Dr. David Michaels, Administrator for the Occupational Safety and Health Administration, testified yesterday at a hearing before the Senate Subcommittee on Employment & Workplace Safety. The topic of discussion was “Whistleblowers and Job Safety: Are Protections Adequate to Build a Safer Workplace?”
Dr. David Michaels’ Answer: No, They’re Not
Michaels testified that over the last several years OSHA has implemented a number of significant structural and programmatic changes to strengthen the whistleblower program, including:
- 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,
- Significantly increased staffing.
Michaels notes also that it has updated the Whistleblower Investigations Manual, and established a Federal Advisory Committee on Whistleblower Protections to improve enforcement efforts, including enhancing the consistency of investigations of complaints filed under the anti-retaliation statutes that OSHA administers.
As a result, in the past two years OSHA, Michaels claims, has been able to eliminate a backlog of more than 300 “over-age” discrimination complaints under the anti-discrimination protections of section 11(c) of the OSH Act. In addition, OSHA has significantly reduced the number of section 11(c) complaints under “administrative review” in the National Office.
Michaels indicated that 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.”
Specific Statutory Changes Suggested
OSHA recommends strengthening the procedural requirements of section 11(c) to be consistent with more recent whistleblower statutes, by:
- Providing OSHA with the authority to order immediate preliminary reinstatement of employees that OSHA finds to have suffered illegal termination;
- 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;
- Allowing for a full administrative review to the U.S. Department of Labor, Office of Administrative Law Judges and the Administrative Review Board of OSHA determinations;
- Extending the statute of limitations for filing complaints; and
- Revising the burden of proof under section 11(c) to conform to the standard utilized in more recently enacted statutes.
The Administrator concludes that “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. 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.”
Next scheduled to testify to the Subcommittee on these issues are Emily Spieler, Professor of Law, Northeastern University School of Law and Chair, Whistleblower Protection Advisory Committee, Boston, Massachusetts, Tom Devine, Legal Director for Government Accountability Project, Washington, DC, and Ross Baize, Safety Committeeman for UAW, Caterpillar, East Peoria, Illinois.