By Katie Tracy, Center for Progressive Reform
Workers have the right to speak up about health and safety hazards they encounter on the job. And they should be able to feel comfortable coming forward with their concerns without having to worry that they will be fired, demoted, or in some other way retaliated against for doing so. That is exactly what the drafters of the Occupational Safety and Health Act (OSH Act) had in mind when they included a provision in the 1970 law prohibiting employers from retaliating against workers who report concerns to the Occupational Safety and Health Administration (OSHA) or to its state counterparts (in states that choose to operate their own OSH programs with approval from federal OSHA).
Unfortunately, in the more than 47 years since the law’s enactment, the anti-retaliation provisions have proven ineffective. Despite legislation introduced in Congress to update the law, no bill has ever gained enough support for passage in both the House and Senate. Consequently, workers are left without adequate protections from retaliation, and many are afraid to report health and safety concerns because they don’t want to risk losing their jobs or paychecks.
On March 15-16, I will speak at an OSH Law Boot Camp about the weaknesses of the OSH Act’s anti-retaliation provisions. CPR is joining the OSH Law Project and AFL-CIO’s Lawyers Coordinating Committee in cosponsoring the event. I will be joined on the whistleblower protection panel by two prominent attorneys – Ava Barbour, Associate General Counsel of International Union, UAW, and Emily Spieler, Professor of Law at Northeastern University Law School.
In my remarks, I plan to highlight some of the most significant weaknesses of the OSH Act’s whistleblower protection program, which include:
- Employees have only 30 days to file a retaliation complaint;
- OSHA cannot provide workers with reinstatement while investigating the retaliation complaint, even when the case takes years to complete as they sometimes do;
- Workers must meet a high burden of proof by showing that the employer’s retaliatory action would not have occurred “but for” the worker blowing the whistle; and
- Workers must rely solely on OSHA to vindicate their rights, meaning workers have no recourse if OSHA declines to pursue a case.
Although Congress has never updated the OSH Act’s anti-retaliation provisions, it has tasked OSHA with investigating and enforcing whistleblower protections written into 21 other federal laws, such as the Consumer Product Safety Improvement Act (CPSIA) and the Sarbanes-Oxley Act (SOX). These laws protect employees who report certain types of lawbreaking in their workplace, such as violations of product safety standards or the commission of financial and securities fraud. (To view all whistleblower laws that OSHA enforces, see OSHA’s Whistleblower Statutes Desk Aid here). In many instances, the whistleblower protections in these federal laws provide workers with far greater protection than the OSH Act itself, such as by giving workers 180 days to file complaints and by providing workers with preliminary reinstatement while a complaint is under investigation.
Addressing the failures of the OSH Act’s whistleblower protections requires Congress to pass legislation modernizing the law, which is unlikely given the current political climate. Until change is possible at the federal level, states can help to ensure workers are protected from retaliation by improving their labor laws to supplement the federal whistleblower protection provisions in the OSH Act.
Roughly half the states – those that operate their own OSH programs in lieu of federal OSHA (collectively referred to as “state-plan states”) – can strengthen their programs to go above and beyond the federal minimum protections. In fact, several state-plan states have already done so. For example, California and North Carolina allow workers up to 180 days to file a complaint of retaliation rather than the measly 30 days federal OSHA grants. That alone is a major improvement to the program because it can take workers upwards of a month after enduring adverse action simply to recognize it as retaliation, much less to make the difficult decision to come forward about it, consult with an attorney, and then submit a complaint.
California also provides the possibility of preliminary reinstatement, as well as the option for a worker to file a lawsuit against the employer if the agency dismisses the complaint. North Carolina does not offer preliminary reinstatement, but it does allow workers the right to file suit on their own if the agency doesn’t issue a finding on the complaint within 90 days of it being filed, or if the agency chooses to dismiss the complaint.
In addition to the state-plan state remedies, Professor Spieler will present at the OSH Law Boot Camp about other state law remedies when a worker experiences retaliation after raising a safety or health concern or reporting an injury or illness. These include state common law exceptions to the at-will employment doctrine, state laws prohibiting retaliation for the filing of a workers’ compensation claim, and states’ general whistleblower statutes.
Ava Barbour will discuss additional protections for workers under both the National Labor Relations Act (NLRA) and collective bargaining agreements. The NLRA protects union and non-union workers who engage in concerted activity for mutual aid or protection, and it prohibits an employer from interfering with such activity. For union workers, the NLRA also protects workers who refuse to perform work because of “abnormally dangerous” working conditions. Additionally, under a collective bargaining agreement, workers cannot be fired or demoted without just cause, which is perhaps the strongest protection unionized workers have against being retaliated against for speaking up about health and safety hazards in the workplace.
Read the full co-authored paper prepared for this event here.