OSH Act Proposes Improved Protections to Whistleblowers | DCR Workforce Blog

OSH Act Proposes Improved Protections to Whistleblowers

OSHAStericycle Inc. was recently judged to be in violation of OSHA’s protections to whistleblowers. The ruling refers to the termination of a transportation supervisor for raising safety concerns regarding operating a trailer without a valid license plate. Back wages and damages payable to the employee amounted to $261,787, along with instructions to reinstate the employee and expunging all records of the associated disciplinary actions. The company was also asked to notify its employees of their whistleblower protection rights. The company plans to appeal this ruling.

Simply stated, under “whistleblower” laws, it’s illegal for a company to penalize or terminate an employee for voicing valid concerns about the activities of the business. OSHA assures all employees that they are protected from any unfavorable personnel action taken by their employers in response to raising concerns (whistleblowing) over workplace safety.

On September 4th, the OSH Act was further revised to expand protections to workers whose health and safety concerns at the workplace are met with retaliation.

According to the Whistleblower Protection Advisory Committee, OSHA issued 3726 merit determinations from 2009 till June 30, 2014. 389 whistleblowers were reinstated and more than $119,000,000 in damages and back wages were recovered from erring employers.

Standard of Proof:

The percent of cases viewed by OSHA as having merit has remained fairly stable, ranging from 22-30% over the past five years. However, there is every chance for the number of cases finding merit to rise exponentially, as OSHA has recently decided to change the standard of whistleblower investigations. If changes are adopted, cases need not have a ‘preponderance of evidence’ to have merit. They just need a ‘reasonable cause’ or ‘contributing factor’ to prove merit.

Among other things, OSHA proposes to:

  • Extend the filing deadline for retaliation claims from 30 days to 180 days following an alleged retaliatory action.
  • Permit appeal of OSHA decisions directly to Department of Labor administrative law judges, which would replace OSHA’s current method of internally addressing appeals.
  • Give employees a right to temporary reinstatement following an initial finding in their favor.
  • Allow complainants to take their cases to federal court.
  • Expand employees’ opportunities to seek punitive damages and attorneys’ fees.
  • Prohibit pre-dispute arbitration agreements that seek to limit an employee’s right to file a Section 11(c) complaint.

Changes suggested by the Whistleblower Protection Advisory Committee to OSHA are all at a proposal stage and are awaiting congressional approval before they can take effect. OSHA is also making concerted efforts to lower its response time and reduce the backlog of appeals. The focus with which this is being attempted can be seen in the way OSHA already reduced the response time of 279 days – which was the norm in early 2013 – to 89 days by late 2013.

The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.
Lalita is a people/project manager with extensive experience in operations, HCM and training and development across industries like banking, education, business consulting, BPO and information technology. She believes in a dynamic approach to life and learning as change is the only constant.