Safety Perspectives From the Dallas Region: Anatomy of an OSHA Whistleblower Investigation, Part 1

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Frank Davis: Hey, hello, everyone. Welcome to another installment of the Dallas Regional Safety Podcast. This is Frank Davis. I’m one of the shareholders at Ogletree Deakins. I’m broadcasting to you live, well, live in a recorded form anyway, here from the Ogletree Tower just north of downtown Dallas. On the line with me, I have my law partner, John Surma, from Houston, and Whistleblower Investigator, NCIS Investigator legend, Jeff Cedar.
Good morning, John and Jeff.

John Surma: Good morning, Frank.

Frank Davis: Today, Jeff has agreed to take a short break in his retirement to give us a little bit of information about whistleblower programs and OSHA. It’s very generous of him. Thank you for giving us your time today, Jeff, to talk us through these things.
Before we get started though, one of the very unique things about you that I like to bring up is your NCIS background. Is that where you started out as an NCIS investigator?

Jeff Cedar: No, I joined the Marine Corps when I was very young. One of the things about the Marine Corps, especially as an MP, you were able to advance your career to be a military police investigator, a criminal investigator, and also a special agent with NCIS. That’s what I was able to do in the Marine Corps. I was able to be a Marine at the same time as being a special agent with the Naval Criminal Investigative Service, where I conducted all kind of felony investigations, testified in court. Everything you can think of, that’s what I did when I was in the Marine Corps for 21-and-a-half years. That’s one of the things I’m very proud of, to be able to be part of that organization and to be of that selected group. Because at that time, I was probably only one of 27 that was doing what I was doing in the whole world, across the whole spectrum of either the Marine Corps or NCIS.

Frank Davis: You’ve been able to tell me some of those adventures in the past, I guess the ones that were non-privileged, not top secret, and those are good stories. Which we might have to schedule a podcast for another day to talk about some of those stories, because it’s one heck of a background. It’s so impressive.

John Surma: From the standpoint of your experience with NCIS as a special agent, what skills do you think you developed there, and what practices did you carry forward to your time as a whistleblower investigator?

Jeff Cedar: Well, one of the best things is that the skills you’re able to develop at NCIS or in CID is that you’re able to speak, to talk to people. The more people you talk to, the more you’re able to get a sense of what they’re telling you is, whether it’s the truth or not. Based on their body language, which we look at a lot. We used to take a lot of classes on interviews, interrogations, and those types of things. Getting somebody through a rights waiver is not difficult because it’s their opportunity to talk to you. That’s what happens, I was able to take that type of skill and all of the expertise that came with NCIS and CID, and bring that over to the defense side as a federal investigator for whistleblowers.
It’s all those skills that I was able to take from my experience and just bring them straight to Whistleblower because there were so many things that were just seamless, as if talking to a place, getting the information you need. A lot of times, people will explain exactly what they’re trying to say, but sometimes if you don’t understand what you’re looking for, you’ll miss it. That happens a lot, is that if you don’t understand what the statute is, then you’re not going to be able to investigate it thoroughly or professionally to have a proper outcome.

Frank Davis: That’s interesting. Jeff, you’ve been trained to be a human lie detector, essentially?

Jeff Cedar: Pretty much. Sometimes, because of how things are today, I’ll give you an example. I was just doing an interview, and I knew, just based on the question that I had and the person’s reaction, I knew I was going down the right road. It is a lot of verbal communication, or nonverbal communication, that people just don’t pick up. That is very true. The more you do, the better you get at it.

John Surma: Jeff, I do have another question about your experience in the military and with NCIS in particular. First of all, obviously, I’m assuming it’s nothing like television. I’m assuming that’s not a very realistic picture of what the real world looks like. But more importantly, were there things that you do at NCIS that you believe translated into your role as a whistleblower investigation beyond Frank’s term, human lie-detecting machine skillset?

Jeff Cedar: Well, the good thing about it is that I was able to…again, I’m trying to answer the question the best way I can as it pertains to the lie detector. It’s just the more work you do, and I’ll give you an example. Testifying in court. That was something that we were taught, we were trained on how to testify in court. I’ve been trained as an expert witness. I’ve been identified as an expert witness in federal, municipal, state, county, federal court as an expert witness in investigations because of my, I guess you would say, vast knowledge of conducting investigations. Whether they’re administrative, criminal, civil, they all transfer over.
When I was working as a special agent, yes, I was doing very unique cases. Cases that, Frank’s right, I can’t talk about. There’s a lot of people that are still in jail as a result of the investigative work that I’ve conducted. The only way you get to be that good at it is to practice your skill. Practice the things that you do well and the things that you don’t do well, you work on. If I get a case, that’s my case. I run it, I run the case the best I know how. If I have any questions or concerns, I bring it to the supervisor. But if there is something that requires a lot of resources, then what you see in the show is what actually occurs. You have a team that comes together, you have one lead, and we just work toward solving the puzzle, so to speak, solving the crime, bringing it to justice.

Frank Davis: I’m guessing, Jeff, that you’ve taken all those skills and brought them into your job as an OSHA whistleblower investigator.

Jeff Cedar: Absolutely.

Frank Davis: How does the job differ? Let me say it a different way. What are the job duties of a whistleblower investigator working for OSHA?

Jeff Cedar: That’s a great question, Frank, because back to the special agent with NCIS or CID, we were always in-person. We always landed on the doorstep. We didn’t do anything by phone, we didn’t do anything by Teams. We were boots on the ground, in the field, working the cases. When I came on with OSHA as a federal whistleblower investigator, that’s what I did. I traveled all over. I had New Mexico, Texas, Oklahoma, Louisiana, and Arkansas areas. At that time, when I came on, I primarily took care of all of New Mexico to include West Texas, including the Panhandle. I was on the ground, looking. If a complaint came across the desk, then if I felt the need to travel, then I’d get on the plane the next day, and go to the company, serve them with what’s called a notification letter concerning a complaint.
We can go back to what my duties were. My duties were to receive complaints. That might be a good place to start is people are able now to file a whistleblower complaint online, regardless of what it is. Where they put in the zip code determines what regional office that will go to. If somebody is in D.C., you work for an employer in D.C., and they put in that zip code as their physical address of where they work, that zip code will automatically go to Region Three, which is what covers D.C. and Maryland. That’s how it’s captured. The zip code is what is captured as to who it’s going to be divvied up to. Once it goes to the region, then it’s up to the region, which is normally a regional supervisor, RSIs, will divvy up and assign the cases to their individual team members.

Frank Davis: An online complaint that gets filed in 75225, which is the University Park area of Dallas, that’s going to kick to Dallas region. Then Dallas region’s going to assign that to one of the investigators.

John Surma: Jeff, I want to level set for our audience a little bit when you’re talking about, at some point there was a transition from doing things in-person to doing things I assume virtually. First of all, I wanted to ask you when you transitioned from the Marines/Navy to being in whistleblower investigation. Then secondly, I wanted to ask you, was COVID the precipitating factor in transforming from doing it in-person to doing it virtually?

Jeff Cedar: I retired from the Marine Corps in 2003, from NCIS, CID, and the Marine Corps. Then I became the assistant chief of investigations for the state of Arizona for the Register of Contractors. I understood a lot of what employers and employees were looking for, what companies were looking for, especially with the Register of Contractors for the state of Arizona. But then in 2010, I started with ICE. Then I made a lateral move, I was doing investigations with ICE, and then I did a lateral move over to the Border Patrol. Then in 2012, I started my career as a federal investigator with the Department of Labor.
Now, in 2012, we had the budget and the ability to travel extensively. I could receive a case anywhere within Region Six, which was either New Mexico, Texas, Oklahoma, Louisiana, and Arkansas, and I would travel there, land on the doorstep. A lot of times, I was able to settle the case just by merely speaking to the company and saying, “Look, this is what the complaint is,” and that type of information, just have a discussion with the company. A lot of times, I was able to settle complaints.
But the question concerning COVID, COVID did … If I remember correctly, we normally took in anywhere from I guess 6 or 7000 complaints across the country, all 10 regions, until COVID. When COVID hit, overnight, we went up to 14,000. No new investigators, but we went up to 14,000 complaints coming across the desk because of COVID. COVID actually forced us to, without spending time on travel and spending time in airports, we had to allocate our resources. That’s when we started doing more virtual investigations.

John Surma: I personally, and I think Frank shares this, I hate using those platforms to do the work that we do because I think it’s much more effective to be in-person. They can read your body language, and you can read their body language. You get to see things firsthand. You get to work through explanations a little bit better, et cetera. I think we’ve gotten better in those platforms, but I still think we’re more effective in person. I’m curious how you felt about your effectiveness in these, what we’ll call remote platforms?

Jeff Cedar: Yeah, you read my mind, John, because I was always a strong advocate that we needed to be in the field. Because when you take us out of the field, there’s no more winding up on the doorstep. There’s no more shock and awe, so to speak, as to me winding up on the doorstep doing what I need to do and getting the information that I need. I was always a very strong proponent of getting us in the field, getting us travel dollars to get us back in the field, because it did make a difference. COVID changed that.
I still was able to settle complaints. I still was able to fine their complaints or dismiss complaints, or recommend a dismissal on a complaint, but it’s totally different. Because you’re right, you’re not able to see the whole body language. All you see is probably somebody from the shoulder up or the neck up, and that’s it. But again, it goes back to the training. It goes back to the expertise of knowing what question you’re asking and looking for the reaction. Because every question somebody answers, there’s going to be a reaction. It could be jovial, it could be serious. It could be a deer in a headlight look. But sometimes that’s how you know you’re on the right path. But it is very detrimental, and there is a learning curve, if that makes sense.

Frank Davis: It does make sense. We’re about at the end of our first session here. Before we take a break though, what I would like to finish out is you talked about your duties. Can you give us an overview, you talked about it indirectly so I think we’ve got a sense of it, but following the complaint, what are the steps in a whistleblower investigation?

Jeff Cedar: Absolutely. That’s a great question, Frank. Once that complaint comes through, the online complaint, let’s say it gets assigned to me. Normally, the investigators have three to five days to contact a complainant. If somebody files a complaint on Friday, it means we call them on Monday. That’s just the nature of the game. In essence, you immediately get a complaint, you make the call. You either send them an email, tell them have 24 hours or 48 hours to respond, call them up. Let’s say I get a complaint today, I get it this morning. I review it, and then I immediately make a call to the complainant.
There’s certain things that I’m looking for from the complainant during the initial interview. Number one, all of the background information. What’s he complaining about? What is his protected activity? Because it doesn’t matter what whistleblower statute you’re enforcing or looking at, you always have to have a protected activity. Let’s say 11C. Let’s say it’s a derrick camp or one of the workers working at a drilling rig out in the West Texas oil fields. Okay, I call him up and say, “Tell me what happened.” Now, I don’t put words in their mouth. I just say, “Hey, just tell me what happened.” They’ll tell me the story of what they believe occurred. I’m always looking at their account of their story. Is there a protected activity? Because under the statute, there has to be a protected activity.
An employee can’t turn to another employee and say, “You know, I think this is all messed up. We don’t have PPE, we don’t have personal protective equipment, we don’t have this, we don’t have that.” But that’s not a protected activity. That employee has to let the employer know whether it’s a derrick hand or somebody in supervision, that there is a protected activity. That’s what I’m looking for, and that’s what I’m listening for in the story that he’s telling me.
I just ask him questions. Okay, well, what did you do about it? “I’ve been working on this oil rig for 10 months.” Okay. Tell me what happened. If I don’t hear a protected activity, I’m going to explain to him, under 29C.04, which is part 1977, there has to be some type of protected activity. I’ve had people tell me they walked off the job. Well, under the statute, you have no protections for walking off the job. Of course, I explain that to them and I quote the statute to them so that I don’t drift off course. That’s number one.
The second thing is I’m listening for knowledge. What did the employee do, not only concerning the protected activity, but who did he tell? Well, if you blew the whistle, how hard were you blowing the whistle? Did you just go up to the supervisor and say, “You know what, I think I need some gloves?” Well, did the guy know that you’re complaining about not having gloves, or did you just ask? Was it a suggestion? I’m looking for what knowledge, how much and how hard did you blow the whistle. That’s protected activity and that’s knowledge.
The third thing I’m looking for is what is the adverse employment action. Sometimes, people will say, “Well, they cussed me out.” Well, that’s not an adverse employment action as it pertains to the terms and conditions, benefits, and privileges of employment. I’m not saying that it’s not right or wrong to cuss somebody out, I’m just saying that if there’s no adverse employment action. Did you get terminated? Did they tell you to go home? Did they tell you to come back? Is there a tangible adverse employment action as it pertains to the terms, conditions, and benefits and privileges of employment?
Number four is I’m looking for a nexus. Is it a temple proximity? Is it animus? Is it those types of things? Prima facie is showing, which is what I just described, those four elements. They can happen in a conversation. But if you’re telling me that you said something two months ago, and then all of a sudden you got fired two months later, companies don’t keep paying people for two months just to fire them for something they did two months ago because of a protected activity. That’s generally not how it works.
I hope I answered your questions right. I know that I was rapid-firing it.

Frank Davis: No, that’s perfect. That’s exactly what I was looking for. After you have that interview with the employee, you answered those four questions to yourself. You’ve established that there was protected activity. If you establish there’s employer knowledge, if you establish that there was an adverse employment action and a nexus between the complaint and the adverse employment action, then what is the next step?

Jeff Cedar: The next step is I issue what’s called notification letters. Notification letters are going to the complainant, and notification letters are going to the company. Now, the company, we’ll only put them on notice; normally, we’re trying to send it by email. Prior to COVID, we would send everything UPS signature required. After COVID, we try to get an email address to whoever was in charge, the owner of the company, the CEO, whoever it was, to get them the notification letter.
That notification letter will tell the company, number one, that there’s been a complaint filed, stating what the complaint is, what the 29C.04 code statute is, it could be 1977, or STA, or FRSA, the Federal Regulatory Safety Act, those types of things. Then it’ll say they’d have 20 days to provide a position statement as to why this person was terminated. Under 11C, the complainant has the burden of proof under 11C. That’s 11C statute; the complainant has the burden of proof to prove that what was done to him was a violation of section 11C. Though the company has the burden of production to produce for us, why was this person terminated? A lot of times, they’ll come back with a personnel file and say, “Look, we tried to correct this guy’s behavior. It didn’t work. This is the date that we decided to terminate him.”
Sometimes, and this is not unheard of, complainants will do what’s called preemptive strikes. They know they’re going to get terminated. They know it. What they do in the backside is they file an 11C complaint. Well, of course, they know they’re going to get terminated, but they file an 11C complaint saying that the issue was because of safety. It’s very important that we find out from the company when the company learn of the protected activity. A lot of times, the company’s like, “We don’t even know what you’re talking about. He or she was terminated because of conduct.” Or absenteeism. I’ve had a lot of cases where I’ve talked to owners of companies where, “Yes, I fired him. Yes, he complained about safety. But did he also tell you that out of the 20 days he was supposed to work in a month, he was only there for five?”

Frank Davis: Are you saying the complainants aren’t candid about that? “Yeah, I was a terrible employee, but I did happen to make a safety complaint, so it could have been that. It could have been the fact that I was a terrible employee. I’m asking you to decide for me.”

Jeff Cedar: I’ve had that scenario happen to me more than once. I ask the complainant, I call the complainant back and say, “Hey, I just want to let you know I called the company. How many days did you work in the month of May?” Well, what’s that have to do with it? Well, it has a lot to do with it. If you don’t go to work, you get terminated, right?
That’s the steps. I notify the company exactly what occurs: “This is what I’m looking for. Give me the information that I need.” Nine times out of 10, we’re going to do an interview of the decision maker.

Frank Davis: The decision maker, you mean that’s working for the company?

Jeff Cedar: Right. Who from the company made the decision to terminate him? Because I want to know from the decision maker why, number one, why he was terminated, and what information he had that he used to come to that fact.
I’ll give you an example concerning…I don’t know if we want to go through the break-

Frank Davis: Actually, maybe we save that for our part two.

Jeff Cedar: Okay.

Frank Davis: Having done this overview. The last question I want to ask you before we end this podcast is how do you decide whether you’re going to interview a decision maker? You said nine out of 10 times, so I assume that maybe 10% of the time, maybe even a little less than 10% of time the time, you decide, “Yeah, no, there’s just nothing here. I don’t need to interview anybody from the company, I can just close it out.”

Jeff Cedar: Normally, those types of scenarios, Frank, happen when the supervisor who was the decision maker is gone, and where the company has provided overwhelming evidence to support what they’re saying. Does that make sense?

Frank Davis: It does make sense.

Jeff Cedar: As long as I have overwhelming evidence and there’s no sense of beating a dead bush. If the evidence is clear. Now, I normally would interview almost every single decision maker. But a lot of times, when I don’t interview a decision maker, what happens is when I get the position statement, say 21 days later or 20 days later, I review it. Then I call the complainant and I say, “Look, this is what they’re telling me and this is what the facts are. Is this correct?” If they say yes, I ask them immediately. I ask them, “Do you want to withdraw your complaint? Because you’re coming to me with a complaint alleging 11C, but the evidence supports that this is not the case. You may be in the wrong venue. You probably should be with EEOC, you should be filing this thing under Title VII.” Or somewhere else, or with the state attorney general’s office. The other thing is I also have to let them know that, if they do withdraw their complaint, they forfeit their appeal rights, which is unusual under 11C because of how it’s all set up.
But the issue about the decision maker is that we want to make sure that we at least test the defense and that’s one of the things that the WIM, which is the Whistleblower Investigative Manual, indicates, is that we have to test the defense. We just don’t take a company’s word for it.

Frank Davis: That loops us all the way back to what we started with, the human lie detector. Jeff Cedar, ladies and gentlemen, how about a round of applause? That ends the first part of our interview with Jeff Cedar. Tune in for our next installment, where Jeff is going to actually break it down for us a little bit more and let us know what we should be looking for in terms of the biggest cases that come out of the Dallas region. As well as the most common mistakes employers make, and how to help guard against situations where there’s employer liability.
John and Jeff, thank you both so much for joining me today. I look forward to getting back on another podcast with you guys real soon.

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