Comments Submitted by: Stephen M. Kohn for the National Whistleblower Center

OSHA Docket Office Docket No. OSHA-2007-0028 U.S. Department of Labor Room N-2625 200 Constitution Ave., N.W. Washington, DC 20210 Dear Docket Office: On behalf of the National Whistleblower Center, I hereby file the following comments are submitted in regard to Procedures for the Handling of Retaliation Complaints, 29 C.F.R. Part 24, 72 Federal Register 44956 (August 10, 2007): 1. Section 24.104. The burdens of proof under the six environmental statutes should be changed to be the same as the burden of proof required under Section 211. In Section 211, Congress has indicated the burden of proof it believes is appropriate under whistleblower laws administered by the Department of Labor. Since the burdens of proof under Section 211 were changed in 1992, Congress has required that other whistleblower burdens of proof conform to that set forth in Section 211. This includes PSIA, SOX, AIR and STAA. The burdens currently used under the Six Acts are not required by statute, and were simply adopted by another employment discrimination law (Title VII). The DOL should now model the burdens of proof under the Six Acts with the burdens in Section 211 (and AIR, SOX, PSIA and STAA). This will reduce confusion in the law, conform the burdens consistent with Congressional guidance, eliminate the confusion caused when an environmental case is adjudicated along with another whistleblower law, such as Section 211 or PSIA and serve the interests of justice. 2. Section 24.107. No new restrictions on discovery should be placed into the rules. The following sentence should be cut from section 24.107: ?Administrative law judges have a broad discretion to limit discovery in order to expedite the hearing.? Currently, discovery is governed under 29 CFR Part 18 and, were applicable, the Federal Rules of Civil Procedure. These rules have worked in most whistleblower cases, and provide the ALJs with ample authority to police proceedings. Additionally, there is no legal basis for treating whistleblower cases different from Title VII cases in the context of discovery. The DOL requires that whistleblowers meet the burdens of proof and persuasion set forth in Title VII. It would be inconsistent with the interests of justice and Congressional intent to reduce the ability of whistleblower to obtain evidence in discovery, and then hold them to the same evidentiary burden as applicable in Title VII cases, in which employees have the entire discovery rights set forth in the Federal Rules. The goal of the rules must be to promote the purposes of the laws ? which are to encourage employees to blow the whistle and protect those who do. Restrictions on discovery undermine those purposes. In the commentary for Section 24.107, DOL indicated that an employee could be required to delay filing a complaint in federal court if an agreement to delay such a filing were reached. The DOL should not permit any such agreements. Congress set forth the time period for filing in federal court. That is controlled by the statue and no party should be placed in a position of undermining this mandate. Additionally, an employee?s attempt to obtain discovery cannot be a factor in deciding whether a claimant can file in federal court. There are specific remedies for filing improper discovery. A party which believes any discovery is not appropriate should file for a protective order. Blocking a party?s right to file in federal court cannot substitute for the requirement to seek protection from a judge from improperly excessive or burdensome discovery. That is the purpose of various discovery rules related to obtaining protective orders or moving to quash certain discovery. Congress mandated the time limit for filing for federal court relief, and that time limit cannot be altered by the DOL, directly or indirectly, by any rule. The time limit is jurisdictional in nature, and DOL cannot take any administrative action whatsoever to hamper this statutory right. 3. Section 24.108. When a state agency is named as a party, the DOL should be required to intervene and/or participate as a party in the proceeding. Congress clearly intended that state agencies be covered under the Six Acts. That intent is reflected in the legislative history and early court decisions interpreting the scope of coverage. However, modern jurisprudence under the 11th Amendment has altered the procedures necessary for ensuring that state agencies not retaliate against employees in violation of the Six Acts. Under modern 11th Amendment law, the DOL should intervene in every case in which a state agency is a named respondent in order to ensure that an employee?s right to proceed against the agency is protected. In this manner, Congress? intent to protect state employee?s from retaliation will be served, and the public interest protected. 4. Section 24.110. The ten day period for setting forth objections is to short. The appeals before the ARB should be de novo based on the entire record, as is currently the practice. There is no indication that this practice did not work, and there is no support within the record to change this practice. However, if the prior practice is changed, parties should be given between 30-60 days to petition for review, depending on the level of specificity required in the petition. 5. Section 24.111. This provision should be dropped. The current practice of liberally permitting employees to withdraw claims, without prejudice, should be continued. This is particularly true in cases under the Six Acts, in which employees are required to file claims within 30 days. Any restriction on the right to freely withdraw claims with out prejudice will not only chill an employee?s willingness to file an initial claim, but will punish employees who simply needed to protect their procedural rights. 6. Section 24.114. The commentary related to this section is incorrect. The rules concerning issue preclusion or claim preclusion ? res judicata and/or collateral estoppel, only apply if an administrative agency issues a final order. An ALJ decision is not a final order. Thus, it would be highly improper for the DOL to advice federal courts and/or the parties to litigation that res judicata and/or collateral estoppel applies, which it does not. Under the law, an employee can file for de novo review in federal court once the employee exhausts administrative remedies. A federal court cannot be urged or induced to remand a case back to the DOL once an employee exercises his or her statutory rights. If a federal court sends a case back to the DOL, the DOL must simply advice the federal court that under the law the DOL no longer has jurisdiction over the claim. There is no issue regarding a potential waste of resources. First, the discovery obtained in a DOL proceeding may be used in a federal court proceeding. Second, hearing testimony obtained in a DOL proceeding may be used in a federal court proceeding. In other words, a proceeding before an ALJ ? even if it advances toward the very late stages of that proceeding ? provides both of the parties with valuable discovery and information which would prove very useful in a federal court proceeding. This is not a waste of resources. The DOL cannot legally implement or suggest any rule which restricts an employee?s right to file in federal court, once the statutory deadlines have been exhausted. Such rules undermine Congressional intent, are clearly illegal and overstep the bounds of proper administrative adjudications. 7. Section 24.107. A procedure should be added to this section which permits employees involved in Section 211 cases to have the claim stayed in order to permit the employee to file in federal court after the exhaustion of the minimum time period set forth in the statute. This procedure should be applicable in cases in which an employee states that third party witnesses cannot be compelled to testify in the DOL proceeding. DOL subpoenas in Section 211 cases are not enforceable before the DOL. Thus, an employee can lose a case, or otherwise be highly prejudiced, by his or her inability to require a witnesses to testify in a DOL proceeding. By permitting employees to file in federal court, this loophole in the laws can be resolved in a manner which serves the interests of justice. No party benefits when a witnesses can ignore his or her duty to provide truthful testimony in a whistleblower proceeding. The DOL should not permit any person the ability to withhold testimony in a whistleblower case. By permitting an employee to have a claim stayed in order to re-file in federal court, third party witnesses will be far more reluctant to refuse to testify. In other words, a third party witness will have a choice. Voluntarily appear for testimony in a DOL proceeding, or be subpoenaed to testify in a federal court proceeding. Respectfully submitted, Stephen M. Kohn President National Whistleblower Center 3238 P Street, NW Washington, DC 20007 202.242.1903 Stephen M. Kohn, National Whistleblower Center