Current whistleblower protections are not “nearly effective enough,” said OSHA chief Dr. David Michael in a speech May 11 to Professionals for the Public Interest in Washington, DC.
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Here are excerpts from Michaels’ speech:
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“Currently, OSHA enforces 17 statutes including the 1970 OSH Act, seven environmental statutes, six transportation-sector statutes, and a cobbled collection of nuclear energy safety, and corporate fraud and consumer product safety statutes, including the Sarbanes-Oxley Act of 2002, the Safe Drinking Water Act of 1974, and the Clean Air Act of 1977.
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OSHA whistleblower responsibilities “rarely come with any increase in funding or (staff), said Michaels. “They simply mean more work for our current staff, stretching an overburdened workforce that much thinner.
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”In FY 2009, OSHA received 2,160 complaints and completed 1,947 investigations. Of those completed, OSHA recommended litigation or otherwise found merit in only three percent of whistleblower complaints; 20 percent were resolved by settlements reached either by OSHA and the parties or by the parties alone; 63 percent were dismissed; and 14 percent were withdrawn. Our results for the first half of fiscal year 2010 continue in the same disappointing vein.
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”I do not believe that the vast majority of whistleblower claims are simply without merit. Instead, it appears to me that there are a series of institutional, administrative and legislative barriers that stand between many whistleblowers and justice. These barriers, and our failure to protect legitimate whistleblowers create an injustice for these workers, and it discourages other workers from asserting rights.
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”When two-thirds of whistleblower complaints are dismissed, it sends workers a clear message — a very unfortunate message: "The odds are against you."
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”This must change, but change will not come easily or quickly.
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”OSHA's program now has 85 full-time specially trained whistleblower investigators with 1,421 pending cases. The national average caseload is 17 cases per investigator - three times the accepted, manageable caseload of 6-8 cases.
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”The unfortunate, inevitable result is a backlog of cases. On average, it's taking 174 days — nearly half a year — to complete a single investigation.
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”Secretary Solis and I are not satisfied by any means, which is why, for the FY 2010 budget, the President has requested — and we have received — 25 more investigators to bolster the program. Once we have completed hiring, we expect this will reduce the per-investigator workload, but surely not enough, especially if OSHA is delegated responsibility in three more statutes, which is likely to happen soon.
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”Adding more investigators will help, but we need to mend our patchwork quilt of worker protections in other ways, and Congress is considering reforms that are clearly overdue.
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”The OSH Act was one of the first safety and health laws to provide protections for whistleblowers. Section 11(c) was innovative in 1970, but 40 years later it is antiquated. HR 2067, Protecting America's Workers Act (PAWA), would bring it into the modern age.
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PAWA would expand Occupational Safety and Health Act's anti-retaliation provisions by:<ul>
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<li>codifying a worker's right to refuse to do unsafe work</li>
<li>prohibiting employer policies that discourage workers from reporting illnesses or injuries</li>
<li>prohibiting employer retaliation against workers for reporting injuries or illnesses</li>
<li>granting workers the right to further pursue their cases if OSHA does not proceed in a timely fashion</li></ul>
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“PAWA is a good start, and OSHA proposes that PAWA add to OSHA two provisions already found in the Mine Safety and Health Act:<ul>
<li>to provide for assessment of civil penalties against employers who violate whistleblower provisions </li>
<li>to provide for OSHA to reinstate a complainant pending outcome of the investigation</li></ul>
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“Let's be clear, however: PAWA would help send the right message to employers and workers alike, but this one legislative patch is only the first step. PAWA alone won't be enough to give workers the broad, strong shield they need because PAWA addresses only the inadequacies of the weakest one of OSHA's 17 whistleblower provisions -- the OSH Act.
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”We need to strengthen <em>all </em>our whistleblower statutes.
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”It has been said that OSHA's ‘whistleblower protection program does not appear to be on the radar of the agency's leadership.’
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”I respectfully disagree. This may have been true in the past, but currently, the leadership of the Department of Labor<em> profoundly </em>understands the cornerstone position that whistleblower protections have in the foundation of a strong worker protection program.
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”Whistleblower protection is an essential part of strong enforcement, and over the last year OSHA has been struggling to shore up its foundations on several fronts — by adding more inspectors, toughening our citations and penalties, and designing a more far-reaching enforcement initiative that will put a harsher light on recalcitrant employers with long histories of worker neglect.
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”I pledge to you today that we will work hard to improve our whistleblower protections.”
