Dr. David Michaels, the Assistant Secretary of Labor for Occupational Safety and Health, made his first public remarks today about his plans for OSHA’s whistleblower program. The occasion was a meeting of Professionals for the Public Interest. Dr. Michaels opened by stating that
|Dr. David Michaels (left) (of OSHA) and Paul Almeida (right) (of the AFL-CIO Department of Professional Employees) speak at the American Academy for the Advancement of Science (AAAS)|
"whistleblowers serve an essential role in protecting the public." He decried how whistleblowers have to risk their jobs, and sometimes their lives. He said that without robust whistleblower protections, voices may be silenced. He recognized that the whistleblower program at the Occupational Safety and Health Administration (OSHA) are "not nearly effective enough." He decried the patchwork of laws that protect only some of the people, and in uneven ways. Although OSHA has issued some notable reinstatement and compensatory orders for whistleblowers (recounted earlier on this blog), OSHA is still ruling in favor of whistleblowers in only about 3% of all the whistleblower cases it investigates. Twenty percent (20%) are settled, 14% withdrawn, and 63% dismissed. Dr. Michaels said he did not believe that two-thirds of the cases were filed by whistleblowers who had no legitimate claim. Instead, "institutional barriers stand between whistleblowers and justice."
Dr. Michaels listed some things OSHA is already doing to improve its whistleblower program:
- It is making uniform policy that complainants will be entitled to a copy of information submitted by employers so that they can respond during the investigation.
- OSHA is hiring 25 new whistleblower investigators (adding to the 87 it already has). Still, Dr. Michaels says, this is not enough, especially with the new laws that add more whistleblower cases.
- Dr. Michaels declared his support for the Protecting America’s Workers Act (PAWA), HR 2067. He wants powers provided to the Mine Safety and Health Administration (MSHA) to impose civil penalties and issue preliminary orders of reinstatement while investigations continue. He wants the thirty (30) statute of limitations extended. He wants to strengthen all the whistleblower laws.
- He is ordering a "top to bottom review" of the whistleblower program that will include an examination of any institutional barriers, discrepancies in investigatory practices, and an examination of policies. Dr. Michaels mentioned that he could not believe that OSHA was dismissing SOX complaints filed by employees of subsidiaries, and said that policy would be reviewed.
- He stated that employer policies that reward employees for not reporting accidents create a peer pressure that deters workers from speaking up about safety issues. For example, if an employer promises a pizza party every Friday when there are no accidents reported in a week, he would find that this policy is a violation of OSHA Act Section 11(c) because it disfavors making reports.
- Last year, the General Accounting Office (GAO) issued a report about weaknesses in the whistleblower program. Dr. Michaels said that OSHA is working to address the weaknesses GAO identified.
By my count, Dr. Michaels was saying all the right things. OSHA is a big organization, and it takes time to make changes. Accepting that, we can feel gratified that the charging are finally pointing in the right direction. Dr. Michaels concluded his remarks by recognizing that whistleblowers are an essential part of strong enforcement. He invited stakeholders to share their ideas for improving the whistleblower program. "Our nation will be better for it."