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:
- OSHA should create a comprehensive, real-time tracker of all whistleblower cases submitted to the agency and make this tracker available on its WPP website.
- OSHA should create an online utility for workers to track their complaints through the process and access case-related documents.
- OSHA should focus resources on tracking trends in whistleblower cases and utilize that data to bolster enforcement efforts. For example, the agency should refer employers who have retaliated to the enforcement unit for a possible inspection.
- When OSHA receives a complaint, it should review it to assess which whistleblower statute applies, and if more than one could apply, the agency should investigate under each statute.
- When OSHA receives a complaint, it should ensure that it makes a determination on the complaint within the statutory time period. At minimum, the agency should communicate the reason for any delays to the whistleblower and provide an update as to when the case will proceed.
- OSHA should reestablish the Whistleblower Protection Advisory Committee disbanded in 2018.
- OSHA should ensure that all workers have information about their protections under each of the relevant whistleblower statutes.
- OSHA should focus its outreach on the industries where retaliation is most likely to occur and ensure its outreach is in clear terms and in multiple languages so that all workers can understand their rights and how to exercise them.
You can find my full written comments, submitted to the agency prior to the stakeholder meeting, on CPR's website.