article critique

GUEST COMMENTARY

OSHA Whistleblower Protection: Giving Sharper Teeth to a

BY MARK A. LIES II AND MEAGAN NEWMAN*

There is no question that the newadministration is cracking down on discrimination against whistle- blowers. Critics of the prior adminis- tration 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merit in only 3% of whistle- blower complaints; 20% were resolved by settlements; 63% were dismissed; and 14% were withdrawn.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 unfound- ed—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 whistle- blowers.

OSHA's Call for Tougher Whistleblo>ver Protections In testimony before the Senate Committee on Health, Education, Labor and Pensions on April 27,2010, Michaels called OSHA's whistle- blower provision a "legal dinosaur." Michaels noted as weaknesses in the existing law: inadequate time for employees to file complaints; lack of a statutory right of appeal; lack of a pri- vate right of action; and OSHA's lack of authority to issue findings and pre- liminary 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 re-introduced the Protecting America's Workers Act pri- or to his death last year. A similar bill had been introduced in the House by Representative Lynn Woolsey earli- er in the year. Now, the legislation is seeing increased momentum. If passed, the Protecting America's Workers Act (H.R. 2067, S. 1580) will significant- ly alter the landscape of OSHA enforcement. In addition to strength- ening whistleblower protection, the Act will increase civil and criminal penalties for OSHA violations, includ- ing 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 ill- nesses and injuries in the workplace

protected activity under the Occupa- tional Safety and Health Act's whistle- blower protection provision. Refusing to work when the employee believes he or she is facing an imminent danger will also be codified as protected activ- ity. Additionally, the Act would grant employees a private right of action to enforce their claims. Yet, OSHA would like more. Michaels is asking law- makers 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 tempo- rary reinstatement of the employee pending the outcome of the whistle- blower case, consistent with a similar provision in the Mine Safety and Heath Act(MSHA).

OSHA is Making the Most of Existing Protections Even without the increased enforce- ment power the Protecting America's Workers Act would bring, OSHA is aggressively administering the whistle- blower 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 safe- ty, and 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 whistleblow-

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GUEST COMMENTARY CONTINUED

er cases. For example, in March, OSHA ordered the Tennessee Commerce Bank in Nashville to rein- state a whistleblower and pay him more than $1 million in compensato- ry damages and other relief. The employee claimed he was fired in retal- iation for raising concerns about inter- nal 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 strat- egy, including: • Employers should have 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 protect- ed activity.

• Train 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.

• Mandate reporting injuries and ill- nesses, but be aware that such activ- ity is deemed by OSHA to be protected activity.

• Because OSHA will closely scruti- nize safety incentive programs to ensure that these programs are not "disincentive programs" that dis- courage workers from seeking and

getting help when they're hurt on the job, including programs that may award prizes or other incen- tives based upon the lack of record- able injuries or illnesses.

• Carefully investigate and document all complaints received and respond to employees after investigation.

• Carefully document all employee discipline. Often, discipline issued to an employee whose performance was lacking prior to any incidents of protected activity is the best way to show that later discipline or ter- mination was not discriminatory, that is, not based upon "protected activity." Mark A. Lies II is a labor and employ-

ment law attorney and partner with the law firm ofSeyfarth Shaw LLP. He can be reached at 312-460-5877 or [email protected]. Meagan Newman is an attorney with Seyfarth Shaw LLP and can be reached at 312-460-5969 or [email protected].

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