On April 29, 2014, the Assistant Secretary of Labor for OSHA, Dr. David Michaels, recently testified before the Senate Education, Labor and Pensions Subcommittee on Employee and Workplace Safety to seek a number of changes to the whistleblower protection provisions of Section 11(c) of the Occupational Safety and Health Act (“OSH Act”) so it would track provisions of other, more recent whistleblower protection laws. Here is a link to Dr. Michael's testimony.
The provisions at issue are intended to protect employees from retaliation by their employers for bringing to OSHA’s attention potential violations by the employers of the OSH Act. These whistleblower provisions have not been updated since the law was passed in 1970, and OSHA is now seeking to strengthen them.
In his testimony on the Hill, Dr. Michaels expressed that:
“The antiretaliation statutes that Congress has enacted since the OSH Act was passed provide greater protections and stronger remedies for workers who have been retaliated against. To give 11(c) the teeth it needs to be as effective, it must be updated to improve procedures for filing, investigating and resolving complaints."
To “modernize" the OSH Act whistleblower provisions, Dr. Michaels proposed the following recommendations:
- Expanding the current 30-day statute of limitations to 180 days, so that it is the same as other more recently passed laws, such as the Dodd-Frank amendments to the Sarbanes-Oxley Act. Michaels explained that OSHA cannot address more than 200 OSH Act whistleblower allegations annually because employees do learn of the employer’s retaliatory motive until more than 30 days after the adverse employment action.
- Authorizing OSHA to order the “immediate preliminary reinstatement” of employees whom the agency believes have been wrongly discharged for reporting possible safety issues.
- Including “individual right of action” provisions that would allow whistleblowers to pursue actions in directly in federal court after a certain length of time if the agency has not acted, as permitted under the Sarbanes-Oxley Act.
In addition, he reported that OSHA’s advisory committee on whistleblower protection, created in 2012 and comprised of employment attorneys, law professors, labor union representatives and others, is planning to devise a set of concrete recommendations for employers who want to improve their compliance with the Act’s whistleblower provisions, saying:
“We know that some employers are only impacted by fear of inspections. There are lots of other employers who want to do the right thing, and we have to help them . . . Right now, our message is simply, 'Don't retaliate against whistleblowers.' We have to do better than that — we have to say, 'Here is the program, here is the management system that will help you learn what your workers' concerns are and how you can address them best.'”
It remains to be seen whether Congress will act on Michaels’ proposals, and what concrete recommendations the advisory committee develops. As always, any important developments will be reported here on this blog.