• Efforts to Strengthen OSHA Whistleblower Protections
  • November 7, 2013
  • Law Firm: Holland & Hart LLP - Greenwood Village Office
  • Workers who report health and safety violations under the Occupational Safety and Health Act (OSH Act) have fewer protections than those who blow the whistle in workplaces covered by other federal statutes. Two bills pending in Congress seek to change that by strengthening the whistleblower protections in the OSH Act.

    OSHA Enforces Numerous Whistleblower Laws

    The Occupational Safety and Health Administration (OSHA) enforces the whistleblower protections for many different laws. In addition to enforcing the OSH Act, it handles complaints related to the Consumer Financial Protection Act of 2010, the Federal Railroad Safety Act, the Safe Drinking Water Act, the Sarbanes-Oxley Act, the Affordable Care Act and the Toxic Substances Control Act, to name a few.

    In some form or another, these laws prohibit employers from retaliating against workers who engage in protected activity, such as complaining about unsafe working conditions. However, the specific protections afforded by these laws differ significantly. For example, under numerous laws, an employee has 180 days to file a retaliation complaint against his or her employer whereas the deadline for alleging retaliation under the OSH Act is just 30 days. A recent report by the Center for Effective Government (formerly OMB Watch) addressed some of these perceived deficiencies of the 1970-era OSH Act.

    Proposed Enhancements to the OSH Act

    The OSH Act's current whistleblower provision, 29 U.S.C. ยง 660(c), is limited in both scope and remedy. This spring, bills were introduced in both houses of Congress to amend the OSH Act to, among other things, better align the anti-retaliation provision with other federal whistleblower protections. (H.R. 1648 and S. 665). The bills, both called Protecting America's Workers Act, propose enhancements to the OSH Act whistleblower protections including:

    • Increasing the time period for whistleblowers to file a retaliation complaint from 30 days to at least 180 days;
    • Providing for the whistleblower to be reinstated to his or her position, with compensatory damages, upon OSHA's finding of reasonable cause to believe retaliation occurred;
    • Permitting whistleblowers to request a hearing before an administrative law judge within 30 days after a decision denying relief or within 120 days after the filing of the complaint if OSHA fails to issue a decision in the case;
    • Allowing either party to appeal a final decision and order to the U.S. Court of Appeals for the circuit where the violation occurred or where the whistleblower resides;
    • Establishing that the burden of proof for a retaliation claim is that the protected activity was a contributing factor in the adverse employment action;
    • Allowing for an award of reasonable attorneys' fees and costs, including expert witness fees, to the prevailing whistleblower against the employer; and
    • Prohibiting the waiver of any rights and remedies under this provision by any agreement, policy, form or condition of employment, including pre-dispute arbitration agreements and collective bargaining agreements.

    Both bills are being considered in their respective Congressional committees and it is unclear whether either bill will come to a vote. However, if Congress fails to act, groups such as the Center for Effective Government are urging states to enact stronger worker protections.

    Avoiding Retaliation Complaints

    Despite the rather weak whistleblower protections under the current law, the number of whistleblower retaliation cases filed with OSHA is on the rise. In 2012, OSHA received 2,833 retaliation complaints and the pace of retaliation filings in 2013 is up, with 2,178 filed through the first three quarters of the year. As workers become more willing to pursue retaliation claims, employers are well-advised to treat reports of unsafe working conditions with care. Consider the Whistleblower Golden Rules:

    • Address all complaints in good faith.
    • Respond in a calm, professional manner.
    • Protect against hazards immediately.
    • Clearly and calmly explain conclusions to the complaining employee.

    The attention given by employers to this process directly corresponds to success in avoiding whistleblower complaints. In the words of Zig Zigler, "The way you see them is the way you treat them, and the way you treat them is the way they often become."