The Occupational Safety and Health Administration (OSHA) recently held a public stakeholder meeting to discuss its Whistleblower Protection Program and how it can improve its administration of the 20-plus whistleblower protection provisions it is responsible for enforcing, including Section 211 of the Energy Reorganization Act of 1974 (ERA).
OSHA has been holding these meetings in lieu of Whistleblower Protection Advisory Committee meetings, which the administration stopped as part of its efforts to reduce advisory committees across all agencies. OSHA’s most recent meeting focused on three questions:
- How can OSHA deliver better whistleblower customer service?
- What kind of assistance can OSHA provide to help explain the agency’s whistleblower laws to employees and employers?
- Where should OSHA target whistleblower outreach efforts?
Comments were received from representatives of several groups including academia, the legal profession, former OSHA investigators, union representatives, and current and former self-described whistleblowers. Their comments can be broadly categorized as follows, and are consistent with past criticisms of the OSHA Whistleblower Protection Program:
- The need for more investigators to address the backlog of whistleblower complaints and to reduce the workload of OSHA investigators. Several commenters spoke about the significant backlog of whistleblower complaints. According to one commenter, investigators have more than 1,000 open complaints. And another commenter stated that OSHA has been receiving around two dozen complaints a day during the coronavirus (COVID-19) pandemic, which adds to the backlog.
- The need for more timely investigations. Several commenters complained about the length of time—often two years or more—it takes OSHA to investigate and resolve complaints. Commenters noted that many of the whistleblower statutes lay out timelines that are not being followed. For example, Section 211 of the ERA states that OSHA must investigate a complaint “within thirty days,” and the Secretary of Labor must issue a decision 90 days from when OSHA receives a complaint.
- The need for more guidance for employers and employees alike. Commenters also spoke about the need for OSHA to provide more guidance on the program, including the need for more Whistleblower Protection Program information to be posted in the workplace—and posted more prominently.
- The need for escalated enforcement against repeat offenders. Commenters expressed their concern that OSHA does not impose stronger penalties against companies found by OSHA to have retaliated against whistleblowers in the past. Other commenters stated that the penalties OSHA imposes are not significant enough to deter future retaliation.
- The need for OSHA to make Whistleblower Protection Program information (e.g., dockets, statistics, metrics) publicly available. Commenters also asked OSHA to make program data available so it could be studied to identify trends in complaints and resolutions. Other commenters asked that OSHA create an accessible docket for each complaint so whistleblowers can monitor the status of an investigation and all parties can more easily submit information.
Although OSHA is no longer accepting online submissions of comments, parties can submit a late comment by mail to the OSHA Docket Office, Room N–3653, US Department of Labor, 200 Constitution Avenue NW, Washington, DC 20210. Any submission should reference Docket Number: OSHA–2018–0005.
We will continue to monitor this area for new developments and any changes OSHA makes to its Whistleblower Protection Program.