Navigating Whistleblower Investigations: What to Expect

A whistleblower can cause trouble for your company, threatening the business’s reputation. If an employee has filed a whistleblower complaint against you, you must take action immediately and defend your company from such allegations.

A California whistleblower defense attorney can provide high-quality representation throughout the process. A lawyer can also guide you through the investigation process, which is the lengthiest part of the case. Knowing what to expect can provide some much-needed peace of mind.

Whistleblowers in the Workplace

A whistleblower formally reports workplace conditions they believe to be dangerous or illegal. Whistleblowers can file complaints internally with their company or through the federal agency, Occupational Safety and Health Administration (OSHA).

Whistleblowers are afforded certain protections under the law. Should the employer discover the whistleblower’s identity, the employer cannot retaliate against the whistleblower. Retaliation can take many forms but often includes wrongful disciplinary action, demotions, and terminations.

Among a whistleblower defense attorney’s many jobs is helping ensure your company stays within legal boundaries and avoids allegations of retaliation throughout the case.

The Whistleblower Complaint Process

Whistleblower complaints are taken seriously and require a proper investigation, which can be lengthy and stressful. For this reason, it’s particularly helpful to have a whistleblower defense attorney on your side.

When dealing with a whistleblower, you can expect to face the following:

The Complaint

When filing a formal complaint, the whistleblower employee or their attorney can file a complaint directly with OSHA to report the alleged unsafe, illegal, or wrongful workplace situation. Throughout the investigation, the whistleblower is called the “complainant,” and the employer is the “respondent.”

Once the complaint is filed and received, OSHA interviews the employee to gather more information and determine whether the allegations warrant an investigation.
Neither party is legally required to obtain an attorney. However, it’s best to hire a whistleblower defense attorney to handle your case and defend against complaints against your company.

The Investigation

Should the governmental agency decide to proceed with the complaint, they move on to the investigation process. This process begins with the complainant having a whistleblower investigator assigned to the case. Once the investigation has begun, they notify all parties.

It’s important to note that the investigator is a neutral party who does not represent either party in the matter. The investigator’s job is to gather relevant information to make determinations at the end of their investigation.

Respondent Statement

At the outset of the complaint, OSHA interviews the complainant. Then, during the investigation, the agency requests the employer provide a written statement addressing and defending against the allegations. This critical piece of the investigation allows you to clarify your position on the matter.

Evidence and Interviews

To aid in the investigation, you should retain any evidence that could help your defense, including:

• Personnel files
• Contracts
• Work products
• Communications, including emails, voicemails, and text messages
• Call logs
• Meeting notes

Additionally, you can provide the OSHA investigator with the contact details of any party that can support your defense. The investigator can contact and interview witnesses, obtaining answers to important questions.

Timelines

Whistleblower investigations are the lengthiest part of the whistleblower complaint process. There is no average time, as it depends on the specifics and complexities of the situation.
At any point in the investigation, the parties can choose to settle the matter with the investigator’s help, through OSHA’s alternative dispute resolution (ADR) program, or through a privately negotiated settlement later approved by OSHA.

The Conclusion and Recommendation

Once the assigned OSHA investigator has concluded their investigation, they recommend to their supervisor based on the evidence, interviews, and information obtained from both parties.
The recommendation states whether the investigator thinks there is reason to believe the employer did violate the statute in question. Should the investigator’s supervisor agree, OSHA will detail its findings in a formal letter to the complainant and respondent.

The letter includes information concerning available remedies and either party’s right to appeal and take the case before an administrative law judge.

Alternatively, the complainant may have other means of seeking resolution should OSHA not decide within the specified time. Depending on the statute, the complainant can file their complaint in federal district court if they do not receive a final order or a certain amount of time has passed from filing the complaint, either 180 or 210 days.

The Appeal

If you or the complainant disagree with OSHA’s decision, you can appeal. Doing so requires setting up a hearing before an administrative law judge.
Once the case is docketed, an administrative law judge is assigned to it. The hearing is typically held in a practical location, such as where it would be most convenient for witnesses to travel.

Whistleblower appeals proceed similarly to lawsuits. There is a period for discovery, allowing both parties to gather pertinent evidence and information to strengthen their cases, and either party may file motions if necessary.

Additionally, parties can negotiate a settlement at any time during this period. Parties can handle negotiations with their respective attorneys, and the Office of Administrative Law Judges can provide a mediator or settlement judge if the parties wish to have additional assistance.

During the hearing, evidence is submitted to the judge, and witnesses testify on behalf of their respective parties. Hearings are “de novo,” meaning “from the beginning.” Therefore, it’s critical to build and present your strongest case. At the conclusion, the judge writes their decision.

Getting Help From a California Whistleblower Defense Attorney

Dealing with a whistleblower can be quite challenging. The tension can often be too much to bear, and you may feel unsure going into the process. Therefore, getting help from a whistleblower defense attorney as early as possible in the process is beneficial.

A lawyer can investigate the situation, gather important evidence, and craft a strong defense on your behalf. A whistleblower defense attorney can also provide necessary support and direction throughout the process, working diligently to reach the best possible result for your company.

Reach out to Pearlman, Brown, and Wax, LLP today for expert guidance and support in navigating whistleblower situations. Our experienced defense attorneys can investigate, gather evidence, and craft a strong defense to protect your company’s interests.