Responding to Occupational Safety and Health Administration (OSHA) whistleblower investigations: policy and practice issues for employers.

Author:Calvasina, Gerald
 
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INTRODUCTION

The OSHA Whistleblower Protection Program enforces 22 federal statutes protecting employees that report violations of a wide variety of federal laws (Table 1). From workplace safety to securities laws, the depth and breadth of the program's reach takes in a wide swath of the American economic landscape.

In fiscal year (FY) 2014, the United States (US) Occupational Safety and Health Administration (OSHA) accepted 3,060 cases for investigation (Table 2). This marked the first time in its history that the agency had surpassed 3,000 cases (Maurer, 2015). The purpose of this paper is to briefly examine the reach of OSHA's Whistleblower Protection Program, to examine where the agency's resources have been focused in recent years, and to identify policy and practice suggestions for employers to facilitate compliance.

OSHA'S WHISTLEBLOWER PROTECTION PROGRAM

The passage of the Occupational Safety and Health (OSH) Act in 1970 signaled the beginning of a new era in protection of worker rights to a safe and healthy work environment. Section 11(c) of the Act specifically prohibits employers from discriminating against employees who exercise a wide variety of rights under the OSH Act including the filing of complaints, participating in inspections, reporting an injury, raising a safety or health complaint with their employer, and reporting a violation of the statutes herein (DOL, 2015, A). Workers are also protected from retaliation or discrimination in the exercise of their rights under the act. Over time, the US Congress has expanded OSHA's whistleblower authority to protect workers from retaliation and discrimination under the twenty-two federal statutes listed in Table 1. Worker complaints must be reported to OSHA within set time frames proscribed by each statute following the alleged discriminatory action (Table 3).

Threats, acts of intimidation, and taking adverse actions against employees are examples of the common retaliatory actions taken by employers to discourage whistleblowers (Yeargain and Kessler, 2010). Unfavorable employment actions identified by the U.S. Department of Labor (DOL) that can lead to complaints against employers include those listed in Figure 1.

Figure 1 UNFAVORABLE EMPLOYMENT ACTIONS AGAINST EMPLOYEES Firing or laying off Blacklisting Demoting Denying overtime or promotion Disciplining Denying benefits Failing to hire or rehire Intimidation Making threats Reassignment affecting prospects for promotion Reducing pay or hours Source: United States Department of Labor, (DOL), (2015, C) Procedures for filing complaints and investigation of complaints can vary by statute. For example, an allegation of discrimination or retaliation against an employee that has attempted to exercise a right as an employee under the OSH Act must be filed within 30 days of the alleged discriminatory employment action. In states where an OSHA approved state plan is available, the employee may file a complaint with both the State and Federal OSHA offices. Individuals may file online, using OSHA's Online Whistleblower Complaint Form, via mail to a local OSHA Regional or Area Office, or telephone United States Department of Labor, (DOL), 2015), D). There are 22 states or territories that have OSHA-approved State Plans that cover both private and public sector workers (Figure 2).

Filing a complaint under any other whistleblower statute enforced by OSHA must be filed within the appropriate time limits specified in the statute and must be filed directly with Federal OSHA (United States Department of Labor, (DOL), 2015), D).

REMEDIES

The remedies available to individuals under OSHA's whistleblower protection program "vary according to statute and are subject to legal interpretations and decisions" (Fairfax, 2007). Allowable remedies under all statutes include reinstatement orders, awards of back pay, and compensatory damages. Back pay awards are offset by interim earnings. In some cases, "front pay" may be allowed. Front pay "encompasses future wage losses, calculated from the end-date of back-wages, and projected to an agreed-upon future date in cases where reinstatement is not feasible" (Fairfax, 2007). Available remedies available also include those designed to address the impact of violations on the entire workforce. These remedies include requiring management to post appropriate notices in the workplace as to the resolution of complaints, required management training, and informational speeches to workers and their representatives. These remedies are designed to "prevent a chilling effect or to ensure that a similar violation does not recur" (Fairfax, 2007). Punitive damages may also be available under certain statutes including OSHA (1970), (DWPP, 2013). Punitive damages may be provided "when a management official involved in the adverse action knew about the relevant whistleblower statute before the adverse action or when the respondent's conduct is egregious" (Fairfax, 2007).

FOCUS OF OSHA ACTIVITY

From Table 2 it is quite obvious that the OSH Act is the focal point of complaints received by OSHA in recent years. The number of complaints received alleging violation of OSH since FY 2005 has steadily increased from 1194 in 05 to 1729 in FY 2014. A distant second are the cases involving the Surface Transportation Assistance Act (STAA) of 1978 with 463 cases received in FY 2014. The Federal Railroad Safety Act (FRSA) of 1982 is a distant third with 351 cases filed in FY2014 and those numbers are down from the high of 384 cases received in FY 2012. Complaints alleging violation of Sarbanes Oxley (SOX) were a distant fourth and involved only half as many cases as those received in FY 2005.

While the number of complaints received has reached an all-time high, cases dismissed or withdrawn by complainants also remained high. In 2014, OSHA completed determinations on 3,271 complaints, 51 percent (1652) were dismissed by the agency and another 22 percent were withdrawn by the complainant (Maurer, 2015). Table 4 contains FY 2005--FY 2014 breakdown of complaint determinations. Over the last ten years, the number of complaints dismissed by OSHA has...

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