Improving OSHA Whistleblower Protections

May 29th, 2014 by DWM Magazine

David Michaels, assistant secretary of Labor for the Occupational Safety and Health Administration (OSHA) testified recently before a U.S. Senate Subcommittee to stress the importance of whistleblower protections, and how they may be improved. Michaels testified before the Employment and Workplace Safety Committee on Health, Education, Labor and Pensions. He pointed out that although OSHA has made dramatic progress in reducing work-related deaths, injuries and illnesses, more than 4,000 workers still die on the job every year, and almost 4 million workers are seriously injured.

“Most of these workplace injuries, illnesses and fatalities are preventable,” he said. “Section 11(c) of the OSH Act prohibits discrimination of employees for exercising their rights under the law. In the decades since the passage of the OSH Act, Congress has enacted a number of other statutes which also contain whistleblower provisions, acknowledging that workers are this nation’s eyes and ears, identifying and helping to control not only hazards facing workers at jobsites, but also practices that endanger the public’s health, safety or well-being and the fair and effective functioning of our government. Whistleblowers serve as a check on the government and business, shining a light on illegal, unethical or dangerous practices that otherwise may go uncorrected.”

He also took the time to showcase improvements in OSHA’s whistleblower program.

“Protecting whistleblowers is a responsibility that we take very seriously. As you are aware, there have been reports — prepared by the Government Accountability Office (GAO) and the Department of Labor’s Office of the Inspector General (OIG) — that criticized OSHA’s whistleblower protection program. We took these criticisms seriously and successfully implemented all of the recommendations in the GAO and OIG reports, which not only increased the program’s effectiveness, but also made the program more efficient,” he said. “Over the last several years, we have implemented a number of significant structural and programmatic changes to strengthen our whistleblower program. For instance, OSHA has established the Whistleblower Program as a separate Directorate, with its own budget; developed an online form so that employees can file complaints electronically; enhanced training; streamlined investigation procedures; and, with additional resources appropriated by Congress, significantly increased staffing. In addition, by updating our Whistleblower Investigations Manual and establishing a Federal Advisory Committee on Whistleblower Protections, we have been able to improve our enforcement efforts, including enhancing the consistency of our investigations of complaints filed under the anti-retaliation statutes that OSHA administers.”

As a result of the increase in resources and the changes mentioned above, in the past two years OSHA has been able to eliminate a backlog of more than 300 “over-age”discrimination complaints, and significantly reduced the number of section 11(c) complaints under “administrative review” in the National Office. At the beginning of the fiscal year, OSHA had more than 200 section 11(c) cases pending administrative review. As of April 2014, OSHA has reduced the number of pending cases in this category to approximately 40, all of which were newly filed or are actively under review. But changes still need to be made. “To give section 11(c) the teeth it needs to be as effective as newer whistleblower statutes, it must be updated to establish improve procedures for filing, investigating and resolving whistleblower complaints — to afford employees the same protections that are found in these more recent anti-retaliation statutes. These newer statutes should serve as a guide for reforming and reinvigorating the protections in section 11(c),” said Michaels. To this end, OSHA recommends strengthening the procedural requirements of section 11(c) to be consistent with more recent whistleblower statutes, by: (1) providing OSHA with the authority to order immediate preliminary reinstatement of employees that OSHA finds to have suffered illegal termination; (2) modifying the adjudication process to provide a “kick-out” provision which will enable workers to take their disputes to a Federal District Court if the Department fails to reach a conclusion in a timely manner; (3) allowing for a full administrative review to the OALJ and ARB of OSHA determinations; (4) extending the statute of limitations for filing complaints; and (5) revising the burden of proof under section 11(c) to conform to the standard utilized in more recently enacted statutes.

“Employees who stand up for what is right, who act with the public good in mind, and who are brave enough to come forward when others will not, should be held out as models of civil responsibility,” he told the subcommittee. “We owe it to all workers to provide effective recourse against retaliation for those who have the courage to address wrongdoing or unsafe conditions to protect themselves and the public at large. Your continued support and commitment ensures that whistleblowers are protected. I look forward to working with you to strengthen our program.”

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