Reproduced with permission from Occupational Safety & Health Reporter, 43 OSHR 71 (Jan. 24, 2013). Copyright 2013 by The Bureau of National Affairs, Inc. (800-372-1033) <http://www.bna.com>
By Bruce Rolfsen
A record number of whistleblower complaints were filed with the Occupational Safety and Health Administration in fiscal 2012, according to figures from OSHA's Whistleblower Protection Program.
The number of whistleblower cases submitted to OSHA in fiscal 2012 reached 2,787, up 5 percent from 2011's total of 2,648, agency figures show.
Growing even faster was the number of complaint determinations made by OSHA-2,867 cases in 2012, a 42 percent boost over the prior year's 2,013 determinations. However, of the determinations, only 21 percent (592) produced settlements that OSHA officials approved or reviewed, and just 2 percent (45) resulted in a finding or preliminary order by the assistant secretary of labor for occupational safety and health.
The remaining complaints were either withdrawn by complainants (564, 20 percent) or dismissed by OSHA (1,665, 58 percent).
Advisory Committee Begins Work
How OSHA deals with the increasing case load could be among the topics brought up when OSHA's Whistleblower Protection Advisory Committee holds its first meeting, set for Jan. 29 in Washington, D.C. (77 Fed. Reg. 76,075; 42 OSHR 1141, 12/20/12).
Speakers for unions and workers who filed whistleblower complaints are among those already asking to address the 15-member panel of employer, labor, and public representatives, the meeting's docket information showed.
OSHA did not respond to requests to discuss the case load figures or the committee meeting.
OSHA enforces the whistleblower provisions of 22 federal laws. Whistleblower complaints range from railroad conductors alleging they were punished for reporting safety problems under the Federal Railroad Safety Act to corporate officials alleging financial fraud covered by the Sarbanes-Oxley Act of 2002.
Magnet for Complaints
The increase in complaints is the result of new laws approved in recent years with whistleblower provisions, such as the Food Safety and Modernization Act, and OSHA chief David Michaels placing more emphasis on the whistleblower program, Tom Devine, legal director for the Government Accountability Project, a whistleblower advocacy group, told BNA Jan. 18.
Michaels's efforts have made OSHA "a magnet for complaints," Devine said.
Allen B. Roberts, of Epstein Becker & Green PC in New York City and cochair of the firm's whistleblower subpractice group, pointed out that while much of the political and press attention to whistleblowing has focused on new regulations such as the Affordable Care Act's health insurance reforms, 86 percent of cases filed last year involved typical workplace safety issues.
The large increase in case determinations shows that OSHA is working through a backlog of complaints, said Jonathan Snare, who served as acting assistant secretary of labor for OSHA as well as acting solicitor of labor during the George W. Bush administration and is now an attorney with the law firm Morgan Lewis in Washington, D.C.
"It has always been a challenge to investigate complaints within the time frame of the regulations," Snare told BNA Jan. 22. "There is a concerted effort to get older cases addressed."
Since many of the cases determined in 2012 were filed in previous years, the outcomes for cases in 2013 could be different, Snare said.
More Attention Needed
Heather MacDougall, an attorney with Akerman Senterfitt LLP in West Palm Beach, Fla., said the growing number of complaints demonstrates that "employers need to pay more attention" to their whistleblower policies. Employers must understand that retaliating against workers who make complaints protected by federal law is not tolerated, and the companies must be ready if a complaint is made.
OSHA backed up its promise of aggressive enforcement with improved training for whistleblower investigators, a new investigations manual, and a willingness to publicize its efforts, added MacDougall, who served as chief legal counsel to the chairman of the Occupational Safety and Health Review Commission in 2002 and 2003.
Roberts said the public's attention to whistleblower cases should have weight in an employer's decision to contest a complaint or settle. "There is certainly much more sensitivity on how something looks and could damage a brand or image," he said.