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Whistleblower protection rules under the U.S. Occupational Safety and Health Act continue to be hotly debated by employers and worker advocates alike.
On May 14, the U.S. Occupational Safety and Health Administration will hold the third of a series of meetings discussing whistleblower protections under Section 11(c) of the OSH Act and how the agency can improve its customer services and enhance public understanding of whistleblower laws.
Section 11(c) prohibits employers from retaliating against workers for engaging in protected activity such as filing a safety or health complaint with OSHA, raising a safety or health concern with their employer or reporting an injury or illness. Employees have 30 days from the alleged adverse employment action to file a complaint with OSHA.
Under the current regulations, OSHA is supposed to complete its investigation into a complaint within 90 days. However, OSHA required an average of 272 days to make a determination on a whistleblower complaint last year, according to the agency’s statistics. Once that three-month deadline has expired, employees are free to take their complaints to the courts.
While employers would like to see investigations by OSHA sped up, employee advocates are looking for more and easier opportunities for workers to adjudicate their claims in court rather than waiting for OSHA to determine whether the claim is legitimate, said Jason Mills, partner and employer representative in the Los Angeles office of Morgan, Lewis & Bockius LLP.
“They don’t want OSHA to make a decision on (their claim) at all — what they want to do is go to federal court,” he said. “The end result of that is you’re going to have a whole slew of really non-viable claims that never would have made it through OSHA.”
In 2018, OSHA docketed 1,870 whistleblower retaliation complaints, but nearly two-thirds of those complaints were dismissed or withdrawn, according to the U.S. Department of Labor’s Whistleblower Protection Program statistics.
While Mr. Mills said he understands why employees would be eager to seek a court decision if OSHA has not come to a resolution in a timely manner, he also said it presents a “massive burden” for employers. In California where Mr. Mills practices, employers have the burden of defending themselves in court against whistleblower complaints filed under the Fair Employment and Housing Act, which allows an employee to bring a retaliation claim against an employer for suffering from an adverse employment action after engaging in protected activity.
“Certainly there are employees with legitimate claims out there, but there are lots of employees retaliating against their employers” by filing Section 11(c) complaints, he said. “(If) OSHA doesn’t even get a chance to figure that out … it really turns 11(c) into a weapon.”
While OSHA’s fiscal year 2019 budget gave the agency the resources to hire an additional 33 full-time equivalent workers and an extra $1 million for whistleblower protection, the agency has not been filling those slots or replacing former employees in a timely manner, said Deborah Berkowitz, senior fellow on worker safety and health with the National Employment Law Project in Washington, D.C., and a former chief of staff with OSHA.
(Section) 11(c) is “so critical,” but the understaffing of OSHA and the 250-plus days the agency is averaging to adjudicate a complaint is endangering whistleblower protection, she said.
“If workers report hazardous conditions … they need protection,” she said. “If the enforcement of 11(c) is only on paper because there’s not enough staff and the (Trump) Administration is slowly starving the program, then workers won’t feel free to come to report injuries to the employer or to OSHA. Employers who cut corners will be able to get away with it and workers will pay the price.”
The way settlements of whistleblower complaints are proposed is another area that likely will be discussed in the meeting, said Aaron Gelb, a partner in the Chicago office of Conn Maciel Carey LLP.
“From my personal experience defending employers in whistleblower cases is that there is somewhat of a disorganized approach to settlement discussions,” he said. “I could see it as a benefit to both employers and employees frankly if there’s a more systematic approach to settlement discussions … instead of allowing investigators to bring up settlement when they think it makes sense.”
The current statute of limitations for filing a whistleblower complaint is another area worker advocates would like to see changed, said Ms. Berkowitz. Currently, employees have 30 days to file a complaint under Section 11(c) following an adverse employment action that the employee believes is a result of his engagement in a protected safety activity. OSHA’s whistleblower statute of limitations is shorter than most other federal agencies, including the Mine Safety and Health Administration at 60 days, and the U.S. Department of Transportation, which has a 180-day statute of limitations.
OSHA cannot unilaterally change the statute of limitations, Mr. Gelb said. However, if Congress passes H.R. 1074, Protecting America’s Workers Act, the statute of limitations would increase to 180 days and additional citations for adverse actions taken against employees engaging in whistleblowing could be levied against employers. The bill was introduced by Democrats in the U.S. House of Representatives on Feb. 7, but has stalled in the House Committee on Education and Labor. Similar versions of the same bill were introduced in 2015 and 2017 and died in the House.
Democrats in the U.S. House of Representatives have introduced a disapproval resolution against a new regulation rolling back portions of the U.S. Occupational Safety and Health Administration’s electronic record-keeping rule and to provide additional protections for whistleblowers.