Protect Our Workers from Retaliation, Protect Us All
Imagine you’re a worker in a paper manufacturing company where your boss requires you to manually unjam shredding machines and refuses to give you the safety gloves you asked for — even after you suffer a hand injury (Midvale Paper Box Co. Inc, 2017). Or imagine you work in a daycare kitchen and several times you’ve had to report unsanitary conditions and spoiled food, worried not only about the severe rash you suffered due to the dirty kitchen, but also about the health of the infants and young children you feed there (Little Sunshine Playhouse, 2024). Or lastly, imagine you work as a dental hygienist and the dentist decides that used needles should be thrown in the trash without caps on them to reduce waste, but your concerns about handling bare, contaminated needles have fallen on deaf ears (Fayad D.M.D, 2015).
All three of these real-life scenarios resulted in the employee who reported the danger being unjustly fired in retaliation for speaking up. Whistleblowers protect the safety of the workplace. Strong anti-retaliation laws are needed to protect the whistleblowers so that they don’t have to choose between protecting themselves and their fellow workers and keeping their jobs.
The modern whistleblower statutes put in place by Congress and enforced by OSHA since the 2000’s, statutes focused on issues other that employee safety, have come a long way in protecting workers’ rights. But the law protecting worker health and safety, the Occupational Safety and Health Act (OSH Act), is badly outdated when it comes to protecting whistleblowers. As it is currently written it is grossly ineffective at getting workers the justice they deserve when employers retaliate against them.
All of the following changes, proposed by former OSHA staff and experts on whistleblower protection, are already standard practice for newer whistleblower statutes that protect employees of publicly traded companies (the Sarbanes-Oxley Act (SOX), 18 U.S.C.§1514A ), commercial drivers (the Surface Transportation Safety Act (STAA), 49 U.S.C§31105), food processing and distribution employees ( the FDA Food Safety Modernization Act (FSMA), 21 U.S.C.§399d), railroad employees (The Federal Railroad Safety Act (FRSA), 49 U.S.C.§20109), airline employees (the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR-21), 49 U.S.C. §42121) and many more. These newer statutes have proven how effective these provisions are, but statutes like SOX and FSMA are mostly used to protect reporters of fraud and defective products, not reporters of imminent dangers to themselves in the workplace. Only when these same provisions are included in section 11(c) to protect our workers will whistleblowers actually get the protection they deserve.
1. Preliminary Reinstatement: Let OSHA order employers to immediately give the whistleblower employee their job back.
When a worker is fired in retaliation for speaking up, it is vital that they get their job back while the complaint is being investigated. Under most whistleblower statutes, according to OSHA’s former Assistant Secretary of Labor, Dr. David Michaels, OSHA has “the authority to order that illegally terminated employees be put back to work, and thus enable them to quickly regain a regular income,” (Michaels). But under section 11(c) of the OSH Act, reinstatement can only be ordered by the District Court or if the employer decides to include it in a settlement, which can take months or years if it ever happens at all. Losing your job means immediately losing your livelihood, your security, your ability to provide for yourself and your family. Delaying reinstatement by months misses the whole point of protecting whistleblowers from retaliation, and it gives employers more power to threaten their employees.
2. Administrative Review and “Kick-out” Provisions: Give whistleblowers the chance to appeal if OSHA dismisses their case, and/or take their complaint to court if the OSHA investigation is taking too long.
Most whistleblower statutes have checks and balances in place allowing parties to appeal OSHA’s decisions on a case — the same rights of any regular court case in our American judicial system. This is not true with section 11(c). Under the statute, OSHA has the final say on each case. Workers have no recourse if OSHA doesn’t pursue their case. About two-thirds of all whistleblower cases investigated by OSHA from 2005-2013 were filed under section 11(c), and in that same time period 58% of the section 11(c) cases were dismissed. If an employee has more than a fifty percent chance of their whistleblower case being dismissed unilaterally without any chance of appeal, how much protection do they actually have under this statute?
OSHA is critically underfunded, leaving them with limited personnel to enforce worker health and safety laws, as well as the litany of whistleblower statutes they administer. Unfortunately, this can mean lengthly delays in case investigations. “Kick-out” provisions give the whistleblower an alternate way to resolve the complaint faster when the OSHA process takes too long. “Kick-out” provisions allow the whistleblower employee to take their case to federal court instead of waiting for a resolution from OSHA, which offers relief to workers much faster. Without this option in section 11(c), workers can’t take their own claim to court and are forced to wait for: 1) OSHA to take their case, 2) OSHA’s independent investigation, 3) OSHA to attempt to settle the case, 4) referral to the Solicitor of Labor, and then 5) the Solicitor of Labor to actually try the case. In 2023, only 12 of the 2,688 section 11(c) cases that OSHA investigated ever made it to the Solicitor of Labor, and the investigation on its own can take several months. The kick-out provisions found in almost all newer statutes OSHA administers give employees another avenue to seek justice while OSHA processes their case (Spieler).
3. Extending the Statute of Limitations: Give victims more time to file a claim after their life has been upended by whistleblower retaliation.
When a person suddenly loses their job for any reason, their life becomes a scramble for survival. How will I pay my monthly rent? How will I afford to buy groceries for my family? Will I have to sacrifice medical or childcare expenses to survive? Filing an OSHA claim is not often the number one priority for people in this situation, so most whistleblower statutes allow at least 180 days to file the claim, allowing people the time they need to adjust their lives.
However, section 11(c) requires that a claim be filed within 30 days of the retaliation. Many whistleblowers don’t even learn why they were fired in this time period, let alone investigate their rights or speak to a lawyer. The short deadline led to around 600 complaints being thrown out between 2011 and 2014, even if they were only a day late (Michaels). There is really no reason for the window of action to be this short. Increasing the window to file to at least 180 days, the same as most of the other whistleblower statutes OSHA enforces, would allow more whistleblowers to get their claims investigated.
So why haven’t these changes been made? OSHA has been asking for over a decade for Congress to make these changes to section 11(c). But legislators have shown little interest. For example, the Protecting America’s Workers Act (PAWA) has been introduced 6 times in the Senate and 8 times in the House since 2009, but it has never been taken up for consideration by the Republican controlled legislature.
Whistleblowers are the community’s first line of defense, keeping us safe from deadly explosions (Massey Coal Company, 2010)6, food grown from toxic sludge (EPA, 2003)7, and pharma companies up charging veterans thousands per prescription (Medisca, 2024)8.
All of the suggestions described here may seem like no-brainers. That’s because they are! The OSH Act is a lifeline to 130 million workers in the U.S. (and there’s a good chance you’re one of them). Make your voice heard to your senators and representatives to let them know that you deserve safety in your workplace and community, and freedom from retaliation.
Works Cited
1. Popovich, Ana. “U.S. Department of Labor, OSHA Issues Decisions in 3 Whistleblower Retaliation Cases.” Whistleblower Network News, WhistleblowerNetworkNews, 6 July 2021, https://whistleblowersblog.org/osha-whistleblowers/u-s-department-of-labor-osha-issues-decisions-in-3-whistleblower-retaliation-cases/.
2. Occupational Safety & Health Administration. “Department of Labor Orders Little Sunshine Playhouse Operator to Reinstate Employee Fired for Reporting Food Safety Concerns to State Health Officials | U.S. Department of Labor.” DOL, U.S. Department of Labor, 22 Aug. 2024, https://www.dol.gov/newsroom/releases/osha/osha20240822.
3. Spieler, Emily. “Perez v. N. Terry Fayad, 101 F. Supp. 3d 129 (D. Mass. 2015).” H2O Casebooks, Open Casebook, 2015, https://opencasebook.org/casebooks/8329-occupational-safety-and-health/resources/7.2.1.2-perez-v-n-terry-fayad-101-f-supp-3d-129-d-mass-2015/.
4. Workers’ Memorial Day: Are Existing Private Sector Whistleblower Protections Adequate to Ensure Safe Workplaces?: Hearing before S. Subcomm. on Employment and Workplace Safety, 113th Cong. (2014) (statement of David Michaels, Assistant Secretary of Labor of OSHA), https://www.osha.gov/news/testimonies/04292014
5. Workers’ Memorial Day: Are Existing Private Sector Whistleblower Protections Adequate to Ensure Safe Workplaces?: Hearing before S. Subcomm. on Employment and Workplace Safety, 113th Cong. (2014) (statement of Emily A. Spieler, Chair of Whistleblower Protection Advisory Committee), https://www.help.senate.gov/imo/media/doc/Spieler1.pdf
6. WNN Staff. “Ricky Lee Campbell Wins Temporary Reinstatement to Massey Coal Mine.” Whistleblower Network News, WhistleblowerNetworkNews, 14 June 2010, https://whistleblowersblog.org/corporate-whistleblowers/ricky-lee-campbell-wins-temporary-reinstatement-to-massey-coal-mine/.
7. Lewis, David. “UGA Wins, Scientific Integrity Loses.” Whistleblower Network News, WhistleblowerNetworkNews, 30 Sept. 2010, https://whistleblowersblog.org/environmental-whistleblowers/uga-wins-scientific-integrity-loses/.
8. Nguyen, Allison. “Pharmacy Whistleblower Receives $3.4 Million in Settlement Alleging Healthcare Pricing Scheme.” Whistleblower Network News, WhistleblowerNetworkNews, 4 Nov. 2024, https://whistleblowersblog.org/false-claims-qui-tam-news/pharmacy-whistleblower-receives-3-4-million-in-settlement-alleging-healthcare-pricing-scheme/.