North Salt Lake, Utah is a great place to work in a corporate organization. However if you have been discriminated because you are a whistleblower and your SOX complaint has been rejected by the OSHA, you should immediately speak to an experienced corporate lawyer to know how you can appeal against the OSHA findings. At Ascent Law, we help you with due diligence, outside general counsel duties, recall plans, comp plans, employer/employee issues, mergers, acquisitions, corporate governance, setups and take downs among other things.
In order to appeal the OSHA findings, a party must, “within thirty days of receipt” of the OSHA findings, file written “objections and a request for a hearing on the record” to the DOL Chief. The person filing the appeal must also be served notice of the appeal on the following persons:
• All parties of record
• The OSHA official who issued the findings and order
After objections and a request for a hearing are filed, the case is assigned a hearing officer or administrative law judge, who must “expeditiously set a hearing date.” No party is required to file an answer to the request for a hearing. The hearing is de novo and “on the record.”
Once filed, the case is assigned to a judge and docketed for a trial on the merits. The appeal must be filed within thirty days’ notice of the OSHA findings and consists of a formal request for a “hearing on the record” and the filing of “objections” to the OSHA findings.
The hearing before an ALJ is the most significant phase of a DOL corporate whistleblower case. The case is heard de novo, and the parties are permitted to have their claims adjudicated in a formal bench trial. ALJ procedures mirror those of the Federal Rules of Civil Procedure, and parties are permitted to engage in pretrial discovery. At the hearing, each party is permitted to call and / or cross-examine witnesses and create a detailed factual record. Because the case is tried before a judge and not a jury, the federal rules of evidence do not apply, and the hearing procedures are less formal than a jury trial. Given the nature of a whistleblower case, in which a party’s intent is at issue, hearings can often be long and complex. It is not uncommon for a trial to last well over two weeks and for hundreds of exhibits to be filed.
After the hearing, most ALJ’s permit the parties to file detailed findings of fact and conclusions of law based on the full trial record. After the record closes, and the post-hearing findings are filed by the parties, the ALJ issues a recommended decision and order on the merits of the case. Unless appealed to the DOL Administrative Review Board, this recommended decision constitutes the final order of the Department of Labor. Even if it is appealed, the ARB reviews the ALJ determination under a “substantial evidence” standard, and the factual record created before the ALJ becomes the formal agency record for purposes of any further appeals.
Because the ALJ’s adjudication of a whistleblower case is de novo, the parties are not bound by any of the factual or legal determinations issued during the OSHA investigation. The OSHA ruling does not constitute evidence, and under the case law, the OSHA determination does not constitute admissible evidence. Thus, the decision of OSHA to conduct an investigation, not to conduct an investigation, and / or to rule for or against an employee is rendered immaterial after the case is appealed to the Office of Administrative Law Judges. The only action taken by OSHA that survives an appeal is the preliminary order of reinstatement. That order is enforceable directly in federal court. However, if after the hearing, the ALJ’s ruling on reinstatement takes precedence over OSHA’s, that ruling becomes enforceable in federal court.
Parties to the Hearing
When a case is docketed before the Office of Administrative Law Judges, the DOL ALJ sits as a neutral hearing examiner. The employee and the employer are both parties to the proceeding. If both the employee and the employer filed appeals to the OSHA finding, the case is automatically consolidated into one proceeding. Often, an employee may file more than one complaint against the same employer regarding different adverse actions. Multiple complaints are generally consolidated into one hearing.
Regardless of whether OSHA had decided to participate as a party in the adjudication, all the parties are required to serve OSHA with copies of all pleadings. At the request of the Securities and Exchange Commission, the parties may also be required to serve the SEC with all pleadings. In addition to the employee and employer, other “persons or organizations” that could be “directly and adversely” affected by a final decision have the right to intervene in the case within 15 days of learning of the proceeding or participate in the case as amicus curiae. Government agencies have broad discretion, as a matter of right, to participate in the proceeding as amicus curiae
Under the regulations, the ALJs are required to conduct corporate whistleblower hearings “expeditiously, except upon a showing of good cause or unless agreed to by the parties.”19 Because the regulations require expedited hearings, the initial hearing date should be set within 60 days of the filing of the notice of appeal with the Chief Administrative Law Judge. Consequently, if the complainant is willing to accept “limited discovery,” an ALJ should set the hearing date no later than 60 days after the request for a hearing is filed with the Chief ALJ. Under 29 C.F.R. § 18.42, a party may specifically request that the ALJ schedule the hearing within the sixty-day time frame.
Time limits for responding to motions are short. All motions must be answered within 10 days (if the motion is mailed, 5 days are added to the answering period). This includes all responsive motions, motions to quash discovery, and motions for protective orders.
Although time limits are short, the adjudication proceedings for DOL whistleblower cases are rarely conducted within these con straints. Under the whistleblower statutes on which the SOX law was modeled, the administrative law judges held that the short deadlines were designed to “assure “the” complainant of a speedy decision and may be waived.” Employers’ attempts to have a case dismissed due to the Labor Department’s failure to comply with various statutorily set deadlines have been uniformly rejected, and numerous cases held that the failure of the DOL to comply with statutory time requirements did not strip the DOL of jurisdiction to render a final judgment. As a matter of law, even though the time limits were set forth in the statutes or regulation, they were consistently “construed as directory, rather than mandatory or jurisdictional.” Consequently, it was common practice for parties to “waive” their right to an expeditious hearing to obtain more time for discovery and pretrial preparation.
For example, the nuclear and environmental whistleblower laws had stricter time requirements than the SOX. The DOL was required to complete its full investigation and adjudication and issue a final order on the merits of a complaint within a statutory 90-day time frame. This time frame was rarely (if ever) met. Consistent with these precedents, the DOL held that it was erroneous for an administrative law judge to allow the statutory or regulatory time limits to “interfere with the full and fair presentation” of a case. Parties must be provided adequate time for preparation, and “even an expedited process must be applied in a manner that is fundamentally fair and thus provides the parties an adequate opportunity for presentation of the case.”
Under the SOX, the ability of the parties to obtain continuances was liberalized. The grounds for a continuance under the environmental statutes was a “compelling reason” standard. The SOX regulations lowered that standard to a “good cause” requirement, and specifically permitted the parties to stipulate to enlargements of time.
A request for a continuance of a hearing date must normally be filed within 14 days of the hearing. Although enlargements of time may be granted for both a hearing date and / or for other nonjurisdictional filing deadlines, it is very important for parties to meet all deadlines, as the failure to do so may result in the waiving of certain objections or claims. Allowing a case to drag on can often harm a complainant, increase litigation costs, and provide time for employers to file questionable prehearing dispositive motions.
Parties may file motions to dismiss and for summary dismissal. These motions must be filed at least 20 days prior to a hearing. The DOL follows the case law under Federal Rule of Civil Procedure (FRCP) 12 when reviewing motions to dismiss and FRCP 56 when reviewing a motion for summary dismissal. Summary judgment motions are rarely granted in whistleblower proceedings because the central issue, causation, often requires consideration of a person’s motive. They may also be denied if discovery is still necessary. However, the failure to file an affidavit or other supporting documentation on the record in opposing summary judgment or a motion to dismiss can be fatal to an employee’s case.
Prehearing discovery is an integral element of the litigation process, enabling a complainant to obtain the evidence the employer will rely upon to prove its case and assisting the complainant in proving discriminatory motive and disparate treatment. The ARB has noted that an “opportunity for extensive discovery is crucial” for “protecting employees and the public interest.” Additionally, “discovery in a whistleblower proceeding may well uncover questionable employment practices” and “safety deficiencies.”
Most discovery issues are routinely heard by the presiding administrative law judge, whose rulings will be reversed only if they are “arbitrary or an abuse of discretion.” Parties are expected to attempt to informally resolve discovery disputes prior to filing motions to compel or requesting protective orders.
The expedited nature of the Department of Labor proceedings affects prehearing discovery. Unless the administrative law judge orders otherwise, a party has 30 days to respond to requests for documents, admissions, or written interrogatories. Depositions may be conducted with only 5 working days’ notice, if the notices are hand served, and may be videotaped. Protective orders may be requested to keep information confidential or to otherwise limit or prohibit discovery. In order to obtain answers to discovery in time for the hearing, discovery requests should be served on a person or party shortly after a request for hearing is filed. Although the discovery process may be expedited, the ARB has correctly noted that “requests to extend the time to respond to discovery” are “routinely” granted.
The strict time limits set forth in many of the DOL-administered whistleblower provisions can be waived in order to permit broad discovery and provide the parties with an opportunity for the “full and fair presentation” of their cases.
The DOL has not been granted explicit subpoena power in whistleblower cases. Although DOL subpoenas cannot be enforced in federal court, the DOL can order parties to produce witnesses under their control for testimony and sanction parties for discovery abuses. The failure of an employer to fully comply with discovery may lead to serious sanctions, adverse inferences, and default judgment. Consequently, the vast majority of witnesses and documents either must be produced by a party who controls these persons / documents and / or are voluntarily produced by persons who support one side or the other.
In addition to formal discovery parties often utilize the Freedom of Information Act (FOIA) and Privacy Act to obtain documents relevant to a case from governmental authorities. For example, it is common practice for parties to request OSHA’s complete investigatory file under FOIA after the OSHA proceeding is closed and the case is appealed to the Chief ALJ. Likewise, a governmental regulatory agency may have files related to either the whistleblower and / or the concerns raised by the whistleblower.
Department of Labor administrative hearings are conducted as formal adjudicatory proceedings according to the Administrative Procedure Act (APA). The conduct of the hearings and the general rules of evidence are delineated in APA sections 5 U.S.C. § 556(d) and 5 U.S.C. § 554. It is extremely important for parties to create a full record at the hearing. The hearing record is the body of evidence upon which all future decisions will be made, and the ability of any party to introduce new evidence into the record after the close of a hearing is very limited.
Although similar to courtroom trials, there is never a jury, and one administrative law judge sits as the trier of law and fact. The administrative law judge has wide discretion in admitting testimony into evidence, and the Federal Rules of Evidence are neither binding nor applicable.
An experienced North Salt Lake Utah corporate lawyer can help you get the damages you deserve for the discrimination you were subject to by your employer.
North Salt Lake Utah Business Lawyer
When you need legal help for your business in North Salt Lake Utah, please call Ascent Law for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506