Here's How OSHA Can Improve Its Handling of OSH Act Whistleblower Cases

by Katie Tracy

May 16, 2019

The Occupational Safety and Health Act (OSH Act) guarantees workers the right to speak up about health and safety concerns in the workplace without reprisal. Specifically, Section 11(c) of the law provides workers the express right to report any subsequent employer retaliation against whistleblowers, such as demotion or firing, to the Occupational Safety and Health Administration (OSHA).

Even with these protections, many workers fear retaliation if they report health and safety concerns. Workers who put their jobs on the line to make their voice heard deserve certainty that OSHA has their back if their employers violate the law and take adverse action against them. However, due to statutory barriers and resource constraints, OSHA's administration of 11(c) cases often leaves workers without any remedy.

On May 14, I delivered remarks at an OSHA stakeholder meeting on improving the agency's administration of retaliation cases filed under Section 11(c). I laid out several ways the agency could improve its administration of 11(c) cases, all of which OSHA could adopt using its existing authority and without taking up a tremendous amount of resources. The full statement is available here. The key recommendations are as follows:

  • When OSHA receives an 11(c) complaint, the agency should assess whether the complaint might also fall under another whistleblower statute that the agency administers that would potentially provide a more advantageous process for the handling of the complaint or provide better remedies.
     
  • When OSHA receives a complaint orally and agency staff reduce the complaint to writing, the agency should provide a copy of the written complaint to the whistleblower and allow them reasonable time to address any errors or deficiencies in their complaint. 
     
  • OSHA should create an online application that allows workers to track their complaints throughout the process and access related case documents.
     
  • When OSHA proceeds to investigate an 11(c) complaint, it should ensure that it makes a determination of the complaint within 90 days, as the law requires.
     
  • OSHA should focus additional resources on tracking trends in whistleblower cases.
     
  • If OSHA determines that an employer retaliated, the agency should refer the employer to the enforcement unit for a possible inspection, especially if the employer is a repeat offender.
     
  • OSHA should make more data on whistleblower cases available to the public, such as by alerting the public about companies found to have committed retaliation.
     
  • OSHA should reestablish the Whistleblower Protection Advisory Committee it disbanded in 2018 because the Committee provides a critical function in evaluating the Whistleblower Protection Program and recommending improvements.

Ahead of the meeting, CPR joined with 66 organizations and individuals in submitting comments to the agency with additional recommendations for improving whistleblower protections. As I explained in my oral testimony before the agency, "The organizations and individuals [who signed onto the letter] represent ...

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