decision by OSHA
to treat railroad employees differently than other workers.
Initial Contact
The employee who
files a retaliation complaint is called the complainant. The
complaint will be assigned to an OSHA investigator, who will then try to
contact the complainant as soon as possible.
Sometimes an
investigator is unable to find the complainant. If so, the investigator
will call the complainant at different times during the day and
evening. If unsuccessful, the investigator may mail a letter requesting
that the complainant contact the investigator within 10 days. And if the
investigator still does not hear from the complainant within 10 days,
then OSHA can terminate the case.
The Field
Investigation
If, after the
initial telephone contact, the investigator decides there might be a
valid case of retaliation, the investigator will proceed with a field
investigation.
The field
investigation consists of personal interviews, and on-site collection of
documents and other evidence. Sometimes though, an investigator might
also obtain testimony and other evidence by telephone, mail or
electronically.
The First Meeting
The investigator
will try to meet with the complainant as soon as possible for the first
interview. As part of this interview, the investigator will ask for a
signed statement detailing the complainant’s allegations. The
complainant is entitled to have an attorney or other personal
representative present during this interview.
During the
interview, the complainant will be asked to identify witnesses –
including their names, home addresses, telephone numbers, plus a summary
of what each witness is expected to be able to testify about. The
complainant will also be asked to furnish all documents relevant to the
case. This includes such things as copies of discharge notices,
reprimands, warnings, evaluations, earnings and benefit statements,
grievances, job descriptions, employee handbooks, company rulebooks,
medical records, and – if the complainant is losing his house – mortgage
foreclosure papers.
The investigator
will additionally ask the complainant to specify what kind of relief,
restitution or compensation he or she is asking for. And if the
complainant was fired, the investigator will advise the complainant
about the obligation to search for replacement work.
If the investigator
interviews the complainant by phone, the investigator will prepare a
written statement. Then the investigator will mail the statement to the
complainant, with instructions to review the document carefully, make
any necessary corrections or additions, and return the signed statement.
Contacting the
Employer
Similarly, the
investigator will contact the employer to find out what its story is.
The employer gets an opportunity to forward a written position
statement.
The allegations made
by the employer in its position statement are not a substitute for
evidence, and the investigator will contact the employer to interview
witnesses, review records, and obtain any other document pertaining to
the employer’s defense.
Other Interviews
The investigator
will try to interview all of the employee’s and employer’s witnesses.
This includes all company officials who had direct involvement in the
case. The investigator should interview the witnesses separately, so
that their testimony will not be “tainted” by having heard what other
witnesses say.
If the employer
designated an attorney to represent the company, then interviews with
management and supervisory officials will ordinarily be scheduled
through the attorney. The company’s attorney is permitted to be present
during interviews of management and supervisory witnesses. However, the
employer’s attorney does not have the right to be present – and should
not be present – during interviews of non-management or non-supervisory
employees.
Any witnesses
interviewed by the investigator have a right to have a personal
representative or attorney during the interview. Investigators are
supposed to try to obtain a signed statement from each relevant witness.
If the witnesses
appear to the investigator to be “rehearsed,” intimidated or reluctant
to speak while at work, the investigator may decide to just get their
names and home numbers and contact these witnesses later, outside the
workplace.
After hearing the
employer’s story, the investigator will re-contact the complainant and
other witnesses as necessary, to resolve any discrepancies, or to deal
with counter-allegations made by the employer.
Goals of the
Investigation
During the
investigation, the investigator will be looking into whether or not the
employee can prove that:
(1) He or she
engaged in protected activity.
(2) The employer
knew of about or suspected that the employee engaged in protected
activity.
(3) The employee
suffered adverse action (such as discharge, the demotion, reprimand, or
harassment). And,
(4) The employer
retaliated against the employee because the employee engaged in
protected activity.
The investigator
will also be looking into whether or not the employer has evidence that
there was a legitimate reason for taking adverse action against the
employee, such as poor work, absenteeism, or misbehavior.
If the employer
asserts one of these defenses, the investigator will look into whether
or not the alleged reason for the adverse action was actually just a
pretext or phony excuse. For example, the investigator will look for
evidence that the employer knew that other employees engaged in similar
misconduct. If these other employees did not receive the same severe
punishment as the complainant, then this evidence of “disparate
treatment” supports the conclusion that the employer’s excuse for
punishing the complainant was phony.
OSHA’s Decision
After the field
investigation, the investigator will evaluate the evidence and draw
conclusions about whether the complainant can prove a violation of the
law, and whether the employer can prove a legitimate defense. Then,
after discussing the case with an OSHA supervisor, and perhaps with a
Department of Labor attorney, the investigator will conduct a closing
conference with the complainant.
The closing
conference may be in person or by telephone. During the closing
conference, the investigator will discuss OSHA’s decision; how it was
reached; and if the case is going forward, the next step in the process,
such as a hearing before an Administrative Law Judge.
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