November 4, 2013

Will OSHA Whistleblower Protections Be Strengthened?

WhistleblowerBy Cole Wist 

Workers who report health and safety violations under the Occupational Safety and Health Act (OSH Act) have fewer protections than those who blow the whistle in workplaces covered by other federal statutes.  A recent reportby the Center for Effective Government (formerly OMB Watch) addressed some of these perceived deficiencies of the 1970-era OSH Act.  Two bills pending in Congress seek to strengthen the whistleblower protections in the OSH Act. 

Proposed Enhancements to the OSH Act 

The OSH Act’s current whistleblower provision, 29 U.S.C. § 660(c), is limited in both scope and remedy.  Both houses of Congress are considering bills to amend the OSH Act to, among other things, better align the anti-retaliation provision with other federal whistleblower protections.  (H.R. 1648 and S. 665).  Called Protecting America’s Workers Act, the bills propose enhancements to the OSH Act whistleblower protections including:

  • Increasing the time period for whistleblowers to file a retaliation complaint from 30 days to at least 180 days;
  • Providing for the whistleblower to be reinstated to his or her position, with compensatory damages, upon OSHA’s finding of reasonable cause to believe retaliation occurred;
  • Permitting whistleblowers to request a hearing before an administrative law judge within 30 days after a decision denying relief or within 120 days after the filing of the complaint if OSHA fails to issue a decision in the case;
  • Allowing either party to appeal a final decision and order to the U.S. Court of Appeals for the circuit where the violation occurred or where the whistleblower resides;
  • Establishing that the burden of proof for a retaliation claim is that the protected activity was a contributing factor in the adverse employment action;
  • Allowing for an award of reasonable attorneys’ fees and costs, including expert witness fees, to the prevailing whistleblower against the employer; and
  • Prohibiting the waiver of any rights and remedies under this provision by any agreement, policy, form or condition of employment, including pre-dispute arbitration agreements and collective bargaining agreements.

Both bills are being considered in their respective Congressional committees and it is unclear whether either bill will come to a vote.  However, if Congress fails to act, groups such as the Center for Effective Government are urging states to enact stronger worker protections.

Avoiding Retaliation Complaints 

Employers are well-advised to treat reports of unsafe working conditions with care.  Consider the Whistleblower Golden Rules:  

*          Address all complaints in good faith. 

*          Respond in a calm, professional manner. 

*          Protect against hazards immediately. 

*          Clearly and calmly explain conclusions to the complaining employee. 

The attention given by employers to this process directly corresponds to success in avoiding whistleblower complaints.  In the words of Zig Zigler, “The way you see them is the way you treat them, and the way you treat them is the way they often become.”

Disclaimer:This article is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal advice and are not intended to create an attorney-client relationship between you and Holland & Hart LLP. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.

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