November 3, 2022
James S. Frederick
Deputy Assistant Secretary of Labor for Occupational Safety and Health
Occupational Safety and Health Administration
U.S. Department of Labor
200 Constitution Avenue NW
Washington, DC 20210
Re: Comments of Government Accountability Project and Public Citizen on OSHA Whistleblower Protection Program (OSHA Docket No. OSHA-2018-0005)
Dear Mr. Frederick:
Thank you for the opportunity to submit comments on the administration of whistleblower statutes by the Occupational Safety and Health Administration (OSHA) Whistleblower Protection Program and, in particular, provisions under Section 11(c) of the Occupational Safety and Health Act (OSH Act).
Government Accountability Project has decades of experience monitoring and analyzing the efficacy of OSHA’s Whistleblower Protection Program. And, Public Citizen, a nonpartisan, nonprofit consumer and worker advocacy organization with over 500,000 members across the country, has been advocating for strong whistleblower protections since our founding more than 50 years ago. These comments also reflect consultation and consensus with a broad group of lawyers specializing in whistleblower cases and NGO’s supportive of corporate whistleblower rights. We are concerned that the many challenges with OSHA’s 11(c) program have dire implications for workers across the nation, including those who face increased risk during the COVID-19 pandemic. Section 11(c) of the OSH Act was designed to protect workers who speak up and report concerns. But due to weaknesses in the law and the agency’s record of enforcement, too many workers are afraid to report health and safety concerns in the workplace, and those who do speak up are left without any remedy against reprisals.
More complaints are filed under Section 11(c) than under all other whistleblower statutes enforced by OSHA’s Whistleblower Protection Program. Yet, inexcusably, this law remains as originally drafted in 1970, without modern due process rights or burdens of proof and a short 30-day statute of limitations. Still, while many of the challenges with Section 11(c) – and OSHA’s Whistleblower Protection Program more broadly – require congressional action, there are several things the agency can do within its current authority to improve employees’ experience with the program.
Recommendations
- ADDRESSING OSHA’S WHISTLEBLOWER PROTECTION PROGRAM’S INVESTIGATIONS BACKLOG
Recommendation 1.1
Separate the Office of Whistleblower Protection Programs (OWPP) from OSHA and make it an independent office for non-11(c) whistleblower cases, with its own budget line item and oversight. This should happen regardless of where whistleblower cases are handled.
Recommendation 1.2
OWPP should hire more investigators with subject matter expertise in the areas covered by the 24 DOL whistleblower statutes and provide specialized protected speech subject matter training to investigators.
We are pleased to know that OSHA is working to hire more personnel in the Whistleblower Protection Program. It would be helpful for OSHA to publish more information about how many new FTEs have been and will be created for implementing OSHA’s whistleblower statutes including their subject matter expertise. OSHA should work with the whistleblower rights community to help identify candidates for these positions.
Recommendation 1.3
OWPP should institute mandated annual trainings (or more frequently, depending on changes in the applicable laws) for its whistleblower investigators.
OSHA should also make the details of such trainings, including when they occurred, what topics they covered, number of people trained, how long the training session lasted, etc. available to the public on its website.
Recommendation 1.4
OSHA should support an annual audit of regional compliance and enforcement of 11(c) and the other whistleblower laws for which OSHA’s Whistleblower Protection Program is responsible, conducted by an independent institution outside of the Department of Labor.
Whistleblowers have no option under the OSH Act to file suit independently; OSHA is the only recourse. OSHA does not have enough investigators to handle the increasing intakes and provide a realistic chance for timely relief. The agency’s investigations of 11(c) complaints often take far longer than 90 days to complete, leaving workers suffering emotionally and financially while they await the agency’s determination – sometimes for years. In addition, when an investigation languishes, it can adversely affect the outcome of the case, which serves the employer’s interest and does a tremendous disservice to the employee who experienced retaliation. More than 20 years ago, the Department of Labor’s Inspector General warned OSHA about the negative effects of delayed investigations, noting, “[T]he quality of the evidence tends to erode with the passing of time, key witnesses may no longer be available, and worker financial hardships tend to increase because of the lack of timely compensation.”1 Yet, whistleblowers who try to enforce their rights under Section 11(c) continue to face those same hardships. Several attorneys representing whistleblowers at DOL have also raised concerns that investigators often lack specialized expertise in the subject matter they are investigating, which affects the quality and outcomes of the investigations.
- ADDRESSING THE BACKLOG, TIMELINESS AND EFFECTIVENESS OF THE 11(C) ADMINISTRATIVE DUE PROCESS PROCEDURES
Recommendation 2.1
Expand the Alternative Dispute Resolution (ADR) program and centralize DOL ADR for all levels of review (OSHA and the Department of Labor Administrative Review Board (ARB), in addition to current Department of Labor Office of Administrative Law Judges (OALJ )).
Insufficient access to alternative dispute resolution, which currently is limited to due process proceedings at the OALJ, foregoes opportunities to expediently resolve conflicts between parties at the initial stage, and contributes to lengthy case processing.
Recommendation 2.2
Include sufficient funds in the Department of Labor requested budget to double the number of ALJ’s.
A shared concern also exists that a case backlog has arisen, because available resources have not kept pace throughout the Labor Department‘s expanding jurisdiction from three new laws (the Taxpayers First Act, the Anti-Money Laundering Act, and the Criminal Antitrust Anti-Retaliation Act) and growing case load from whistleblower statutes. The backlog of cases is due in part to the depleted number of ALJs. In the 1990s, the Department of Labor Office of Administrative Law Judges (OALJ) had around 70 ALJs, compared to 43 judges today.
Recommendation 2.3
OSHA should support the due process reforms under the anti-retaliation provisions in Section 201 of the Protecting America’s Workers Act (PAWA).
OSHA should universally institutionalize the pilot program for a “kickout” to allow administrative exhaustion sufficient for an administrative due process hearing if OSHA does not issue a decision within statutory limits, after which complainants can proceed without delay for a de novo hearing before the OALJ.2 The relevant provisions in Section 201 of PAWA would grant whistleblowers the right to request a de novo hearing before an administrative law judge (1) within 30 days after receiving notification of a decision granting or denying relief, (2) within 30 days after a complaint is dismissed without investigation, or (3) within 120 days of the filing of a complaint if no decision has been issued. Supporting these reforms to modernize Section 11(c) would offer whistleblowers a path forward in seeking to remedy retaliation against them when OSHA has chosen not to act or has neglected to take any action.
Recommendation 2.4
OSHA should help workers who have filed 11(c) complaints to determine whether their particular complaint falls under another whistleblower statute that the agency administers.
Most of the federal whistleblower statutes that OSHA administers provide far better coverage than Section 11(c) of the OSH Act. For example, other whistleblower statutes provide a far longer window for workers to file complaints of retaliation, ranging from 180 to 210 days. Accordingly, if OSHA receives an 11(c) retaliation complaint later than the 30 days allowed by the statute, before dismissing it as untimely, the agency should assess whether it also falls under the scope of another, more protective whistleblower statute.
Recommendation 2.5
OSHA should adopt a policy requiring that all 11(c) complaints filed with the agency are docketed.
Screening cases and dismissing them without entering them into the docket interferes with the ability to track complaints, hampering effective enforcement of anti-retaliation requirement under the OSH Act. All complaints should be accessible to tracking by complainants and others.
Recommendation 2.6
OSHA must not dismiss any complaint without full interviews of individuals identified in the complaint.
Investigators should conduct a full skilled interview with the complainant in the language the complainant understands. They must also interview co- workers and other potential witnesses provided by the complainant.
Recommendation 2.7
OSHA should refer all health and safety hazards identified in a retaliation complaint to a compliance officer that conducts health and safety inspections.
In order to fulfill OSHA’s mission of protecting workers, safety and health hazards must be identified. Workers may experience retaliation for attempting to provide information that fails to be effectively documented or conveyed to OSHA. OSHA must ensure that all information on workplace safety hazards is properly investigated.
Recommendation 2.8
OSHA should adopt a policy of further investigating any complaint if there is an allegation of inadequate investigation upon appeal of an 11(c) decision.
Recommendation 2.9
OSHA should restart the Whistleblower Protection Advisory Committee (WPAC).
The purpose of the WPAC was to “advise OSHA on the development and implementation of improved customer service models, enhancements in the investigative and enforcement process, training, and regulations governing OSHA investigations.”3 There is a consistent need for this input to ensure OSHA is able to effectively carry out its role in protecting workers from hazardous working conditions and OWPP is able to protect workers from retaliation by employers for reporting those conditions. The WPAC was disbanded under the Trump administration and should be reinstated.
- IMPROVING OSHA’S COMMUNICATIONS WITH COMPLAINANTS
Recommendation 3.1
Create a rule requiring, at a minimum, that OSHA investigators must give complainants an opportunity for a preliminary interview, and to rebut employers’ responses to preliminary merit decisions.
Although whistleblowers have the burden of proof, the employer gets to comment on preliminary rulings, while the whistleblower is disenfranchised. This inequity is indefensible. Counsel for the whistleblower should be informed of the specific grounds on which the case is being closed and should have an opportunity to respond.
Recommendation 3.2
Issue a rule requiring OSHA’s final orders to consistently communicate material facts for the elements and affirmative defenses in the burden of proof, s well as conclusions of law.
Recommendation 3.3
Provide access to OSHA investigative files after a case is closed without having to seek them through the FOIA process.
Whistleblowers and their attorneys seek more open communication with OSHA and for information to be made available consistently in an appropriate and equitable manner. For example, some have encountered a lack of clarity regarding the rationale for closing a case or OSHA’s findings on the relevant evidentiary issues.
- ADDRESSING WHISTLEBLOWERS’ MENTAL HEALTH NEEDS
Recommendation 4.1
Create a policy that allows OSHA remedies to include independent therapy and support for the psychological disorders resulting from whistleblowing and retaliation as part of its remedy and other physically impairing, stress-related conditions.
Whistleblowers who have suffered psychological harm from retaliation can have such effects exacerbated by conflicts that occur while pursuing their case in OSHA’s whistleblower program. By the time relief is available, there is insufficient coverage of the expenses associated with mental health treatment and recovery. A remedy that compensates for past, present, and future treatment of psychological disorders caused by, or exacerbated by, the employer’s retaliation is needed.
- IMPROVING TRANSPARENCY
Recommendation 5.1
OSHA should update the Whistleblower Protection Program database to ensure information is complete, accurate and accessible.
The system currently used by the OWPP is outdated and ineffective for properly recording and tracking information on complaints, inspections and investigations, hampering the functioning of the OWPP and severely limiting the ability of the agency to provide appropriate transparency.
Recommendation 5.2
OSHA should publish more data about the program for workers and the public.
OSHA should consider evaluating the program’s operations annually and post on its website the results of that evaluation, along with the next year’s target goals. OSHA could also publish a list of companies for which the agency has made a merit finding in response to a retaliation complaint and issue press releases alerting the public about all companies found to have retaliated against their employees.
Thank you again for the opportunity to provide these comments. We hope you will consider the above recommendations as you seek to improve your whistleblower protection program. We hope these discussions will continue.
Sincerely,
/s/ Samantha Feinstein________________________________
Samantha Feinstein
Staff Attorney
Government Accountability Project
/s/ Tom Devine____________________________________
Tom Devine
Legal Director
Government Accountability Project
s/ Juley Fulcher____________________________________
Juley Fulcher
Worker Health and Safety Advocate
Public Citizen