Whistleblower prosecutions by OSHA have been rising steadily during the current administration. During FY 2014, OSHA made nearly 3,300 whistleblower determinations. While a majority of these resulted in complaints being withdrawn or dismissed, for those that were pursued by the agency, about $35.8 million in damages were awarded to complainants and nearly 100 workers were reinstated. In some recent cases, OSHA successfully fought for punitive damages in excess of $200,000 per case, which were awarded in favor of workers and against AT&T, United Santa Fe Railroad, Metro Northern Railroad, and the U.S. Postal Service. In these cases, damages surpassed the punitive damages often awarded under civil rights laws like Title VII and the Americans with Disabilities Act.
Some of OSHA’s whistleblower cases have been very high profile, including press releases by the agency and coverage by major news networks. For example, in April 2015, an Alabama federal court issued a temporary restraining order against an auto parts manufacturer accused of illegally harassing its workers, suing one employee for complaining publicly about safety concerns, and obstructing a federal safety investigation. OSHA told NBC news: “The litigation commenced by Lear Corporation against [its former employee] is meritless and designed with the intent to create a chilling effect within … employee ranks.” It also asked the court to bar the company from any efforts to further interfere with the OSHA investigations.
OSHA’S ROLE IN INVESTIGATING
In addition to prosecuting safety and health whistleblower claims under Section 11(c) of the Occupational Safety & Health Act of 1970, OSHA is responsible for investigating safety and health-related retaliation complaints under the Federal Railroad Safety Act, the Pipeline Safety Improvement Act, the Surface Transportation Assistance Act (covering commercial drivers), and even the AIR21 law covering Federal Aviation Administration matters. Moreover, OSHA handles whistleblower matters under virtually all environmental statutes and also protects whistleblowers working directly for, or as contractors for, publicly traded corporations under the Sarbanes Oxley Act.
Protected activity under Section 11(c) of the OSH Act includes not only filing safety or health complaints with OSHA or internally with management, but also the right to speak privately with an OSHA inspector or investigator, the right to refuse to operate unsafe equipment or work in an unsafe environment, and the right to testify against the employer at an OSHA hearing. Adverse action that OSHA can prosecute includes not only termination, but also demotion, transfer, deprivation of benefits, loss of overtime, pay cuts, or targeting for layoffs.
IMPROVING THE AGENCY PROCESS
At the April 2015 meeting of the Whistleblower Protections Advisory Committee (WPAC) in Washington, DC, OSHA chief Dr. David Michaels discussed how the agency is working to improve efficiency of its investigations, so they can be dealt with quickly and fairly. Actions include eliminating some burdensome paperwork requirements, reorganization of offices, increased training, and better skill levels of investigators. He noted that new training courses will roll out in 2016, including webinars for OSHA personnel on the “Fairfax memo” (on injury-rate-based incentive programs and discipline programs that target injured workers in a disparate manner as a whistleblower issue). OSHA also has new fact sheets in English/Spanish and “quick cards” on Sec. 11(c) rights of workers, available on OSHA’s website (www.osha.gov).
President Obama has requested that Congress allocate $22.6 million and 157 full-time employees in the FY 2016 budget for OSHA whistleblower protection programs. Now, more changes are in the works to facilitate the handling and litigation of complaints by workers who claim that they were discriminated against because of protected activity under one of the nearly two dozen statutes for which OSHA handles the whistleblower investigations. In a memorandum dated April 20, 2015, all OSHA regional administrators were told that the “investigative standard” used for whistleblower investigations has been clarified to apply a “reasonable cause” test during initial inquiries, rather than the higher, “preponderance of evidence” standard used at trial.
The elements of a prima facie whistleblower violation are: (1) whether the complainant engaged in protected activity; (2) whether the employer took adverse action against the complainant; (3) whether the employer was aware of the complainant’s protected activity at the time of the adverse action; and (4) whether a causal link existed between the complainant’s protected activity and the adverse action.
If OSHA’s initial inquiry shows that the complainant has alleged the existence of facts and evidence sufficient to make a prima facie showing of retaliation, OSHA will then proceed with the investigation to determine if the complaint has merit. According to the guidance document, OSHA’s investigation must reach an objective conclusion that a reasonable judge could believe a violation occurred, rather than having to establish conclusively that a violation did occur.
Another option, designed to resolve matters short of a contentious court hearing, is OSHA’s Alternative Dispute Resolution (ADR) program. This is available if the employer and worker agree, and it is conducted in-house by a full-time OSHA employee who is trained in mediation and does not have an enforcement role with the agency. OSHA is in the process of clearing a directive on the ADR program guidelines.
BEST PRACTICES & CORPORATE CULTURE
For its part, the WPAC group has adopted a document on “Best Practices and Corporate Culture” concerning whistleblower protections. There are six main sections to the document: (1) The Role of Leadership, (2) Prevention: Fostering a “Speak Up” Culture, (3) Implementing a Retaliation Response System, (4) Anti-Retaliation Training, (5) Monitoring Programs, and (6) Independent Audits and Program Improvement. While acknowledging that this may be more easily implemented by medium and large companies, the components are fairly adaptable to most human resource programs.
The key is that effective whistleblower protection and anti-retaliation systems require senior leadership commitment and accountability, as well as communication between the HR and safety departments. The goal is to allow employees to freely speak up about safety and health programs, and any potential retaliation concerns, early in the process, so such complaints can be fully and fairly investigated and resolved internally—before OSHA gets called. ■
About The Author: Adele L. Abrams, Esq., CMSP, is an attorney and safety professional who is president of the Law Office of Adele L. Abrams PC, a ten-attorney firm that represents employees in OSHA and MSHA matters nationwide. The firm also provides occupational safety and health consultation, training, and auditing services. For more information, visit www.safety-law.com.
Modern Contractor Solutions, May 2015
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