The Occupational Safety and Health Administration's (OSHA) Whistleblower Protection Program (WPP) plays a vital role in protecting workers from employers who cut corners on safety or who violate other federal laws: It protects those workers who report such abuses from retaliation, making it harder for employers to get away with breaking the law. Or at least that's how it's supposed to work. The 23 separate federal statutes the program encompasses cover a wide range of corporate wrongdoing, including violations of clean air and drinking water standards, food safety standards, workplace health and safety standards, and much more. If an employer retaliates against an employee for taking any of the actions covered by these laws, the employee may file a retaliation complaint with OSHA for investigation.
OSHA's WPP is critical for ensuring workers have safe and healthy workplaces where they can raise concerns without fear of retaliation. But unless the agency adequately enforces the whistleblower protection laws, employers may continue to abuse the law with minimal risk of penalty, and employees will never fully trust in the whistleblower protections those laws provide.
As the novel coronavirus continues to spread in workplaces across the nation, the policy goals of the WPP are all the more important. While many employers have taken swift action to safeguard their employees and customers, some have been much slower to institute protections. And other low-road employers have done essentially nothing, requiring work to continue as usual without social distancing measures in place, without enhanced cleaning, and without protective gear.
Unsurprisingly, companies that are doing a bad job protecting their workers aren't eager to be held accountable. So, essential workers on the frontlines of the crisis are facing adverse consequences for asking questions, speaking up, and in some cases, even for bringing their own protective gear into the workplace. Because of such retaliation, workers are seeking recourse by filing complaints with OSHA. In many cases, the agency is their only avenue to seek justice. There's no option under the Occupational Safety and Health Act, for example, to file a whistleblower lawsuit independently; workers need to file a complaint with OSHA and rely on the agency to act.
Thousands of workers are now looking to OSHA for help in their greatest time of need. In fact, according to OSHA's data, the agency is receiving nearly two dozen COVID-related complaints of retaliation daily. Yet that same data also reveals that the agency doesn't appear to be resolving these complaints in a timely manner. Remarkably, as of May 14, the agency had completed only 17 investigations related to COVID-19 – less than 2 percent of the total complaints received (1,180) and just 17 percent of the 102 cases docketed for investigation.
Unfortunately, the challenges OSHA is having with processing and investigating COVID-related whistleblower complaints is not new. The agency is in the habit of slow-motion response to such complaints, and it faces longstanding obstacles with enforcement of whistleblower protections, including statutory barriers and limited funding. The coronavirus pandemic is merely highlighting these longstanding challenges, but the inaction comes at an unusually high cost. Who wants to take the risk of raising concerns about workplace hazards or reporting to OSHA on their boss's failure to safeguard workers if they know the agency charged with protecting them from retaliation will drag its feet?
This is why, on May 12, I delivered comments at an OSHA stakeholder meeting (by telephone due to COVID-19) about how the agency could improve the WPP within its existing authority and without significant additional resources. My full statement is available here.
My key recommendations are as follows:
You can find my full written comments, submitted to the agency prior to the stakeholder meeting, on CPR's website.
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Katie Tracy | May 19, 2020
The Occupational Safety and Health Administration's (OSHA) Whistleblower Protection Program (WPP) plays a vital role in protecting workers from employers who cut corners on safety or who violate other federal laws: It protects those workers who report such abuses from retaliation, making it harder for employers to get away with breaking the law. Or at least that's how it's supposed to work. The 23 separate federal statutes the program encompasses cover a wide range of corporate wrongdoing, including violations of clean air and drinking water standards, food safety standards, workplace health and safety standards, and much more. If an employer retaliates against an employee for taking any of the actions covered by these laws, the employee may file a retaliation complaint with OSHA for investigation.
Darya Minovi | May 18, 2020
On May 26, CPR and our advocacy partners are hosting a virtual town hall event to discuss the latest research and insights on air and water pollution from industrial livestock operations and their impact on public health and the environment in the Delmarva region.
Michael C. Duff | May 14, 2020
Listening in on Tuesday's Senate Hearing on Corporate Liability During the Coronavirus Pandemic, I was especially pleased to hear workers' compensation immunity discussed. Sen. Sheldon Whitehouse of Rhode Island specifically asked whether blanket corporate immunity would constitute subsidization of workers' compensation insurers. Witness Professor David Vladeck of Georgetown University Law Center responded that it very well could if workers' compensation were not carved out of the bill. I did not hear anyone contend during the hearing that workers' compensation could not be part of an immunity blanket, which is food for thought.
Daniel Farber | May 13, 2020
Sen. Mitch McConnell is demanding that any future coronavirus relief law provide a litigation shield for businesses, and other conservative and business interests have made similar proposals. So far, the supporters of these proposals have engaged in some dramatic handwaving but haven't begun to make a reasoned argument in support of a litigation shield.
James Goodwin | May 12, 2020
Yesterday, a group of 20 Center for Progressive Reform Board Members, Member Scholars, and staff joined a letter to House and Senate leaders calling on them to reject efforts to attach to future COVID-19 pandemic-related legislation provisions that would interfere with the ability of workers, consumers, and members of their families to hold businesses accountable when their unreasonably dangerous actions have caused workers or consumers to contract the virus. Instead, as the letter urges, lawmakers should ensure that our courthouse doors remain open to all Americans to pursue any meritorious civil justice claims for injuries they suffer arising from companies' failure to guard against the spread of the coronavirus.
John Echeverria | May 11, 2020
Anyone following the news about the coronavirus knows about the vocal opposition by libertarians and other right-wing extremists to government measures designed to control the pandemic. On television, the coverage has focused on angry, gun-toting protesters. But there's another avenue of opposition to the virus-related safeguards, one that's less photogenic but no less divorced from reality. In recent weeks, a number of land and business owners have filed lawsuits claiming stay-at-home orders and business closings represent “takings” of private property under the Fifth Amendment to the U.S. Constitution. These takings claims should be -- and likely will be -- rejected based on firm U.S. Supreme Court precedent.
Matthew Freeman | May 8, 2020
In the latest episode of CPR Board President Rob Verchick's Connect the Dots podcast, he and CPR Member Scholars Michael Duff and Thomas McGarity explore worker safety issues in the era of the coronavirus. McGarity begins the conversation with the story of Annie Grant, a 15-year veteran of the packing line at a Tyson Food poultry processing plant in Camilla, Georgia. One morning in late March, weeks after the nation had awakened to the danger of the coronavirus and states had begun locking down, she felt feverish. When her children urged her to stay home rather than work with a fever on the chilled poultry line, she told them that the company insisted that she continue to work.
Matthew Freeman | May 7, 2020
In a recent op-ed in the Waco Tribune-Herald, CPR Board Member Thomas McGarity lays bare the real cost of Senate Majority Leader Mitch McConnell's efforts to extend a liability shield over businesses that endanger employees or customers by failing to take adequate precautions to prevent the spread of the coronavirus. Such a shield, he writes, would "destroy a powerful incentive for companies to protect their workers, their consumers, and their neighbors from this invisible killer."
Daniel Farber | May 7, 2020
If we get a vaccine against a national epidemic, could Congress pass a law requiring everyone to get vaccinated? That very question was asked during the Supreme Court argument in the 2012 constitutional challenge to Obamacare’s individual mandate. The lawyer challenging Obamacare said, “No, Congress couldn’t do that.”