Guest Commentary: Oshas Whistleblower Protection Giving Shar

Guest Commentaryosha Whistleblower Protectiongiving Sharper Teeth To

There is no question that the new administration is cracking down on discrimination against whistleblowers. Critics of the prior administration claim that OSHA's handling of whistleblower claims was lagging, if not deficient, and led to inadequate protection for employees who raise legitimate safety and health concerns. Still, the statistics for 2009 are not significantly different than those of prior years. In 2009, OSHA received 2,160 whistleblower complaints and completed 1,947 investigations.

OSHA recommended litigation or otherwise found merit in only 3% of whistleblower complaints; 20% were resolved by settlements; 63% were dismissed; and 14% were withdrawn. The Assistant Secretary of Labor for Occupational Safety and Health, David Michaels, has said he simply does not believe the vast majority of whistleblower complaints are unfounded—instead, he believes institutional, administrative, and legislative barriers to the complaints are behind the statistics showing unsuccessful complaints. As a result, recently there has been much more aggressive enforcement of the laws protecting whistleblowers in the workplace and a major push by OSHA to increase existing legal protections for whistleblowers.

OSHA's Call for Tougher Whistleblower Protections In testimony before the Senate Committee on Health, Education, Labor and Pensions on April 27, 2010, Michaels called OSHA's whistleblower provision a "legal dinosaur." Michaels noted weaknesses in the existing law: inadequate time for employees to file complaints; lack of a statutory right of appeal; lack of a private right of action; and OSHA's lack of authority to issue findings and preliminary orders, so that a complainant's only chance to prevail is through filing an action in U.S. District Court. Legislation on the Horizon Even prior to Michaels' testimony before the Senate, there had been a push to pass legislation to increase whistleblower protections.

Senator Edward Kennedy reintroduced the Protecting America's Workers Act prior to his death last year. A similar bill had been introduced in the House by Representative Lynn Woolsey earlier in the year. Now, the legislation is seeing increased momentum. If passed, the Protecting America's Workers Act (H.R. 2067, S. 1580) will significantly alter the landscape of OSHA enforcement. In addition to strengthening whistleblower protection, the Act will increase civil and criminal penalties for OSHA violations, including changing criminal violations which may be brought against corporate officers and others responsible for violations, from misdemeanors to felonies. With respect to whistleblowers, the Act will explicitly make reporting illnesses and injuries in the workplace protected activity under the Occupational Safety and Health Act's whistleblower protection provision. Refusing to work when the employee believes he or she is facing an imminent danger will also be codified as protected activity.

Additionally, the Act would grant employees a private right of action to enforce their claims. Yet, OSHA would like more. Michaels is asking lawmakers to add provisions to the Protecting America's Workers Act that would increase the potential stakes for employers by adding civil penalties to the provision. Currently, OSHA's whistleblower protection provision only allows for compensatory damages. Additionally, Michaels would like to add a provision that allows for temporary reinstatement of the employee pending the outcome of the whistleblower case, consistent with a similar provision in the Mine Safety and Health Act (MSHA).

OSHA is making the most of existing protections Even without the increased enforcement power the Protecting America's Workers Act would bring, OSHA is aggressively administering the whistleblower protection statutes it enforces. Currently, OSHA investigates and enforces whistleblower provisions under 17 federal statutes, including the OSH Act, seven environmental statutes, six transportation-sector statutes, as well as nuclear energy safety, consumer product safety, and securities fraud statutes, including the Sarbanes-Oxley Act of 2002. OSHA is using the tools it currently has to seek higher penalties than were traditionally assessed in whistleblower cases.

For example, in March, OSHA ordered the Tennessee Commerce Bank in Nashville to reinstate a whistleblower and pay him more than $1 million in compensatory damages and other relief. The employee claimed he was fired in retaliation for raising concerns about internal controls, employee accounts, insider trading, and other issues, in violation of the Sarbanes-Oxley whistleblower protection provision. Also, in January of this year, OSHA secured a settlement with Texas employer Orion Drilling Co. to pay $10,000 in back wages after finding an employee was retaliated against for raising complaints about mold in the workplace. Employers should be aware of the potential liability associated with whistleblower discrimination and take all possible measures to ensure that employees who raise safety concerns do not face adverse action as a result of this protected activity.

Along these lines, employers should develop a strategy, including:

• Having written anti-discrimination and anti-retaliation policies that clearly prohibit any adverse action against employees who have raised safety concerns or engaged in other forms of protected activity.
• Training supervisors to be aware of complaints and how to respond; employees do not have to use any unique language in order to raise a complaint that is protected under OSHA's whistleblower provisions.
• Mandating reporting injuries and illnesses, but being aware that such activity is deemed by OSHA to be protected activity.
• Carefully scrutinizing safety incentive programs to ensure they are not "disincentive programs" that discourage workers from seeking and getting help when they're hurt on the job, including programs that may award prizes or other incentives based upon the lack of recordable injuries or illnesses.
• Investigating and documenting all complaints received and responding to employees after investigation.
• Documenting all employee discipline thoroughly, especially for performance issues prior to any protected activity, to show later that discipline or termination was not discriminatory or based on protected activity.

Mark A. Lies II is a labor and employment law attorney and partner with Seyfarth Shaw LLP. Meagan Newman is an attorney with the same law firm.

Paper For Above instruction

The article by Mark A. Lies II and Meagan Newman critically examines the evolving landscape of OSHA whistleblower protections, emphasizing the need for stricter laws and more robust enforcement mechanisms. The authors highlight that despite the administration's efforts to crack down on discrimination and retaliation against employees reporting safety concerns, the statistical data from 2009 indicates that many whistleblower claims are dismissed or unresolved, revealing persistent gaps in protection and enforcement. They detail recent legislative proposals, notably the Protecting America’s Workers Act (H.R. 2067, S. 1580), which aims to enhance whistleblower protections by increasing penalties and providing employees with a private right of action, among other reforms. Furthermore, the authors discuss OSHA's strategic use of existing statutes to seek higher penalties and reinforce protections, using notable cases as examples to demonstrate the potential liabilities employers face if they discriminate against whistleblowers. The article underscores the importance of comprehensive internal policies, training, and diligent investigation procedures for employers to mitigate risks and foster a safe, compliant workplace environment. Overall, their analysis advocates for stronger legislative measures and proactive enforcement to better safeguard employees and uphold workplace safety standards.

From an analytical perspective, the authors argue convincingly that legislative reform is essential to address the shortcomings in current whistleblower protections. The proposed changes, such as granting employees a private right of action and increasing penalties, seem well-founded given the data and case examples provided. However, while OSHA's proactive use of existing statutes demonstrates commendable commitment, legislative enhancements are necessary to close legal loopholes and provide more meaningful remedies for whistleblowers. The authors' emphasis on employer responsibility—through policy development and training—aligns with best practices in workplace compliance, indicating that prevention is as critical as enforcement. I agree with their assertion that stronger protections are vital not only for safeguarding employees but also for promoting a culture of safety and transparency within organizations. Nonetheless, some potential challenges include ensuring that increased penalties and enforcement do not hinder business operations or create excessive litigation burdens. Balancing effective protection with pragmatic enforcement will be crucial moving forward. Overall, this article effectively advocates for legal reforms and improved employer practices to better protect whistleblowers and enhance workplace safety.