DOL issues new regulations for whistleblower cases

Posted on August 31, 2010 by Richard Renner

Today the Department of Labor has issued new regulations for whistleblower claims under four new laws. These laws include two laws included in the 2007 law that adopted recommendations of the 9/11 Commission, the National Transit Systems Security Act (NTSSA) and the Federal Railroad Safety Act (FRSA). This law also updated provisions of the Surface Transportation Assistance Act (STAA) which protects truck drivers, and DOL has announced new interim regulations on STAA whistleblower cases. Finally, DOL has issued new regulations for whistleblower claims under the 2008 Consumer Product Safety Improvement Act. The Occupational Safety and Health Administration (OSHA) issued the regulations, and will receive public comments until November 1, 2010. You can access all the rules through the Federal Register.

I have complained before to OSHA about rules that add hurdles for whistleblowers, and can derail a case away from being decided on the merits.  The one that irks me the most is the rule in 29 CFR 24.110 that requires parties appealing an judge's decision to the Administrative Review Board (ARB) to list in the petition for review every issue they will raise on appeal. This listing of issues is not required in appeals from federal court. The time to list all the issues is when the lawyer has finished reviewing the record to write the brief. If the ARB wants to assess from the petition whether the case is worthy of further review, then it is sufficient to require that an appellant list enough issues to justify review.  There is no reason to add that any issue omitted from the petition is waived -- other than to create a hurdle that can justify dismissing some issues or cases on grounds other than the merits.  That is a purpose contrary to the remedial purpose of protecting employees who put the public interest ahead of their own job security. Sadly, the new rules expand the requirement for detailed petitions for review, and the waiver of issues not raised.  See, for example, 29 CFR 1983.110(a) for CPSIA claims. Perhaps more significant, the new rules prevent the ARB from reversing an ALJ's factual findings whenever the ARB finds "substantial evidence" to support the ALJ's position. The Secretary of Labor used to conduct de novo review of the whole record, which provided better assurance that the DOL's final decisions reflected the remedial purpose of protecting whistleblowers.  The only reason for the narrower standard of review is to make the ARB's job easier. I think protecting whistleblowers is more important. I am also sad to see that the new rules require giving the DOL 15 days notice before a whistleblower files a lawsuit in U.S. District Court. The purpose of this rule is to give DOL a chance to issue a final order before the case goes to District Court.  That is contrary to the legislative purpose of giving whistleblowers a fresh bite at the apple if DOL has taken too long to decide a case.  While it is helpful to have rules for the many FRSA, NTSSA, STAA and CPSIA cases in the pipeline, these rules fall short of the change I was hoping for. The full OSHA statement about the interim rules follows in the continuation of this post.

 

 

OSHA announces interim final rules and

invites public comment on whistleblower procedures

 

WASHINGTON – The U.S. Department of Labor’s Occupational Safety and Health Administration published in the Aug. 31 Federal Register interim final rules that will help protect workers who voice safety, health, and security concerns. The regulations, which establish procedures for handling worker retaliation complaints, allow filing by phone as well as in writing and filing in languages other than English.

“When workers believe their employers are violating certain laws or government regulations, they have the right to file a complaint and should not fear retaliation. Silenced workers are not safe workers,” said Assistant Secretary of Labor for OSHA David Michaels. “Changes in the whistleblower provisions make good on the promise to stand by those workers who have the courage to come forward when they believe their employer is violating the law and cutting corners on a variety of safety, health and security concerns in the affected industries.”

The regulations, which cover workers filing complaints in the railroad, public transit, commercial motor carrier, and consumer product industries, also create greater consistency among various OSHA complaint procedures. The interim final rules establish procedures and time frames for handling complaints under the whistleblower sections of the Implementing Recommendations of the 9/11 Commission Act of 2007 and the Consumer Product Safety Improvement Act of 2008.

These regulations are effective immediately. Comments must be submitted by Nov. 1, 2010, and can be sent to www.regulations.gov, the Federal eRulemaking Portal, or by mail or fax.

OSHA enforces the whistleblower provisions of the OSH Act and 18 other statutes protecting employees who report violations of various commercial motor carrier, airline, nuclear power, pipeline, environmental, railroad, public transportation, securities, and health care reform laws. New fact sheets on these statutes and additional information will be available at http://www.whistleblowers.gov.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to assure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.

 
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OSHA sues Kwick Stop in Shawnee, Oklahoma

Posted on August 18, 2010 by Richard Renner

The Occupational Safety and Health Administration (OSHA) has announced that it filed a lawsuit in Oklahoma City against Modern Oil Company, the operator of 30 Kwick Stop convenience stores.  The lawsuit alleges that after OSHA investigated a workplace safety complaint at one of its stores in Shawnee, Oklahoma, management grilled the three employees of that store until it determined who called OSHA.  Management then promptly fired the identified whistleblower. The employee was a cashier at the convenience store who complained first to management, and then to OSHA about how the tall stacks of liquor bottles posed a hazard.This case is an example of how whistleblower issues can arise in any type of workplace.

Under Section 11(c) of the OSH Act, whistleblowers do not own any cause of action themselves.  Only the Secretary of Labor can file lawsuits to recover damages for workplace health and safety whistleblowers. OSHA's decision to seek such a lawsuit is equivalent to an OSHA determination that retaliation occurred.   Luckily, the Solicitor of Labor decided to file this lawsuit.  It was filed July 15, 2010.  It is case number 5:10-cv-00748-M in the U.S. District Court for the Western District of Oklahoma. By now, the company would have received the lawsuit. I called the lawyer listed for Modern Oil Company and he told me that he no longer represents them. OSHA is seeking reinstatement, back pay, compensatory damages, and punitive damages on behalf of the whistleblower.

If Congress would pass the Protecting America's Workers Act (PAWA), H.R. 2067, then the Solicitor of Labor would not have to file Section 11(c) lawsuits, and OSHA could just issue orders for these remedies, subject to review by due process administrative hearings.  You can read our previous blog posts about PAWA here, here here and here.

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OSHA to issue new safety standards for cranes and derricks

Posted on July 27, 2010 by Richard Renner

The Occupational Safety and Health Administration (OSHA) has announced that it will hold a live web chat tomorrow from 3:00 to 4:00 p.m. (Eastern) to discuss OSHA's new safety rules for cranes and derricks used in construction. Interested parties can access the web chat by visiting http://www.dol.gov/dol/chat.htm tomorrow at 3:00 p.m. Cranes and derricks have been a perennial danger on construction sites, and improved safety standards will be a welcome development. The new standards will be even more effective if Congress passes the Protecting America's Workers Act (PAWA), HR 2067, so that workers will own their own retaliation claims if they insist on following the new rule and suffer retaliation as a result. The full OSHA statement announcing the web chat follows in the continuation of this entry.

Please join OSHA on Wednesday, July 28 from 3-4 pm EST in a live Web chat to discuss new historic rules to be issued tomorrow addressing the safety of cranes and derricks in construction. This new standard will replace a decades old standard.

 

To participate, access the Web chat at http://www.dol.gov/dol/chat.htm at 3 p.m. EST. During this live meeting, you will be able to submit questions regarding the new cranes and derricks standard. You will also be able to follow our responses to other stakeholders as we post our replies live during the session.

 

OSHA is committed to informing and engaging the public and ensuring good jobs for everyone. We look forward to hearing from you on July 28.

 


Kindly,

Kimberly M. Tucker
Office of Communications
Occupational Safety and Health Administration
202-693-1892
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Town Hall meeting on workplace and mine safety in Arlington, Virginia

Posted on July 22, 2010 by Richard Renner

Public interest groups have scheduled a town hall meeting to discuss legislation designed to protect miners and other workers from injury and disease. It is scheduled for next Tuesday, July 27, 2010, at Unitarian Universalist Church of Arlington, 4444 Arlington Boulevard, Arlington, Virginia, from 7:00 pm to 8:30 pm. A flyer is available here. Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, is scheduled to speak. The purpose of the town hall meeting is to build support for H.R. 5663, the Robert C. Byrd Miner Safety and Health Act. This legislation would expand and improve workplace safety laws by strengthening both the Mine Safety and Health Act (MSHA) and the Occupational Safety and Health Act (OSHA). We posted a previous notice about this bill here.

The legislation, introduced by Chairman George Miller (D-CA), would increase penalties for those who break the law; toughen enforcement against employers who commit serious violations; protect workers who blow the whistle on unsafe conditions in the workplace; require employers to fix serious actions, even if they are challenging OSHA citations; and enhance the public’s right to know about safety violations.

Across this country, an average of 14 workers dies every day and nearly 12,670 are injured or sickened. Yet, our opponents think it is not necessary to improve the 40 year old OSHAct. Clearly recent tragedies at the Massey Upper Big Branch mine, the Tesoro Refinery, and BP Deepwater Horizon oil rig underscore the need to strengthen the nation’s job safety laws now. Congress needs to move immediately to pass this legislation to prevent more unnecessary deaths, injuries, and diseases.

Sponsors for the town hall include National Committee for Occupational Safety and Health, the Northern Virginia Labor Federation, the Metropolitan Washington Council and the Virginia AFL-CIO.
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New Investigation Finds OSHA Dismisses 80% of Whistleblower Cases

Posted on July 20, 2010 by Lindsey Williams

Investigative journalist Myron Levin, writing for FairWarning.org, has found that the Occupational Safety and Health Administration (OSHA) dismisses about 80% of its whistleblowers cases. Levin founded FairWarning.org to be an online nonprofit publication covering workplace safety, health, and employer conduct issues. Of the 279 cases brought to OSHA's whistleblower protection office, Department of Labor attorneys filed a mere 32 lawsuits on behalf of employee whistleblowers. OSHA investigators are sometimes frustrated that despite the outstanding merits of a given case, solicitors will only pursue the “slam dunk” cases that are sure to win.

OSHA's Whistleblower Protection Program is supposed to protect the right of employees to report workplace violations without retaliation. However, in the past 14 years the program has achieved little, as the assurance of whistleblower protection through the program appears to have fallen far short of a guarantee. Workers on the job just have no assurance that they will be protected if they raise a concern about a danger to health or safety.

As the “legal arm” of the Department of Labor, the Office of the Solicitor General has not given whistleblowers a helpful legal hand. The office has fallen short of compliance with the OSHA law and left employee whistleblowers with “grossly inadequate” protections and nowhere to turn.  Unlike whistleblowers under environmental, transportation and other federal laws, workplace health and safety whistleblowers have no private right of action under federal law. This defect, and others in the OSHA Act, would be fixed by the Protecting Americas Workers Act (PAWA), H.R. 2067, now pending in a House committee. Meryl Grenadier (NWC Fellow) wrote about the House hearing on PAWA in this blog.

The Whistleblower Protection Program has too few OSHA investigators for the volume of complaints and an austere budget with little room for needed equipment and training. As a result, whistleblowers must wait long periods of time before receiving the results of their complaints, which primarily are rejections.

However, attempts are being made to improve OSHA’s whistleblower program. New Assistant Secretary Dr. David Michaels recently announced that improving whistleblower protections is now a priority. His office launched a whistleblower protection program website, www.whistleblowers.gov. This website lists the OSHA protections of employees from employer retaliation and discrimination, and outlines the steps employees should take to exercise their rights when reporting health and safety violations in the workplace. OSHA’s whistleblower website simplifies the process of reporting misconduct and filing discrimination complaints. Unfortunately, this site does not tell whistleblowers that complaints about retaliation must be filed in writing within thirty (30) days of the employee's first notice of each adverse action.

For Myron Levin's full article please click here.

*Emily Brundage (a NWC intern) contributed to this posting
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Support the Miner Safety & Health Act

Posted on July 19, 2010 by Lindsey Williams

From the Occupational Safety & Health Portal of Kazan, McClain, Lyons, Greenwood & Harley, PLC:

HR 5663 [The Miner Safety & Health Act makes a number of improvements, providing additional tools to ensure that OSHA and MSHA can properly enforce OSH law and keep workers safe.

Specifically, HR 5663 would increase protection for workers covered by the OSH Act by:

Strengthening Penalties for OSHA Violations

 ·   Raises civil penalties and indexes those penalties to inflation.

·  Establishes mandatory minimum penalties for violations involving worker deaths.

·  Allows felony prosecutions against employers who commit willful violations that result in death or serious bodily injury, and extends such penalties to responsible corporate officers.

 


Improving Whistleblower Protections under the OSH Act

·   Codifies regulations that give workers the right to refuse to do hazardous work.

·  Clarifies that employees cannot be discriminated against for reporting unsafe conditions and brings the procedures for investigating and adjudicating discrimination complaints into line with other safety, health and whistleblower laws.

 

Giving New Rights to Workplace Injury Victims and their Families

·   Gives injured workers, their families and families of workers who died in work-related incidents the right to meet with investigators, receive copies of citations, and to have an opportunity to make a statement before any settlement negotiations.

·   Creates a new “Family Liaisons” program at each area OSHA office to keep family members of victims informed.

 

Requiring that Employers Abate Serious Hazards pending contest of Violations

· Employers that contest serious, willful, and repeat violations would no longer be allowed to leave them uncorrected while these citations are being contested and considered by the OSHA Review Commission, a process which can take years.


Significant progress has been made on protecting the health and safety of American workers since the creation of the Occupational Safety and Health Administration and Mine Safety and Health Administration almost four decades ago. However, too many workers are still dying, injured or becoming ill by working in unsafe and unhealthy conditions. HR 5663 will provide additional tools to ensure that OSHA and MSHA enforcement is more effective.


Read fact sheets by the National Council for Occupational Safety and Health (NCOSH), the AFL-CIO, and Public Citizen here. In order to mobilize support for this bill, the firm is asking members of the public to call or fax their House representatives. The NWC supports this effort and thanks Kazan, McClain, Lyons, Greenwood & Harley, PLC for taking the lead.

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Sixth Circuit stays Goerge Fort's reinstatement, without considering the public interest

Posted on June 4, 2010 by Richard Renner

Last week, the Sixth Circuit U.S. Court of Appeals stayed George Fort's preliminary order of reinstatement. Tennessee Commerce Corp. fired Fort last year after he sent a letter to the company's audit committee about failures in the bank's internal controls. Fort filed a whistleblower complaint under the Sarbanes-Oxley Act (SOX). I reported here about how the Occupational Safety and Health Administration (OSHA) issued a preliminary order requiring TCC to immediately reinstate Fort to his former position.

The case deserves comment here about the importance of preliminary orders in modern whistleblower protections. TCC challenges the enforceability of such orders, and if it prevails, the result would be a serious setback for the whistleblower cause. Indeed, even the stay itself has taken the power away from OSHA's reinstatement order for George Fort. Still, whistleblower advocates need to know that the Sixth Circuit has issued a fairly rapid briefing schedule. Hopefully, the stay will not be in effect for long and this issue might be resolved in favor of OSHA's power to enforce preliminary reinstatement orders.

 

Congress first authorized the Department of Labor to issue preliminary reinstatement orders as part of the Surface Transportation Assistance Act (STAA) in 1982. 49 U.S.C. § 31105. Congress was concerned about the “increasing number of deaths, injuries and property damage” resulting from commercial trucking accidents. Brock v. Roadway Express, Inc., 481 U.S. 252, 258 (1987) (quoting 128 Cong. Rec. 32509, 32510 (1982)). In Brock v. Roadway Express, the Supreme Court recognized the importance of the preliminary order of reinstatement:

Congress also recognized that the employee's protection against having to choose between operating an unsafe vehicle and losing his job would lack practical effectiveness if the employee could not be reinstated pending complete review. The longer a discharged employee remains unemployed, the more devastating are the consequences to his personal financial condition and prospects for reemployment. Ensuring the eventual recovery of backpay may not alone provide sufficient protection to encourage reports of safety violations. Accordingly, § 405 incorporates additional protections, authorizing temporary reinstatement based on a preliminary finding of reasonable cause to believe that the employee has suffered a retaliatory discharge. The statute reflects a careful balancing of the relative interests of the Government, employee, and employer.

The Sixth Circuit did not cite to Brock or consider this public safety objective in issuing its stay. Congress, however, recognized the power of this tool to encourage whistleblowers with the fastest possible reinstatement. If the Department of Labor finds that a worker was fired for raising a public health or safety concern, then our society has two pressing reasons to see that worker reinstated quickly: (1) we want to encourage other employees in coming forward with such concerns by showing them that government will flex its muscle on their behalf to get them their jobs back, and (2) we want the safety-conscious employees on the job so they can continue to look out for us. Congress has included similar power for the Department of Labor to issue preliminary orders of reinstatement in subsequent whistleblower protections, including the Energy Reorganization Act (ERA) which protects nuclear whistleblowers, AIR 21 which protects airline employees, SOX, the Consumer Product Safety Improvement Act, the Federal Rail Safety Act and the National Transit Systems Security Act. Notably absent from this list are the earlier protections for health, safety and environmental whistleblowers. These older laws are still hindered by a thirty (30) day statute of limitations and antiquated remedies.

 

As I reported here on March 19, 2010, George Fort worked for the Tennessee Commerce Bank (stock symbol TNCC) since 2004. He was soon promoted to CFO and was responsible for the bank's SOX compliance. In June 2007, the bank's CEO, Arthur Helf, decided that he and the other top executives deserved bonuses and pay raises that would more than double their annual compensation.  Three board members resigned in protest. Then Helf decided that he would cash out over a million dollars in stock options just before the bank had to report the raises and resignations.  Fort objected that this was insider trading. Fort also raised concerns about internal controls, file maintenance procedures and fabrication of meeting minutes. By 2008, Fort had decided that he would no longer sign the bank's Form 10k because he believed the company was not in compliance with SOX. Over Helf's objection, Fort went to the bank's audit committee to present his concerns. Fort went to federal and state bank regulators with his concerns. The next day, the bank placed Fort on administrative leave, and later fired him.

 On March 17, 2010, OSHA issued its findings. They show that OSHA's staff gave strong weight to the timing of the administrative leave right after Fort went to state and federal regulators. This was sufficient to find that Fort's protected activities were a contributing factor in the decision to fire him. OSHA's investigation also uncovered inconsistencies in the bank's explanation of how and when it decided to fire Fort. These prevented the bank from proving that they would have fired Fort even if there had been no protected activity. OSHA informed TNCC of its preliminary findings and gave the bank an opportunity to submit evidence.  TNCC initially submitted no evidence but asked for mediation to try to settle the case.  When the settlement negotiations failed, then the bank submitted new evidence.  OSHA found that the new evidence did not change its findings.

OSHA ordered TNCC to:

  1. Reinstate Fort as CFO immediately;

  2. Pay backpay of $6,442.40 per week ($624,913, and counting);

  3. Pay $301,500 for a missed bonus;

  4. Pay interest (which I estimate to be $117,299, and counting;

  5. Pay $35,000 for seven missed Board meeting fees;

  6. Reinstate Fort's stock options of 152,308 shares ($1,057,018 at $6.94 per share, although this price is declining today);

  7. Pay $31,601.41 in medical expenses, car allowance, insurance and job hunting expenses;

  8. Pay attorney fees of $129,794.19;

  9. Expunge Fort's employment records;

  10. Refrain from further retaliation; and,

  11. Post a "Notice to Employees" about their rights under SOX.

I compute that the total present value of this order is $2,297,125 -- the largest amount of any OSHA order for a whistleblower that I know about. This figure assumed that TNCC will comply with the reinstatement order and stop Fort from suffering further lost wages and compensation. The value of the reinstatement order is likely to be worth even more than this figure. OSHA's press release, however, says only that the value of this order is over $1 million.

TNCC quickly announced that it would appeal. Meanwhile, it refused to obey the preliminary order of reinstatement. This refusal prompted OSHA and the U.S. Attorney in Nashville, Tennessee, to seek a federal court injunction. Assistant U.S. Attorney Mark H. Wildasin made a nice argument in opposition:

The bank has willfully ignored the Secretary’s order to reinstate him for more than two months. He should not be made to sit another day – much less many more months – waiting to return to work at his former job because he did the right thing and complained of Sarbanes-Oxley violations.

Congress has made the policy decision that reinstatement should be immediate and effective to protect actual whistleblowers and their colleagues who remain at work. 

On May 19, 2010, U.S. District Court Judge William J. Haynes granted that injunction in Solis v. Tennessee Commerce BanCorp, Inc., No. 3:10-00472. TNCC immediately sought a stay of that order. Judge Haynes found that its motion “does not cite any evidence that would justify a stay.” Without evidence of any irreparable harm, and without pointing to any factual errors in the judge's order, Judge Haynes saw no grounds for a stay.

TNCC promptly appealed to the U.S. Court of Appeals for the Sixth Circuit. It sought a stay again. On May 25, 2010, the Sixth Circuit granted that stay. Case No. 10-5602. Its order finds a “substantial question,” specifically whether the preliminary order is “an order issued under paragraph (3).” 49 U.S.C. § 42121(b)(5). Paragraph 3 states in part:

(A) DEADLINE FOR ISSUANCE; SETTLEMENT AGREEMENTS. Not later than 120 days after the date of conclusion of a hearing under paragraph (2), the Secretary of Labor shall issue a final order providing the relief prescribed by this paragraph or denying the complaint.

As the preliminary order has final effect, it seems easy enough for me to find that it can be enforced. When the statute is considered as a whole, with a purpose of obtaining the soonest possible reinstatement, there is no purpose in having preliminary reinstatement if it cannot be enforced. Remember Brock?

The Sixth Circuit balanced the hardships as follows:

The defendants assert that they will suffer irreparable harm if Fort is physically reinstated immediately. They argue that Fort’s reinstatement will cause disruption to the bank’s personnel and operations that cannot be undone if this court finds the district court lacked authority to issue the injunction. By contrast, if the reinstatement order was properly issued, Fort can be made whole with compensatory damages, back pay, and interest. A balancing of the harms supports the issuance of a stay.

The Court did not consider the disruption to the investing public in TNCC's continued use of financial data prepared without proper internal controls. It did not consider the damage that comes to an employee in suffering a prolonged absence from the workplace. And if Fort can be made whole with a simple order of backpay and interest, why can't TNCC be made whole with the value of Fort's work during the time of reinstatement?

What distresses me more, however, is the Sixth Circuit's consideration of the “public interest.” On page one, the Sixth Circuit recognizes that one of the required considerations in issuing a stay is “where the public interest lies.” The words “public interest” do not thereafter recur in the Court's order. The Court just forgot to do what it is required to do. There is no consideration of the public's interest in making sure that TNCC has a CFO who will follow the law. Similarly, the Sixth Circuit does not consider the goal of assuring that employees are encouraged to come forward.

The Sixth Circuit did set a prompt briefing schedule. Hopefully, with the benefit of full briefing by the end of this summer, the court will see the light of the public interest at stake and lift its stay so George Fort can finally go back to work and protect us all.

 
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OSHA head plans to improve whistleblower program

Posted on May 11, 2010 by Richard Renner

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 Proectional 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."

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OSHA finds pilot suffered retaliation under AIR 21

Posted on May 10, 2010 by Richard Renner

The Occupational Safety and Health Administration (OSHA) announced on Friday that it has found that New Jersey based air carrier Worldwide Jet Charter LLC retaliated against one of its pilots. OSHA has issued a reinstatement order, and this order has immediate effect even if Worldwide chooses to appeal. OSHA made its determination under the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, which is also called AIR 21. "Pilots and other workers of air carriers have the legal right to report violations of federal aviation regulations," said Robert Kulick, OSHA’s regional administrator in New York. "Air carriers that retaliate against employees for exercising their rights under AIR21 will be held accountable." OSHA did not release the name of the pilot, but it did announce that its determination provided for back pay, compensatory damages, attorney fees, expungement and an order to post a notice to employees about their rights under AIR 21. This announcement follows another OSHA determination in March for a SOX whistleblower, indicating new hope for whistleblowers about the pace and success of OSHA whistleblower cases.

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Free Seminar on OSHA Whistleblower Program

Posted on May 4, 2010 by Lindsey Williams

Professionals for the Public Interest will host the event “Whistleblowers and OSHA: Strengthening Professional Integrity” on May 11th from 11:45 a.m. to 2:00 p.m. at the American Association for the Advancement of Sciences (AAAS). The event is free and open to the public with advance registration. The presentation will feature the Assistant Secretary of Labor for Occupational Safety and Health David Michaels, PhD, MPH. Dr. Michaels is nationally recognized for protecting the scientific integrity on which the health and environmental policies are based. Participants will also discuss the Whistleblower Protection Program in the Office of Safety and Health Administration. The event invitation gives some interesting prompts, such as “How is the Whistleblower Protection Program working now?” “How do its challenges relate to its responsibilities across so many statutes and industries?” In order to register for this thought-provoking seminar, click here.

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