    [House Hearing, 111 Congress]
    [From the U.S. Government Publishing Office]

                       WHISTLEBLOWER AND VICTIM'S RIGHTS
                          PROVISIONS OF H.R. 2067, THE
                        PROTECTING AMERICA'S WORKERS ACT

    =======================================================================

                                    HEARING

                                   before the

                     SUBCOMMITTEE ON WORKFORCE PROTECTIONS

                                  COMMITTEE ON
                              EDUCATION AND LABOR

                         U.S. House of Representatives

                         ONE HUNDRED ELEVENTH CONGRESS

                                 SECOND SESSION

                                   __________

                 HEARING HELD IN WASHINGTON, DC, APRIL 28, 2010

                                   __________

                               Serial No. 111-58

                                   __________

          Printed for the use of the Committee on Education and Labor

                           Available on the Internet:
          http://www.gpoaccess.gov/congress/house/education/index.html

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                        COMMITTEE ON EDUCATION AND LABOR

                      GEORGE MILLER, California, Chairman

    Dale E. Kildee, Michigan, Vice       John Kline, Minnesota,
        Chairman                           Senior Republican Member
    Donald M. Payne, New Jersey          Thomas E. Petri, Wisconsin
    Robert E. Andrews, New Jersey        Howard P. ``Buck'' McKeon,
    Robert C. ``Bobby'' Scott, Virginia      California
    Lynn C. Woolsey, California          Peter Hoekstra, Michigan
    Ruben Hinojosa, Texas                Michael N. Castle, Delaware
    Carolyn McCarthy, New York           Mark E. Souder, Indiana
    John F. Tierney, Massachusetts       Vernon J. Ehlers, Michigan
    Dennis J. Kucinich, Ohio             Judy Biggert, Illinois
    David Wu, Oregon                     Todd Russell Platts, Pennsylvania
    Rush D. Holt, New Jersey             Joe Wilson, South Carolina
    Susan A. Davis, California           Cathy McMorris Rodgers, Washington
    Raul M. Grijalva, Arizona            Tom Price, Georgia
    Timothy H. Bishop, New York          Rob Bishop, Utah
    Joe Sestak, Pennsylvania             Brett Guthrie, Kentucky
    David Loebsack, Iowa                 Bill Cassidy, Louisiana
    Mazie Hirono, Hawaii                 Tom McClintock, California
    Jason Altmire, Pennsylvania          Duncan Hunter, California
    Phil Hare, Illinois                  David P. Roe, Tennessee
    Yvette D. Clarke, New York           Glenn Thompson, Pennsylvania
    Joe Courtney, Connecticut
    Carol Shea-Porter, New Hampshire
    Marcia L. Fudge, Ohio
    Jared Polis, Colorado
    Paul Tonko, New York
    Pedro R. Pierluisi, Puerto Rico
    Gregorio Kilili Camacho Sablan,
        Northern Mariana Islands
    Dina Titus, Nevada
    Judy Chu, California

                         Mark Zuckerman, Staff Director
                     Barrett Karr, Minority Staff Director
                                     ------

                     SUBCOMMITTEE ON WORKFORCE PROTECTIONS

                    LYNN C. WOOLSEY, California, Chairwoman

    Carol Shea-Porter, New Hampshire     Cathy McMorris Rodgers,
    Donald M. Payne, New Jersey              Washington,
    Raul M. Grijalva, Arizona              Ranking Minority Member
    Timothy H. Bishop, New York          Peter Hoekstra, Michigan
    Phil Hare, Illinois                  Joe Wilson, South Carolina
    Gregorio Kilili Camacho Sablan,      Tom Price, Georgia
      Northern Mariana Islands

                                C O N T E N T S

                                  ----------
                                                                       Page

    Hearing held on April 28, 2010...................................     1

    Statement of Members:
        McMorris Rodgers, Hon. Cathy, Ranking Minority Member,
          Subcommittee on Workforce Protections......................     6
            Prepared statement of....................................     7
            Additional submission: National Labor Relations Board
              case, April 19, 2010...................................    58
        Miller, Hon. George, Chairman, Committee on Education and
          Labor, submissions for the record:
            Letter, dated May 11, 2010, from Jason M. Zuckerman, the
              Employment Law Group...................................   120
            ``Strategic Goals and Performance Measures,'' Office of
              the Solicitor..........................................   121
            Questions for the record sent to witnesses...............   122
        Woolsey, Hon. Lynn C., Chairwoman, Subcommittee on Workforce
          Protections................................................     1
            Prepared statement of....................................     4
            Additional submissions:
                Discussion draft for Protecting America's Workers Act
                  (H.R. 2067), March 9, 2010.........................    71
                Data on the Solicitor of Labor's disposition of 11(c)
                  retalitaion cases, 1995-2009.......................    80
                Statistics and outcomes on whistleblower cases filed
                  with OSHA for 2008.................................    81
                OSHA's actions on 11(c) cases completed in fiscal
                  year 2009..........................................    81
                DOL's letter to Neal Jorgensen dated April 7, 2005...    82
                A D M Milling Company informal settlement agreement..    84
                E-mail from OSHA to Ms. Ford.........................    85
                Kansas supreme court case, Flenker v. Willamette
                  Industries, Inc....................................    87
                Missouri court of appeals case, Shawcross v. Pyro
                  Products, Inc......................................    95
                U.S. Court of Appeals case, Wood v. Department of
                  Labor..............................................    99
                Article: ``Federal Protection of Private Sector
                  Health and Safety Whistleblowers,'' by Eugene
                  Fidell, Administrative Law Journal.................   103
                Article: ``A Pot of Gold at the End of the Rainbow:
                  An Economic-Incentives Based Approach to OSHA
                  Whistleblowing,'' by Jarrod Gonzalez, Employee
                  Rights and Employment Policy Journal, Internet
                  address to.........................................   119
                GAO report: ``Better Data and Improved Oversight
                  Would Help Ensure Program Quality and
                  Consistency,'' Internet address to.................   120
                ``Comparison of Anti-Retaliation Provisions in Other
                  Laws,'' prepared by AFL-CIO........................   120

    Statement of Witnesses:
        Barab, Hon. Jordan, Deputy Assistant Secretary for
          Occupational Safety and Health, U.S. Department of Labor...     8
            Prepared statement of....................................    10
            Responses to questions submitted.........................   123
        Chinn, Lloyd B., partner, Proskauer Rose LLP.................    36
            Prepared statement of....................................    38
        Ford, Tonya, niece of Robert Fitch...........................    14
            Prepared statement of....................................    16
            Responses to questions submitted.........................   127
        Jorgensen, Neal, whistleblower and former employee, Plastic
          Industries.................................................    33
            Prepared statement of....................................    34
        Monforton, Celeste, DrPH, MPH, department of environmental &
          occupational health, School of Public Health and Health
          Services, George Washington University.....................    25
            Prepared statement of....................................    27
            Responses to questions submitted.........................   129
        Morikawa, Dennis J., partner, Morgan, Lewis & Bockius LLP, on
          behalf of the U.S. Chamber of Commerce.....................    19
            Prepared statement of....................................    22
            Responses to questions submitted.........................   132
        Rhinehart, Lynn, general counsel, AFL-CIO....................    42
            Prepared statement of....................................    44
            Responses to questions submitted.........................   135

                           WHISTLEBLOWER AND VICTIM'S
                        RIGHTS PROVISIONS OF H.R. 2067,

                      THE PROTECTING AMERICA'S WORKERS ACT

                                  ----------

                           Wednesday, April 28, 2010

                         U.S. House of Representatives

                     Subcommittee on Workforce Protections

                        Committee on Education and Labor

                                 Washington, DC

                                  ----------

        The subcommittee met, pursuant to call, at 10:07 a.m., in
    room 2175, Rayburn House Office Building, Hon. Lynn C. Woolsey
    [chairwoman of the subcommittee] presiding.
        Present: Representatives Woolsey, Shea-Porter, Payne,
    Bishop, Hare, Sablan, and McMorris Rodgers.
        Staff Present: Aaron Albright, Press Secretary; Andra
    Belknap, Press Assistant; Jody Calemine, General Counsel; Lynn
    Dondis, Labor Counsel, Subcommittee on Workforce Protections;
    David Hartzler, Systems Administrator; Sadie Marshall, Chief
    Clerk; Richard Miller, Senior Labor Policy Advisor; Revae
    Moran, Detailee, Labor; Alex Nock, Deputy Staff Director; James
    Schroll, Junior Legislative Associate, Labor; Michele
    Varnhagen, Labor Policy Director; Kirk Boyle, Minority General
    Counsel; Ed Gilroy, Minority Director of Workforce Policy; Rob
    Gregg, Minority Senior Legislative Assistant; Alexa Marrero,
    Minority Communications Director; Brian Newell, Minority Press
    Secretary; Jim Paretti, Minority Workforce Policy Counsel;
    Molly McLaughlin Salmi, Minority Deputy Director of Workforce
    Policy; Linda Stevens, Minority Chief Clerk/Assistant to the
    General Counsel; and Loren Sweatt, Minority Professional Staff
    Member.
        Chairwoman Woolsey. A quorum is present. The hearing of the
    Subcommittee on Workforce Protections will come to order.
        I will open the hearing with my own remarks and then yield
    to my ranking member, who is on her way, but she probably
    doesn't care if she doesn't hear my opening remarks. She will
    read them, read them in the record.
        So, welcome, everybody. Today is Workers Memorial Day, a
    day when Americans from all walks of life remember and honor
    workers who have been killed or seriously injured in the
    workplace. We have in our audience today many, many family
    members and loved ones of workers who have been killed in the
    workplace. I thank you for coming. This is an honor for us, the
    very idea that you would take your time and come here, knowing
    how important PAWA is but also how emotional this must be for
    you, so thank you very much for being here.
        Workers Memorial Day started on April 28, 1989, a day which
    is also the anniversary of the Occupational Safety and Health
    Act, OSHA. This is the 40th anniversary. Well, this is the 40th
    year. It is the 39th anniversary.
        Unfortunately, over 20 years later, it is the 21st century,
    and workers continue to die on the job. This past month has
    been a particularly tragic one for American workers.
        Last week, on April 20, 11 workers were lost and 17 injured
    following an explosion on the Transocean Deepwater Horizon
    drilling ship leased by British Petroleum, BP, in the Gulf of
    Mexico 50 miles off the coast of Louisiana.
        On April 5, 29 miners were killed and two injured in a
    massive explosion which ripped through Massey Energy's Upper
    Big Branch mine in Montcoal, West Virginia.
        Three days earlier, on April 2, a blast at the Tesoro Oil
    Refinery in Anacortes, Washington, caused the deaths of seven
    workers who were engulfed in a fire wall.
        There are thousands of equally tragic deaths that occur in
    ones and twos away from the limelight.
        Last Friday, another West Virginia miner was killed at ICG
    Beckley Pocahontas mine after he was crushed between a
    continuous miner and a rib vault.
        Last month, the committee held a hearing on the civil and
    criminal penalties of H.R. 2067, the Protecting America's
    Workers Act, which we call PAWA, and I will refer to it as that
    for the rest of the day. It is shorter. These changes are long
    overdue, and they are changes and reforms to the OSH Act.
        Today's legislative hearing will examine the victims'
    rights and whistleblowers' rights as they are contained in the
    March 9 discussion draft of the same bill that further improves
    PAWA. When workers are killed on the job, family members need
    to be included in the investigations, as they may be a rich
    source of knowledge. Victims want investigations to get to the
    whole truth and to ensure that the death of their loved one was
    not in vain, and they want meaningful changes so that other
    workers do not meet the same fate.
        One of our witnesses today is Tonya Ford. Hi, Tonya. Her
    uncle fell 90 feet to his death from a continuous-belt-operated
    man lift at an Archer Daniels Midland plant in Nebraska. The
    company replaced this one man lift as part of its agreement
    with OSHA but not the others located throughout the plant and
    other plants that they own. Tonya's father, who still works at
    the plant, rides up and down on this inherently dangerous
    equipment on a daily basis.
        Unfortunately, families have been marginalized by the
    Occupational Safety and Health Administration during the
    investigations. Families oftentimes get investigation results,
    and when they do it too often arrives after OSHA has met
    privately with the employers and reached a closed-door
    settlement. Some employers will insist the deceased worker is
    responsible for the tragedy in closed-door meetings with OSHA,
    yet OSHA informally settles these cases without the benefit of
    input from the families, those nearest to the victim, those who
    could have inside information shared with them by their loved
    ones.
        OSHA's current policy assumes communication with the next
    of kin. This policy, however, is not consistently implemented
    and certainly does not meet the needs of families.
        The discussion draft of PAWA strengthens existing policy by
    bringing family members into the process.
        The OSH Act recognizes that providing healthy and safe
    workplaces depends on the willingness of workers to raise
    concerns with their employers or to blow the whistle by
    reporting unsafe practices to government agencies if or when
    the concern is not addressed.
        Too often, however, workers are fired, demoted or punished
    for raising concerns with OSHA; and OSHA fails to protect them
    enough by recovering their back pay or getting them their jobs
    back. One of the main reasons for this is that section 11(c) in
    the OSH Act, as the oldest whistleblower statute, lacks due
    process and other essential protections and really is stuck
    back in the 20th century, as a matter of fact. As a result, few
    cases that are filed are found to have merit, but when they are
    considered merit cases and OSHA cannot settle the case between
    the parties, its only option, OSHA's only option is to refer it
    to a solicitor of Labor. The solicitor then has the sole
    discretion whether or not to pursue the case in court.
        Between October 21, 1995, and October 1, 2009, fewer than 7
    percent of the merit cases sent to the solicitor were ever
    litigated, because it appears that, first, the solicitor's
    office only takes those cases that have a very high chance of
    winning and, second, demands on that office far exceed its
    scarce resources. And, further, agency policies tend to
    discourage litigation where the amount that can be recovered
    for the worker or the worker's family is small compared to the
    resources needed to litigate the claim.
        One of our witnesses, Neal Jorgensen from Preston, Idaho,
    will testify how he lost his job after filing a safety
    complaint with OSHA. He filed a whistleblower claim; and while
    OSHA found his case had merit, the solicitor declined to
    prosecute because it did not think either of the two Federal
    judges in Idaho, who would be the ones to hear the case, would
    be receptive to it.
        Under current law, Mr. Jorgensen had no right to file a
    case in court. PAWA modernizes the OSH Act to bring it in line
    with modern whistleblower laws such as the Consumer Product
    Safety Improvement Act.
        A safe workplace depends on workers reporting unsafe
    conditions to their employers or the government without fear of
    retaliation and with the knowledge that the government will be
    there to back them up if the employer does retaliate. The
    legislation before us today will achieve that goal.
        I am pleased the administration supports the victims'
    rights and whistleblower provisions and look forward to the
    testimony from our wonderful panel of witnesses.
        With this, I would defer to our ranking member, Cathy
    McMorris Rodgers, who isn't here yet. She will give her opening
    statement before we hear from all of our witnesses and before
    the questioning begins.
        [The statement of Ms. Woolsey follows:]

              Prepared Statement of Hon. Lynn Woolsey, Chairwoman,
                     Subcommittee on Workforce Protections

        Today is Workers Memorial Day, a day when Americans from all walks
    of life remember and honor workers who have been killed or seriously
    injured in the workplace.
        Workers Memorial Day started on April 28, 1989, a day which is also
    the anniversary of the Occupational Safety and Health Act (OSH Act).
        Unfortunately, over 20 years later, in the 21st century, workers
    continue to die on the job.
        This past month has been a tragic one for the American worker.
        Last week, on April 20, eleven workers were lost and seventeen
    injured following an explosion on the trans-ocean deepwater horizon
    drilling ship leased by British Petroleum in the Gulf of Mexico, fifty
    miles off the coast of Louisiana.
        On April 5, twenty-nine miners were killed and two injured in a
    massive explosion which ripped through Massey energy's Upper Big Branch
    mine in Montcoal, West Virginia.
        Three days earlier on April 2, a blast at the Tesoro oil refinery
    in Anacortes, Washington caused the deaths of seven workers who were
    engulfed in a ``firewall.''
        There are thousands of equally tragic deaths that occur in ones and
    twos, away from the limelight.
        Last Friday another West Virginia miner was killed at the ICG
    Beckley Pocahontas mine after he was crushed between a continuous miner
    and the rib wall.
        Last month the subcommittee held a hearing on the civil and
    criminal penalties in H.R. 2067, the Protecting America's Workers Act
    (PAWA), which makes long overdue reforms to the OSH Act.
        Today's legislative hearing will examine the victims' rights and
    whistleblower provisions as they are contained in the March 9
    discussion draft of the same bill that further improves PAWA.
        When workers are killed on the job, family members need to be
    included in investigations, as they may be a rich source of knowledge.
        Victims want investigations to get to the whole truth and ensure
    that the death of their loved one was not in vain.
        And they want meaningful changes so that other workers do not meet
    the same fate.
        One of our witnesses today is Tonya Ford.
        Her uncle fell 90 feet to his death from a continuous belt-operated
    manlift at an Archer Daniels Midland plant in Nebraska.
        The company replaced this one manlift as part of its agreement with
    OSHA, but not the others located in the plant.
        And Tonya's father, who still works at that plant, rides up and
    down on this inherently dangerous equipment on a daily basis.
        Unfortunately, families have been marginalized by the Occupational
    Safety and Health Administration (OSHA) during investigations.
        Families oftentimes don't get investigation results, and when they
    do, it too often arrives after OSHA has met privately with the
    employers and reached a closed door settlement.
        Some employers will insist the deceased worker is responsible for
    the tragedy in closed door meeting with OSHA.
        Yet, OSHA informally settles these cases without the benefit of
    input from families * * * those nearest the victim * * * who could have
    inside information shared by their loved one.
        OSHA's current policy assumes communication with the next of kin.
        This policy, however, is not consistently implemented and certainly
    does not meet the needs of families.
        The discussion draft of PAWA strengthens existing policy by
    bringing family members into the process.
        The OSH Act recognizes that providing healthy and safe workplaces
    depends on the willingness of workers to raise concerns with their
    employers, or, to `blow the whistle' by reporting unsafe practices to
    government agencies, if or when, the concern is not addressed.
        Too often, however, workers are fired, demoted or punished for
    raising concerns with OSHA, and OSHA fails to protect them by
    recovering their back pay or getting them their job back.
        One of the main reasons for this is that section 11(c) in the OSH
    Act, as the oldest whistleblower statute, lacks due process and other
    essential protections.
        As a result, few cases that are filed are found to have ``merit,''
    but when they are considered ``merit'' cases and OSHA cannot settle the
    case between the parties, its only option is to refer it to the
    Solicitor of Labor (SOL).
        The Solicitor then has the sole discretion whether or not to pursue
    the case in court.
        Between October 1, 1995 and October 1, 2009, fewer than 7% of the
    merit cases sent to the Solicitor were ever litigated, because it
    appears that first, the Solicitor's office only takes those cases that
    have a very high chance of winning, and second, demands on that office
    far exceed its scarce resources.
        And further, agency policies tend to discourage litigation where
    the amount to be recovered [for the worker] is small compared to the
    resources needed to litigate the claim
        One of our witnesses, Neal Jorgensen from Preston, Idaho, will
    testify how he lost his job after filing a safety complaint with OSHA.
        He filed a whistleblower claim, and while OSHA found his case had
    merit, the Solicitor declined to prosecute because it did not think
    either of the two federal judges in Idaho who would hear the case would
    be receptive to it.
        Under current law, Mr. Jorgensen had no right to file a case in
    court.
        PAWA modernizes the OSH Act to bring it in line with modern
    whistleblower laws, such as the consumer product safety improvement
    act.
        A safe workplace depends on workers reporting unsafe conditions to
    their employers or the government without fear of retaliation, and with
    the knowledge that the government will be there to back them up, if the
    employer does retaliate.
        The legislation before us today will achieve that goal.
        I am pleased the administration supports the victims' rights and
    whistleblower provisions and look forward to the testimony from our
    witnesses.
        I defer to ranking member, Cathy McMorris-Rodgers for her opening
    statement.
                                     ______

        Chairwoman Woolsey. Without objection, all Members will
    have 14 days to submit additional materials for the hearing
    record.
        Now I would like to introduce our panel of witnesses. They
    are a very distinguished panel, and we are very pleased to have
    you here this morning. We will start at my left, and that will
    be the order of the testimony. I will introduce you all, and
    then we will go from one to the other to the other as we
    progress through the hearing.
        First we have Mr. Jordan Barab, who is the Deputy Assistant
    Secretary of Labor of the Occupational Safety and Health
    Administration. He formerly served as a senior labor policy
    advisor on this committee, so we are really out front with you
    that we love Jordan very, very much, and we respect his words.
        He also worked as a health and safety specialist at the
    U.S. Chemical Safety Board and served as a special assistant to
    the OSHA administrator. Prior to his government service, Jordan
    was the director of Health and Safety at the American
    Federation of State, County, and Municipal Employees, called
    AFSCME. He holds a master's degree from Johns Hopkins
    University and an undergraduate degree from Claremont McKenna
    College.
        Thank you for being here, Jordan.
        Ms. Tonya Ford is a resident of Lincoln, Nebraska, and the
    niece of Robert Fitch, who died, as I told you earlier, in a
    preventable accident at the Archer Daniels Midland plant in
    Lincoln. As the family member of a worker killed on the job,
    she has worked to raise awareness of the need for better
    workplace safety.
        Mr. Dennis Morikawa is a partner in the Morgan, Lewis &
    Bockius law firm, where he heads the Occupational Safety and
    Health practice. He represents management regarding labor and
    employment law issues, focusing on matters arising under the
    Occupational Safety and Healthy Act and Mine Safety and Health
    Act. Mr. Morikawa received his JD from Syracuse University and
    a BA from Denison University.
        Dr. Celeste Monforton is an assistant research professor in
    the Department of Environmental and Occupational Health at the
    George Washington University School of Public Health and Health
    Services. She worked as a policy analyst at OSHA from 1991 to
    1995 and at MSHA from 1996 to 2001 as special assistant to the
    assistant secretary. Dr. Monforton earned a bachelor's degree
    from the University of Michigan and earned a master's degree
    and a doctorate of public health from George Washington
    University.
        Mr. Neal Jorgensen. Neal is a whistleblower who lives in
    Preston, Idaho. He filed a complaint with OSHA under section
    11(c) of the Occupational Safety and Health Act in 2004 after
    being fired from his job at Plastic Industries, and he has a
    real story to tell us.
        Mr. Lloyd Chinn. Mr. Chinn is a partner at the Labor and
    Employment Law Department at Proskauer Rose law firm. He
    litigates employment disputes before Federal and State courts,
    arbitration tribunals, and before administrative agencies. Mr.
    Chinn received his JD from New York University and a BS from
    Georgetown University.
        Ms. Lynn Rhinehart. Lynn is the general counsel at the AFL-
    CIO, and her focus is on safety and health law policy. She is a
    former staffer to Senator Howard Metzenbaum on the Senate Labor
    Committee and is a member of the Obama Transition Team for the
    National Labor Relations Board. She has also served as co-chair
    of the ABA Committee on Occupational Safety and Health Law. Ms.
    Rhinehart received her BA from the University of Michigan and
    her JD from Georgetown University.
        We are going to stop at this moment, and I am going to
    introduce our ranking member, Congresswoman McMorris Rodgers,
    for her opening remarks.
        Mrs. McMorris Rodgers. Thank you, Madam Chairwoman. I
    sincerely apologize for being late. We are going to do a better
    job, because I have a terrible record here, and I am sorry. I
    was over on the Senate side, and it just takes a while.
        Since today is recognized around the world as Workers
    Memorial Day, I would like to begin my comments by
    acknowledging the family members who have come to Washington,
    D.C., to share their stories about loved ones injured or killed
    on the job. Yesterday, the House passed House Resolution 375
    honoring those who lost their lives in the workplace, and I
    would like to extend my deepest sympathies and condolences to
    them.
        Turning to the focus of today's hearing, I would like to
    thank the chairwoman for providing another opportunity to
    further examine H.R. 2067, the Protecting America's Workers
    Act. We have before us a large panel of distinguished
    witnesses; and I look forward to hearing their expertise on two
    specific issues, whistleblowers and victims' rights.
        As I mentioned during our hearing last month, providing a
    safe workplace should be an employer's number one
    responsibility; and it should be a shared responsibility, one
    that reflects partnerships between the Federal, State, local
    governments, the private sector, employers, and other
    interested stakeholders.
        Notwithstanding these shared efforts, there is no doubt in
    my mind that workers should be able to report illegal or unsafe
    practices without fear. I don't think anyone here would have
    sympathy for an employer who did not take safety seriously.
        The provisions in the current OSH Act that protect
    employees who report these illegal and unsafe practices from
    retaliation are the subject of today's hearings hearing. I look
    forward to hearing from our witnesses as to how these
    protections are implemented, what changes are needed, why they
    are needed, and why the changes proposed by H.R. 2067 are the
    most appropriate. I say this because with any legislative
    proposal, particularly one that changes long-standing policies,
    we have to be certain that we are not doing more harm than
    good.
        In addition, today's hearing will examine what is known as
    victims' rights, the information and cooperation afforded to
    those employees who are injured and families who have lost a
    loved one in the workplace. We will hear from one family about
    OSHA's failure to inform them of conclusions reached in
    fatality investigations, which is unacceptable. Current OSHA
    policy should have precluded this oversight, and I am
    interested to learn why these policies were not implemented
    appropriately.
        Finally, I would just like to thank the chairwoman for
    interest in this topic, for giving us the opportunity to look
    more closely at workplace safety. This hearing is the latest in
    a series of hearings looking at the aspects of H.R. 2067, the
    Protecting America's Workers Act, and the broader issue as how
    to keep Americans safe and healthy on the job.
        I look forward to a productive, lively debate this morning
    and yield back.
        [The statement of Mrs. McMorris Rodgers follows:]

               Prepared Statement of Hon. Cathy McMorris Rodgers,
         Ranking Minority Member, Subcommittee on Workforce Protections

        Thank you Madam Chair and good morning everyone.
        Since today is recognized around the world as Worker Memorial Day,
    I would like to begin my comments by acknowledging the family members
    who have come to Washington, DC to share their stories about loved ones
    injured or killed on the job. Yesterday, the House passed H. Res. 375
    honoring those who lost their lives in the workplace. I would like to
    extend my deepest sympathies and condolences to them.
        Turning to the focus of today's hearing, I would like to thank the
    Chairwoman for providing another opportunity to further examine H.R.
    2067, the Protecting America's Workers Act. We have before us a large
    panel of distinguished witnesses and I look forward to hearing their
    expertise on two specific issues: whistleblowers and victim's rights.
        As I mentioned during our hearing last month, providing a safe
    workplace should be an employer's number one responsibility.
        And, it should be a shared responsibility--one that reflects
    partnerships between the federal, state, and local governments, the
    private sector, employers, and other interested stakeholders.
        Notwithstanding these shared efforts, there is no doubt in my mind
    that workers should be able to report illegal or unsafe practices
    without fear. I don't think anyone here would have sympathy for an
    employer who did not take safety seriously.
        The provisions in the current OSH Act that protect employees who
    report these illegal and unsafe practices from retaliation are the
    subject of today's hearing. I look forward to hearing from our
    witnesses as to how these protections are implemented, what changes are
    needed, why they are needed, and whether the changes proposed by H.R.
    2067 are the most appropriate.
        I say this because with any legislative proposal, particularly one
    that changes longstanding policies, we must be certain that we are not
    doing more harm than good.
        In addition, today's hearing will examine what's known as
    ``victim's rights''--the information and cooperation afforded to those
    employees who are injured and families who have lost a loved one in the
    workplace. We will hear from one family about OSHA's failure to inform
    them of conclusions reached in fatality investigations, which is
    unacceptable. Current OSHA policy should have precluded this oversight.
    I am interested to learn why these policies were not implemented
    appropriately.
        Finally, I would just like to thank the Chairwoman for her interest
    in this topic and for giving us the opportunity to look more closely at
    workplace safety. This hearing is the latest in a series of hearings
    looking at aspects of H.R. 2067, the Protecting America's Workers Act,
    and the broader issue about how to keep Americans safe and healthy on
    the job.
        I look forward to a productive, lively debate this morning and
    yield back.
                                     ______

        Chairwoman Woolsey. Thank you very much.
        Now just for those of you who have not been witnesses in
    the past, I would like to explain our lighting system.
        We will turn on a green light when you begin your
    testimony, which means you have 5 minutes. When the light turns
    orange, you know you have 1 minute left, and we would hope you
    would be wrapping up your testimony at that point. I assure
    you, the floor does not open up, you do not fall into outer
    space if you get beyond the 5 minutes, but in order to keep the
    hearing going and have everybody have time. If you miss some
    point, then when the members are asking their questions, you
    can probably get to your point at that time.
        So now we are going to hear from our witnesses, starting
    with Deputy Assistant Secretary Barab.

    STATEMENT OF JORDAN BARAB, DEPUTY ASSISTANT SECRETARY OF LABOR,
    OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT
                                OF LABOR

        Mr. Barab. Thank you, Madam Chair, Ranking Member McMorris
    Rodgers, and members of the subcommittee.
        I recognize the significance of today's hearing being held
    on the 39th anniversary of the creation of the Occupational
    Safety and Health Administration, OSHA, and Workers Memorial
    Day. Today is the day set aside to recognize workers killed,
    disabled, injured, or sickened by their work; and today we meet
    under the shadow of three recent tragedies, the loss of 29
    miners in West Virginia, 7 refinery workers in Washington
    State, and the 11 workers still missing from the Deepwater
    Horizon.
        Now more than ever is the time to think seriously and act
    courageously to ensure that OSHA has the tools it needs to
    enforce safe working conditions and that this government
    provides workers and the victims the tools they need to help
    ensure those safe working conditions.
        Secretary Solis' vision for the Department of Labor is good
    jobs for everyone. Good jobs are safe jobs, but American
    workers still face unacceptable hazards.
        The administration supports the Protecting America's
    Workers Act, which would make meaningful, substantial, and
    long-overdue statutory changes in the Occupational Safety and
    Health Act, providing OSHA with important tools to strengthen
    and expand its enforcement programs. Two of the critical tools
    included in PAWA are the enhanced whistleblower protections and
    increased victims' rights.
        OSHA's inspectors are not able to visit more than a small
    fraction of this Nation's workplaces. The OSH Act therefore
    relies heavily on workers to help identify hazards at their
    workplaces. The authors of the OSH Act realize that employees
    are not likely to participate in safety and health activities
    if they fear they will lose their jobs. That is why Congress
    wrote 11(c) to protect employees from discrimination and
    retaliation when they report safety and health hazards or
    exercise other rights under the OSH Act. Without robust
    whistleblower protection, these voices may be silenced.
        PAWA would strengthen 11(c) by providing workers with basic
    rights like other, more recent whistleblower laws passed with
    broad bipartisan support have provided workers. PAWA would
    better protect the workers' rights to participate in making
    those working conditions safer by providing workers with a
    private right of action, an important element that is lacking
    in OSHA's current 11(c) provision. We believe it is critically
    important that if an employer fails to comply with an order
    providing relief, both OSHA and the workers should be able to
    file a civil action.
        PAWA will also grant workers the right to further pursue
    their case if OSHA does not proceed in a timely fashion, codify
    a workers' right to refuse to perform unsafe work, protect
    employees who refuse work because they fear harm to other
    workers, prohibit employer policies to discourage workers from
    reporting illnesses or injuries and prohibit employer
    retaliation against employees for reporting injuries or
    illnesses.
        PAWA would also increase the existing 30-day deadline for
    filing an 11(c) complaint to 180 days. Over the years many
    complainants, who might otherwise have had a strong case of
    retaliation, have been denied protection simply because they
    did not file within the 30-day deadline.
        Finally, PAWA would codify a number of OSHA's high
    standards for professionalism and transparency and conducting
    whistleblower investigations that are of critical importance to
    this administration. For example, PAWA requires OSHA to
    interview complainants and to provide them with a response and
    the evidence supporting the respondent's position. PAWA affords
    complainants the opportunity to meet with OSHA and to rebut the
    employers statements or evidence.
        Turning to victims' rights, OSHA has long known that
    workers and often their family can serve as OSHA's eyes and
    ears, identifying workplace hazards. Injured workers and their
    family often provide useful information to investigators
    because employees frequently discuss work activities and
    coworkers with family members.
        I want to thank Tonya Ford, whose uncle, Robert Fitch, was
    killed at Archer Daniels Midland on January 29, 2009, for
    coming to Washington today to testify and describe the tragic
    circumstances of Mr. Fitch's death and the unnecessary problems
    that she and her family faced getting information about what
    happened. We appreciate her suggestions on how to enforce or
    how to improve our enforcement proceedings to better involve
    victims and their families.
        It is OSHA's policy to talk to families during the
    investigation process and inform them about our citation
    procedures and settlements. Families are normally provided a
    copy of the citations when issued.
        We found, however, that some of OSHA's policies on victims'
    rights have not always been implemented consistently and in a
    timely manner. It is also clear that a letter is not adequate.
    Therefore, we will be strengthening those policies by putting
    them into a directive and adding them to the field operations
    manual.
        We will also be instructing our area directors to call the
    family to express condolences, advise that a letter is coming,
    and assure families that we will be staying in contact. In
    addition, we will be appointing family liaisons in every one of
    OSHA's 70 area offices.
        In general, OSHA supports the changes in PAWA for victims
    and their families. Our only concern is that we find a way to
    both fully ensure family and victim participation without
    unduly burdening or lengthening the process.
        Madam Chair, I appreciate the opportunity today to have
    discuss PAWA and how it would improve whistleblower protections
    and victims' rights. I believe stronger whistleblower
    protections and more substantial rights for victims and their
    families can lead to safer job sites and, ultimately, more men
    and women who go home safely to their families at the end of
    the day.
        I would be happy to answer your questions.
        [The statement of Mr. Barab follows:]

    Prepared Statement of Hon. Jordan Barab, Deputy Assistant Secretary for
            Occupational Safety and Health, U.S. Department of Labor

        Chair Woolsey, Ranking Member McMorris Rodgers and Members of the
    Subcommittee, thank you for the opportunity to testify today on the
    Protecting America's Workers Act (PAWA) particularly on the issues of
    whistleblower protections and victim's rights in OSHA's enforcement
    process.
        I recognize the significance of today's hearing being held on both
    the 39th anniversary of the creation of the Occupational Safety and
    Health Administration and Workers Memorial Day. Today is the day set
    aside to recognize workers killed, disabled, injured or sickened by
    their work--to honor the men and women who have died on the job and to
    rededicate ourselves to improving safety and health in every American
    workplace.
        This commitment is especially needed now, as we commemorate this
    Workers Memorial Day not only to remember the 29 brave miners who lost
    their lives at the Upper Big Branch mine, the 7 refinery workers who
    were killed the week before at the Tesoro refinery in Washington, but
    also the 14 workers who die on the job every day in this country.
        This hearing focuses on two areas that are crucial to reaching the
    goal set by the Occupational Safety and Health Act (OSH Act) to assure
    safe and healthful working conditions for all working men and women in
    the United States: 1) ensuring that workers are safe from retaliation
    for exercising their health and safety rights; and 2) ensuring victims
    of workplace incidents and their family members have information and a
    meaningful role in OSHA enforcement activities.
    Whistleblower protections
        Congress realized that OSHA inspectors would never be able to visit
    more than a small fraction of the nation's workplaces. The OSH Act
    therefore relies heavily on workers to help identify hazards at their
    workplaces. The authors of the OSH Act also realized that employees are
    not likely to participate in safety and health activities if they fear
    that they will lose their jobs or otherwise be retaliated against. That
    is why Congress wrote Section 11(c)--to protect employees from
    discrimination and retaliation when they report safety and health
    hazards or exercise other rights under the OSH Act. The OSH Act was one
    of the first safety and health laws to contain a provision for
    protecting whistleblowers.
        Section 11(c) was innovative and forward looking in 1970, but 40
    years later it is clearly antiquated and in dire need of substantial
    improvement. Achieving Secretary Solis' goal of Good Jobs for Everyone
    includes strengthening workers' voices in their workplaces. Without
    robust whistleblower protections, these voices may be silenced.
        This Administration strongly supports the whistleblower provisions
    of the Protecting America's Workers Act (PAWA), which expands the OSH
    Act's anti-retaliation provisions, codifies a worker's right to refuse
    to perform unsafe work, prohibits employer policies that discourage
    workers from reporting illnesses or injuries, prohibits employer
    retaliation against employees for reporting injuries or illnesses, and
    grants workers the right to further pursue their case if OSHA does not
    proceed in a timely fashion.
        OSHA currently administers the whistleblower provisions of sixteen
    other statutes, protecting employees who report violations of various
    trucking, airline, nuclear power, pipeline, environmental, rail,
    consumer product, and securities laws. In the four decades since the
    OSH Act became law, Congress has enacted increasingly expansive
    whistleblower protections in these other laws, leaving section 11(c) of
    the OSH Act in significant ways the least protective of the 17
    whistleblower statutes. It is time to bring OSHA's protections up to
    the same level of these other laws.
        Notable weaknesses in section 11(c) include: inadequate time for
    employees to file complaints; lack of an administrative forum for the
    adjudication of cases; lack of a statutory right of appeal; lack of a
    private right of action; and OSHA's lack of authority to issue findings
    and preliminary orders, so that a complainant's only chance to prevail
    is through the Department of Labor filing an action in U.S. District
    Court.
        PAWA would strengthen section 11(c) by including the full range of
    procedures and remedies available under the more modern statutes and by
    codifying certain provisions, such as exemplary damages and the right
    to refuse work that could result in serious injury or illness, which
    have been available but not expressly authorized by current statute.
    There is no reason that workers speaking up about threats to their
    safety and health should enjoy less protection than workers speaking up
    about securities fraud or transportation hazards. PAWA would also make
    explicit that a worker may not be retaliated against for reporting
    injuries, illnesses or unsafe conditions to employers or to a safety
    and health committee. This protection is already implicit in the OSH
    Act, but PAWA would leave no doubt in employers' or employees' minds
    about this right.
        PAWA is an improvement on OSHA's current law in significant ways.
    It would increase the existing 30-day deadline for filing an 11(c)
    complaint to 180 days, bringing 11(c) more in line with some of the
    other whistleblower statutes. Over the years many complainants who
    might otherwise have had a strong case of retaliation have been denied
    protection simply because they did not file within the 30-day deadline.
    For example, we received an 11(c) complaint from a former textile
    employee who claimed to have been fired for reporting to management
    that he had become ill due to smoke exposure during the production
    process. The worker contacted OSHA to file an 11(c) complaint 62 days
    after he was fired, compelling OSHA to dismiss the case as untimely
    under existing law. Under PAWA, however, OSHA would be able to
    investigate the merits of cases such as this one. Increasing the filing
    deadline to 180 days would greatly increase the protections afforded by
    section 11(c).
        PAWA's adoption of the ``contributing factor'' test for determining
    when illegal retaliation has occurred would be another significant
    improvement in 11(c). This test, which examines the employer's decision
    to take adverse action against the employee following whistleblower
    activity, is less stringent than the current ``motivating factor'' test
    to which OSHA is currently restricted. Adoption of the ``contributing
    factor'' test would make 11(c) consistent with other more recently
    enacted whistleblower statutes and would strengthen the whistleblower
    protections afforded to America's workers.
        The private right of action is another key element of whistleblower
    protections that is lacking in OSHA's current 11(c) provision and is
    contained in PAWA. It is critically important that, if an employer
    fails to comply with an order providing relief, both DOL and the
    complainant should be able to file a civil action for enforcement of
    that order in a U.S. District Court. We strongly support this
    provision.
        PAWA also allows complainants to move their case to another
    prescribed venue if the Department does not make prompt decisions or
    rulings. For example, PAWA would allow complainants to ``kick out''
    from an OSHA investigation to a de novo Administrative Law Judge (ALJ)
    hearing if the Secretary has not issued a decision within 120 days from
    the case filing; ``kick out'' from an ALJ hearing to district court if
    an ALJ has not issued a decision within 90 days of the request for a
    hearing; or ``kick out'' from an Administrative Review Board (ARB)
    hearing to district court if the ARB has not issued a final order
    within 60 days of the request for an administrative appeal. ``Kick-
    out'' provisions have become a standard feature of whistleblower
    protection statutes, and OSHA believes it is appropriate for 11(c)
    complainants to have the same right.
        The provision in PAWA allowing employees in states administering
    OSHA-approved plans to choose between Federal and State whistleblower
    investigations would likely result in a significant increase in the
    number of Federal complaints. All 22 states and territories that
    administer private sector plans are required to provide protections at
    least as effective as Federal OSHA's. We have some reservations about
    this provision because we are not convinced it would add much
    protection to workers in those states and it would be a significant
    drain on OSHA and Solicitor resources. We would welcome further
    discussions on how to best ensure whistleblower protections in these
    states.
        Finally, PAWA would codify a number of OSHA's high standards for
    professionalism and transparency in conducting whistleblower
    investigations that are of critical importance to this Administration.
    For example, PAWA requires OSHA to interview complainants and to
    provide them with the respondent's response and the evidence supporting
    the respondent's position. PAWA affords complainants the opportunity to
    meet with OSHA and to rebut the employer's statements or evidence.
    While we train our investigators on the critical importance of
    conducting thorough interviews with complainants and involving
    complainants in the rigorous testing of proffered employer defenses, we
    believe that requiring these investigative steps by statute would
    assist OSHA in its mission of providing robust protection to
    occupational safety and health whistleblowers.
        These legislative changes in the whistleblower provisions are a
    long-overdue response to weaknesses that have become apparent over the
    past four decades. This legislation makes good on the promise to stand
    by those workers who have the courage to come forward when they know
    their employer is cutting corners on safety and health and guarantees
    that they do not have to sacrifice their jobs in order to do the right
    thing.
        Not only do we support the provisions of PAWA intended to improve
    whistleblower protections, we would like to explore areas where we
    might want to go further.
        I would propose amending the OSH Act to provide for assessment of
    civil penalties against employers who violate the whistleblower
    provisions. Currently, while an employer found to be discriminating
    against an employee must make the employee whole again, there is no
    provision for civil penalties against employers. The provisions are not
    in the current version of PAWA but similar provisions were included in
    the S-MINER Act that was passed by this Committee and the full House of
    Representatives in 2008. Under such a provision, any employer found to
    be in violation of Section 11(c) of the Act would be subject to civil
    penalties of not less than $10,000 and not more than $100,000 for each
    occurrence of a violation.
        Additionally, as conclusion of these cases can often take many
    months, a provision should be made to reinstate the complainant pending
    outcome of the case. The Mine Safety and Health Act provides that in
    cases when the Mine Safety and Health Administration (MSHA) determines
    that an employee's complaint was not frivolously brought, the Review
    Commission can order immediate reinstatement of the miner pending final
    order on the complaint. OSHA's 11(c) complainants should have the same
    reinstatement rights.
    Victims' rights
        OSHA has long known that workers, and often their families, can
    serve as OSHA's ``eyes and ears,'' identifying workplace hazards.
    Workers injured in workplace incidents and their friends and family
    often provide useful information to investigators, because employees
    frequently discuss work activities and co-workers with family members
    during non-work hours.
        We are dedicated to findings ways to involve workers and their
    families in OSHA's enforcement investigations. Both Assistant Secretary
    Michaels and I make it a priority to set time aside to talk with
    victims' families whenever we have the opportunity.
        Last month, as part of an effort to reach out and hear from
    stakeholders on a variety of safety and health issues, we hosted ``OSHA
    Listens.'' As part of the event, we heard recommendations from the
    family members of workers killed on the job on how to enhance victims'
    and families' participation in the enforcement process.
        I want to thank Tonya Ford whose uncle, Robert Fitch, was killed at
    Archer Daniels Midland on January 29, 2009, for coming to Washington
    today to testify and describe to us the tragic circumstances of Mr.
    Fitch's death and the unnecessary problems she and her family faced
    getting information about what happened and what OSHA was doing. We
    appreciate the suggestions she has on how to improve our enforcement
    process and better involve victims and their families.
        Katherine Rodriguez, whose father was killed at the BP Texas City
    Refinery on September 2, 2004, also spoke at OSHA Listens and made
    several recommendations to OSHA officials on how to enhance the rights
    of victims' families. She said that before her father died in the
    hospital her family received information about the incident that might
    have been useful to OSHA investigators, noting that ``fellow coworkers
    are more willing to talk to the family members than any investigator.''
        Family members and co-workers are sincerely and understandably
    interested in learning how an incident occurred, finding out if
    anything could have been done to prevent it, and knowing what steps
    employers and employees will take in the future to ensure that someone
    else is not injured or killed in a similar situation.
        It is OSHA's policy to talk to families during the investigation
    process and inform them about our citation procedures and settlements.
    OSHA first contacts the family at the beginning of the inspection. All
    families get a letter from the Area Director discussing the process and
    advising that they will be kept informed. In some cases the families
    initially get a phone call. Families are then normally provided a copy
    of the citations when issued.
        However, we have found that some of these policies have not always
    been implemented consistently and in a timely manner. It is also clear
    that a letter is not adequate. Therefore, we will be putting these
    policies into a directive and adding them to our Field Operations
    Manual. We will also be instructing the Area Directors to call the
    family to express condolences, advise that a letter is coming, and
    assure families we will be staying in contact.
        In addition, we need to work on interacting with families following
    a tragedy. As might be expected, many OSHA inspectors understandably
    have trouble knowing how to interact with a person who has just lost a
    loved one in tragic circumstances. While brief training on this issue
    is provided to Compliance Officers at the Initial Compliance Course at
    the OSHA Training Institute, clearly more training is needed and will
    be developed. We will also develop webinars and webcasts for training
    of all compliance officers, team leaders, and Area Directors.
        In general, OSHA is supportive of expanding interactions with
    families and victims. Therefore, the Agency is examining the issue of
    victims' rights from the administrative level to seek ways to better
    ensure the rights of victims and their families to participate in
    OSHA's enforcement efforts. OSHA supports many of the changes to the
    OSH Act embodied in PAWA for victims and their families.
        PAWA would place into law, for the first time, the right of a
    victim (injured employee or family member) to meet with OSHA regarding
    the investigation and to receive copies of the citation or resulting
    report at the same time as the employer at no cost. PAWA would also
    enable victims to be informed of any notice of contest and to make a
    statement before an agreement is made to withdraw or modify a citation.
        However, we also want to ensure--and I think the families would
    also want to ensure--that the provisions of PAWA do not unduly slow
    down the inspection, enforcement and adjudication process, which only
    hurt victims and their families in the long run. We believe therefore
    that clarification is needed of the provisions allowing victims or
    their representatives to meet in person with OSHA before the agency
    decides whether to issue a citation, or the right to appear before
    parties conducting settlement negotiations. This could be logistically
    difficult for victims and OSHA's regional and area offices, resulting
    in significant delays in the negotiations and ultimate citation. OSHA
    would be happy to work with the Committee to address this issue.
        Madam Chair, I appreciate the opportunity to appear today to
    discuss PAWA and how it would improve whistleblower protections and
    victim's rights. I believe stronger whistleblower protections and more
    substantial rights for victims and their families can lead to safer
    jobsites and ultimately, more men and women who go safely home to their
    families at the end of the day. I would be happy to answer your
    questions.
                                     ______

        Chairwoman Woolsey. Thank you.
        Ms. Ford.

            STATEMENT OF TONYA FORD, NIECE OF ROBERT FITCH,
            A WORKER KILLED AT ARCHER DANIELS MIDLAND PLANT

        Ms. Ford. Dear Chairman Woolsey, Ranking Member McMorris
    Rodgers and members of the committee, my name is Tonya Ford;
    and I live in Lincoln, Nebraska.
        I would like to start off by saying thank you so much for
    this opportunity. It is a great honor to sit here and represent
    my family and other families who have lost their loved ones due
    to preventable work-related accidents.
        I support the Protect America's Workers Act because of what
    happened on January 29, 2009, when I lost my Uncle, Robert
    Fitch, or as I called him, Uncle Bobby, to a horrible,
    preventable work-related accident at the Archer Daniels Midland
    plant in Lincoln, Nebraska. My Uncle Bobby was 51 years old.
        Our lives changed forever that day when my uncle stepped
    into a belt-operated man lift in order to go to his work break,
    fell approximately 40 feet. As he fell, he impacted each wall
    in the cement elevator shaft and landed on the air duct,
    hitting it so hard it slid 19 feet from the connection point.
    At that point, my uncle slid off and fell through a manhole and
    then fell another 40 feet to the cement ground below. My dad,
    Uncle Bobby's brother-in-law, found him that day. My dad still
    works at this ADM plant.
        Since that moment, my life has become filled with gathering
    dates, statistics, evidence, and information. I started our
    research to answer our family's simple rules or--sorry--
    questions: What happened? Did he suffer? Did the device
    malfunction? Was the device too old and unsafe for my uncle and
    other employees that work at ADM?
        Something went terribly wrong that day; and my cousins,
    Jessica and Jeremy Fitch, my mom, and the rest of our family
    deserve to know what happened and why.
        I have come to the conclusion that if PAWA had been passed
    when it was first introduced, my uncle might have been alive 3
    weeks ago to place a rose on his mother's casket. Instead, when
    my grandmother passed away last month, we placed a single rose
    on an empty chair where he should have sat.
        PAWA is important not only because it included tougher
    penalties to discourage companies letting safety problems
    continue, because it extended additional rights to family
    members. If PAWA had been in place when my uncle died, my
    family would not have learned about the findings against ADM
    from a local news reporter. With the television camera rolling,
    the reporter asked me, what do you think about the penalties
    assessed by ADM? I could only respond we are not aware what the
    penalty is and that the investigation was even closed.
        This is how our family learned that ADM was fined $0 for
    having an old and dangerous belt-operating man lift in their
    plants. This piece of equipment caused my uncle's death, and
    that I have since been informed is inherently unsafe and very
    scary to use, a device that you should require specialized
    training for anyone to use it and a device that causes many
    injuries and even deaths. Yet ADM received no monetary
    penalties for having this deadly equipment in their plants.
        We asked why was ADM not fined from OSHA for the device
    that took my uncle from us? Nine months after hearing about
    zero penalties assessed to ADM, my family still did not have
    the answers. I reached out to OSHA for answers in January,
    2010, and OSHA agreed to meet with us. I was ready to ask them
    all the questions that resulted in my months of research in
    belt-operating man lifts. To my amazement, I learned that OSHA
    issued two citations to ADM that were classified as serious and
    specifically related to the dangerous belt-operating man lift.
    However, as part of the informal settlement between OSHA and
    ADM, the two citations related to the man lift and the monetary
    penalties were deleted.
        When we asked why OSHA told us that these dangerous man
    lifts were not covered by an OSHA standard under an OSHA
    standard issued in 1971, man lifts installed prior to August
    1971 are grandfathered in, meaning that OSHA standards did not
    apply to them. OSHA explained that because of this grandfather
    clause they could not have pulled the citation if ADM contested
    it, but through their settlement with the company ADM agreed to
    replace the belt-operating man lift that killed my uncle with
    an elevator.
        OSHA thought this was a good compromise, getting ADM to get
    rid of a highly dangerous piece of equipment and install
    something safer in its place. That is not good enough and here
    is why. This ADM facility where my uncle was killed and my dad
    still works had a total of five of these belt-operating man
    lifts. Stating they only had to replace just one of them did
    not get rid of the problem. These man lifts are operating in
    other ADM facilities across the country. This equipment kills
    workers. A company like ADM with a stock market value of $18.31
    billion should be compelled to replace all of these dangerous
    lifts immediately.
        I urge Congress to pass the Protect America's Workers Act
    because it would improve OSHA's ability to ensure workers are
    protected from dangers on jobs. I support the provision to
    increase OSHA's penalties and have them routinely adjusted for
    inflation, but penalties are only effective if OSHA has the
    ability to compel abatement, even if the employers contests the
    citation and penalties.
        The Federal mine safety agency has this authority for the
    300,000 workers it covers, and OSHA needs it for the 111
    million workers who rely on its protection. As a family, we
    believe if we are going to prevent more deaths and hurt, OSHA
    must be able to force abatement during the contest period.
        We strongly support all the provision of PAWA, including
    the new rights that would be given to family members. We
    believe it is very important for OSHA to meet with a family or
    their representatives before the agency finishes its
    investigation and for the families to have the opportunity to
    make a victims' impact statement if the case proceeds to the
    Occupational Safety and Health Review Commission.
        My Uncle Bobby gave 32 years to ADM, often working 7 days a
    week. My dad still works there, as do many other men and women.
    This month alone we have seen too much deaths and grief because
    of preventable workplace hazards. If the companies do not set
    the bar high enough for workers' health and safety, then OSHA
    must be empowered to do so. Thank you.
        [The statement of Ms. Ford follows:]

            Prepared Statement of Tonya Ford, Niece of Robert Fitch

        Dear Chairwoman Woolsey, Ranking Member McMorris-Rodgers and
    Members of the Committee: My name is Tonya Ford and I live in Lincoln,
    Nebraska. I would like to start off by saying thank you so much for
    this opportunity. It is a great honor to sit here and represent my
    family and other families who have lost their loved ones due to
    preventable work-related accidents.
        I support the ``Protecting America's Workers Act'' (PAWA) because
    of what happened on January 29, 2009 when I lost my Uncle Robert Fitch
    or as I called him Uncle Bobby to a horrible preventable work-related
    incident at the Archer Daniel Midland plant in Lincoln, NE. My Uncle
    Bobby was 51 years old.
        Our lives changed forever that day when my uncle stepped onto a
    belt-operated manlift in order to go on his work break and fell
    approximately 40 feet. As he fell, he impacted each wall in the cement
    elevator shaft, and landed on the airduct, hitting it so hard it slid
    19 feet from the connection point. At that point, my uncle slid off and
    fell through a manhole, and then fell another 40 feet to the cement
    ground below. My dad, uncle's Bobby's brother-in-law found him that
    day. My dad still works at this ADM plant.
        Since that moment, my life has become filled with gathering dates,
    statistics, evidence, and information. I started my research to answer
    our family's simple questions:
        What Happened?
        Did he suffer?
        Did the device malfunction?
        Was the device too old and unsafe for my uncle and the other
    employees working at ADM?
        I have come to the conclusion that if PAWA had been passed when it
    was first introduced, my uncle might have been alive three weeks ago to
    place a rose on his mother's casket. Instead, when my grandmother
    passed away last month, we placed a single rose on the empty chair
    where Uncle Bobby should have been seated. PAWA is important not only
    because it includes tougher penalties to discourage companies letting
    safety problems continue, but because it extends additional rights to
    family members. If PAWA had been in place when my uncle died, my family
    would not have learned about the fines assessed against ADM from a
    local news reporter.
        With the television camera rolling, the reporter asked me ``What do
    you think about the penalty assessed to ADM?''
        I could only respond: ``We are unaware what the penalty is and that
    the investigation was closed.''
        This is how our family learned that ADM was fined $0.00 for having
    the old and dangerous belt-operated man-lift in their plant. This piece
    of equipment caused my uncle's death, and that have since been informed
    it was inherently unsafe and very scary to use. A device that should
    require specialized training before anyone should use it a device that
    causes many injuries and even deaths. Yet, ADM received no monetary
    penalty for having this deadly equipment in their plant.
        We asked: Why was ADM not fined by OSHA for the device that took my
    uncle from us?
        Nine months after hearing about zero penalty assessed to ADM, my
    family still did not have answers. I reached out to OSHA for answers in
    January 2010, and OSHA agreed to meet with us. I was ready to ask all
    of the questions that resulted from my months of research on belt-
    operated manlifts.
        To my amazement, I learned that OSHA issued two citations to ADM
    that were classified as serious and specifically related to their
    dangerous belt-operated manlift. However, as part of an informal
    settlement between OSHA and ADM, the two citations related to the
    manlift and the monetary penalties were DELETED.
        When we asked why, OSHA told us that these dangerous manlifts were
    not covered by an OSHA's standard. Under an OSHA standard issued in
    1971 (29 CFR 1910.68.), manlifts installed prior to August 1971 were
    ``grandfathered in,'' meaning the OSHA standard did not apply to them.
    OSHA explained that because of this ``grandfather clause'' they could
    not uphold the citation if ADM contested it, but through their
    settlement with the company, ADM agreed to replace the belt-operated
    manlift that killed my uncle, with an elevator. OSHA thought this was a
    good compromise: getting ADM to get rid of a highly dangerous piece of
    equipment and install something safer in its place. That's not good
    enough. Here's why: This ADM facility where my uncle was killed and
    where my dad still works had a total of 5 of these belt-operated
    manlifts. Stating that they only had to replace just one of them does
    not get to the root of the problem. These manlifts are operating in
    other ADM facilities across the country. This equipment kills workers.
    A company like ADM, with a stock market value of $18.31 billion, should
    be compelled to replace all of these dangerous lifts immediately.
        I urge Congress to pass the Protecting America's Workers Act (H.R.
    2067 and S.1580) because it would improve OSHA's ability to ensure
    workers are protected from dangers on the job. I support the provisions
    to increase OSHA penalties and have them routinely adjusted for
    inflation. But, penalties are only effective if OSHA has the ability to
    compel abatement even if the employer contests the citation and
    penalty. The federal mine safety agency (MSHA) has this authority for
    the 300,000 workers it covers, and OSHA needs it for the 111 million
    workers who rely on its protections. As a family, we believe that if we
    are going to prevent more deaths and hurt, OSHA must be able to force
    abatement during the contest period.
        We strongly support all the provisions of PAWA, including the new
    rights that would be given to family mem*bers. We believe it is very
    important for OSHA to meet with a family or their representative before
    the agency finishes its investigation and for a family to have the
    opportunity to make a victims' impact statement if the case proceeds to
    the Occupational Safety and Health Review Commission.
        My Uncle Bobby gave 32 years to ADM, often working seven days a
    week. My dad still works there, as do many other men and women. This
    month alone we have seen too much death and grief because of
    preventable workplace hazards. If companies do not set the bar high for
    worker health and safety, then OSHA must be empowered to do so.
        Thank you.

                                     ______

        Chairwoman Woolsey. Thank you.
        Mr. Morikawa.

                     STATEMENT OF DENNIS MORIKAWA,
                      MORGAN, LEWIS & BOCKIUS LLP

        Mr. Morikawa. Thank you very much, Chairwoman Woolsey,
    Ranking Member McMorris Rodgers, members of the subcommittee,
    and fellow members of this panel.
        My name is Dennis Morikawa, and I am a partner at the
    Philadelphia law firm of Morgan, Lewis & Bockius. I appreciate
    the opportunity to appear before you at this hearing to address
    the victims' rights provisions of the latest draft of the
    Protecting America's Workers Act legislation. I am testifying
    today on behalf of the U.S. Chamber of Commerce and my
    testimony, and comments are not intended to represent the views
    of Morgan, Lewis & Bockius or its clients.
        On this very special Workers Memorial Day, I want to assure
    that our thoughts and prayers are with the families and victims
    who have lost their lives on the job. I think it should be a
    common goal of all of us to prevent accidents and to end
    fatalities in the American workplace, and I share Ms. Ford's
    sentiment with respect to that issue.
        As I mentioned, I am a partner with Morgan, Lewis, having
    been with them since 1974; and during that time I have
    practiced in the area of Occupational Safety and Health law. As
    a consequence of that, I have had a good opportunity to see the
    inner workings of how OSHA works both in the inspection, in the
    citation, the settlement, and the litigation process of OSHA
    cases. I have literally represented clients in hundreds of OSHA
    cases.
        However, the aspect of my practice in which I am most proud
    has been in providing the basis for the creation of coalitions
    of employers dedicated to cooperating for the purpose of ending
    accidents and fatalities on the job.
        I refer specifically to the work that I did with the
    Electrical Contractors Transmission and Distribution Strategic
    Partnership for Safety, better known as the ET&D partnership,
    which represents a coalition of six of the largest union and
    nonunion electrical transmission contractors in the United
    States who, in 2004, banded together to create a unique
    partnership which matched these contractors with the
    International Brotherhood of Electrical Workers, the National
    Electrical Contractors Association, and the Edison Electric
    Institute.
        The express purpose of that partnership was to bring about
    a substantial reduction in injuries and fatalities in the
    electrical construction industry and to create rigorous
    standards for best practices to be utilized by companies in
    that industry to bring about a real change in the industry
    safety culture, in other words, to really make a difference.
        I am very proud to tell you that the statistics that have
    been done with respect to the success of this partnership
    indicate that between 2003 and 2009 fatality rates for ET&D
    partners declined by almost 80 percent; and the lost workday
    injury and illness rate for partners was reduced to a
    remarkable. 89, which represents less than one injury per 100
    workers in an industry which has long been characterized by
    OSHA as a high hazard industry.
        It demonstrates that when a coalition of employers and
    labor and employees and associations get together for the
    common purpose of ending accidents, stopping injuries, and
    stopping fatalities on the job, it can, in fact, be effective
    and be a 21st century model for new safety and health
    approaches.
        Let me make it clear today that my brief comments are
    intended to focus solely on the issue of victims' rights in
    section 306 of PAWA. As you are aware, the Chamber has made
    previous comments earlier on March 16 with respect to broad
    aspects of this legislation. It is important to point out that
    the basic substance of victims' rights as set forth in section
    306 of PAWA is in many respects a codification of existing
    procedures already set forth in OSHA's Field Operations Manual,
    or the FOM, or FOM, as it is referred to.
        I think Deputy Assistant Secretary Jordan Barab did an
    excellent job in talking about and summarizing the OSHA
    procedures that have been in effect for over 15 years, which
    address communications with and the provision of information to
    victims and their family members. We commend Mr. Barab for his
    recognition that some of the FOM policies have not always been
    followed by OSHA consistently and in a timely manner, and Mr.
    Barab has pledged to place new policies into a directive and to
    make new amendments to the FOM to address these issues.
        Mr. Barab also states that OSHA will be revising their
    training and compliance office to address interactions with
    victims' families. We applaud OSHA's initiatives in that
    regard.
        But in contrast to the FOM procedure, section 306 now
    provides that victims and their family members are to be given
    the right to meet with OSHA prior to OSHA's decision to issue
    or not issue a citation and requires that, prior to OSHA
    entering into any agreement to settle a citation, OSHA must
    notify the victims or the representatives of the victims about
    the settlement meeting in order to give the victim or their
    representative an opportunity to appear and make a statement in
    front of the parties conducting those settlement negotiations.
        We agree with Assistant Secretary David Michaels' view
    expressed on March 16 that victims and their families desire to
    be more fully involved in the remedial process, but we also
    agree with Dr. Michaels' comments given to the subcommittee in
    which he urged that clarification was needed with respect to
    section 306, particularly as to the provisions allowing victims
    and their representatives to meet in person with OSHA before
    the agency decides to issue a citation and also to make
    statements at contested hearings that follow. Dr. Michaels has
    pointed out that this could create logistical difficulties for
    victims as well as OSHA's regional and area offices, which
    could result in significant delays in the negotiations and
    ultimate resolution of cases which, according to Dr. Michaels,
    could hurt the victims and their families in the long run.
    Deputy Assistant Secretary Barab's comments today strongly
    support that point.
        In addition to the issues identified by Dr. Michaels, we
    would add that section 306 is made potentially more problematic
    by the provision for the involvement of representatives of the
    victim, as that term has not been defined specifically in the
    section. While section 306 does define victim and family
    member, the section does not make clear what representatives
    are contemplated within 306.
        Now, Tonya Ford's moving and eloquent tribute to her uncle
    this morning is an excellent example of where a family member
    represents the deceased loved one in conveying the thoughts and
    emotions of her family; and we thank her for those comments.
    However, we would submit that further clarification needs to be
    made with respect to whether the ``representatives'' of the
    victim contemplated by this section is intended to be somebody
    other than a family member, such an attorney, for example, the
    involvement of which may, in the concept of Assistant Secretary
    Michaels, create delays that could hamper the process.
        In conclusion, we urge this committee to more clearly
    clarify the rights, duties, and responsibilities of the
    entities covered under discussion in draft section 306, which
    purports to address victims' rights, and to determine if
    section 306 truly advances the interests of safety and health
    through a fair, efficient, and prompt resolution of matters
    before OSHA and the Commission.
        We would point out that OSHA needs the opportunity to
    exercise prosecutorial discretion with respect to the matters
    that they handle. They are an understaffed agency with a very,
    very big mission. We support their efforts, and we hope that
    they will continue those efforts towards ending accidents and
    fatalities on the job.
        Thank you.
        [The statement of Mr. Morikawa follows:]

      Prepared Statement of Dennis J. Morikawa, Partner, Morgan, Lewis &
             Bockius LLP, on Behalf of the U.S. Chamber of Commerce

        Good morning, Chairwoman Woolsey, Ranking Member McMorris Rodgers
    and members of the Subcommittee. My name is Dennis J. Morikawa and I am
    a Partner with the Philadelphia office of Morgan, Lewis & Bockius LLP.
    I appreciate the opportunity to appear before you at this hearing to
    address the victim's rights provisions in Section 306 of the latest
    draft of the Protecting America's Workers Act legislation (HR 2067; S
    1580). My testimony will largely focus on these provisions but I would
    be happy to answer questions on any of the important issues raised by
    this proposed legislation.
        I am testifying today on behalf of the U.S. Chamber of Commerce,
    the world's largest business federation with over three million
    businesses of all sizes, sectors and regions, as well as state and
    local chambers and industry associations. Critical to the issues that I
    will be discussing this morning, approximately 96% of the Chamber's
    members are small businesses employing 100 or fewer employees. I have
    been a participant in activities of the Chamber's Labor Relations
    Committee and have appeared before and participated in meetings of the
    OSHA Subcommittee. My testimony and comments are not intended to
    represent the views of Morgan, Lewis & Bockius LLP or any of our
    clients.
    Background and experience in occupational safety and health law
        I have been with Morgan, Lewis & Bockius LLP since 1974. In the 36
    years that I have practiced law, I have devoted a significant part of
    my practice to labor and employment matters, specifically focused on
    workplace safety and health, including matters arising under the
    Occupational Safety and Health Act (``OSH Act'') and OSHA state plans.
    I am past Management Co-Chair of the American Bar Association Committee
    on Occupational Safety and Health Law and have participated in numerous
    panels and symposiums on OSHA Law with representatives from OSHA, the
    Occupational Safety and Health Review Commission, leading trade
    associations and labor unions as well as leading practitioners in this
    field.
        Morgan Lewis's OSHA Practice Group, which I lead, has a combined
    total of more than 100 years of experience and includes among others,
    the former Acting Assistant Secretary of Labor and Deputy Assistant
    Secretary for OSHA, Jonathan L. Snare, as well as the past Solicitor of
    Labor, Howard M. Radzely. Throughout my years of practice, I have
    represented numerous clients in a wide variety of industries, such as
    oil refineries, construction, manufacturing, electrical utilities,
    retail, shipping, shipbuilding, meat packing and poultry processing,
    supermarkets, healthcare, chemical manufacturing, steelmaking and auto
    making.
        Over the course of my career, I have represented clients in every
    conceivable type of OSHA-related activity including rulemaking, advice
    and counseling, strategic planning and handling OSHA inspections and
    citations. On the enforcement side of my practice, I have participated
    in all stages of the contested case process before the Occupational
    Safety and Health Review Commission (``Commission'' or ``OSHRC''), as
    well as with OSHA's state plan partners, from the initial contest
    decision, through discovery and trial, as well as appeals, and
    including numerous settlement negotiations and mediations. On the
    compliance side of my practice, I have assisted clients in developing
    methods and strategies to comply with all applicable OSHA workplace
    safety and health rules and requirements.
        In fact, the area of my OSHA practice in which I have been involved
    that has given me the greatest sense of achievement has been my work
    with OSHA compliance and cooperative programs and, in particular, the
    Electrical Contractors Transmission and Distribution (``ET&D'')
    Strategic Partnership for Safety, a coalition of six of the largest
    union and non-union electrical transmission construction contractors in
    the United States representing over 70% of the employees in that
    industry. In August of 2004, these contractors, along with OSHA, the
    International Brotherhood of Electrical Workers (IBEW), the National
    Electrical Contractors Association (NECA) and the Edison Electric
    Institute (EEI) created the ET&D Strategic Partnership whose principal
    purpose was to change the safety culture of their industry in order to
    reduce injuries and fatalities involving industry workers.
        In the six years since the ET&D Partnership was created, there have
    been dramatic reductions in injuries and fatalities with fatality rates
    of the Partners being reduced by almost 80% and the Lost Workday Injury
    Rates of Partners reduced to a remarkable .89 (less than one injury per
    100 workers) in an industry which has long been regarded by OSHA as a
    ``high hazard industry.'' In our view, the ET&D Partnership represents
    a prototype 21st century model for effective management of workplace
    safety and health which places the greatest emphasis on the prevention
    of injuries and fatalities rather than focusing only on OSHA
    violations. In my view and based on my experience during my 36 years of
    legal practice, the vast majority of employers do take safety seriously
    and many employers have made extraordinary efforts to bring about
    positive changes in their industries as evidenced by the ET&D
    Partnership.
    Comments on the Protecting America's Workers Act victim's rights
            provisions
        At the outset, let me be clear that the brief comments I am
    offering this morning are not intended to focus on the broad issues set
    forth in the PAWA discussion draft, but are limited to the issue of
    Victim's Rights as set forth in draft Section 306. As you may be aware,
    on March 16, 2010, my Partner, Jonathan Snare, testified with respect
    to the broad scope of PAWA and its subparts and I do not intend to
    reiterate the points that he made at that time. Rather, I have been
    asked today to speak to the issue of what rights should be accorded to
    a victim or the representative of a victim, either in matters before
    OSHA or in contested matters pending before the Commission.
        While we have some questions, we understand the discussion draft as
    saying that an employee who has sustained a work-related injury, or a
    family member on behalf of that employee (because the employee dies on
    the job or is physically incapacitated and unable to exercise his or
    her rights under this Section), would be able to meet with the
    Secretary regarding the inspection or investigation prior to the time
    that the Secretary has made a decision to issue a citation or to take
    no action. Thereafter, the victim or his/her representative is entitled
    to receive copies of any citation or reports issued as a result of the
    inspection or investigation, to be informed of any Notice of Contest or
    addition of parties to the proceedings and finally to be provided
    notification of the date and time of any proceedings, service of
    pleadings or other relevant documents, as well as to be informed of
    his/her rights in a proceeding under Section 10(c).
        With respect to matters pending before the Commission, it is our
    understanding that the victim or representative of the victim will, in
    addition to being notified of the time and dates of any proceedings
    before the Commission, receive pleadings and any decisions related to
    the proceedings and will be provided an opportunity to appear and make
    a statement in accordance with the rules prescribed by the Commission.
    In addition to the above, Section (c) ``Modification of Citation''
    provides that, before entering into any agreement to withdraw or modify
    a citation, the Secretary must notify the victim or the victim's
    representative and provide such person the opportunity to appear and
    make a statement before the parties conducting settlement negotiations.
        The provisions of Section 306 basically codify provisions of OSHA's
    Field Operations Manual (``FOM'') which provides in Chapter 11-12(G)
    that OSHA must contact the family members of employees who have been
    involved in fatal or catastrophic occupational accidents or illnesses
    and provide them with information regarding OSHA's activities with
    respect to any inspection and citation which may result from the fatal
    or catastrophic occupational accident or illness. Indeed, Chapter 11-
    12(G)(4) of the FOM provides that contact persons on behalf of the
    family should be kept up-to-date on the status of the investigation and
    OSHA will provide family members or their representatives with a copy
    of all citations, subsequent settlement agreements or Commission
    decisions that are issued as a result of the investigations and
    citations. In compliance with the Freedom of Information Act
    (``FOIA''), case files and other confidential investigative information
    assembled by OSHA as part of its investigation and citation are not
    made available to the family or their representatives until after the
    litigation has been completed.
        As evidenced by the FOM provisions, OSHA has for many years
    provided to victims or the families of victims' information that is
    very similar to that which is provided for in Section 306. However, as
    set forth in the FOM, the procedures for notifying family members with
    respect to the status of investigations have never required face-to-
    face meetings with OSHA to discuss possible citations or settlements or
    opportunities to appear and make statements to the parties prior to any
    settlement of the citations. Nor have the Commission's rules included
    the rights of victims to appear at proceedings before the Commission.
    To that end, we fully concur with the comments of Assistant Secretary
    of Labor for OSHA, Dr. David Michaels, at this Subcommittee's March 16,
    2010 hearing on PAWA, that further clarification needs to be made
    because provisions for face-to-face meetings and the making of public
    statements could present logistical challenges which could delay
    resolution of the citations and, in Dr. Michaels' words, ``hurt the
    victim in the long run.'' (Michaels Statement at p. 14)
        Another issue which needs further clarification is what is intended
    by the use of the term ``representative of the victim.'' (Section 306,
    of the discussion draft adding Section 9A(a) to the OSH Act.) The term
    ``victim'' is defined in Section 9A(f) to include a ``family member''
    ``if'' (and thus only if) the victim is deceased or incapacitated and
    thus cannot appear. The term ``representative'' is not defined and
    could be read to include yet another person in the proceedings. Because
    the structure of Section 9A(f) provides that a representative in the
    form of a family member may only appear when the victim is deceased or
    incapacitated, the term ``representative of the victim'' should be
    clarified to include only family members. Any broader reading of the
    term ``representative'' would fundamentally change the impact of the
    provision.
        For example, a ``representative of the victim'' could be
    interpreted to include a private attorney who is involved in third-
    party litigation related to the matter. The involvement of an attorney
    could create the potential for further delays as envisioned by Dr.
    Michaels in his March 16, 2010 testimony (Michaels Statement at p. 14)
    and exacerbate the settlement process. Further, involving a private
    attorney in settlement meetings at any level could have a ``chilling
    effect'' on those settlement meetings by discouraging the parties from
    engaging in the candid discussions which are necessary in order to
    accomplish the settlement of OSHA cases. Because OSHA is committed in
    the first instance to enforcing OSHA laws and standards on behalf of
    employees, it stands to reason that OSHA must have the prosecutorial
    discretion with respect to its investigation to determine what actions
    it needs to take to enforce OSHA standards, consistent with its
    resources and priorities, without interference and/or delays related to
    meetings with outside parties. (Michaels Statement at p. 14) In our
    view, providing information directly to victims or the victims'
    families is fully consistent with past practice as set forth in the FOM
    and has been proven to be a manageable and non-disruptive method for
    involving victims or victims' families in the OSHA enforcement process.
        This discussion of representation at settlement meetings raises
    another issue in the draft version of PAWA requiring clarification. In
    my many years of experience I have found that settlements, particularly
    in the types of complex cases that arise following a fatality, require
    several meetings to reach settlement. Often the first meeting is an
    Informal Conference with OSHA. Thereafter, for any contested case
    before the Commission with penalties over $100,000, such case is
    assigned to Mandatory Settlement Proceedings including a meeting with
    an assigned Settlement Judge. Section 9A(c) of the discussion draft
    provides in the singular that a victim may make ``a statement.''
    However, the discussion draft version of PAWA does not address when
    that statement will be made except that the opportunity must be
    provided prior to entering into an actual agreement. Thus that version
    of PAWA is unclear on whether the victim must be provided an
    opportunity to appear at a particular proceeding or, when there are
    multiple meetings, whether the victim must be provided the opportunity
    to appear at multiple proceedings. Consistent with the structure of the
    discussion draft version of PAWA, the opportunity to appear at a single
    meeting to make a statement would be consistent with the goals of the
    legislation and would not be disruptive. On the other hand, requiring
    that victims, or their representatives, be included in all settlement
    proceedings would create scheduling difficulties and likely delay
    proceedings.
        By these comments we do not mean to diminish in any way the tragedy
    of employee injuries and fatalities which have occurred, particularly
    those in recent weeks. Our thoughts and prayers are with the victims
    and their families. We are fully supportive of the right of victims or
    their families to be kept fully informed as to OSHA's inspections,
    citations and subsequent enforcement actions with respect to any
    accident or other catastrophe that may have caused serious injuries or
    death to these employees. However, we are also mindful of the need for
    OSHA to have the ability to make reasoned and independent prosecutorial
    decisions with respect to the nature and manner of their investigations
    and whether, and to what extent, citations should be issued with
    respect to these investigations. Similarly, decisions related to
    settlements or litigation of matters must continue to be within the
    exclusive province of those entities which are statutorily mandated to
    enforce the Occupational Safety and Health Act and to act as the
    ``representative'' of the employee in terms of assuring that employees
    are provided with a safe and healthy workplace.
    Conclusion
        Accordingly, for all of the reasons I have outlined above, I
    believe further clarification of the rights, duties and
    responsibilities of the entities covered under discussion draft Section
    306, which purports to address Victim's Rights, is necessary to truly
    advance the interests of safety and health in the workplace. Indeed, as
    I previously mentioned, we all agree that employees who are injured on
    the job and families who have lost a loved one due to workplace
    accidents should be an important part of this process, and we all
    deeply sympathize with all such employees and their families. In fact
    the most important goal of any OSHA legislation that this Subcommittee
    considers, including the Section 306 that we have discussed here today,
    is whether it will result in the prevention of workplace injuries and
    fatalities. Preventing injuries and fatalities would reduce the number
    of injured employees, as well as families of employees who lost their
    lives, who need to rely upon the victim's rights provisions in Section
    306 of PAWA. This should be our ultimate objective.
        Thank you for providing this opportunity for me to discuss these
    important issues with you today, and I would be happy to answer any
    questions that you may have.
                                     ______

        Chairwoman Woolsey. Thank you very much.
        Dr. Monforton.

     STATEMENT OF CELESTE MONFORTON, ASSISTANT RESEARCH PROFESSOR,
    DEPARTMENT OF ENVIRONMENTAL AND OCCUPATIONAL HEALTH, THE GEORGE
                         WASHINGTON UNIVERSITY

        Ms. Monforton. Chairwoman Woolsey and members of the
    subcommittee, I am Celeste Monforton, an assistant research
    professor at the George Washington University School of Public
    Health. I appreciate the opportunity to be here today and ask
    that my written statement be made part of the hearing record.
        One of the most rewarding and enlightening experiences of
    my public health career was my involvement in 2006 in the Sago
    Mine disaster investigation, and some of those family members
    are here today. I came to understand and appreciate that family
    member victims can make a meaningful contribution to the
    accident investigation process.
        I heard then and I still hear today that family members
    will impede the investigation, that family members have a
    conflict of interest, or that family members are just too
    emotional to be useful in fact finding. My experience tells me
    that nothing is further from the truth.
        With Sago, no one paid closer attention to the details,
    pressed the investigators harder for answers, and raised the
    bar higher for mine safety reforms. I relish the opportunity in
    the question and answer period to respond to Mr. Morikawa's
    comments about having attorneys representing family members.
        It is my experience, working with the Sago families and
    other family member victims that inform my views today. OSHA
    does have a long-standing policy related to victims' families.
    From my experience, however, the objective of that policy is
    vague, leading to vastly different experiences among family
    members, depending on the OSHA area office or the State plan.
        A condolence letter sent to the wife of Ray Gonzalez, for
    example, was mailed to her in September, 2004, after he
    suffered burns at the BP Texas City facility. Mr. Gonzales,
    however did not die until November, 2004.
        In addition, in the second and third paragraphs of the
    letter, it does not mention her husband but a different
    deceased worker. Gross and insensitive errors such as this do
    not give families much confidence in the quality of OSHA's
    accident investigations.
        In my testimony, I describe the experience of Maureen
    Ravetta, whose husband was killed in September, 2009. No widow
    should feel incompetent for not understanding or comprehending
    OSHA's procedures. It should be OSHA's duty to make sure that
    family members understand their procedures, taking into account
    how shock and grief can affect one's ability to process
    information.
        I also heard at last month's hearing the witness
    representing the Chamber of Commerce asserting that involving
    family members does not appear to add much value other than to
    sensationalize. That comment is terribly uninformed,
    particularly with the reality of what families can offer to
    investigators. Speak to any of the family members present here
    today. They will impress you with their knowledge of the
    factors that contributed or caused their loved one's death and
    their suggestions for ways a worker injury and illness
    prevention system can be improved.
        PAWA could go further and build on provisions for a family
    liaison, as contained in the Miner Act of 2006. Family liaison
    requirements must be strengthened and elevated to statutory
    duties of the agency. Rights for family members and injured
    workers are too important to be contained in policy.
        I fully support PAWA's provisions to reform the
    whistleblower protections in section 11(c) of the OSH Act. When
    I worked at OSHA in the early 1990s, it was apparent to me, a
    newcomer to the Labor Department, that the 11(c) program was a
    stepchild of the agency. The whistleblower witness here today,
    Mr. Neal Jorgensen, is an excellent example of why individuals
    should not be held captive because of Labor Department's
    failures.
        Whether the problems at the DOL are resource constraints,
    lack of interest, litigation anxiety, or their client is a
    secretary, not the claimant, health and safety whistleblowers
    must be afforded a private right of action to pursue their
    case.
        At one time, I thought that the whistleblower protection
    functions delegated to OSHA could be at the heart of a health
    and safety protection system, but I no longer believe that to
    be the case. The subcommittee should consider a bolder reform
    to improve protection for whistleblowers. I applaud your
    efforts, Chairwoman Woolsey, and your leadership on this
    crucial issue; and I support your proposal from the 110th
    Congress to create a separate, independent agency to administer
    all Federal whistleblower statutes.
        Vigilant defense of workers who exercise their
    whistleblower rights, especially issues related to health and
    safety, is fundamental to an effective occupational injury and
    illness prevention system. I am pleased to answer your
    questions.
        [The statement of Ms. Monforton follows:]

       Prepared Statement of Celeste Monforton, DrPH, MPH, Department of
    Environmental & Occupational Health, School of Public Health and Health
                     Services, George Washington University

        Chairwoman Woolsey, Ranking Member Ranking Member McMorris-Rodgers
    and Members of the Committee: I am Celeste Monforton, an assistant
    research professor in the Department of Environmental and Occupational
    Health at the George Washington University School of Public Health &
    Health Services, and immediate past chair of the Occupational Health &
    Safety Section of the American Public Health Association.
        Today, people around the globe are marking Worker Memorial Day, the
    day set aside to remember workers killed, disabled, injured or made
    unwell by their work, and to act to improve protections for the world's
    workers. In the U.S, if we compare our occupational fatality injury
    rate to those, for example, in Germany or Norway, their rates are 82%
    and 150% better than ours. [See Appendix A] We can do much better.
    Let's honor the men, women and young workers whose lives were cut short
    or irreparably harmed by on-the-job conditions by making needed changes
    to our nation's worker health and safety system. The Protecting
    America's Workers Act (H.R. 2067) is a step in the right direction. I
    appreciate the opportunity to appear before you today to discuss
    provisions of the bill, in particular those related to whistleblowers'
    and victims' rights.
    Section 306: Victims' rights
        One of the most rewarding and enlightening experiences in my public
    health career was my involvement in the 2006 Sago mine disaster
    investigation. I came to understand and appreciate that family-member
    victims can make a meaningful contribution to the accident
    investigation process. There is no one more interested in finding the
    truth about the cause of an on-the-job death than a worker's loved one.
        I heard then (and still hear today) that family members will impede
    the investigation, that family members have a conflict of interest, and
    that family members are too emotional to be useful in the fact-finding.
    My experience tells me that nothing is further from the truth. With
    Sago, no one paid closer attention to details, pressed the
    investigators harder for answers, or raised the bar higher for mine
    safety reforms than those daughters, wives and brothers.
        Putting oneself in the family members' shoes, you realize that
    dozens of people (people you don't know and have never met) are
    learning the circumstances that led to your loved one's death, but
    you--his parent, his wife, his child--are left in the dark. As I talked
    with family members in the early days of the Sago investigation, as
    these interviews were first taking place, I realized that we needed to
    balance the families' right to know with the needs and the legal
    responsibilities of technical investigators. Although not ideal for the
    families because they were forced to wait until all interviews were
    completed, we gave each family a complete set of the transcripts.
    Despite the unease and anxiety expressed by some, including the
    historically based assertion that such disclosures would impede the
    investigation, no calamity ensued. In fact, some of the family members
    devoted long days and nights to studying the transcripts and were able
    to alert us to inconsistencies in witnesses' testimony and identify
    topics deserving closer scrutiny.
        It is my experiences working with the Sago miners' families and
    since that time providing advice and encouragement to other family-
    member victims that inform my views.
        At the subcommittee's hearing on March 16, 2010, OSHA assistant
    secretary David Michaels indicated that OSHA:
        ``* * * for the past 15 years has informed victims and their
    families about our citation procedures and about settlements, and
    talked to families during the investigation process.'' \1\
        It's true that OSHA has a policy about sending a condolence letter
    and giving family members an opportunity to discuss the circumstances
    of their loved one's work-related death.\2\ From my experience,
    however, the objective of that policy is vague, leading to vastly
    different experiences among family members depending on the OSHA area
    office or State Plan. Some of policy's failures are illustrated by the
    errors contained in the condolence letters sent by OSHA. For example, a
    letter sent to the wife of Ray C. Gonzalez, 54, by the OSHA area office
    expressing sympathy for her loss was sent to her in September 2004
    shortly after he suffered severe burns at the BP Texas City facility.
    Mr. Gonzalez did not die, however, until November 12, 2004. In
    addition, the letter mentioned her husband, Ray Gonzalez, in the first
    paragraph, but in the second and third paragraphs, it listed Mr.
    Maurice Moore, Jr., another worker who was fatally injured in the
    deadly incident. Gross and insensitive errors such as this do not give
    families much confidence in the quality of OSHA's work, let alone its
    accident investigation.
        Other failures involve the appropriateness or usefulness of the
    information provided to a family. For example, Ms. Maureen Ravetta's
    husband Nicholas, 32, was killed on September 3, 2009 in an explosion
    at a U.S. Steel plant in Clairton, PA. Maureen recalls receiving a
    condolence letter from OSHA and knew that they were investigating the
    circumstances surrounding his death. In mid-March, she had been
    corresponding on the social networking site Facebook with other family
    members and wanted advice on how to find out the status of OSHA's
    investigation. Before contacting her, I did a little research and
    discovered that OSHA finished their investigation and closed the case
    on February 2nd (exactly six months after their investigation began.)
        Tammy Miser of United Support and Memorial for Workplace Fatalities
    (USMWF) and I immediately called Maureen Ravetta to tell her what I'd
    learned about her husband's case. She was shocked to learn the case was
    closed and hurt that she didn't know it. She said something like:
        ``I feel like a fool. I've been sitting around waiting for OSHA to
    call or let me know, and now I find out they closed the case 5 weeks
    ago.''
        I dreaded hearing, but anticipated her next question: ``What did
    OSHA find?''
        Regretfully, I explained that information I found on OSHA's website
    indicated that U.S. Steel was not cited for any violations related to
    her husband's death and no monetary penalties were assessed. I tried to
    explain both OSHA's investigation process and their focus on
    identifying violations of specific safety standards. I could tell that
    none of that was making any sense to her; she was numb from the news.
        I asked if she had received a letter from OSHA following her
    husband's death and if it explained the agency's procedures. She
    recalled the letter, but said it didn't mention anything about a six-
    month deadline for issuing citations. Ms. Ravetta said:
        ``Had I known about the six-month deadline, I would have picked up
    the phone on that exact date and called OSHA to hear what they found.
    Instead, I've been waiting for them to contact me.''
        She repeated again, ``I feel like a fool.''
        No widow should feel incompetent for not comprehending OSHA's
    procedures. It should be OSHA's duty to make sure that family members
    understand their procedures, taking into account how shock and grief
    can affect our ability to process information. For some individuals, a
    simple letter may suffice, but for others, perhaps most, OSHA may need
    to follow up with a phone call, or to check in from time to time during
    the investigation and contest period to see if the family has questions
    or concerns. I hear about the luncheons and speeches that OSHA
    officials attend across the country throughout the year to keep trade
    associations and business groups apprized of OSHA activities. Surely,
    frequent and open communication with victims' families should take a
    higher priority.
        At the subcommittee's hearing last month, the witness representing
    the U.S Chamber of Commerce asserted that involving family members
    ``does not appear to be much value * * * other than to sensationalize
    presumably already emotional and sensitive matters.'' That comment is
    terribly uninformed, particularly to the reality of what family members
    can offer to investigators. I would invite Members of this Subcommittee
    to speak to any of the family members present here today. They will
    impress you with their knowledge of factors that contributed to or
    caused their loved ones' deaths, and their suggestions for ways our
    worker injury and illness system can be improved.
        I've reviewed the victims' rights provisions of the discussion
    draft of H.R. 2067. It will offer family members the following
    opportunities to be involved in the investigation process:
        1. Meet with the Secretary's representative (e.g., OSHA official)
    before a decision is made to issue a citation or take no action. This
    is particularly important for those family members who may have
    information or physical evidence that may be germane to OSHA's
    investigation.
        2. Receive any citations or other documents at the same time as the
    employer receives them. This should eliminate the situation experienced
    by numerous victims' families who learn through a news report that
    their loved one's employer received a citation and penalty (or none at
    all), rather than being informed directly by OSHA.
        3. Be granted the opportunity to appear and make a statement before
    OSHA and the employer during informal and formal settlement
    negotiations. This will shine a light on the process, allowing victim's
    families the chance to observe how OSHA, DOL Solicitor's Office lawyers
    and company attorneys bargain over classification of violations and
    penalty amounts.
        4. Be afforded the right to appear and make a victim's impact
    statement before the Occupational Safety and Health Review Commission
    (OSHRC) in those instances when a case proceeds to it for adjudication.
        At the subcommittee's hearing on March 16, 2010, the OSHA assistant
    secretary's testimony noted that the provision requiring OSHA to meet
    with family members before a citation is issued or to appear before
    parties in settlement negotiations ``could be logistically difficult
    for victims and OSHA's regional and area offices.'' Under the current
    statute, OSHA has six months to conduct inspections, including fatality
    investigations. I find it hard to believe that during this six-month
    period, OSHA field staff would not be able to coordinate a time to meet
    or speak on the phone with the victim's family. In fact, some OSHA area
    offices already do this, and the affected families sincerely appreciate
    it.\3\
        It's true that OSHA is under certain time constraints. There is a
    15 working day time period in which the employer and OSHA may negotiate
    an informal settlement in lieu of a formal contest before the OSHRC. We
    know that many cases are handled through this informal conference
    process, with OSHA and the employer motivated to have the hazards
    abated and resolve the citations and penalties. This motivation compels
    the parties to identify a date and time to meet during this three-week
    window, whether in person or by phone.
        It's only fair that family members who've lost so much because of
    workplace hazards have a chance to witness negotiations to reduce
    penalties and/or the severity classification of violations. PAWA would
    give the victim's family the right to be notified about these meetings
    and be given an opportunity to attend and make a statement during them.
        Just as many employers will juggle their schedules in order to meet
    with OSHA during this pre-contest period, I believe family members
    would do the same. Ms. Deb Koehler-Fergen, whose son Travis was
    asphyxiated in a confined space incident in February 2007, told me:
        ``I would have done anything to be at a meeting between NV-OSHA and
    Boyd Gaming when they discussed Travis' case. If my boss told me I
    couldn't have the day off of work, I would have quit my job to be at
    that meeting.''
        I do not believe that the rights extended to family members under
    PAWA would be as ``logistically difficult'' as OSHA officials claim.\1\
        Furthermore, OSHA may find that participating family members turn
    out to be their best allies for securing health and safety
    improvements. Family members may endorse the terms of the informal
    settlement if they believe that the employer's proposed corrective
    actions will substantially improve safety for their loved one's co-
    workers. In fact, the mantra I hear from family members more often than
    any other is this:
        ``We don't want this to happen to any other family; we don't want
    them to go through what we've been through.''
        I believe that involving family members in finding solutions to
    workplace hazards has the potential to substantially advance
    occupational injury and illness prevention in the U.S.
        I support PAWA's provisions to provide family members copies of
    citations or reports at no costs. I would go further and recommend that
    family members be given access to all documents gathered and produced
    as part of the accident investigation, including records prepared by
    first responders and state and federal officials. In addition, all fees
    related to the production of documents should be waived for family
    members. The release of this information should be prompt, and no later
    than the day that any citations are issued to the employer. Exceptions
    should be permitted when bona fide evidence demonstrates that a
    criminal investigation could be hampered by such release.
        PAWA could go further and build on the provision for a family
    liaison contained in the MINER Act of 2006.\4\ Congress should consider
    directing the Secretary to appoint a Department of Labor official to
    serve as a family liaison in cases of worker fatalities or serious
    injuries. Some OSHA area offices already make sincere efforts to
    provide information and timely updates to family members, but the
    agency's and the State Plan States' performance in this regard is
    inconsistent and needs to be improved. Family liaison requirements must
    be strengthened and must be elevated to statutory duties of the
    agencies. Rights for family member and injured worker are too important
    to be contained only in policy.
    Title II: Whistleblower protections
        I fully support PAWA's provisions to reform and improve the
    whistleblower protections in Section 11(c) of the OSH Act. I applaud
    Chairwoman Woolsey for her leadership on whistleblower protection
    legislation, and for this Subcommittee's focus on this critically
    important topic.
        I agree that whistleblowing is a vital safeguard for our democracy
    and ensuring justice, and that individuals who stand up for what is
    right often suffer devastating personal consequences.\5\ As we read the
    recent newspaper accounts of deaths and injuries in U.S. workplaces,
    and we hear President Obama emphasize that workers need to be empowered
    to report safety problems,\6\ it's vital that we have the laws in place
    to protect whistleblowers.
        When I worked at OSHA in the early 1990's, it was apparent to me, a
    newcomer to the Labor Department, that the 11(c) program was a step-
    step child of the agency. At that time, OSHA only had a few statutes to
    administer; now it's responsible for 17 whistleblower laws. Still,
    about 60% of all the complaints filed are related specifically to
    workers exercising their health and safety rights, rights allegedly
    protected under Section 11(c) of the OSH Act. Defending workers in
    these situations is essential to OSHA's core mission, yet this program
    continues to be treated worse than a second-class citizen. My
    characterization is based on investigations conducted by the Government
    Accountability Office (GAO), Congressional teams, independent
    researchers and individuals who have attempted to use the system on
    behalf of aggrieved workers.
        PAWA's whistleblower provisions will substantially improve the
    protections and procedures for workers who raise concerns about safety
    and health problems. They will revise the law to make it comparable to
    other more modern whistleblower statutes. Most importantly, it will
    allow workers to pursue their discrimination case independently, if the
    Solicitor of Labor (acting on behalf of the Secretary) declines to take
    the case or fails to act in a timely manner. This private right of
    action is already granted to workers employed in the nation's mining
    industry,\7\ and simple fairness warrants its extension to workers
    covered by the OSH Act. The whistleblower witness here today, Mr. Neal
    Jorgensen, is an excellent example of why individuals should not be
    held captive because of the Labor Department's failures. Whether the
    problems at the Labor Department are resource constraints, lack of
    interest, litigation anxiety or that their client is the Secretary, not
    the claimant, health and safety whistleblowers must be afforded a
    private right of action to pursue their case. PAWA would do just that,
    and this improvement is sorely needed.
        The Subcommittee should consider a bolder reform to improve
    protections for whistleblowers. I support Chairwoman Woolsey's proposal
    from the 110th Congress, the Private Sector Whistleblower Protection
    Streamlining Act (H.R. 4047) to create a separate independent agency or
    bureau to administer all federal whistleblower statutes. From my 20
    years of observing the administration of the whistleblower program at
    OSHA, it is subordinate to the agency's core mission, thus individuals
    with valid whistleblower complaints are relegated to a system without
    independent leadership and commitment. The small staff of investigators
    and program managers is responsible for 17 different statutes,\8\ [and
    will soon (if not already) be adding the whistleblower provisions
    contained in ``The Patient Protection and Affordable Care Act'' \9\]
    yet it is constrained within a deep administrative hierarchy and a
    system riddled with ``inadequate internal controls.'' \8\
        At one time, I thought that the whistleblower protection functions
    delegated to OSHA could be at the heart of our worker health and safety
    protection system, but I no longer believe that is possible. Vigilant
    defense of workers who exercise their whistleblower rights--especially
    on issues related to health and safety----is fundamental to an
    effective enforcement system. As Jason Zuckerman of the Employment Law
    Project warned that failing to aggressively investigate and pursue
    allegations of discrimination will embolden these lawbreaking
    employers.\10\ I believe Congress should consider creating an
    independent bureau or agency to administer all the federal
    whistleblower statutes. With dedicated leadership, specialized
    investigators and skilled attorneys it could operate efficiently by
    focusing exclusively on the investigation and defense of valid
    whistleblower complaints.
    Investigations of worker fatalities and serious injuries
        PAWA would direct OSHA to investigate worker fatalities and serious
    injury events, and require employers to notify OSHA promptly of these
    incidents. This is a needed improvement to the OSH Act; however, I
    recommend an important modification. Under the MINER Act of 2006, the
    law was changed to require miner operators to notify MSHA within 15
    minutes of the time that the employer realizes that the death of an
    individual has occurred, or an injury or entrapment has occurred which
    has a reasonable potential to cause death.'' \11\ Under OSHA's current
    regulations, employers are given 8 hours to report such events,
    potentially delaying the commencement of their investigation by a day
    or more. Worker deaths and life-threatening injuries would receive the
    public attention can spur much-needed regulatory reforms, if immediate
    notification were required of all employers, not just those in the
    mining industry.
    Injury and illness prevention requires abatement of hazards
        Under the OSH Act, employers are not required to correct a
    hazardous condition(s) until the citation(s) assessed by an OSHA
    inspector become(s) a final order of the OSHRC.\12\ PAWA would change
    this situation and require abatement of hazards--hazards that can kill
    or injure workers--while the employer contests them. If a person gets
    pulled over for violating a traffic law, such as driving without a
    license, that person isn't allowed to get right behind the wheel and
    proceed to break the law just because s/he plans to challenge the
    ticket. Likewise, if a health inspector finds evidence of live rodents
    and roaches, or cross-contamination of raw and prepared meats, the
    restaurant owner has to fix the problem immediately if it wants to open
    its doors for business. The same should hold true when OSHA inspectors
    identify violations of health and safety standards.
        OSHA inspectors should have comparable authority to that extended
    to their counterparts at the Mine Safety and Health Administration
    (MSHA). Under the Mine Act, when a federal mine inspector identifies a
    violation of an MSHA standard or regulation, mining companies are
    required to begin fixing the problem immediately. Employers in the
    mining industry have the right to challenge citations and penalties
    before the Mine Safety and Health Review Commission (MSHRC), but an
    employer's decision to litigate an inspector's finding and/or the
    proposed penalty does not give that employer permission to let
    workplace hazards persist. OSHA needs comparable authority, and PAWA
    would provide it. I strongly support this provision of PAWA.
        Currently, an employer cited by OSHA has the right to contest four
    aspects of the citation: (1) the classification of the violation (e.g.,
    serious, willful); (2) the OSHA rule, standard or statutory clause
    affixed to the violation; (3) the abatement date; and/or (4) the
    proposed penalty. Briefly, when an employer receives an OSHA citation
    and penalty, s/he has 15 working days to (1) accept the citation, abate
    the hazards and pay the penalties; (2) schedule an informal conference
    with the local OSHA area director to negotiate an informal settlement
    agreement; or (3) formally contest the citation and/or penalty before
    the OSHRC.
        Instead of formally contesting one of these aspects, an employer
    may request to meet with the director of the local OSHA office for an
    informal conference before the 15-day period to file a notice of
    contest expires. The majority of employers who receive OSHA citations
    participate in informal conferences, and the majority of OSHA
    inspection cases are resolved this way. The adverse consequence,
    however, is that OSHA's managers in its local offices across the
    country often have to choose between levying a tough penalty or getting
    a hazard corrected quickly.
        OSHA's area directors have the authority to reclassify violations
    (e.g., downgrade from willful to serious, serious to other-than
    serious); withdraw or modify a citation, an item on a citation or a
    penalty; and negotiate the proposed penalty. If both parties agree to
    the negotiated terms, the employer must then abate the hazard in the
    agreed-upon time period; if no agreement is reached, the employer will
    likely choose to formally contest it through the OSHRC system and can
    refrain from correcting the safety problem in the meantime.
        When cases move through the OSHRC system, the administrative law
    judges and Commissioners typically reduce the penalty amount proposed
    by OSHA. (OSHA proposes a penalty amount, but the OSHRC determines the
    final penalty.) In practical terms, when a citation is contested, years
    can pass before an employer can be compelled to abate the workplace
    safety or health problem. Even if the employer doesn't succeed in its
    OSHRC appeal, they have bought substantial time (and saved money) by
    not correcting the hazard during the appeal process. Furthermore, by
    holding in abeyance the correction of hazardous conditions, these
    employers have gained an economic advantage over their competitors:
    employers who do obey OSHA standards and regulations.
        OSHA's area directors offer penalty reductions and
    reclassifications of citations (e.g., from serious to other-than-
    serious) in order to compel prompt correction of the hazard. From a
    local OSHA manager's perspective, s/he would rather get the dangerous
    situation rectified so that workers at the site are protected from
    potential harm, rather than risk a chance that the employer will
    contest the citation and penalty.
        OSHA's inspectors and local managers are truly in a difficult
    position because the citations and penalties are linked to hazard
    abatement. The principle of prevention must be enshrined in our
    workplace OHS regulatory system. This means providing OSHA the
    authority to compel immediate abatement of hazards that are known to
    contribute to serious injury, illness or death. We can't make advances
    in preventing harm to workers when our system forces local OSHA staff
    to bargain with employers for worker protections that they are already
    required to implement. The informal settlement process should not only
    expedite abatement of the hazard, but also give OSHA leverage to
    require employers to implement measures that go above and beyond what
    is required by OSHA.
        Further, PAWA discussion draft, provides employers with a right to
    seek an expedited review of abatement if they believe it is
    unwarranted. This due process protection will ensure that employers are
    not forced to make investments where they can argue it is unnecessary.
    This is intended to prevent a backlog of cases before the OSHRC and
    avert the situation now experienced by the Mine Safety and Health
    Review Commission.
    Civil and criminal penalties
        Ultimately, our nation's health and economy would be served best by
    an occupational health and safety regulatory system that prevents work-
    related injuries and illnesses. In a regulatory system like OSHA's,
    penalties must be severe enough to compel violators to change their
    behavior, and to deter lawbreaking by those who might be tempted to
    flout safety and health regulations in an effort to increase production
    or cut costs.
        Our occupational health and safety (OHS) regulatory system should
    require the equivalent of ``points on their permanent record.''
    Employers who flagrantly, willfully or repeatedly violate laws designed
    to protect workers from injuries and illnesses should see their
    finances and reputations suffer. Our system should take advantage of
    the times when such employers are caught, and capitalize on these
    grievous situations for their value as a deterrent for companies
    nationwide. It may not deter other bad actors, but it will catch the
    attention of those who might be tempted to cut a few corners when under
    pressure.
        I believe the majority of employers respect worker health and
    safety laws and intend to comply with them. At times, however,
    competing forces color their judgment, and they break a rule because
    the likelihood of causing harm is low, as is the risk of getting
    caught. Responsible employers know that workplace OHS standards are
    based on lessons learned and have a public health and safety purpose.
    But, from time to time, when certain competing forces weigh on them,
    they make a calculation. They weigh the risk of suffering harm or
    causing harm to another and the likelihood of getting caught breaking
    the law.
        The deterrent effect of OSHA's penalty system could be amplified to
    outweigh the influence of competing forces. This is particularly
    relevant today; the U.S. needs an effective system to prevent
    occupational injuries and illnesses, but OSHA's responsibilities are
    grossly mismatched with its budget and resources. I strongly support
    PAWA's provisions to increase OSHA penalties and ensure they are
    adjusted regularly for inflation. I also endorse the proposed criminal
    provisions, especially the classification from misdemeanor to felony,
    and the extension to include serious bodily injuries, not just worker
    fatalities. OSHA's penalty calculation should also include a specific
    factor that assesses the economic benefits reaped by an employer for
    violating health and safety regulations, which will level the economic
    playing field for firms that invest in progressive, effective OHS
    labor-management systems.
        The OSH Act places a duty on employers to provide safe and healthy
    workplaces,\13\ but it imposes no obligation on them to address hazards
    on a company-wide basis. Congress should mandate such a duty on large
    companies. When a serious hazard has been identified by OSHA at one
    facility, the firm should be required to conduct an audit to determine
    whether the same hazard exists at other facilities. If comparable
    hazards or violations are found at another site, citations for those
    violations should be classified using the new category of ``reckless
    disregard.'' The corresponding civil penalty should be hefty (e.g.,
    $220,000 as provided in the MINER Act of 2006).\14\
        I appreciate the opportunity to appear before you today, and would
    be pleased to answer any questions you may have.

                                   appendix a

       COMPARISON OF FATAL INJURY RATES FOR SELECTED NATIONS (2005-2007)*
    ------------------------------------------------------------------------
                                                2005       2006       2007
    ------------------------------------------------------------------------
    Canada.................................        6.8        5.9        6.3
    France.................................        2.7        3.0        3.4
    Germany................................        2.4        2.5        2.2
    Norway.................................        2.1        1.3        1.6
    Russian Federation.....................       12.4       11.9       12.4
    Sweden.................................        1.6        1.6        1.7
    United States..........................       4.01       4.01       4.01
    ------------------------------------------------------------------------
    *Per 10,000 workers.
    Source: International Labour Organization (ILO), LABORSTA.

                                    endnotes
        \1\ Assistant Secretary of Labor David Michaels. Written testimony
    before the Workforce Protections Subcommittee of the House Education
    and Labor Committee, March 16, 2010.
        \2\ OSHA. Field Operations Manual, CPL 02-00-148, page 11-12.
        \3\ For example, Mrs. Diane Lillicrap, whose son Steven, 21 was
    killed on a construction site while disassembling a crane, was invited
    by the OSHA area director in St. Louis to meet with his entire staff.
    She was able to talk about her son, and share information that was
    potentially valuable to the front-line investigators. I understand the
    meeting was a valuable experience for all; sometimes we need very
    personal reminders of why we chose a career in public service. Her
    meeting with the OSHA St. Louis office took place a number of weeks
    before OSHA issued citations to the employer. It did not delay the
    investigation.
        \4\ Section 7 of the Mine Improvement and New Emergency Response
    Act of 2006. Public Law 109-236.
        \5\ Christy Carpenter, Introductory Remarks, ``Anyone Can Whistle:
    The Essential Role of the Whistleblower in American Society,''
    sponsored by the Government Accountability Project and the Paley Center
    for Media, February 17, 2010.
        \6\ Remarks by the President on Mine Safety, White House Rose
    Garden, April 15, 2010.
        \7\ Section 105(c) of the Federal Mine Safety & Health Act of 1977.
    Public Law 95-164.
        \8\ See GAO report `` Whistleblower Protection Program: Better Data
    and Improved Oversight Would Help Ensure Program Quality and
    Consistency,'' GAO-09-106; January 2009. http://www.gao.gov/new.items/
    d09106.pdf
        \9\ Public Law 111-148.
        \10\ Zuckerman JM. Submission to OSHA Docket 2010-0004, ``OSHA
    Listens,'' February 28, 2010.
        \11\ Section 5 of the Mine Improvement and New Emergency Response
    Act of 2006. Public Law 109-236.
        \12\ Section 10(b) of OSH Act.
        \13\ Section 5(a) of OSH Act.
        \14\ Under the Miner Act of 2006, Congress created a new violation
    category called ``flagrant'' representing ``reckless or repeated
    failure to make reasonable efforts to eliminate a known violation of a
    mandatory health or safety standard that substantially and proximately
    caused, or reasonably could have been expected to cause, death or
    serious bodily injury.'' A civil penalty of up to $220,000 can be
    assessed. Since the law was passed, MSHA has used the ``flagrant''
    classification 92 times with assessed penalties totaling $14,552,400.
                                     ______

        Chairwoman Woolsey. You get the prize. You didn't even go
    all the way for 5 minutes, but we will get you later.
        Mr. Jorgensen.

    STATEMENT OF NEAL JORGENSEN, WHISTLEBLOWER AND FORMER EMPLOYEE,
                           PLASTIC INDUSTRIES

        Mr. Jorgensen. Thank you for inviting me here today. My
    name is Neal Jorgensen. I live in Preston, Idaho. I became a
    whistleblower after being fired by Plastic Industries for
    filing a complaint with OSHA about the company's safety
    problems.
        Here are some things to think about while I am giving my
    testimony. If you are my friend and you had violations in your
    workplace and you came to me and asked my opinion, I would say,
    work safe, look for a new job. You work safe so you don't get
    hurt and look for a new job because it will cost you your job
    and twice as much as it cost the employer.
        The company fired me 2 weeks after I filed the complaint
    because OSHA went to the company and conducted a safety
    inspection and found eight safety violations, including two
    serious, considered serious, by OSHA and one for not having
    machine guards on a band saw and one for not having proper
    shut-off controls on a bailing machine and a pressure washer.
    After the company fired me, I filed another complaint with OSHA
    known as a whistleblower complaint. Filing that complaint did
    not work well for me. I was not protected by OSHA law.
        The reason I am here to tell my story is that my employer
    got away with firing me without any consequences. Although OSHA
    investigated the facts of my case, found it was sound, and
    tried to collect the wages I would have earned if I had not
    been fired, the government lawyers decided not to take my case
    to court. Under OSHA law, only the government can take these
    cases to court. That does not seem fair to me.
        It also does not seem fair that the only thing that the
    owner of the company, Rex Pitcher, was asked to pay was the
    fines for the violations OSHA found during this safety
    inspection; and those fines were later reduced, a lot. OSHA
    initially asked the company to pay $2,550, but it was later
    reduced to $1,500.
        OSHA recommended the government lawyers take my case to
    court, but they decided not to. The main reason they gave was
    it was a resource-intensive case and two judges in Idaho who
    would get these cases were not likely to decide in my favor.
        I was advised that lawyers sent a memo which says, we
    believe we have an approximate 25 percent chance of success.
    There are two U.S. District Court judges in Idaho, one of whom
    routinely is not well disposed towards government cases and the
    other who can go either way.
        It is sad to me that the company can treat an employee this
    way and get off scot-free. Isn't the purpose of the
    whistleblower laws to protect workers who report unsafe
    conditions?
        I thought I did the right thing, but the system did not
    work for me. The OSHA law did not provide the protections I
    needed; and the only lesson the owner of the company learned is
    that he can treat his employees any way he likes, then lie
    about it and nothing will happen to him, nothing.
        Would I recommend that someone would file a whistleblower
    complaint? No way. Absolutely not. The way the law is written,
    not a chance.
        I have found in my life for something that will really make
    an impression it has to have teeth in it. When I was 5 years
    old, I followed some friends on my trike up to a pond to go
    frog hunting. My parents found me and my tricycle, and my
    tricycle got a ride home with mom. I got to ride a switch home
    in front of Dad all the way home.
        The next time I went to that pond, I was about 11 years
    old, and it was winter, no chance of drowning there. I think
    OSHA needs a ``switch'', something with some teeth in it.
        Thank you for letting me tell my story. I hope you are able
    to do something to improve the OSHA law that is supposed to
    protect workers.
        [The statement of Mr. Jorgensen follows:]

        Prepared Statement of Neal Jorgensen, Whistleblower and Former
                          Employee, Plastic Industries

        Thank you for inviting me here today.
        My name is Neal Jorgensen. I live in Preston, Idaho. I became a
    whistleblower in 2004 after being fired by Plastic Industries for
    filing a complaint with OSHA about the company's safety problems.
        Here's something to think about while I'm giving my testimony. If
    you were a friend and you had violations in your place of work and
    asked my opinion, I would say ``work safe, so you don't get hurt, and
    look for a new job, because it will cost you your job and twice as much
    as the employer is fined if you report the violations.''
        The company fired me two weeks after I filed the complaint because
    OSHA went to the company and conducted a safety inspection, and found
    eight safety violations--including two that were considered ``serious''
    by OSHA: one for not having machine guards on a bandsaw, and one for
    not having the proper shut-off controls on a baling machine and a
    pressurized washer. OSHA originally fined the company $2,550 for these
    violations. After the company fired me, I filed another complaint with
    OSHA known as a ``whistleblower'' complaint. Filing that complaint did
    not work out well for me--I was not protected by the OSHA law.
        The reason I am here to tell my story today is that my employer got
    away with firing me without any consequences. Although OSHA
    investigated the facts of my case, found it was sound, and tried to
    collect the wages I would have earned if I had not been fired, the
    government lawyers decided not to go to court on my behalf to enforce
    the law. I found out that I could not have taken the company to court,
    even if I could have afforded it. The OSHA law does not allow
    individuals who file these types of whistleblower complaints to go to
    court--only the government can take these cases to court. That does not
    seem fair to me.
        It also does not seem fair that the only thing the owner of the
    company, Rex Pitcher, was asked to pay was the fines for the violations
    OSHA found during its safety inspection. And those fines were later
    reduced a lot. Although OSHA initially asked the company to pay $2,550,
    it was later reduced to $1,500.
        I filed my whistleblower complaint and an investigator from OSHA
    interviewed several people at the company to check out the facts.
    However, the owner, Rex Pitcher, lied to OSHA. First, he told OSHA I
    was fired because I was a temporary employee and had found another job.
    Then, he changed his story and said I was fired for poor performance.
        Luckily, the OSHA investigator was pretty good and said the
    company's explanations for my firing were inconsistent and not
    believable. He also found there was no evidence to support the
    company's claim that I was only given a job until I found work
    elsewhere. The only reason I got a second job was because I needed it
    to support my family. The owner knew I had gotten a second job and had
    no problem with it.
        The OSHA investigator found no evidence of any of my so-called
    performance problems in the company files. He also found out that,
    after I filed the whistleblower complaint, Rex Pitcher asked a shift
    foreman to write a letter to the company about my work. He did, but
    when the investigator showed the foreman the typewritten letter and
    asked him if he wrote it, the foreman said he sent a handwritten letter
    to the company and that the good things he said about my work were
    deleted. The foreman said the company must have removed the positive
    comments before typing it up and giving it to OSHA! Again, the owner of
    the company lied.
        In October 2004, OSHA completed its investigation and decided that
    my case was worth pursuing. OSHA tried to get the owner to pay me back
    wages of $2,912, but he refused.
        October 2004 was a pretty bad month for me. In addition to Rex
    Pitcher refusing to agree to pay the back wages I was owed, my wife
    left me and filed for divorce. I also found out that her lawyer was
    also representing my former employer in my whistleblower case! I told
    the OSHA investigator about this. He contacted the government lawyer
    and asked about this apparent conflict of interest. The lawyer said it
    wasn't a problem because he was ``against Neal either way.'' At that
    point, I felt I could not win.
        In December 2004, OSHA sent the case to the Department of Labor's
    lawyers and recommended that they take the company to court. Sadly, the
    lawyers decided not to pursue my case. They sent it back to OSHA to do
    more digging. After OSHA did this, the government lawyers decided not
    to go to court.
        The main reason they gave was that the two judges in Idaho who get
    these cases were not likely to decide in my favor. The lawyers stated--
    and I'm quoting here:

            ``we believe we have an approximate 25% chance of success.
            There are two U.S. District Court judges in Idaho, one of whom
            is routinely not well disposed towards the government's cases,
            and the other who can go either way.''

        I have attached a copy of their report to the written version of my
    testimony.
        It's sad to me that the company could treat an employee this way
    and get off scot free. Isn't the purpose of the whistleblower laws to
    protect workers who report unsafe conditions?
        I thought I did the right thing, but the system did not work for
    me. The OSHA law did not provide the protections I needed and the only
    lesson the owner of the company learned is that he can treat his
    employees any way he likes, and then lie about it, and nothing will
    happen to him. Nothing.
        Would I recommend that someone file a whistleblower complaint with
    OSHA? Absolutely not, the way the law is written.
        I have found to really make an impression on someone, there has to
    be some real consequences. Let me illustrate.
        When I was 4 or 5, I followed my neighbors to a pond to go frog
    hunting. My parents found out and found me on my tricycle just before I
    got to the pond. Mom took my trike home and Dad chased me home with a
    switch. The next time I even thought of going to that pond I was 11 and
    it was winter, so there was no chance of drowning. OSHA needs a
    ``switch'' to provide more help to workers to keep them safe.
        I have also worked for companies that have had dealings with the
    EPA, which seems to be able to deal with possible safety and health
    problems better than OSHA. For example, at the company where I work
    now, the manager found there was a floor drain under the extruder, so
    the water that flows into the drain could have been contaminated.
    Because the company had previously been fined by EPA for a similar
    situation, it decided to spend a lot of time and money to recycle the
    water back to the extruder so the drain could be closed, which
    eliminated the chance of violating EPA's rules. The EPA has some teeth,
    unlike OSHA, which needs to be able to provide more help to workers to
    keep them safe.
        Thank you for letting me tell my story. I hope you are able to do
    something to improve the OSHA law that is supposed to protect workers.
                                     ______

        Chairwoman Woolsey. Thank you, Mr. Jorgensen.
        Mr. Chinn.

                   STATEMENT OF LLOYD CHINN, PARTNER,
                           PROSKAUER ROSE LLP

        Mr. Chinn. Yes. Thank you. Good morning, Chairwoman
    Woolsey.
        Chairwoman Woolsey. I don't believe you have your
    microphone on. If you do, put it closer to you.
        Mr. Chinn. My apologies for that. If that's the worst
    trouble I get into today, that would probably be a successful
    day. In any event, I will start again.
        Good morning, Chairwoman Woolsey, Ranking Member McMorris
    Rodgers, members of the subcommittee, my fellow panel members,
    and representatives of employers in the audience, as well as
    the individuals in the audience who are family members of those
    who have been killed or injured terribly while working on the
    job.
        My name is Lloyd Chinn; and I am a partner in a law firm,
    Proskauer Rose. I practice labor and employment law. I advise
    employers as to what they need to do to comply with the laws. I
    litigate disputes between employers and their employees.
        A significant component of my practice is the litigation of
    what may generically be referred to such as whistleblower or
    retaliation claims; and it is a privilege and an honor for me
    to speak with you today about this important topic, this topic
    as it is addressed in the Protecting American Workers Act, or,
    as I believe we have license to call it from the chairwoman,
    PAWA.
        I am going to focus on Title II of PAWA, which I think we
    would all agree completely rewrites the current section 11(c)
    of the OSH Act.
        The first question for me is what exactly is motivating
    this complete rewrite of the statute. I mean, at the end of the
    day, it may well make sense to do some of this, but I think it
    is an appropriate question at the outset to pose.
        The purpose of the statute, as stated in the statute and as
    everyone on this panel would agree, is to advance workplace
    safety. It is not to promote employment litigation. This is not
    an employment litigation statute as such, like Title VII of the
    Civil Rights Act.
        The claim apparently is that the current whistleblower
    protections in the statute are inadequate, but what is the
    evidence to support that claim? There are something like 1,200
    to 1,300 claims per year made under 11(c) of the OSH Act. And
    while it tugs at the heartstrings to listen to Mr. Jorgensen's
    story, and I admit that, one, I don't think it is appropriate
    to formulate policy based on one example or perhaps an example
    in Ms. Rhinehart's paper of a Mr. Wood who had an incredible
    odyssey through the legal system that lasted something like a
    decade in the 1990s. I don't think it makes sense to base
    policy involving thousands of claims made per year based on
    minimal anecdotes, a minimal number of anecdotes like that.
        And while it may be unpopular to say this in this room, for
    every example like Mr. Jorgensen's, there are hundreds of
    meritless claims filed per year, and everybody, if people are
    being honest, Mr. Barab, who is currently in this role at OSHA,
    will agree that the overwhelming majority of claims, measured
    by any objective standard filed with OSHA, are meritless. And,
    for that matter, that is true for virtually every statute,
    employment statute on the books, and there really is no
    disputing this.
        Now, again, this story about meritless claims and the
    expenses associated with those claims, or defending those
    claims, is not the sort of story that is going to bring a tear
    to your eye, as did Ms. Ford's as I was listening to it.
        But in a time when we have approximately 10 percent
    unemployment in this country, it strikes me that it is at least
    relevant, it is at least worth putting into the mix, into the
    arguments being considered, every action you take, like these
    whistleblower protections in PAWA, will be an additional
    expense to employers. That is, it will make it more expensive
    to employ someone should you enact these provisions.
        Now, you may decide, as one might be willing to do, that it
    is worth it. But I think that it is at least worthwhile to have
    that issue on the table. And the primary way in which PAWA will
    increase the expenses of litigation is that PAWA bestows
    significant new rights of action on 11(c) complainants.
        PAWA's simultaneously provides section 11(c) whistleblowers
    the opportunity to take their claims to the OALJ, the Office of
    Administrative Law Judges, or to the Administrative Review
    Board and sets very tight timelines within which those bodies
    must reach final decisions on those claims. This is not
    realistic. Of the total whistleblower claims under all statutes
    addressed by OSHA per year, those filed under 11(c) account for
    a large majority, approximately 65 percent in 2007. This is a
    potential tripling of the pool of cases that will be going
    through the OALJ and ARB system; and I am unaware, although Mr.
    Barab may be able to address this, of any plans to expand those
    bodies in a significant fashion to address these additional
    claims.
        So what this means, in reality, is that every OSH
    whistleblower will really have an immediate right to go to
    court, because OALJ and ARB will never meet these timelines
    that are in the statute currently, and nobody in this room can
    debate that. I really don't think that is a debatable point.
    Liberal academics writing in the field agree completely with
    what I am saying right now.
        So what we have here is this logjam that already exists in
    the OALJ and ARB. It will be worsened dramatically by this
    addition of new cases, so everything goes to Federal court
    then.
        My understanding is that there is a lot of criticism of the
    time it takes for these complaints to be addressed. Well, for
    those of you who litigate in Federal court in this room, I
    assure you that the Federal litigation process is not the most
    efficient for resolving disputes of this matter. It is very
    lengthy, very time-consuming, and very expensive.
        If you look at the GAO's recent report, interestingly
    enough the most efficient procedure described in that report is
    the appeals committee that addresses 11(c) complaints. That
    appeals committee addresses matters on a far rapid, far more
    efficient basis than either OALJ, ARB, and certainly the
    Federal courts.
        In closing, I would simply ask the subcommittee to maintain
    an open mind with respect to certain particulars of the
    statute, which we will be talking about more during the course
    of the hearing.
        Thank you very much.
        [The statement of Mr. Chinn follows:]

       Prepared Statement of Lloyd B. Chinn, Partner, Proskauer Rose LLP

        Good morning Chairwoman Woolsey, Ranking Member Rodgers and Members
    of the Subcommittee. My name is Lloyd Chinn, and I am a partner with
    the law firm Proskauer Rose LLP in its New York City office. It is an
    honor to appear before you at this hearing to address the Protecting
    America's Workers Act (``PAWA''), specifically Title II ``Increasing
    Protections for Whistleblowers.'' My testimony is not intended to
    represent the views of Proskauer or any of the firm's clients.
        Although I practice out of my firm's New York City office, I have
    handled employment matters in federal and state courts and
    administrative agencies around the country. My eighteen year legal
    career has been almost exclusively devoted to the representation of
    employers in employment matters, whether engaged in counseling for the
    purpose of avoiding employee disputes or litigating those disputes as
    they arise. Throughout, I have advised and represented clients in
    connection with litigating or avoiding retaliation and whistleblower
    claims.
    PAWA's rewriting of the OSH Act whistleblower provisions
        Title II of PAWA re-writes Section 11 (c) (29 U.S.C. 660 (c)) of
    the Occupational Safety and Health Act, fundamentally changing the
    statute in a variety of ways including:
         Adding an entirely new form of protected whistleblower
    activity--an employee's refusal to perform his or her duties--that is
    (i) unprecedented among the seventeen statutes whistleblower statutes
    administered by OSHA; and (ii) supplants an already comprehensive and
    reasonable OSHA regulatory scheme on the topic.
         Modifying the current statute of limitations by triggering
    the commencement of the running of limitations period not only upon the
    date of the alleged violation but alternatively upon the date that a
    complainant ``knows or should reasonably have known'' that a violation
    occurred.
         Allowing any a complaint to bring any time-barred claims
    (other than a termination claim) provided that just one alleged adverse
    action is timely.
         Lengthening the current limitations period from 30 to 180
    days.
         Providing the right for a de novo hearing before an
    administrative law judge.
         Providing the right for an administrative appeal to the
    Secretary of Labor (in effect, the Department of Labor's Administrative
    Review Board).
         Providing a complainant the right to bring a de novo
    action in a United States District Court, if either the administrative
    law judge or the Secretary of Labor has failed to meet very strict (and
    unrealistic time periods).
         Providing a right of appeal to the United States Court of
    Appeals following a final decision.
         Allowing either the Secretary of Labor or the complainant
    to commence an action in the United States District Court to enforce
    any order--even if preliminary--issued under this statute.
         Adopting a complainant-favorable burden of proof,
    requiring only that the complainant prove that his or her protected
    activity was a ``contributing factor'' in the alleged adverse action.
         Providing a variety damages recoverable by a complainant
    including, in addition to backpay, unlimited ``consequential'' damages
    and attorneys' fees and costs--while notably providing no right of
    recovery of costs or attorney's fees by a prevailing employer.
         Prohibiting (at least arguably) pre-dispute arbitration
    agreements, whether executed by individual employees or contained
    within a collective bargaining agreement.
    Where is the empirical rationale?
        Before turning to the more problematic of these provisions, a
    rather obvious question is ``Why?'' The stated purpose of the
    Occupational Safety and Health Act of 1970 is ``to assure so far as
    possible every working man and woman in the Nation safe and healthful
    working conditions and to preserve our human resources.'' 29 U.S.C.
    651(b). None of the provisions alluded to above bears directly on the
    question of workplace safety; rather, they all enhance the position of
    complainants in employment litigation. If PAWA is, in fact, about
    workplace safety, it is only by virtue of several unstated assumptions:
    (i) that Occupational Safety and Health whistleblowers (``OSH
    whistleblowers'') contribute to overall workplace safety by bringing to
    light dangerous conditions; (ii) OSH whistleblowers will only come
    forward if there are adequate legal protections to prevent retaliation
    and; (iii) the current legal protections for such whistleblowers are
    inadequate. While it may be fair to assume the truth of assumptions (i)
    and (ii), at least for the sake of argument, the third proposition
    rests on a questionable empirical judgment about the inadequacy of
    protections provided under the current law.
        I am unaware of any empirical data supporting the assertion that
    the current statute fails to protect occupational safety and health
    whistleblowers. Indeed, my concern is that this assumption is supported
    by nothing more than cherry-picked anecdotes or conclusory assertions
    that occupational safety and health OSH whistleblowers do not ``win
    often enough.'' According to data for fiscal year 2007, OSHA received
    1205 OSH whistleblower complaints under the Occupational Safety and
    Health Act alone. U.S. Gov't Accountability Office, ``Whistleblower
    Protection Program: Better Data and Improved Oversight Would Help
    Ensure Program Quality and Consistency,'' 26 (2009) [hereinafter 2009
    GAO report]. Pointing to one or even a handful of anecdotes is of no
    statistical significance when addressing numbers like this.
        Moreover, to decry the fact that the ``win rate'' for OSH
    whistleblowers is ``low'' assumes that either that there is an
    objective standard for judging whether the ``win'' rate is high or
    low--and there isn't--or that there has been a study of case outcomes,
    and (based on some objective criteria) those outcomes incorrectly
    favored employers. The recent GAO study of OSHA's Whistleblower
    Protection Program expressly disavowed undertaking any such analysis,
    ``[W]e did not address the quality of [OSHA's] investigations or the
    appropriateness of whistleblower outcomes because these aspects were
    beyond the scope of the engagement.'' 2009 GAO report, at 4-5.
        In fact, although PAWA apparently posits access to the federal
    courts as a panacea for OSH whistleblowers, there is no reason to
    believe the ``win'' rate there will be any better than before OSHA.
    Indeed, in every administrative forum and court system in which I've
    practiced as an employment lawyer, it has been well understood that, in
    the aggregate, employment litigation plaintiffs lose more often than
    they win. This state of affairs is not, in my opinion, because of any
    particular bias in any of these court or administrative systems against
    plaintiffs; rather, it is simply because in the context of a particular
    employment statute, there is some substantial number of meritless
    claims filed.
        And finally, if assumptions (i), (ii) and (iii) were each valid,
    then one would expect (all other things being equal) that inadequate
    OSH whistleblower protections have led to a less-safe workplace. But
    Bureau of Labor Statistics data support no such conclusion. According
    to BLS, both nonfatal injuries as well as fatalities in the workplace
    have continually declined over the past decade. See BLS, http://
    www.bls.gov/iif/oshwc/cfoi/cfch0007.pdf; http://www.bls.gov/iif/oshwc/
    osh/os/osnr0032.txt.
    Particular concerns regarding PAWA
        Given the degree to which PAWA re-writes Section 11 (c), one could
    go on at some length about the proposed changes. I will focus my
    remarks on a few sections that, in my view, merit some discussion.
                Refusal to Work
        PAWA amends 29 U.S.C. 660(c), to add an entirely new form of
    protected activity under the act. It prohibits the discharge or any
    other form of discrimination against an employee ``for refusing to
    perform the employee's duties if the employee has a reasonable
    apprehension that performing such duties would result in serious injury
    to, or serious impairment of the health of, the employee, or other
    employees.'' To receive protection under the section, the complainant
    must merely conclude, as a ``reasonable person'' would, that there is
    ``bona fide danger of a serious injury, or serious impairment of
    health, resulting from the circumstances.'' Id.
        It is, of course, a sensible proposition that an employee should
    not have to engage in work that will result in his or her injury or
    death. But PAWA's particular definition of protected activity appears
    to be unprecedented in federal whistleblower statutes.\1\ And,
    moreover, OSHA regulations already address the issue of when an
    employee may refuse to work due to work conditions in a comprehensive
    and reasonable fashion.
    ---------------------------------------------------------------------------
        \1\ Although some states recognize, either at common law or by
    statute, a cause of action for being retaliated against for failing to
    perform certain job duties, these states generally limit the protection
    to a refusal to perform unlawful activities. For instance, under Texas
    law, employees may refuse to work in unsafe work environments if they
    were to perform an illegal act that carries criminal penalties. See
    Hancock v. Express One Intern., Inc., 800 S.W.2d 634, 636 (Tex. App.
    Dallas 1990), writ denied, (Nov. 11, 1992). Likewise, N.Y. LAB. LAW
    Sec.  740 prohibits employers from taking retaliatory action against an
    employee who ``objects to, or refuses to participate in an activity,
    policy or practice of the employer that is in violation of law, rule or
    regulation,'' if ``the violation creates and presents a substantial and
    specific danger to the public health or safety.''
    ---------------------------------------------------------------------------
        Current OSHA regulations already prohibit discrimination against an
    employee who refuses to work. 29 CFR Sec.  1977.12. But the regulations
    make clear that ``as a general matter, there is no right afforded by
    the Act which would entitle employees to walk off the job because of
    potential unsafe conditions at the workplace.'' 29 CFR Sec.
    1977.12(b)(1). The regulations recognize that ``an employer would not
    ordinarily be in violation of section 11(c) by taking action to
    discipline an employee for refusing to perform normal job activities
    because of alleged safety or health hazards.'' Id. To avoid frivolous
    employee complaints and work stoppages, OSHA regulations provide that
    for an employee's refusal to work to be protected, a reasonable person
    must agree that there is ``a real danger of death or serious injury.''
    29 CFR Sec.  1977.12(b)(2). The employee must also demonstrate that he
    or she has refused to work in ``good faith.'' Id. In addition, before
    discontinuing work, OSHA regulations require that an employee take
    various steps to place the employer on notice of the unsafe working
    conditions: (i) apprise the employer of the alleged hazard, if
    possible; (ii) ask the employer to rectify the danger; and (iii) unless
    there is insufficient time, ``resort to regular statutory enforcement
    channels.'' Id.
        Section 202 of PAWA's use of the ``reasonable apprehension''
    standard and its failure to incorporate the employer protections
    contained in the OSHA regulations have the potential to encourage
    excessive litigation and false claims. If it is truly necessary to
    address this issue through legislation, the standards set forth in the
    OSHA regulations should be used as a guide.
                Statute of Limitations Issues
        Section 203 of PAWA amends the existing statute of limitations
    provision in three ways: (i) by incorporating an alternative
    ``discovery rule'' concept for triggering the limitations period; (ii)
    by permitting ``continuing violation'' claims of virtually any sort,
    without regard to whether there is any connection between the timely
    assertions and the untimely ones; and (iii) by extending the current
    limitations period from thirty (30) to one hundred--eighty (180) days.
        The most dramatic of these statute of limitation changes permits a
    complaint to be filed on the later of either the ``date on which the
    alleged violation occurs'' or ``the date on which the employee knows or
    should reasonably have known that such alleged violation occurred.''
    \2\ The latter option, a ``discovery rule'', is a foreign concept in
    employment law. For example, of the seventeen OSHA-enforced
    whistleblowing laws, the statute of limitations under all of these
    statutes only begins to run when the alleged violation occurred. A
    discovery rule is not only unprecedented with respect to the OSHA-
    enforced whistleblowing statutes, it is not expressly adopted in any
    other federal employment statute, including the staples of employment
    discrimination law: Title VII of the Civil Rights Act of 1964, the
    Americans with Disabilities Act, or the Age Discrimination in
    Employment Act. It is hard to imagine how an OSH whistleblowing claim
    so unique that it would be alone among federal employment laws to apply
    a discovery rule.
    ---------------------------------------------------------------------------
        \2\ Proposed paragraph 4(A) in Section 203 refers to ``paragraph
    (3)(A)'', although there does not appear to be a subparagraph (A) to
    paragraph 3.
    ---------------------------------------------------------------------------
        Legislatures and courts have presumably rejected a discovery rule
    in employment litigation because it is a bad idea. ``One can never be
    sure exactly when on that continuum of awareness a plaintiff knew or
    should have known enough that the limitations period should have begun.
    A discovery rule thus substitutes a vague and uncertain period for a
    definite one.'' J.D. Hamilton v. 1st Source Bank, 928 F.2d 86, 88 (4th
    Cir. 1990). As a discovery rule has no firm outer limit, it would
    permit claims to be asserted years after the fact. Over the course of
    time, witnesses become unavailable and memories fade. Records are lost
    as electronic storage systems change. Moreover, it is not at all clear
    how a discovery rule benefits workplace safety--stale claims advanced
    many months or years after the fact will unlikely have any effect
    whatsoever on a practice that may well have changed with time. Indeed,
    that is precisely why the OSHA-enforced whistleblower statutes contain
    relatively brief (30--180 day) statutes of limitation--so to encourage
    the prompt reporting of conduct that is allegedly violative of the
    underlying statutes. While one can imagine the rationale behind a
    discovery rule in the context of certain personal injury-type cases
    (e.g., a surgical instrument left inside a person following surgery),
    there is no similar imperative in the employment litigation field.
        Section 203 also provides that, for statute of limitations
    purposes, except for a termination, any series of alleged violations is
    timely provided that one alleged violation occurred within the
    limitations period. Although this subparagraph is labeled ``Repeat
    Violation'', it really should be referred to as ``Continuing
    Violation.'' In the Title VII context, the Supreme Court has held quite
    clearly that discrete discriminatory acts outside the limitations
    period are time barred, even if related to alleged acts that are
    timely. National Railroad Passenger Corp. v. Morgan, 536 U.S. 101
    (2002); see also Delaware State College v. Ricks, 449 U.S. 250 (1980).
    Even the more liberal approaches to the continuing violation doctrine
    adopted by the circuit courts of appeal that existed prior to Morgan
    required some relationship between the timely allegations and the
    untimely ones. See, e.g., Morgan v. Amtrak, 232 F.3d 1008, 1015-1016
    (9th Cir. 2002). Under PAWA, no such requirement exists. A complainant
    could theoretically link an act taken years earlier, of a completely
    different nature, by different managers, in response to a totally
    distinct complaint, to a timely adverse action and proceed against the
    company with respect to both claims.
        Finally, PAWA extends the existing statute of limitations period by
    a factor of six, from 30 to 180 days. In other words, of the OSHA-
    administered whistleblower statutes, the OSH whistleblower provision is
    now among the longest instead of among the shortest. As noted above in
    a different context, it is unclear how this lengthening of the
    limitations period improves workplace safety, given that it encourages
    complainants to sit on claims instead of advancing them promptly.
    New rights of action
        Currently, 29 U.S.C. Sec.  660 (c) allows a complainant to file a
    complaint with the Secretary of Labor, which the Secretary of Labor is
    to investigate. The Secretary may then bring an action in the United
    States district court against the employer. By regulation, an employee
    submits his or her initial complaint to OSHA, and it is investigated.
    29 CFR Sec.  1977.15. Once an initial determination is made, only the
    whistleblower (not the employer) may request a review by OSHA's Appeals
    Committee. The Appeals Committee either returns the matter for further
    investigation or denies the appeal.
        While it is true that, of the 17 OSHA-administered whistleblower
    statutes, only three follow this particular procedure (the other two
    are the Asbestos Hazard Emergency Response Act and the International
    Safe Container Act), there is a sensible policy rationale for employing
    this process for the OSH whistleblower provisions. The substantive OSH
    Act is, after all, the area of law most familiar to the typical OSHA
    investigator. It is the one substantive Act (out of the seventeen) on
    which all OSHA whistleblower investigators are trained. 2009 GAO
    report, at 39.
        Permitting OSH whistleblowers to take their claims before the
    Department of Labor's Office of Administrative Law Judges (``OALJ'')
    and Administrative Review Board (``ARB'') will have a significant
    impact on these bodies. OSH whistleblower claims make up, by far, the
    largest number of whistleblower claims addressed by OSHA under the 17
    whistleblower statutes. For fiscal year 2007, of the 1,864
    whistleblower complaints addressed by OSHA, 1,205 (approximately 65%)
    were OSH whistleblower claims. In essence, the adoption of PAWA would
    increase by approximately 200 percent the number of potential cases to
    be addressed by the OALJ and ARB. So doing will undoubtedly cause
    substantial delays in the processing of these claims. It is unclear how
    such delays will result in a safer workplace. What is certain is that
    employers will be forced to expend substantial sums defending OSH
    whistleblower claims through these additional processes--the majority
    of which will ultimately be found to be meritless.
        Of course, PAWA would permit OSH whistleblowers to proceed to
    United States district court if the OALJ has not issued a decision and
    order within 90 days of a hearing request or if the ARB has not issued
    a decision within 60 days of receiving the administrative appeal. Given
    that the vast majority of cases handled by the OALJ and ARB do not
    currently meet these timelines, it seems particularly unlikely they
    will do so once their pool of cases is dramatically increased. So the
    assumption under PAWA should be that every OSH whistleblower will at
    least have the opportunity to take his or her claims to United States
    district court. Again, it is not at all clear how this expansion of
    United States district court jurisdiction will improve workplace
    safety, but subjecting employers to federal court litigation in 1200
    potential additional cases per year will certainly cost employers
    dearly.
                                     ______

        Chairwoman Woolsey. Thank you.
        Before we go to Ms. Rhinehart, those with placards, you
    need to hold them down and please don't stand up. Thank you
    very much. I mean, yes, in front of you but just not up. Thank
    you. Thank you.
        Ms. Rhinehart.

             STATEMENT OF LYNN RHINEHART, GENERAL COUNSEL,
                                AFL-CIO

        Ms. Rhinehart. Thank you, Chairwoman Woolsey, Ranking
    Member McMorris Rodgers, and the other members of the panel for
    holding this hearing and for inviting me here today to testify
    on the need to strengthen the anti-retaliation whistleblower
    protections in the Occupational Safety and Health Act.
        My name is Lynn Rhinehart, and I am the general counsel at
    the AFL-CIO. We are a labor federation representing about 11
    million workers across the United States, and we are in strong
    support of the Protecting America's Workers Act and the
    provisions in it to strengthen the penalties and strengthen the
    whistleblower protections in the law. We really appreciate your
    holding this hearing today on Workers Memorial Day, a day when
    we honor and pay tribute to workers who are killed on the job.
        I want to acknowledge the family members who are here on
    the panel and here in the room and express our sympathies for
    their loss. We are all here for the same reason, which is that
    we believe strongly that those fatalities should not have
    occurred in vain and that we need to redouble our efforts to
    take measures, strengthen the law, do what we need to do to
    make sure that further fatalities don't happen in America's
    workplaces; and, frankly, we have a lot of work to do.
        Still today, 5,000 workers, more than 5,000 workers, die on
    the job each year. That is 14 workers each and every day who
    are killed from workplace hazards, and millions more are
    injured. Five thousand workers a year is the population of many
    small towns across America, and it is that number of workers
    killed on the job each and every year from workplace hazards.
    It is just an unacceptable level of tragedy in America's
    workplaces that we have much work to do to address.
        I think everybody on the panel would agree that in order to
    address workplace hazards and to try to get preventive actions
    in place before injuries, illnesses, and fatalities occur, that
    you need the full and active involvement of workers. Workers
    are the eyes and ears in the workplace. It is their jobs. They
    see the hazards. They know the hazards. They know what
    solutions might be put in place to address those hazards.
        So employers who are being proactive about health and
    safety in their workplaces want and need the full and active
    involvement of their workers in identifying hazards, and
    especially given the fact that OSHA can't be everywhere at all
    times. In fact, it would take them 137 years to be in each
    workplace just once, all the more reason why we need the active
    and full involvement of workers in identifying hazards and
    protecting their health and safety on the job.
        In order to have that active involvement, workers need to
    feel secure that if they raise a hazard, if they bring a
    concern forward, if they file a complaint with OSHA, that their
    jobs are going to be secure. They are not going to be fired or
    demoted or transferred or suffer other retaliation for speaking
    out. The system really depends on that.
        And, unfortunately, we don't have that situation today. As
    Mr. Jorgensen's story so painfully shows, workers today do not
    have a right to speak out about job hazards without retaliation
    and have a remedy behind them for speaking out and pursuing
    their rights.
        It is even more important in today's bad economy that the
    law be strengthened. The fear of retaliation, the fear of
    losing one's job is even more intense when you are looking at
    an almost 10 percent unemployment situation, and that just
    exacerbates workers' fears of speaking out.
        Workers who are covered by a union contract are in a better
    position because they have their union in that contract backing
    them up if they suffer retaliation for reporting job hazards.
    But, unfortunately, that is protection that is only afforded
    this moment to a minority of workers in America's workplaces.
        So most workers are left with the protections of the
    Occupational Safety and Health Act; and these protections, by
    any measure, are exceedingly weak. They are the weakest of any
    of the 17 whistleblower laws that OSHA itself enforces. How
    ironic that the weakest law enforced by OSHA is the OSH Act.
        I attached a chart to my testimony that laid out some of
    the ways that the OSH Act's anti-retaliation whistleblower
    protections fall short of the standard laid out in so many
    other laws, including Sarbanes-Oxley, including the Surface
    Transportation Act, including the recent health care reform
    that was adopted. By any meaningful measure, the OSH Act
    whistleblower protections fall short of the mark.
        The statute of limitations is exceedingly short, only 30
    days. There is no right under the OSH Act for workers to get
    their job back, for preliminary reinstatement while their cases
    are pending, and they have no right to get a hearing before an
    administrative law judge or a court. They are completely
    dependent on the Secretary of Labor bringing their cases
    forward; and, as we have heard, that rarely happens.
        And the burdens on the Department of Labor are significant
    as well. They can't pursue an administrative process
    themselves. They need to go to Federal District Court to pursue
    these whistleblower cases in court.
        So the law is extremely weak. There is a saying in the law
    that rights without remedies are really no rights at all; and,
    frankly, that is what we are talking about here with the
    whistleblower protections and the Occupational Safety and
    Health Act. The provisions are so weak as to really be
    meaningless.
        So we support the provisions in the Protecting America's
    Workers Act. We think that they would make a real, positive
    difference in protecting workers' ability to raise safety and
    health hazards on the job. It would update the law, bring it up
    to par with other anti-retaliation protections in other laws,
    including laws that have been passed over the past 5 years with
    bipartisan support and signed into law by both Republican and
    Democratic Presidents. We think that these measures would give
    workers more meaningful rights to participate in safety and
    health on the job and bring about preventive efforts before
    injuries, illnesses, and fatalities occur.
        I would like to make just two other brief comments in the
    time that I have. One is that, while we fully support the
    provision in the Protecting America's Workers Act that would
    give workers a right to pursue their own case before an ALJ or
    a Federal court if the Secretary did not pursue their case or
    if the case was proceeding too slowly, we don't do that right
    as a substitute for the Secretary of Labor still having her own
    robust anti-retaliation whistleblower program. We think that
    you need both. You need the agency program, and you need the
    private right of action.
        The other comment I would make is that it really seems to
    me that employers ought to support the provisions, the anti-
    retaliation provisions in this legislation, because employers
    who want their workers to feel secure speaking out about job
    hazards should support there being a law to back workers up
    when they do step forward and exercise those rights.
        These are modest measures. They are not novel. They are not
    radical. They would simply bring the OSH Act into the
    mainstream and make it more uniform with other anti-retaliation
    whistleblower laws that have been passed by Congress over the
    years. So we think it is necessary, we think it is overdue, and
    we urge their prompt adoption.
        Thanks very much.
        [The statement of Ms. Rhinehart follows:]

         Prepared Statement of Lynn Rhinehart, General Counsel, AFL-CIO

        Chairman Woolsey, Ranking Member Rodgers, and Members of the
    Subcommittee:
        My name is Lynn Rhinehart, and I am the General Counsel of the AFL-
    CIO, a federation of 56 national unions representing more than 11.5
    million working men and women across the United States. Thank you for
    the opportunity to testify today about the urgent need to strengthen
    the anti-retaliation provisions in the Occupational Safety and Health
    Act (OSH Act), and about how H.R. 2067, the Protecting America's
    Workers Act, addresses this need.
        Today is Workers Memorial Day, a day unions and others here and
    around the globe remember those who have been killed, injured and made
    ill on the job. The recent tragedies at the Massey coal mine in West
    Virginia, the Tesoro refinery in Washington State, and the Kleen Energy
    Systems facility in Connecticut, are vivid and painful reminders of the
    need to continue and redouble our efforts to assure safe and healthful
    working conditions for all workers. In 2008, the last year for which
    comprehensive data are available, 5,214 workers were killed on the
    job--an average of 14 workers each day, and millions of workers were
    injured. Clearly, more needs to be done to bring about the OSH Act's
    promise of safe and healthful jobs for all workers. We greatly
    appreciate your holding this hearing today, on Workers Memorial Day, to
    focus attention on workplace safety and health, on shortcomings in the
    existing law, and on proposals to strengthen it.
        Today marks the 39th anniversary of the day the Occupational Safety
    and Health Act took effect. In the nearly 40 years since the OSH Act's
    enactment, it has never been significantly amended or strengthened.\1\
    As a result, many provisions in the law, including its penalty
    provisions and its anti-retaliation provisions, have fallen far behind
    other worker protection, public health, and environmental laws. It is
    past time for these provisions to be updated and strengthened.
        There is universal agreement about the importance of workers being
    involved in addressing safety and health hazards at the workplace.
    Workers see first-hand the hazards posed by their jobs and their
    workplaces, and they are an important source of ideas for addressing
    these hazards. But in order for workers to feel secure in bringing
    hazards to their employer's attention, they must have confidence that
    they will not lose their jobs or face other types of retaliation for
    doing so. All too often, fear of retaliation for ``rocking the boat''
    leads workers to stay quiet about job hazards, sometimes with tragic
    results, as we saw with the Massey mine explosion earlier this
    month.\2\
        The importance of workers being able to raise concerns about
    workplace hazards with their employers without risking their jobs is
    especially acute under the OSH Act, because, given limited resources
    and the vast number of workplaces under OSHA's jurisdiction, actual
    inspection and oversight of workplaces by OSHA inspectors is quite
    rare. In its most recent annual report on the state of workplace safety
    and health, released today in conjunction with Workers Memorial Day,
    the AFL-CIO found that, according to the most recent statistics, it
    would take 91 years for federal and state OSHA inspectors to conduct a
    single inspection of each of the 8 million workplaces in the United
    States.\3\ Given the paucity of inspectors and inspections, OSHA needs
    workers to be the eyes and ears on the ground, bringing problems and
    hazards to the attention of their employers to bring about prompt,
    corrective action before injuries, illnesses, and fatalities occur.
        Unfortunately, the anti-retaliation provisions in the OSH Act are
    exceedingly weak. Ironically, they are far weaker than the other 16
    anti-retaliation laws that are also enforced by OSHA, and they are
    weaker than the anti-retaliation provisions in the Mine Safety and
    Health Act. As a consequence, workers who are fired or face other
    retaliatory action for filing an OSHA complaint or raising concerns
    about workplace hazards are left with very little recourse, unless they
    are fortunate enough to be covered by a union contract, which provides
    far stronger protections and quicker remedies.
        The U.S. Government Accountability Office (GAO) surveyed seventeen
    whistleblower statutes enforced by OSHA and found that the OSH Act
    contains much weaker whistleblower provisions than these other federal
    laws.\4\ Four weaknesses are particularly problematic: (1) the Act's
    short statute of limitations for filing whistleblower complaints; (2)
    the absence of preliminary reinstatement while cases are proceeding
    through the system; (3) the lack of an administrative process for
    hearing cases; and (4) the absence of a private right of action for
    workers to pursue their own cases before the agency or in federal court
    in situations where the Secretary of Labor fails or chooses not to act.
        Short Statute of Limitations. Under the OSH Act, workers must file
    a retaliation complaint within 30 days or their claims are barred by
    the statute of limitations. This is an exceedingly short statute of
    limitations when compared to other laws, which provide a minimum of 60
    days and more typically 180 days for workers to file a complaint.
        Indeed, many of the whistleblower statutes enforced by the
    Department of Labor--ranging from the Surface Transportation Assistance
    Act (which protects whistleblowers who complain about violations of
    federal truck safety regulations) to the Energy Reorganization Act
    (which protects whistleblowers who work at nuclear facilities) to the
    Sarbanes-Oxley Act (which protects whistleblowers who report corporate
    fraud) to the whistleblower provisions contained in the newly-passed
    Patient Protection and Affordable Care Act (which protects
    whistleblowers who complain about violations of the health care law)
    allow employees between 60 and 180 days to file a complaint.\5\ And, of
    course, the many anti-discrimination statutes enforced by the Equal
    Employment Opportunity Commission (EEOC), such as Title VII and the
    Americans with Disabilities Act, allow employees either 180 or 300 days
    (depending on the state) to file a charge based on retaliation for
    complaining about discrimination.
        The OSH Act's exceedingly short statute of limitations makes it far
    more likely that workers who face discharge or other retaliation will
    miss the deadline for filing a complaint, meaning that they will have
    no real recourse under the OSH Act.
        No Preliminary Reinstatement. The second major shortcoming in the
    OSH Act's anti-retaliation provisions is the absence of language
    authorizing preliminary reinstatement of a worker while his or her case
    is pending and working its way through the process. Here again, almost
    all of the other anti-retaliation laws enforced by OSHA authorize the
    Secretary to order preliminary reinstatement where she finds reasonable
    cause, after an initial investigation, to believe that a violation has
    occurred. The preliminary reinstatement provisions in the Federal Mine
    Safety and Health Act are even stronger. They call for the Federal Mine
    Safety and Health Review Commission to order immediate preliminary
    reinstatement in all cases unless the Secretary determines that the
    complaint was frivolously brought. 30 U.S.C. Sec.  815(c).
        Preliminary reinstatement is an important component to a meaningful
    anti-retaliation process, because it means that a worker will not be
    out of work losing pay and benefits while the case is pending. It is a
    common feature of other anti-retaliation statutes, including statutes
    enforced by OSHA, and it has proven workable. It should be added to the
    OSH Act.
        No Administrative Process. Unlike most other whistleblower laws
    enforced by OSHA, there is no administrative process for pursuing anti-
    retaliation claims under the OSH Act. Instead of conducting an
    investigation and issuing a preliminary order, with review before an
    administrative law judge within the agency, as is the case with most
    other whistleblower laws, the Secretary must file suit on the worker's
    behalf in federal district court--a costly, resource intensive, and
    time-consuming process that the Secretary rarely pursues.
        According to data provided by OSHA, in FY 2009, OSHA received 1,280
    complaints alleging violations of the 11(c) anti-retaliation provisions
    in the OSH Act, 29 U.S.C. Sec.  659(c). The majority were dismissed.
    Nearly 20 percent of the cases (246 cases) settled. OSHA recommended
    that the Secretary pursue litigation in 15 cases; 4 cases were actually
    brought. Since 1996, the Secretary of Labor has filed only 32 cases in
    federal district court under Section 11(c). And, because the OSH Act
    does not authorize workers to pursue their cases on their own, workers
    in the thousands of cases the Secretary did not pursue were left
    without meaningful recourse.
        The absence of an administrative process greatly weakens the
    effectiveness and utility of the anti-retaliation provisions in the OSH
    Act.
        No Right of Appeal or Private Action. The fourth major shortcoming
    in the OSH Act's anti-retaliation provisions is the absence of a right
    for workers to get a hearing or pursue their own case before an
    administrative law judge or the court. Under the OSH Act, workers are
    entirely dependent on the Secretary of Labor to pursue their cases,
    because there is no administrative process for them to access and no
    right to bring their case in federal district court if the Secretary
    elects not to proceed. As the statistics outlined above reveal, the
    Secretary pursues only a handful of cases each year, leaving the rest
    of workers without a forum to pursue their own cases.
        The absence of a private right of action for workers to pursue
    their own cases before an administrative agency or the court makes the
    OSH Act's anti-retaliation provisions far weaker and far outside the
    mainstream of other anti-retaliation laws. As the chart attached to
    this testimony shows, other whistleblower provisions enacted by
    Congress provide workers with the ability to seek a hearing before an
    administrative law judge, or a de novo hearing before a federal
    district court, or both. In contrast, an employee who brings a
    whistleblower complaint under the OSH Act is wholly dependent on the
    Secretary of Labor to vindicate his or her rights; if the Secretary
    delays or declines to pursue the employee's case--which, as explained
    above, is what happens in the vast majority of cases--the whistleblower
    has no recourse under the law. This is a serious shortcoming that
    greatly undermines the effectiveness of the OSH Act and its anti-
    retaliation provisions.
        The case of whistleblower Roger Wood illustrates the problem. Wood
    was an experienced electrician who worked at a chemical weapons
    disposal facility, a facility where the working conditions were
    described by a federal court as ``probably as dangerous as any
    undertaken in the world.'' \6\ Wood repeatedly complained about unsafe
    working conditions, including inadequate safety equipment, resulting in
    an OSHA investigation and the employer being cited for two serious
    safety violations. Subsequently, Wood was fired after he refused to
    work in a toxic area without adequate safety equipment.\7\ Wood filed a
    whistleblower complaint with the Department of Labor, and a regional
    Department of Labor official recommended that the agency file suit on
    Wood's behalf. But after over five years of internal review, the
    Department ultimately declined to pursue Wood's case. Wood sued in
    federal court seeking to force the Department of Labor to file suit on
    his behalf. A full ten years after he was fired, the U.S. Court of
    Appeals for the D.C. Circuit denied Wood's claim, finding that the
    Occupational Safety and Health Act's whistleblower provision left all
    determinations as to whether to bring suit solely in the hands of the
    Department of Labor.\8\
        The Anti-Retaliation Provisions in the Protecting America's Workers
    Act Will Help Bring the OSH Act's Protections into the Mainstream
        The Protecting America's Workers Act (PAWA) will update and improve
    the OSH Act's anti-retaliation provisions and bring them up to par with
    other anti-retaliation laws enforced by OSHA. By providing more
    meaningful anti-retaliation protections to workers, PAWA will help
    encourage employees to speak out when they become aware of hazardous
    workplace conditions, which will help bring about corrective action and
    prevent injuries, illnesses, and deaths on the job.
        PAWA accomplishes these goals by making the following common-sense
    changes, as reflected in the March 9, 2010 Discussion Draft of
    Modifications to H.R. 2067:
         It extends the statute of limitations for filing
    complaints from the current 30 days to 180 days;
         It establishes clear and reasonable timeframes for the
    Secretary of Labor to complete her investigation and for administrative
    law judges to hear and decide cases, and authorizes workers to pursue
    their cases before an ALJ or federal court when these deadlines are
    missed;
         It provides for preliminary reinstatement of workers after
    an investigation and determination by the Secretary of Labor. The
    Secretary is given 90 days to investigate cases and issue a preliminary
    order. In cases where the Secretary of Labor finds reasonable cause to
    believe that a violation of the anti-retaliation provisions has
    occurred, the bill allows the Secretary to issue a preliminary order
    reinstating the employee to his or her position, along with other
    relief;
         In the event that the Secretary dismisses a complaint, or
    does not issue a timely preliminary order, i.e., within 120 days, PAWA
    permits an employee to request a hearing before an administrative law
    judge;
         If an administrative law judge does not timely issue a
    decision (i.e., within 90 days), or there is no timely decision on an
    internal appeal of an ALJ decision, PAWA authorizes workers to bring
    their case to federal district court;
         PAWA codifies the longstanding rule that workers are
    protected against retaliation when they refuse in good faith to perform
    work they reasonably believe poses an imminent danger to their health
    or safety. OSHA's regulations to this effect have been upheld by the
    U.S. Supreme Court, see Whirlpool Corp. v. Marshall, 445 U.S. 1 (1980);
    PAWA codifies these rules;
         PAWA also codifies OSHA's existing regulations providing
    that the OSH Act's anti-retaliation protections extend to workers who
    report injuries and illnesses, 29 CFR Sec.  1904.36. The General
    Accountability Office has found that fear of discharge or other
    retaliation is a significant factor in workers being reluctant to come
    forward to report workplace injuries and illnesses.\9\ Explicitly
    stating that workers are protected against retaliation for reporting
    injuries will help ensure that workers are not discouraged from coming
    forward when they are injured on the job;
         PAWA clarifies the remedies that are available to workers
    who are victims of unlawful retaliation. These remedies are well-
    established, even in the few cases that have been brought under the OSH
    Act, but including them in the statute removes any doubt about their
    availability.
        In sum, there is nothing novel about any of these improvements to
    the OSH Act's anti-retaliation protections. Rather, all of PAWA's
    proposed improvements are well-established means to protecting
    whistleblowers that Congress has routinely included in other federal
    statutes in the four decades since the Occupational Safety and Health
    Act was passed. It is essential that Congress incorporate these sound
    and proven protections into the Occupational Safety and Health Act, so
    that workers who raise concerns about hazardous working conditions
    receive the same basic protections against retaliation as those who
    complain about corporate malfeasance, environmental or transportation
    hazards, or health care fraud.
        As the Subcommittee considers legislative change to improve worker
    protections, including the ability to speak out about job hazards
    without retaliation, we suggest that the Subcommittee also look at
    additional measures for protecting these rights, such as the civil
    penalty provisions for violations of the anti-retaliation provisions of
    the Mine Safety and Health Act that were adopted by Congress in 2008 as
    part of the S-MINER Act, H.R. 2768. The S-MINER Act authorized civil
    penalties of not less than $10,000 and not more than $100,000 for each
    violation of the Mine Act's anti-retaliation provisions. Adopting a
    civil penalty for violations, in addition to the individual remedies
    provided for in the Protecting America's Workers Act, would strengthen
    the tools for enforcing these rights and help deter violations of them.
        The AFL-CIO urges prompt action on the Protecting America's Workers
    Act. It is past time to update and strengthen the Occupational Safety
    and Health Act so that workers in this country will be better protected
    from job hazards and better protected when they speak out about them.
        Again, thank you for the opportunity to testify today. I would be
    happy to respond to any questions.
                                    endnotes
        \1\ The OSH Act's civil penalties were last increased in 1990 as
    part of the omnibus budget reconciliation bill. P.L. No. 101-508.
        \2\ Dan Barry, et al., ``2 Mines Show How Safety Practices Vary
    Widely'', N.Y. Times (April 22, 2010). See also Peter Kilborn, ``In
    Aftermath of Deadly Fire, a Poor Town Struggles Back,'' N.Y. Times
    (Nov. 25, 1991) (workers at the Imperial Food chicken processing plant,
    where 25 workers died in a fire, did not raise safety complaints
    because they feared losing their jobs).
        \3\ AFL-CIO, Death on the Job: The Toll of Neglect (April 2010).
        \4\ Government Accountability Office, Whistleblower Protection
    Program: Better Data and Improved Oversight Would Help Ensure Program
    Quality and Consistency 50-65 (Jan. 2009).
        \5\ See id. at 51; see also P.L. 111-148, 124 Stat. 119 (2010).
        \6\ Wood v. Department of Labor, 275 F.3d 107, 108 (D.C. Cir.
    2001).
        \7\ Id.
        \8\ Id. at 111-12.
        \9\ GAO, Workplace Safety and Health: Enhancing OSHA's Records
    Audit Process Could Improve the Accuracy of Worker Injury and Illness
    Data (Oct. 2009).
                                     ______

        Chairwoman Woolsey. Thank you very, very much.
        I need to say, before we start our questions, I have two
    committees that are both marking up legislation. So if I get up
    and leave, I will be back. It is because I have to go vote at
    another committee, and one of our members will take the chair.
    So please don't take it personally. But so far, so good.
        So I am going to begin the questioning with you, Jordan.
        At last month's committee hearing on OSHA penalties,
    Assistant Secretary Michaels testified that OSHA had
    reservations about certain victims' rights provisions in PAWA,
    namely, allowing a family member to meet with OSHA before the
    agency decides to issue a citation and family members appearing
    before the parties conducting settlement discussions. You have
    also reiterated this in your testimony today.
        So, you know, the family members are here. You have heard
    from them. We have all--we can't question whether what we are
    doing is necessary or not necessary. What we want to find out
    is how to do it so it works, works for them, and doesn't get
    all bogged down. We have learned some things from MSHA. So how
    does the MSHA's experience relate to your reservations and how
    can we settle those reservations? Or do we need to continue
    discussion on it? What would you think would be the best way to
    proceed?
        Mr. Barab. Well, first of all, let me clarify. Dr. Michaels
    expressed--I wouldn't--I would say we have not even
    reservations. We have some concerns. We obviously need the law,
    and everybody needs the law--workers, families--to work as
    efficiently as possible.
        But I want to reiterate that we fully support family
    involvement. We fully support the provisions in this law. In
    fact, we are already going to be implementing some of the
    provisions of this law even before it is passed, which we hope
    will happen soon. So our statements of concern, you know, are
    in no way--should in no way communicate that we are not fully
    in support of this or fully in support of family participation.
        We do want to talk to--we have been actually talking to
    MSHA. We realize MSHA has learned some important lessons
    certainly from Sago and Crandall Canyon on how to relate to
    families and how this can be done best, and we will be talking
    to them. We are talking to them, we will be talking to them
    more, and we will be learning from them.
        We learned an incredible amount just from the families that
    are here today. They came into town. They talked with Secretary
    Solis yesterday. We are in frequent contact with them.
        We have already, you know, told our field staff not only to
    make sure that we implement what we already have consistently,
    but we will be actually assigning OSHA staff to be family
    liaisons. We do want to improve the way we are doing things;
    and, again, we fully support what is in the law.
        So I don't want it to be taken, because we have expressed
    some concerns that this work right, that we aren't--we don't
    have full confidence that that can be done, either through the
    law or through the regulatory process.
        Chairwoman Woolsey. Okay. I hear that. But tell us how,
    what needs to be fixed to work right, with the idea that this
    administration follows 8 years of not giving a hoot. So how do
    we make sure we put into place the right programs, the right
    policies that will carry on from administration to
    administration?
        Mr. Barab. Okay. Just one example that was raised today
    that Ms. Ford has raised, which I think was quite legitimate,
    that she and her family found out about the settlement we
    reached with ADM through the news media.
        Now we followed the letter of our instructions of informing
    the family immediately. But by ``inform'', we meant we dropped
    a letter in the mail. Obviously, that was not adequate. That
    was, in retrospect, particularly inexcusable. That is no way to
    inform a family of a settlement, and we are going to be
    changing that.
        And we are going to be redefining the word ``inform'' to
    you call them. You call the family. You talk to the family
    before the media is notified, certainly.
        We are going to be doing training for our field staff to
    make sure that they are comfortable. Some of the problem we
    have is people, you know, understandably are just not
    comfortable dealing with family members who are in the midst of
    tragedy, and we are going to be dealing with that as well.
        So there are a number of actions we are going to take, a
    number of things we have learned and have been learning. And,
    again, we fully support what you are doing here.
        Chairwoman Woolsey. Congresswoman McMorris Rodgers.
        Mrs. McMorris Rogers. Well, again, just let me say thank
    you to everyone for being here. Your testimony is extremely
    helpful to us as we are working on this legislation. And the
    previous administration, the 8 years before this
    administration, I believe that we actually saw both injury and
    workplace-related death rates decrease.
        And, as I sit here, I think that part of the key is making
    sure that we have better partnerships between everyone that is
    involved and working together, because we do have a shared
    goal, and not make it adversarial.
        Mr. Jorgensen, I wanted to ask, because I understand that
    these whistleblower complaints are to be anonymous, and I just
    wanted to ask how you think your employer learned that you were
    the one that had brought the case forward.
        Mr. Jorgensen. Previous to my blowing the whistle----
        Chairwoman Woolsey. Do you have your microphone on, Mr.
    Jorgensen?
        Mr. Jorgensen. Previous to my turning in the complaint, my
    wife and a friend of hers had worked there, and they quit quite
    fiery. And when the complaint come down, it was kind of--I
    think it was kind of obvious the route that it came from. They
    were disgruntled. I was upset because I had talked to a couple
    of the employees there who had had their finger cut in the band
    saw, which was my concern, but I think they kind of figured it
    out because my wife and her friend had quit.
        Mrs. McMorris Rogers. Okay. Thank you.
        Mr. Chinn, your testimony highlighted the many provisions
    in the draft legislation that would make changes to the current
    whistleblower system. Are there any provisions that you believe
    merit more attention?
        Mr. Chinn. Yes, I do. Thank you for that question, because
    I think there are a couple of areas that--even if you accept
    everything that has been said so far in the testimony, I think
    there are a couple of areas here that deserve some attention,
    and maybe it is the sort of attention that only a lawyer who
    lives these kind of phrases and words and provisions in
    litigation, you know, can appreciate, I suppose.
        One area that I think deserves some particular attention is
    the limitations area, that is, the statute of limitations. And
    I will save for last my comments on what has been the focal
    point so far, and that is simply the increase in the period
    from 30 to 180 days.
        What I would like to focus on first is, in this statute
    there is a novel, at least as employment law goes, insertion of
    something that lawyers refer to as a discovery rule for the
    purpose of commencing the limitations period. That is, the
    limitations period begins either within a certain period of the
    alleged violation itself, that is the norm, or the date on
    which the employee knows or reasonably should have known that
    such a violation occurred. And it is that second component that
    I think is troubling.
        To my knowledge, it is a foreign concept in employment
    litigation, completely. It is a vague and uncertain standard;
    and, moreover, it doesn't really make any sense in the context
    of retaliation and whistle blowing. It might make sense in the
    context of, like, a medical malpractice case where a surgical
    instrument is left inside a person and it is not discovered for
    years afterwards. But here we are talking about the
    whistleblower context.
        Think about what Mr. Jorgensen described. We are talking
    about cause and effect. We are talking about--and that is the
    crux of a whistleblower complaint. That is, I complained and
    something happened to me because of that complaint. It is not a
    mystery. There is not some mysterious--if it really is true, if
    someone is being fired because they are a whistleblower, there
    is going to be some temporal connection between those concepts.
    So there is no need for--even if this weren't foreign to
    employment law, there is no need for it here.
        Secondly, with respect to the limitations period provisions
    in the statute, there is an extremely broad continuing
    violation provision lurking behind a heading called repeat
    violations. And essentially, what that means, as written, is if
    you have one timely----
        Chairwoman Woolsey. Finish your thought.
        Mr. Chinn. Okay. If you have one timely complaint to make,
    you may also complain about any untimely complaints that you
    want to going back as many years as you want to relating to any
    sorts of incidents, prior complaints, prior actions you want
    to.
        Chairwoman Woolsey. Okay. Mr. Hare.
        Mr. Hare. Thank you, Madam Chairman.
        Mr. Chinn, I don't know if you noticed when you were
    testifying but several of the people in the audience were
    holding up pictures of their families, family members. I want
    to be very honest with you. A couple of times, you know, you
    were talking about the expense to the employers and things of
    this nature and that this--you know, about the numbers of
    meritless cases.
        It would seem to me, from my opinion, that looking at these
    families--these are sisters, brothers, husbands, wives, dads,
    grandfathers. We just lost 29 miners because you had an
    employer that cared more about profits than he cared about
    keeping the people safe. And we have had four of those.
        And I have to be honest with you. I don't know. I am much
    less interested in the expense to the employers to keep their
    workers safe than keeping the workers actually safe. I mean, I
    think that every employer has a responsibility and I think
    every worker has every right to assume that when they go into
    work every day that they are going to go to work under safe
    circumstances, as best they can, and be able to come home to
    their families. I don't think it is rocket science.
        I also think that when you referred to Mr. Jorgensen's
    case, here is a guy that saw something and reported it and lost
    his job. And then he was told, you can't even--basically,
    because you got a couple of lawyers out there you are probably
    going to roll the dice on whether or not you are going to be
    able to prevail in your case.
        This system is upside down. It is completely upside down.
        I would much rather look at the statistics, as was
    mentioned, that 5,000 people every year die in this country.
    And I think there are a number of good employers in this
    country. But they have an obligation, those that aren't, to
    clean up their act. And if they don't, they shouldn't just be
    fined. They ought to end up in prison if they are not going to
    change what they are doing, the way they are acting. They would
    rather pay fines than keep people safe. I think that is--I
    don't know how these guys can go to sleep at night, to be
    honest with you.
        But I just wanted to ask, if I could--the person from the
    AFL-CIO, you were kind of shaking your head when some of that
    was being testified--I am sorry--Ms. Rhinehart--the testimony
    that will lead to excessive litigation and false claims and
    those kinds of things. I wondered if, you know, you didn't get
    an opportunity to, but you could probably tell this is a very
    emotional issue to me. I came out of a factory.
        I would like to hear your take maybe to respond to what Mr.
    Chinn had to say. Maybe I got it wrong, but I was shaking my
    head, too, to be honest with you.
        Ms. Rhinehart. Thank you for the opportunity to address
    some of those points. I tried not to shake too hard, but I
    couldn't help myself.
        A couple of things. In terms of the concern that actually
    giving workers a remedy for these rights would lead to false
    claims, I completely disagree. Workers are not going to file
    these claims lightly. Filing a claim about retaliation with the
    government is a big deal. Workers know that they can lose their
    jobs. They know that these cases take a long time to be
    pursued. They know that there is no assurance that they are
    going to win at the end of the day.
        What we get in this legislation is workers get a fair shot.
    They get a fair shot to bring their case forward and to try to
    prove up their case, which is much more than they have right
    now under current law.
        The information that we have shows the problem isn't
    frivolous claims. The problem is workers don't have the right
    right now to bring forward their claims, and that is the
    problem that the PAWA legislation is seeking to address and the
    reason why we fully support it.
        If I could just say a word about the notion that the
    statute of limitations in the legislation is somehow an outlier
    and bizarre in the area of employment law. That is just not the
    case. The discovery rule that the statute of limitations is
    from the time of the act or from the time the victim discovered
    the act is well settled in employment law, in Title VII law,
    even under the Occupational Safety and Health Act for
    whistleblower cases, and so it is just not accurate to say that
    this is a novel or bizarre concept in the area of labor and
    employment law.
        If I could make just one final point, which is one of the
    premises of Mr. Chinn's testimony seemed to be that
    whistleblower protections don't have anything to do with safety
    and health. They have to do with employment litigation, but
    they don't have anything to do with worker safety and health.
        We couldn't disagree more. We think they have everything to
    do with workers feeling secure to speak out, raise hazards, and
    be involved in protecting their health and safety on the job
    before injuries and illnesses occur.
        Mr. Hare. Well, I know I am out of time, but it would just
    seem to me that if Mr. Jorgensen or any worker sees something
    that is dangerous, that could be harmful to people that they
    work with, and they report it and they get fired for doing
    that, A, that is obscene to fire the person. And B, it doesn't
    allow the employer to do anything to correct the problem for
    the people that are there in the plant or wherever to keep them
    out of harm's way. It makes absolutely no sense to me.
        Chairwoman Woolsey. Ms. Shea-Porter.
        Ms. Shea-Porter. Thank you very much.
        I have several concerns that I heard in front of me.
        First, I would like to start, Ms. Ford, and say I am very
    sorry about your loss. And I wondered if you have spoken to
    other families that are in the same situation, and do they feel
    like they have been shut out.
        Ms. Ford. I have spoken to many of the families behind me.
    I have spoken to many families in Nebraska, many families. I
    have spoken to an individual that actually fell from a grain
    elevator after my uncle passed in the accident. And they said,
    we can't come forth because he still works there. I don't think
    that is right.
        Ms. Shea-Porter. So you think having a voice and allowing
    them to speak early would help other families as well?
        Ms. Ford. Oh, yes. I mean, from day one after this accident
    I started my research and there was so much I had found out.
    And if I had understood about the whole 6-month time frame this
    outcome would have been so different. I mean, I sat at my
    kitchen table and spoke to the OSHA representative and said,
    no, this was not grandfather-claused in. And it wasn't. I was
    right. And I find out in January, 2010, that I was right; and
    it could have been prevented. Things could have changed.
        Ms. Shea-Porter. You could have had a voice at the table.
        Ms. Ford. Yes.
        Ms. Shea-Porter. And, Dr. Monforton, what about that 8-hour
    rule that they have that they don't have to report a death or
    something that could have led to a death in 8 hours? What is
    your concern about that?
        Ms. Monforton. That is a very big disparity between the
    Mine Safety Act and the OSHA law. Under the Mine Safety Act, it
    was immediate notification of a fatality, which was fuzzy
    language. So after the Miner Act passed, they stipulated that
    within 15 minutes of the employer learning of the incident, not
    just of a fatality but for a serious injury that is likely to
    cause a death, and under the OSHA statute it is 8 hours for a
    fatality which, for many reasons, is problematic, including,
    you know, the employer could actually change the scene of the
    crime, so to speak.
        And, also, under OSHA, it is only if there are three or
    more people that are hospitalized. So there are huge
    disparities between the two statutes.
        And I think something that this subcommittee could look at
    is how do we take some of the things that are terrific in the
    Mine Act and extend them to all workers and vice versa, OSHA to
    MSHA.
        Ms. Shea-Porter. And, in all fairness, it could be
    accidental, where they don't realize over the 8-hour period of
    time that they are changing or interfering with some evidence.
    So it could be accidental, simply trying to clear things up.
        Ms. Monforton. Right. Maybe just, you know, cleaning up the
    scene.
        Ms. Shea-Porter. But the point is that the evidence should
    be intact, I think is what you are getting at.
        Ms. Monforton. Exactly. So as soon as OSHA knows, you know,
    if it is the type of thing they hear the initial information,
    they may want to give the employer some instruction about what
    to do or what not to do.
        Ms. Shea-Porter. Okay. Thank you.
        I also had a question for you. The U.S. Chamber of Commerce
    testified at a recent hearing that small businesses should have
    the right to recover attorneys' fees from employees who file
    whistleblower claims and then fail to prevail at a hearing. Do
    you think that would have any kind of chilling effect? Do you
    have any concerns about the loser having to pay?
        Mr. Barab. Yeah, I think it is clear it would have a
    chilling effect. Workers already face enough intimidation about
    filing complaints, and I think the fact that they not only
    might lose that or be fired due to a failure to sustain a
    whistleblower complaint but to think that they also might be
    essentially fined for that I think would have a chilling
    effect. We don't want to just allow workers to file
    whistleblower complaints or file health and safety complaints.
    We want to encourage them to do that. And this goes in exactly
    the opposite direction.
        Ms. Shea-Porter. Thank you.
        Do you agree, Mr. Chinn?
        Mr. Chinn. Do I agree as to the attorneys' fees provision?
        Ms. Shea-Porter. Yes.
        Mr. Chinn. As PAWA is written, I don't see that there is
    any possibility of an employer recovering, if the employer
    prevails.
        Of course, in Federal court, if the action proceeds to
    Federal court, the matter would be governed by rule 11 of the
    Federal Rules of Civil Procedure. If the matter were frivolous,
    an employer could recover attorneys' fees under that provision.
        Ms. Shea-Porter. But I wondered if you just agreed with the
    chambers perspective on that.
        Mr. Chinn. Well, if what Ms. Rhinehart said was true, I
    don't agree with what was just stated. Ms. Rhinehart said that
    employees will not bring forward meritless claims. Now, we know
    statistically that that is just an incorrect statement. I mean,
    even under the Obama OSHA, claims are rejected as meritless.
        But if Ms. Rhinehart were accurate, then claimants have
    nothing to fear, because they will always win under this
    legislation. Therefore, there should be, at least for small
    businesses or, at a minimum, if the matter is frivolous or
    brought in bad faith, there should be some provision for
    attorneys' fees, but nobody here should be concerned about it
    because, as Ms. Rhinehart said, no action will ever be brought
    without merit.
        Ms. Shea-Porter. And in all fairness then you would also
    have to say that, since cases are found to be meritless, that
    there is enough protection in there for business as well.
        Thank you. I yield back.
        Chairwoman Woolsey. Congressman Payne.
        Mr. Payne. Thank you very much.
        Mr. Barab, looking at the testimony, although I didn't hear
    it, but Mr. Jorgensen testified that he had filed a complaint
    with OSHA regarding unsafe working conditions, and he was
    terminated a week after the inspection. Despite the employer
    claiming that he was fired for poor performance, the OSHA
    inspector discovered that the employer altered job performance
    documents which they gave to OSHA omitting anything positive
    about Mr. Jorgensen.
        So I guess my question is, is it correct that OSHA
    investigators found that Mr. Jorgensen's case had merit? And,
    if so, did Mr. Jorgensen have a strong case? And how do you
    feel about the way the law treats Mr. Jorgensen and other
    people like him?
        Mr. Barab. Thank you, Mr. Payne.
        Yes, OSHA did find merit. OSHA found that it was a strong
    case. And as Mr. Jorgensen related, the solicitors decided not
    to take that, not to litigate that case.
        Quite frankly, I am appalled by this. I am appalled that in
    the 21st century, 40 years after the Occupational Safety and
    Health Act was passed, that workers still have to be afraid to
    exercise their rights under this law. I am not going to sit
    here--I mean, we did find merit. The solicitors didn't take it.
    I am not going to sit here and certainly condemn the
    solicitors. They have their own priorities. They have their own
    resource decisions. They have to make some very difficult
    decision about this, and I am sure it hurts them as much as it
    hurts us that this wasn't taken forward.
        The fact is, though, that we are both--both us, OSHA, the
    solicitors, and certainly workers are operating in what is now
    basically a dysfunctional system. It just doesn't work. And
    what we are asking you to do, what PAWA is asking you to do,
    what PAWA would do is really fix that system so that workers
    actually have a chance to exercise their rights under the law
    and succeed if they are discriminated against for that.
        Mr. Payne. Since you brought up the solicitors, let me ask
    you this. And you indicate they have a tough time. But over the
    past 14 years the Solicitor's Office has brought suit in only 7
    percent of the 467 merit cases it sent to OSHA and declined to
    prosecute 60 percent of those cases. Is Mr. Jorgensen's case an
    isolated one, or do you believe there are other meritorious
    claims which have been left by workers who were left, really,
    without any real recourse, sort of left high and dry? Why do
    you feel that the Solicitor's Office has such a low rate of
    success?
        Mr. Barab. Well, I think clearly Mr. Jorgensen's case is
    not an isolated case. There are many, many cases on those. I
    mean, the figures speak for themselves. And I am not with the
    Solicitor's Office. I am not going to really testify for the
    solicitors. But I do want to kind of outline the general
    environment that we all work in.
        I mean, the solicitors have to make--they have got, you
    know, X amount of resources. They have to make some difficult
    decisions. They may have, for example, class action suits that
    may affect thousands of workers. They may have a very difficult
    penalty case, settlement case for a worker fatality that they
    have to deal with. And then they also may have whistleblower
    cases that may only affect one worker for a few thousand
    dollars.
        I am not saying at all that these aren't important
    certainly to that worker who is unfairly fired for exercising
    his health and safety rights. But the fact is that there are
    some difficult decisions that have to be made here.
        But, again, let me reiterate that those difficult decisions
    are forced upon them because we are working in this
    dysfunctional system, and that is what we need to change. We
    need to change the system.
        Mr. Payne. Well, let me say that I also feel that we need
    to strengthen the system. We should really be protecting
    workers. Even worse, back about 10 or 15 years ago, there was a
    move afoot by the then-controlled Republican Congress to have
    OSHA have inspections done and that the company would pay for
    the inspections and that the results would be given to the
    company without the public knowing what was in it; and,
    therefore, the company then would supposedly use this as a
    working tool to go and try to correct problems that the OSHA
    inspector found.
        Of course, it, fortunately, really did not get off the
    ground, because it is difficult enough under the environment
    that we currently have for the workers to get justice. If you
    had the company paying for the inspection, it would be total
    injustice, in my opinion.
        So, with that, thank you and I will yield back the balance
    of my time.
        Chairwoman Woolsey. We are going to have a second round of
    questions, and I will yield to Congresswoman McMorris Rodgers.
        Mrs. McMorris Rogers. Thank you, Madam Chairwoman.
        Much of the work of this subcommittee focuses on how we can
    get employers and employees to work more proactively to prevent
    accidents and illnesses from occurring and encourage that
    participation. And Mr. Morikawa mentioned the results of your
    electrical contractors transmission and distribution strategic
    partnership for safety and the success of it. I wanted to ask
    you how you believe we could translate that experience into
    OSHA's everyday practices, especially as the agency has
    announced cuts in this area.
        Mr. Morikawa. Thank you very much for that question.
        The work with the ET&D partnership has been particularly
    positive and reinforcing because you took parties who were
    traditional adversaries and competitors and you pulled them all
    together for a common purpose and that common purpose was to
    reduce injuries and fatalities on the job. So it starts with
    that philosophy. It is an attitude. It is a desire to make a
    cultural change in an industry, which is very significant. As
    you can see, when you get everybody together in a cooperative
    basis, join hands to try to reduce injuries and fatalities and
    to find the causes and to stop them, you can have dramatic
    effect.
        Now, the issue I am concerned with is the fact that--first
    of all, I don't take issue with the fact that OSHA needs to
    have a strong and vibrant enforcement program. Neither the
    chamber nor I personally have ever taken the view that an
    enforcement program should be replaced by cooperative programs.
    What I think should be done, however, is that groups of
    employers or individual employers that have indicated a
    commitment to prevention of accidents and fatalities on the job
    should be encouraged by OSHA. They should be incented to do the
    right thing.
        Now, commonly, there is the notion that companies that go
    into partnerships are supposed to gain some sort of strategic
    advantage, that they are looking for some type of immunity or
    they are looking for some sort of special treatment from OSHA.
    ET&D is an excellent example of that. These issues came up at
    the time we formed ET&D. The question was asked by OSHA, what
    sorts of immunity, what special treatment would you like as a
    result of it? Is that what you are really after here?
        And, resoundingly, the members of the partnership--again,
    remember this, union, non-union companies, together with one of
    the largest labor unions in America, along with these trade
    associations--got together and said, no, we are not looking for
    any special treatment. In fact, we are not looking for
    inspection immunity, citation immunity. We are not looking for
    special points and privilege, et cetera. We are looking for
    your cooperation so that we can get together as a group and
    solve these problems as a group and not do it by fighting with
    each other.
        Again, the partnership never took the position that they
    shouldn't be cited if they violated OSHA standards. But what we
    did do is we focused on compliance cooperatively, and you can
    see the dramatic impact that has had. OSHA should be encouraged
    to do that.
        Mr. Barab. Just for the record, we fully support that
    partnership. We love that partnership. We think it has been
    very effective, and we have not cut back funding for these
    partnerships.
        Mrs. McMorris Rogers. Okay. Great. Great. Thank you.
        And, Madam Chairwoman, I have a case I would like to submit
    for the record. This is on April 19, 2010, the National Labor
    Relations Board found that the International Union of Operating
    Engineers, local 513, in violation of the National Labor
    Relations Act for fining a union member for reporting another
    union member's safety violation to their employer. IUOE had
    fined an employee $2,500 for informing his employer that a
    fellow employee and union member had violated a safety
    protocol, and I would like to submit that for the record.
        Chairwoman Woolsey. Without objection.
        [The information follows:]

                                    ------

        Mrs. McMorris Rogers. And I would like to ask, Ms.
    Rhinehart, if the AFL is examining any changes to protect
    whistleblowers within the union.
        Ms. Rhinehart. Thanks for the question. I am not familiar
    with the case that you just mentioned, but I will take a look
    at it.
        The stronger whistleblower protections in PAWA would apply
    to unions as employers just as they apply to private sector
    employers, and we fully support that.
        Mrs. McMorris Rogers. Okay. And I yield back.
        Chairwoman Woolsey. I was quite surprised that Mr. Chinn
    can sit here this morning and ask what motivates updating PAWA,
    why bringing section 11(c) into the 21st century, 11(c) of the
    OSH Act, is--what motivates us to do that, after hearing the
    Secretary and hearing the witnesses before you and knowing the
    stories of the family members sitting behind you. That just--I
    find that very hard to believe. So then the idea that--from
    that statement to during times of bad economic situations
    around the country, 10 percent unemployment--that we can't
    upgrade and fix what is so necessary to our workers and for our
    workers. So I would like to ask the members--the witnesses if
    they think there is a time and place when it is too--we can't
    afford to take care of our workers and we can't afford to
    update their worksites and our laws that protect them. Starting
    with you, Ms. Rhinehart.
        Mr. Jorgensen. May I speak for a second?
        Chairwoman Woolsey. Oh, sure. Mr. Jorgensen.
        Mr. Jorgensen. Two points here. First of all, OSHA should
    be a police officer. And, you know, just for the record, I am
    on the minority side of the House when it comes to my political
    group.
        Chairwoman Woolsey. Oh, gosh. Then we are not going to
    listen to you. Go ahead.
        Mr. Jorgensen. I think, you know, if a person comes forward
    and says something and he gets beat up for it, he is going to
    tell all his friends and nobody else is going to come forward.
    Bottom line.
        Like I said, I took my--you know, when I was asked, was
    talked about coming here, I went to my employer, my current
    employer, which is Sunoco out of South Carolina. I explained
    what had happened to me, what was--what I knew of what the law
    was for and said, should I go? Because, you know--and
    mentioned, you know, I know it will be a good experience. And
    my manager said, you should go, not just because it is a good
    experience, because it is right.
        Chairwoman Woolsey. Oh, thank you to that manager. Thank
    you for sharing that, Mr. Jorgensen.
        Ms. Rhinehart.
        Ms. Rhinehart. Thank you. Just a couple of comments.
        One is, there is a desperate need to update and strengthen
    this law. And I just want to reinforce a point that has sort of
    come out in the course of this discussion but that really needs
    to be made clear, and that is what an outlier the whistleblower
    protections in the OSH Act are relative to really virtually any
    other law and the absence of a private right of action and
    ability of workers like Mr. Jorgensen to bring their case
    forward if the Secretary of Labor can't act. It is--the OSH Act
    is way out of the mainstream, and it is past time to bring it
    into the mainstream of other whistleblower laws. So thank you
    for your efforts to that end.
        Chairwoman Woolsey. Okay. Thank you.
        Dr. Monforton.
        Ms. Monforton. As a professor of public health and someone
    who studies history, I mean, we have heard through the time of
    the OSHA law that there is, you know, you never have a perfect
    time to reduce injuries and illnesses. If you listen to the
    business community and you look at the difficult time that OSHA
    has had in regulating many, many hazards, you know, we would
    never get anything done if people were looking for the perfect
    time.
        And I also would like to draw people's attention to the
    hearing yesterday in the Senate which focused also on worker
    health and safety. And it came through loud and clear that
    during the most difficult time, when our economy is in the
    tank, that is the exact time that workers are most at risk of
    being exploited, and that is when we need very strong
    whistleblower protection laws. And people will take risks if
    they are afraid of losing their job or they are laid off, and
    that is why we really need these strong whistleblower
    protections.
        Chairman Woolsey. Thank you.
        Mr. Morikawa--I am going to take the prerogative of the
    chair and let Ms. Ford and Jordan speak, also--would you like
    to respond to that?
        Mr. Morikawa. Well, first of all, I think that PAWA is an
    act which has significant merit. There is no question that
    there are issues that have been raised, that have led everybody
    here to this meeting today. I think what we are discussing
    really are aspects of PAWA which we think just don't
    necessarily work in real practice, and what we have tried to
    inject into the discussion today is a real-life experience that
    places us in a somewhat unique position of actually agreeing
    with each other.
        I am actually talking to Mr. Barab, who I have known for
    many years, and we have had differences in the past, but we
    certainly have no disagreement here about the impact that
    certain aspects of this legislation can have in terms of taking
    an agency which is really faced with a difficult mission of
    trying to enforce laws for so many millions of workplaces in
    America with a very, very small staff. And, as a consequence of
    that, they are faced with a challenge of trying to decide which
    cases to pursue, how to pursue them and when to pursue them,
    issues of timing, resource deployment, et cetera. And in that
    respect we certainly respect and we give deference to the
    prosecutorial discretion that agencies such as OSHA and the
    Solicitor's Office need to have in order to enforce the laws
    that they have been charged to enforce. So, in that respect,
    they really are acting and should be acting as the
    representative of employees in these types of cases.
        Chairman Woolsey. Okay. Thank you.
        Ms. Ford.
        Ms. Ford. Like Dr. Monforton said, I would have to agree,
    there is probably no time, the best time to fix to make safety.
    However, in saying that, I hope the employers know that it was
    the hard work of people like my uncle and my father who make
    these companies what they are today. They have the name, but it
    is the people that make it, and if it was not for them, they
    wouldn't be where they are.
        Chairman Woolsey. Thank you very much.
        Secretary Barab.
        Mr. Barab. Thank you.
        I have been working in this field for close to 30 years,
    and one thing that is more and more obvious to me is that OSHA
    doesn't work and workplace health and safety doesn't work
    unless workers are actively involved, and the only way workers
    are going to be actively involved is if they do not fear
    retaliation. And that is not the situation now.
        Now, I just want to mention one thing. It is true that OSHA
    only finds merit in 25 percent of these cases. That does not
    mean, however, and I certainly don't agree with the fact that
    OSHA thinks that the other 76 percent of these cases are
    frivolous. All this means is that these workers--nor does it
    mean that these workers didn't actually have a good-faith
    belief that there was a health and safety problem or that there
    was a health and safety problem. It simply means that, under
    the way the law is written now, they could not assemble the
    kind of evidence that they needed to prevail in the case. So,
    again, I totally reject that that figure means that these cases
    were frivolous.
        And, secondly, just in terms of responding to Mr. Morikawa,
    I do understand, obviously, we all understand, that there are
    serious resource problems. And I will take your comments as an
    endorsement for increasing our resources. But I also want to
    say that just for that reason is why we need Protecting
    America's Worker's rights, why we need a private right of
    action and the other elements that are in the whistleblower
    provisions of this law. So this is--it has been 40 years now
    since this law was passed. There are some very clear, very
    obvious problems that are keeping workplaces from being as safe
    as they can be, and now it is high time to actually make those
    changes.
        Chairwoman Woolsey. Okay. It appears I am really out of
    time.
        Ms. Shea-Porter.
        Ms. Shea-Porter. Thank you.
        I just have a quick question, but, first, I wanted to say
    that I do know that most companies are very interested in
    keeping their workers safe; and I think that, you know, they do
    everything they can. I did work in factories through college,
    and I saw some pretty awful things, and I saw some pretty
    wonderful employers. I think that really reflects, you know,
    what the world is like; and that is why we have to have a
    strong agency for the few who would not follow the rules. But,
    mostly, I think that we have come a long way since I was in
    college, and I am happy to see that.
        I do go to factories and I look very closely at so many
    markers that maybe other people wouldn't know to look for, and
    I appreciate that I had seen a tremendous improvement.
        Having said that, Ms. Rhinehart, I felt I needed to give
    you an opportunity to respond to Mr. Chinn's comments at the
    end of my last 5 minutes. Because I agree with Mr. Barab about
    what those numbers really signify, but I wanted to give you a
    chance to talk about whether they are frivolous suits and
    exactly what is happening out there, in your opinion.
        Ms. Rhinehart. Thank you.
        Really, very little is known about the reasons why the
    cases were dismissed by OSHA, withdrawn by the complainant, not
    processed further through the system. In a good number of
    cases, I imagine the worker missed the statute of limitations,
    which is a problem that is addressed by the pending legislation
    to lengthen the exceedingly short statute of limitations that
    currently exists in the OSH Act.
        If a worker was fired for filing an OSHA complaint and
    filed their whistleblower complaint on day 35 as opposed to day
    30, that case would have been dismissed. It wouldn't have merit
    under the current law, but it doesn't mean that the worker
    wasn't wrongfully terminated. They just missed the statute of
    limitation. So that is just one example.
        There are a lot of things that go into whether or not a
    case is withdrawn, dismissed, or doesn't proceed further
    through the system. So I think that you can't just assume that
    they they all didn't proceed because they were not meritorious
    or they were frivolous. There is just no evidence to support
    that.
        And, as I said earlier on this point, workers don't bring
    these cases forward lightly. They know the consequences of
    coming forward and filing a claim with the government against
    their employer and what that could mean for them in their job
    and future jobs and so forth. They don't bring these claims
    forward lightly, which is all the more reason why we need a
    stronger law to protect them when they do come forward to raise
    these concerns. Thank you.
        Ms. Shea-Porter. Thank you.
        And, also, I would add that sometimes has an impact on them
    in their community, in their social life because of the role,
    if it is a very prominent role, that the business has in a
    community. So I would agree that, for the most part, they don't
    step forward lightly. It is a serious issue.
        Thank you, and I yield back.
        Chairwoman Woolsey. Well, in closing, I would like to thank
    this wonderful panel of witnesses. Every one of you
    participated absolutely to the degree that we were hoping. We
    have learned from you, and your testimony will make a
    difference. And thank you, families, again, for being here and
    loved ones and friends of those who have died at the workplace.
        Today, as we said, is Workers Memorial Day, a day when we
    honor fallen workers and recommit ourselves to ensuring the
    safety and health of all workers. As our witnesses have
    testified, it has been 40 years since the OSH Act was amended
    and, well, passed in the first place and fully amended. In
    those 40 years, we have learned a lot about working and what
    needs to be changed; and PAWA will modernize the OSH Act, give
    workers and their families the protections they need to report
    unsafe and unhealthy practices and be involved in the process
    when an incident causes a fatality or a serious injury.
        I am looking forward to our bill, PAWA, proceeding through
    the committee and the floor for a vote. It wouldn't have been
    possible without your input and without your interest, and I
    thank you all very much for that and thank you for coming.
        As previously ordered, members have 14 days to submit
    additional materials for the hearing records. Any member who
    wishes to submit follow-up questions in writing to the
    witnesses should coordinate with the majority staff within 14
    days.
        Then I ask unanimous consent to include the following 14
    items into the hearing. So, without objection, I would like to
    place the following letters into the record: 1, the discussion
    draft for Protecting America's Workers Act of March 9, 2010; 2,
    data on the Solicitor of Labor's disposition of 11(c)
    retalitaion cases from 1995 through 2009; 3, statistics and
    outcomes on whistleblower cases filed with OSHA for 2008; 4,
    OSHA's actions on 11(c) cases completed in fiscal year 2009; 5,
    DOL's letter to Neal Jorgensen dated April 7, 2005; 6, the ADM
    Miling Company informal settlement agreement; 7, an e-mail from
    OSHA to Ms. Ford; 8, the Kansas Supreme Court Case, Flenker v.
    Willamette Industries, Inc.; 9, the Missouri Court of Appeals
    case, Shawcross v. Pyro Products, Inc.; 10, the U.S. Court of
    Appeals case, Wood v. Department of Labor; 11, an
    Administrative Law Journal article by Eugene Fidell, titled
    Federal Protection of Private Sector Health and Safety
    Whistleblowers; 12, an Employee Rights and Employment Policy
    Journal by Jarrod Gonzalez titled, A Pot of Gold at the End of
    the Rainbow: An Economic Incentives Based Approach to OSHA
    Whistleblowing; 13, a GAO report titled Better Data and
    Improved Oversight Would Help Ensure Program Quality and
    Consistency; and, finally, 14, Comparison of Anti-Retaliation
    Provisions in Other Laws, prepared by AFL-CIO; and 15, National
    Labor Relations Board case dated April 19 of 2010.
        [The information follows:]

                               [DISCUSSION DRAFT]

                             [as of March 9, 2010]

                                    ------

          [Modifications to HR 2067, Protecting America's Workers Act]

                                    ------

    111th CONGRESS
            2d Session

                                     H. R. __

    To amend the Occupational Safety and Health Act of 1970 to
            expand coverage under the Act, to increase protections
            for whistleblowers, to increase penalties for certain
            violators, and for other purposes.
                                    ------

                        IN THE HOUSE OF REPRESENTATIVES

     Ms. Woolsey introduced the following bill; which was referred to the
                          Committee on _______________

                                    ------

                                     A BILL

    To amend the Occupational Safety and Health Act of 1970 to
            expand coverage under the Act, to increase protections
            for whistleblowers, to increase penalties for certain
            violators, and for other purposes.

        Be it enacted by the Senate and House of Representatives of the
    United States of America in Congress assembled,

    SECTION 1. SHORT TITLE.

        This Act may be cited as the ``Protecting America's Workers Act''.

    SEC. 2. REFERENCES.

        Except as otherwise expressly provided, wherever in this Act an
    amendment or repeal is expressed in terms of an amendment to, or repeal
    of, a section or other provision, the reference shall be considered to
    be made to a section or other provision of the Occupational Safety and
    Health Act of 1970 (29 U.S.C. 651 et seq.).

          TITLE I--COVERAGE OF PUBLIC EMPLOYEES AND APPLICATION OF ACT

    SEC. 101. COVERAGE OF PUBLIC EMPLOYEES.

        (a) In General.--Section 3(5) (29 U.S.C. 652(5)) is amended by
    striking ``but does not include'' and all that follows through the
    period at the end and inserting ``including the United States, a State,
    or a political subdivision of a State.''.
        (b) Construction.--Nothing in this Act shall be construed to affect
    the application of section 18 of the Occupational Safety and Health Act
    of 1970 (29 U.S.C. 667).

    SEC. 102. APPLICATION OF ACT.

        Section 4(b) (29 U.S.C. 653(b)(1)) is amended--
                (1) by redesignating paragraphs (2), (3), and (4) as
            paragraphs (5), (6), and (7), respectively; and
                (2) by striking paragraph (1) and inserting the following:
        ``(1) If a Federal agency has promulgated and is enforcing a
    standard or regulation affecting occupational safety or health of some
    or all of the employees within that agency's regulatory jurisdiction,
    and the Secretary determines that such a standard or regulation as
    promulgated and the manner in which the standard or regulation is being
    enforced provides protection to those employees that is at least as
    effective as the protection provided to those employees by this Act and
    the Secretary's enforcement of this Act, the Secretary may publish a
    certification notice in the Federal Register. The notice shall set
    forth that determination and the reasons for the determination and
    certify that the Secretary has ceded jurisdiction to that Federal
    agency with respect to the specified standard or regulation affecting
    occupational safety or health. In determining whether to cede
    jurisdiction to a Federal agency, the Secretary shall seek to avoid
    duplication of, and conflicts between, health and safety requirements.
    Such certification shall remain in effect unless and until rescinded by
    the Secretary.
        ``(2) The Secretary shall, by regulation, establish procedures by
    which any person who may be adversely affected by a decision of the
    Secretary certifying that the Secretary has ceded jurisdiction to
    another Federal agency pursuant to paragraph (1) may petition the
    Secretary to rescind a certification notice under paragraph (1). Upon
    receipt of such a petition, the Secretary shall investigate the matter
    involved and shall, within 90 days after receipt of the petition,
    publish a decision with respect to the petition in the Federal
    Register.
        ``(3) Any person who may be adversely affected by--
                ``(A) a decision of the Secretary certifying that the
            Secretary has ceded jurisdiction to another Federal agency
            pursuant to paragraph (1); or
                ``(B) a decision of the Secretary denying a petition to
            rescind such a certification notice under paragraph (1),
    may, not later than 60 days after such decision is published in the
    Federal Register, file a petition challenging such decision with the
    United States court of appeals for the circuit in which such person
    resides or such person has a principal place of business, for judicial
    review of such decision. A copy of the petition shall be forthwith
    transmitted by the clerk of the court to the Secretary. The Secretary's
    decision shall be set aside if found to be arbitrary, capricious, an
    abuse of discretion, or otherwise not in accordance with law.
        ``(4) Nothing in this Act shall apply to working conditions covered
    by the Federal Mine Safety and Health Act of 1977 (30 U.S.C. 801 et
    seq.).''.

              TITLE II--INCREASING PROTECTIONS FOR WHISTLEBLOWERS

    SEC. 201. EMPLOYEE ACTIONS.

        Section 11(c)(1) (29 U.S.C. 660(c)(1)) is amended by inserting
    before the period at the end the following: ``, including the reporting
    of any injury, illness, or unsafe condition to the employer, agent of
    the employer, safety and health committee involved, or employee safety
    and health representative involved''.

    SEC. 202. PROHIBITION OF DISCRIMINATION.

        Section 11(c) (29 U.S.C. 660(c)) is amended by striking paragraph
    (2) and inserting the following:
                ``(2) No person shall discharge or in any manner
            discriminate against an employee for refusing to perform the
            employee's duties if the employee has a reasonable apprehension
            that performing such duties would result in serious injury to,
            or serious impairment of the health of, the employee or other
            employees. The circumstances causing the employee's
            apprehension of serious injury or serious impairment of health
            shall be of such a nature that a reasonable person, under the
            circumstances confronting the employee, would conclude that
            there is a bona fide danger of a serious injury, or serious
            impairment of health, resulting from the circumstances. In
            order to qualify for protection under this paragraph, the
            employee, when practicable, shall have sought from the
            employee's employer, and have been unable to obtain, a
            correction of the circumstances causing the refusal to perform
            the employee's duties.''.

    SEC. 203. PROCEDURE.

        Section 11(c) (29 U.S.C. 660(c)) is amended by striking paragraph
    (3) and inserting the following:
                ``(3) Complaint.--Any employee who believes that the
            employee has been discharged, disciplined, or otherwise
            discriminated against by any person in violation of paragraph
            (1) or (2) may seek relief for such violation by filing a
            complaint with the Secretary under paragraph (5).
                ``(4) Statute of limitations.--
                        ``(A) In general.--An employee may take the action
                    permitted by paragraph (3)(A) not later than 180 days
                    after the later of--
                                ``(i) the date on which an alleged
                            violation of paragraph (1) or (2) occurs; or
                                ``(ii) the date on which the employee knows
                            or should reasonably have known that such
                            alleged violation occurred.
                        ``(B) Repeat violation.--Except in cases when the
                    employee has been discharged, a violation of paragraph
                    (1) or (2) shall be considered to have occurred on the
                    last date an alleged repeat violation occurred.
                ``(5) Investigation.--
                        ``(A) In general.--An employee may, within the time
                    period required under paragraph (4)(B), file a
                    complaint with the Secretary alleging a violation of
                    paragraph (1) or (2). If the complaint alleges a prima
                    facie case, the Secretary shall conduct an
                    investigation of the allegations in the complaint,
                    which--
                                ``(i) shall include--
                                        ``(I) interviewing the complainant;
                                        ``(II) providing the respondent an
                                    opportunity to--
                                                ``(aa) submit to the
                                            Secretary a written response to
                                            the complaint; and
                                                ``(bb) meet with the
                                            Secretary to present statements
                                            from witnesses or provide
                                            evidence; and
                                        ``(III) providing the complainant
                                    an opportunity to--
                                                ``(aa) receive any
                                            statements or evidence provided
                                            to the Secretary;
                                                ``(bb) meet with the
                                            Secretary; and
                                                ``(cc) rebut any statements
                                            or evidence; and
                                ``(ii) may include issuing subpoenas for
                            the purposes of such investigation.
                        ``(B) Decision.--Not later than 90 days after the
                    filing of the complaint, the Secretary shall--
                                ``(i) issue a decision on whether to order
                            relief; and
                                ``(ii) notify, in writing, the complainant
                            and the respondent named in the complaint of
                            such decision.
                ``(6) Preliminary order following investigation.--If, after
            completion of an investigation under paragraph (5)(A), the
            Secretary finds reasonable cause to believe that a violation of
            paragraph (1) or (2) has occurred, the Secretary shall issue a
            preliminary order providing relief authorized under paragraph
            (14) at the same time the Secretary issues a decision under
            paragraph (5)(B). If a de novo hearing is not requested within
            the time period required under paragraph (7)(A)(i), such
            preliminary order shall be deemed a final order of the
            Secretary and is not subject to judicial review.
                ``(7) Hearing.--
                        ``(A) Request for hearing.--
                                ``(i) In general.--A de novo hearing on the
                            record before an administrative law judge may
                            be requested--
                                        ``(I) by the complainant or
                                    respondent within 30 days after
                                    receiving notification of a decision or
                                    preliminary order for relief issued
                                    under paragraph (5)(B) or (6),
                                    respectively;
                                        ``(II) by the complainant within 30
                                    days after the date the complaint is
                                    dismissed without investigation by the
                                    Secretary under paragraph (5)(A); or
                                        ``(III) by the complainant within
                                    120 days after the date of filing the
                                    complaint, if the Secretary has not
                                    issued a decision under paragraph
                                    (5)(B).
                                ``(ii) Reinstatement order.--The request
                            for a hearing shall not operate to stay any
                            preliminary reinstatement order issued under
                            paragraph (6).
                        ``(B) Procedures.--
                                ``(i) In general.--A hearing requested
                            under this paragraph shall be conducted
                            expeditiously and in accordance with rules
                            established by the Secretary for hearings
                            conducted by administrative law judges.
                                ``(ii) Subpoenas; production of evidence.--
                            In conducting any such hearing, the
                            administrative law judge may issue subpoenas.
                            The respondent or complainant may request the
                            issuance of subpoenas that require the
                            deposition of, or the attendance and testimony
                            of, witnesses and the production of any
                            evidence (including any books, papers,
                            documents, or recordings) relating to the
                            matter under consideration.
                                ``(iii) Decision.--The administrative law
                            judge shall issue a decision not later than 90
                            days after the date on which a hearing was
                            requested under this paragraph and promptly
                            notify, in writing, the parties and the
                            Secretary of such decision, including the
                            findings of fact and conclusions of law. If the
                            administrative law judge finds that a violation
                            of paragraph (1) or (2) has occurred, the judge
                            shall issue an order for relief under paragraph
                            (14). If review under paragraph (8) or (11) is
                            not timely requested, such order shall be
                            deemed a final order of the Secretary that is
                            not subject to judicial review.
                ``(8) Administrative appeal.--
                        ``(A) In general.--Not later than 30 days after the
                    date of notification of a decision and order issued by
                    an administrative law judge under paragraph (7), the
                    complainant or respondent may file, with objections, an
                    administrative appeal with the Secretary (or an
                    administrative review body designated by the
                    Secretary).
                        ``(B) Standard of review.--In reviewing the
                    decision and order of the administrative law judge, the
                    Secretary (or designated administrative review body)
                    shall affirm the decision and order if it is determined
                    that the factual findings set forth therein are
                    supported by substantial evidence and the decision and
                    order are made in accordance with applicable law.
                        ``(C) Decision.--If the Secretary grants the
                    administrative appeal and finds that a violation of
                    paragraph (1) or (2) has occurred, the Secretary shall
                    issue, within 60 days of receipt of the administrative
                    appeal, a final decision and order providing relief
                    authorized under paragraph (14), and such decision and
                    order shall constitute a final agency action.
                ``(9) Settlement in the administrative process.--
                        ``(A) In general.--At any time before issuance of a
                    final order, an investigation or proceeding under this
                    subsection may be terminated on the basis of a
                    settlement agreement entered into by--
                                ``(i) the Secretary or an administrative
                            law judge conducting a hearing under this
                            subsection;
                                ``(ii) the complainant; and
                                ``(iii) the respondent.
                        ``(B) Public policy considerations.--The Secretary
                    or an administrative law judge conducting a hearing
                    under this subsection may not accept a settlement that
                    contains conditions conflicting with the rights
                    protected under this Act or that are contrary to public
                    policy, including a restriction on a complainant's
                    right to future employment with employers other than
                    the specific employers named in a complaint.
                ``(10) Inaction by the secretary or administrative law
            judge.--
                        ``(A) In general.--The complainant may bring a de
                    novo action described in subparagraph (B) if--
                                ``(i) an administrative law judge has not
                            issued a decision and order within the 90-day
                            time period required under paragraph
                            (7)(B)(iii); or
                                ``(ii) the Secretary has not issued a
                            decision and order within the 60-day time
                            period required under paragraph (8)(C).
                        ``(B) De novo action.--Such de novo action may be
                    brought at law or equity in the United States district
                    court for the district where a violation of paragraph
                    (1) or (2) allegedly occurred or where the complainant
                    resided on the date of such alleged violation. The
                    court shall have jurisdiction over such action without
                    regard to the amount in controversy and to order
                    appropriate relief under paragraph (14). Such action
                    shall, at the request of either party to such action,
                    be tried by the court with a jury.
                ``(11) Judicial review.--
                        ``(A) Timely appeal to the court of appeals.--Any
                    party adversely affected or aggrieved by a final
                    decision and order issued under this subsection may
                    obtain review of such decision and order in the United
                    States Court of Appeals for the circuit where the
                    violation, with respect to which such final decision
                    and order was issued, allegedly occurred or where the
                    complainant resided on the date of such alleged
                    violation. To obtain such review, a party shall file a
                    petition for review not later than 60 days after the
                    final decision and order was issued. Such review shall
                    conform to chapter 7 of title 5, United States Code.
                    The commencement of proceedings under this subparagraph
                    shall not, unless ordered by the court, operate as a
                    stay of the final decision and order.
                        ``(B) Limitation on collateral attack.--An order
                    and decision with respect to which review may be
                    obtained under subparagraph (A) shall not be subject to
                    judicial review in any criminal or other civil
                    proceeding.
                ``(12) Enforcement of order.--If a respondent fails to
            comply with an order issued under this subsection, the
            Secretary or the complainant on whose behalf the order was
            issued may file a civil action for enforcement in the United
            States district court for the district in which the violation
            was found to occur to enforce such order. If both the Secretary
            and the complainant file such action, the action of the
            Secretary shall take precedence. The district court shall have
            jurisdiction to grant all appropriate relief including,
            injunctive relief, compensatory or exemplary damages, and
            reasonable attorneys' fees and costs.
                ``(13) Burdens of proof.--
                        ``(A) Criteria for determination.--In adjudicating
                    a complaint pursuant to this subsection, the Secretary
                    or a court may determine that a violation of paragraph
                    (1) or (2) has occurred only if the complainant
                    demonstrates that any conduct described in paragraph
                    (1) or (2) with respect to the complainant was a
                    contributing factor in the adverse action alleged in
                    the complaint.
                        ``(B) Prohibition.--Notwithstanding subparagraph
                    (A), a decision or order that is favorable to the
                    complainant shall not be issued in any administrative
                    or judicial action pursuant to this subsection if the
                    respondent demonstrates by clear and convincing
                    evidence that the respondent would have taken the same
                    adverse action in the absence of such conduct.
                ``(14) Relief.--
                        ``(A) Order for relief.--If the Secretary or a
                    court determines that a violation of paragraph (1) or
                    (2) has occurred, the Secretary or court, respectively,
                    shall have jurisdiction to order all appropriate
                    relief, including injunctive relief, compensatory and
                    exemplary damages, including--
                                ``(i) affirmative action to abate the
                            violation;
                                ``(ii) reinstatement without loss of
                            position or seniority, and restoration of the
                            terms, rights, conditions, and privileges
                            associated with the complainant's employment,
                            including opportunities for promotions to
                            positions with equivalent or better
                            compensation for which the complainant is
                            qualified;
                                ``(iii) compensatory and consequential
                            damages sufficient to make the complainant
                            whole, (including back pay, prejudgment
                            interest, and other damages); and
                                ``(iv) expungement of all warnings,
                            reprimands, or derogatory references that have
                            been placed in paper or electronic records or
                            databases of any type relating to the actions
                            by the complainant that gave rise to the
                            unfavorable personnel action, and, at the
                            complainant's direction, transmission of a copy
                            of the decision on the complaint to any person
                            whom the complainant reasonably believes may
                            have received such unfavorable information.
                        ``(B) Attorneys' fees and costs.--If the Secretary
                    or a court grants an order for relief under
                    subparagraph (A), the Secretary or court, respectively,
                    shall assess, at the request of the employee against
                    the employer--
                                ``(i) reasonable attorneys' fees; and
                                ``(ii) costs (including expert witness
                            fees)) reasonably incurred, as determined by
                            the Secretary or court respectively, in
                            connection with bringing the complaint upon
                            which the order was issued.
                ``(15)  Procedural rights.--The rights and remedies
            provided for in this subsection may not be waived by any
            agreement, policy, form, or condition of employment, including
            by any pre-dispute arbitration agreement or collective
            bargaining agreement.
                ``(16) Savings.--Nothing in this section shall be construed
            to diminish the rights, privileges, or remedies of any employee
            who exercises rights under any Federal or State law or common
            law, or under any collective bargaining agreement.
                ``(17) Election of venue.--
                        ``(A) In general.--An employee of an employer who
                    is located in a State that has a State plan approved
                    under section 18 may file a complaint alleging a
                    violation of paragraph (1) or (2) by such employer
                    with--
                                ``(i) the Secretary under paragraph (5); or
                                ``(ii) a State plan administrator in such
                            State.
                        ``(B) Referrals.--If--
                                ``(i) the Secretary receives a complaint
                            pursuant to subparagraph (A)(i), the Secretary
                            shall not refer such complaint to a State plan
                            administrator for resolution; or
                                ``(ii) a State plan administrator receives
                            a complaint pursuant to subparagraph (A)(ii),
                            the State plan administrator shall not refer
                            such complaint to the Secretary for
                            resolution.''.

    SEC. 204. RELATION TO ENFORCEMENT.

        Section 17(j) (29 U.S.C. 666(j)) is amended by inserting before the
    period the following: ``, including the history of violations under
    section 11(c)''.

                 TITLE III--INCREASING PENALTIES FOR VIOLATORS

    SEC. 301. POSTING OF EMPLOYEE RIGHTS.

        Section 8(c)(1) (29 U.S.C. 657(c)(1)) is amended by adding at the
    end the following new sentence: ``Such regulations shall include
    provisions requiring employers to post for employees information on the
    protections afforded under section 11(c).''.

    SEC. 302. EMPLOYER REPORTING OF WORK-RELATED DEATHS AND
                        HOSPITALIZATIONS AND PROHIBITION ON DISCOURAGING
                        EMPLOYEE REPORTS OF INJURY OR ILLNESS.

        Section 8(c)(2) (29 U.S.C. 657(c)(2)) is amended by adding at the
    end the following new sentences: ``Such regulations shall require
    employers to promptly notify the Secretary of any work-related death or
    work-related injury or illness that results in the in-patient
    hospitalization of an employee for medical treatment. Such regulations
    shall also prohibit the employer from adopting or implementing policies
    or practices by the employer that have the effect of discouraging
    accurate recordkeeping and the reporting of work-related injuries or
    illnesses by any employee or in any manner discriminates or provides
    for adverse action against any employee for reporting a work-related
    injury or illness.''

    SEC. 303. NO LOSS OF EMPLOYEE PAY FOR INSPECTIONS.

        Section 8(e) (29 U.S.C. 657(e)) is amended by inserting after the
    first sentence the following: ``Time spent by an employee participating
    in or aiding any such inspection shall be deemed to be hours worked and
    no employee shall suffer any loss of wages, benefits, or other terms
    and conditions of employment for having participated in or aided any
    such inspection.''.

    SEC. 304. INVESTIGATIONS OF FATALITIES AND SIGNIFICANT INCIDENTS.

        Section 8 (29 U.S.C. 657) is amended by adding at the end the
    following new subsection:
        ``(i) Investigation of Fatalities and Serious Incidents.--
        ``(1) In General.--The Secretary shall investigate any significant
    incident or an incident resulting in death that occurs in a place of
    employment.
        ``(2) Appropriate Measures.--If a significant incident or an
    incident resulting in death occurs in a place of employment, the
    employer shall promptly notify the Secretary of the incident involved
    and shall take appropriate measures to prevent the destruction or
    alteration of any evidence that would assist in investigating the
    incident. The appropriate measures required by this paragraph do not
    prevent an employer from taking action on a worksite to prevent injury
    to employees or substantial damage to property or to avoid disruption
    of essential services necessary to public safety. If an employer takes
    such action, the employer shall notify the Secretary of the action in a
    timely fashion.
        ``(3) Definitions.--In this subsection:
                ``(A) Incident resulting in death.--The term `incident
            resulting in death' means an incident that results in the death
            of an employee.
                ``(B) Significant incident.--The term `significant
            incident' means an incident that results in the in-patient
            hospitalization of 2 or more employees for medical
            treatment.''.

    SEC. 305. PROHIBITION ON UNCLASSIFIED CITATIONS.

        Section 9 (29 U.S.C. 658) is amended by adding at the end the
    following:
        ``(d) No citation for a violation of this Act may be issued,
    modified, or settled under this section without a designation
    enumerated in section 17 with respect to such violation.''.

    SEC. 306. VICTIMS' RIGHTS.

        The Act is amended by inserting after section 9 (29 U.S.C. 658) the
    following:

    ``SEC. 9A. VICTIM'S RIGHTS.

        ``(a) Rights Before the Secretary.--A victim or the representative
    of a victim, shall be afforded the right, with respect to an inspection
    or investigation conducted under section 8 to--
                ``(1) meet with the Secretary regarding the inspection or
            investigation conducted under such section before the
            Secretary's decision to issue a citation or take no action;
                ``(2) receive, at no cost, a copy of any citation or
            report, issued as a result of such inspection or investigation,
            at the same time as the employer receives such citation or
            report;
                ``(3) be informed of any notice of contest or addition of
            parties to the proceedings filed under section 10(c); and
                ``(4) be provided notification of the date and time or any
            proceedings, service of pleadings, and other relevant
            documents, and an explanation of the rights of the employer,
            employee and employee representative, and victim to participate
            in proceedings conducted under section 10(c).
        ``(b) Rights Before the Commission.--Upon request, a victim or
    representative of a victim shall be afforded the right with respect to
    a work-related bodily injury or death to--
                ``(1) be notified of the time and date of any proceeding
            before the Commission; and
                ``(2) receive pleadings and any decisions relating to the
            proceedings; and
                ``(3) be provided an opportunity to appear and make a
            statement in accordance with the rules prescribed by the
            Commission.
        ``(c) Modification of Citation.--Before entering into an agreement
    to withdraw or modify a citation issued as a result of an inspection or
    investigation of an incident under section 8, the Secretary shall
    notify a victim or representative of a victim and provide the victim or
    representative of a victim with an opportunity to appear and make a
    statement before the parties conducting settlement negotiations. In
    lieu of an appearance, the victim or representative of the victim may
    elect to submit a letter to the Secretary and the parties.
        ``(d) Secretary Procedures.--The Secretary shall establish
    procedures--
                ``(1) to inform victims of their rights under this section;
            and
                ``(2) for the informal review of any claim of a denial of
            such a right.
        ``(e) Commission Procedures.--The Commission shall establish
    procedures relating to the rights of victims to be heard in proceedings
    before the Commission.
        ``(f) Definition.--In this section, the term `victim' means--
                ``(1) an employee, including a former employee, who has
            sustained a work-related injury or illness that is the subject
            of an inspection or investigation conducted under section 8, or
                ``(2) a family member (as further defined by the Secretary)
            of a victim described in paragraph (1), if--
                        ``(A) the victim dies as a result of a incident
                    that is the subject of an inspection or investigation
                    conducted under section 8; or
                        ``(B) the victim sustains a work-related injury or
                    illness that is the subject of an inspection or
                    investigation conducted under section 8, and the victim
                    because of incapacity cannot reasonably exercise the
                    rights under this section.''.

    SEC. 307. RIGHT TO CONTEST CITATIONS AND PENALTIES.

        Section 10 (20 U.S.C. 659) is amended--
                (1) in the first sentence of subsection (b)--
                        (A) by inserting ``, with the exception of
                    violations designated as serious, willful, or
                    repeated,'' after ``(which period shall not begin to
                    run'';
                (2) in subsection (c)--
                        (A) in the first sentence--
                                (i) by inserting after ``that he intends to
                            contest a citation issued under section (9)''
                            the following: ``(or a modification of a
                            citation issued under this section)'';
                                (ii) by inserting after ``the issuance of a
                            citation under section 9'' the following:
                            ``(including a modification of a citation
                            issued under such section)'';
                                (iii) by inserting after ``files a notice
                            with the Secretary alleging'' the following:
                            ``that the citation fails properly to designate
                            the violation as serious, willful, or repeated,
                            that the proposed penalty is not adequate,
                            or'';
                        (B) by inserting after the first sentence, the
                    following: ``The pendency of a contest before the
                    Commission shall not bar the Secretary from inspecting
                    a place of employment or from issuing a citation under
                    section 9.''; and
                        (C) by amending the last sentence--
                                (i) by inserting ``employers and'' after
                            ``Commission shall provide''; and
                                (ii) by inserting before the period at the
                            end ``, and notification of any modification of
                            a citation''.
                (3) by adding at the end the following:
        ``(d) Correction of Serious, Willful, or Repeated Violations;
    Abatement Pending Contest and Procedures for a Stay.--
                ``(1) Period permitted for correction of serious, willful,
            or repeated violations.--For each violation which the Secretary
            designates as serious, willful, or repeated, the period
            permitted for the correction of the violation shall begin to
            run upon receipt of the citation.
                ``(2) Filing of a motion of contest.--The filing of a
            notice of contest by an employer--
                        ``(A) shall not operate as a stay of the period for
                    correction of a violation designated as serious,
                    willful, or repeated; and
                        ``(B) may operate as a stay of the period for
                    correction of a violation not designated by the
                    Secretary as serious, willful, or repeated.
                ``(3) Criteria and rules of procedure for stays.--
                        ``(A) Motion for a stay.--An employer may file with
                    the Commission a motion to stay a period for the
                    correction of a violation designated as serious,
                    willful, or repeated.
                        ``(B) Criteria.--In determining whether a stay
                    should be issued on the basis of a motion filed under
                    subparagraph (A), the Commission shall consider
                    whether--
                                ``(i) the employer has demonstrated a
                            substantial likelihood of success on its
                            contest to the citation;
                                ``(ii) the employer will suffer irreparable
                            harm absent a stay; and
                                ``(iii) a stay will adversely affect the
                            health and safety of workers.
                        ``(C) Rules of procedure.--The Commission shall
                    develop rules of procedure for conducting a hearing on
                    a motion filed under subparagraph (A) on an expedited
                    basis. At a minimum, such rules shall provide:
                                ``(i) That a hearing before an
                            administrative law judge shall occur not later
                            than 15 days following the filing of the motion
                            for a stay (unless extended at the request of
                            the employer), and shall provide for a decision
                            on the motion not later than 15 days following
                            the hearing (unless extended at the request of
                            the employer).
                                ``(ii) That a decision of an administrative
                            law judge on a motion for stay is rendered on a
                            timely basis.
                                ``(iii) That if a party is aggrieved by a
                            decision issued by an administrative law judge
                            regarding the stay, such party has the right to
                            file an objection with the Commission not later
                            than 5 days after receipt of the administrative
                            law judge's decision. Within 10 days after
                            receipt of the objection, a Commissioner, if a
                            quorum is seated pursuant to section 12(f),
                            shall decide whether to grant review of the
                            objection. If, within 10 days after receipt of
                            the objection, no decision is made on whether
                            to review the decision of the administrative
                            law judge, the Commission declines to review
                            such decision, or no quorum is seated, the
                            decision of the administrative law judge shall
                            become a final order of the Commission. If the
                            Commission grants review of the objection, the
                            Commission shall issue a decision regarding the
                            stay not later than 30 days after receipt of
                            the objection. If the Commission fails to issue
                            such decision within 30 days, the decision of
                            the administrative law judge shall become a
                            final order of the Commission.
                                ``(iv) For notification to employees or
                            representatives of affected employees of
                            requests for such hearings and shall provide
                            affected employees or representatives of
                            affected employees an opportunity to
                            participate as parties to such hearings.''.

    SEC. 308. CONFORMING AMENDMENTS.

        (a) Section 17.--Section 17(d) (29 U.S.C. 666(d)) is amended to
    read as follows:
        ``(d) Any employer who fails to correct a violation designated by
    the Secretary as serious, willful or repeated and for which a citation
    has been issued under section 9(a) within the period permitted for its
    correction (and a stay has not been issued by the Commission under
    section 10(d)) may be assessed a civil penalty of not more than $7,000
    for each day during which such failure or violation continues. Any
    employer who fails to correct any other violation for which a citation
    has been issued under section 9(a) of this title within the period
    permitted for its correction (which period shall not begin to run until
    the date of the final order of the Commission in the case of any review
    proceeding under section 10 initiated by the employer in good faith and
    not solely for delay of avoidance of penalties) may be assessed a civil
    penalty of not more than $7,000 for each day during which such failure
    or violation continues.''.
        (b) Section 11(a).--The first sentence of section 11(a) (29 U.S.C.
    660(a)) is amended by--
                (1) by inserting ``(or the failure of the Commission,
            including an administrative law judge, to make a timely
            decision on a request for a stay under section 10(d))'' after
            ``an order'' ;
                (2) by striking ``subsection (c)'' and inserting
            ``subsections (c) and (d)''; and
                (3) by inserting ``(or in the case of a petition from a
            final Commission order regarding a stay under section 10(d), 15
            days)''after ``sixty days''.

    SEC. 309. CIVIL PENALTIES.

        (a) In General.--Section 17 (29 U.S.C. 666) is amended--
                (1) in subsection (a)--
                        (A) by striking ``$70,000'' and inserting
                    ``$120,000'';
                        (B) by striking ``$5,000'' and inserting
                    ``$8,000''; and
                        (C) by adding at the end the following: ``If such a
                    violation causes the death of an employee, such civil
                    penalty amounts shall be increased to not more than
                    $250,000 for each such violation, but not less than
                    $50,000 for each such violation, except that for an
                    employer with 25 or fewer employees such penalty shall
                    not be less than $25,000 for each such violation.'';
                (2) in subsection (b)--
                        (A) by striking ``$7,000'' and inserting
                    ``$12,000''; and
                        (B) by adding at the end the following: ``If such a
                    violation causes the death of an employee, such civil
                    penalty amounts shall be increased to not more than
                    $50,000 for each such violation, but not less than
                    $20,000 for each such violation, except that for an
                    employer with 25 or fewer employees such penalty shall
                    not be less than $10,000 for each such violation.'';
                (3) in subsection (c), by striking ``$7,000'' and inserting
            ``$12,000'';
                (4) in subsection (d), by striking ``$7,000'' and inserting
            ``$12,000'';
                (5) by redesignating subsections (e) through (l) as
            subsections (f) through (m), respectively; and
                (6) in subsection (j) (as redesignated by paragraph (5)),
            by striking ``$7,000'' and inserting ``$12,000;''.
        (b) Inflation Adjustment.--Section 17 (29 U.S.C. 666) (as amended
    by subsection (a)) is further amended by inserting after subsection (d)
    the following:
        ``(e) Amounts provided under this section for civil penalties shall
    be adjusted by the Secretary at least once during each 4-year period to
    account for the percentage increase or decrease in the Consumer Price
    Index for all urban consumers during such period.''.

    SEC. 310. OSHA CRIMINAL PENALTIES.

        (a) In General.--Section 17 (29 U.S.C. 666) (as amended by section
    309) is further amended--
                (1) by amending subsection (f) to read as follows:
        ``(f)(1) Any employer who knowingly violates any standard, rule, or
    order promulgated under section 6 of this Act, or of any regulation
    prescribed under this Act, and that violation caused or contributed to
    death to any employee, shall, upon conviction, be punished by a fine in
    accordance with section 3571 of title 18, United States Code, or by
    imprisonment for not more than 10 years, or both, except that if the
    conviction is for a violation committed after a first conviction of
    such person under this subsection or subsection (i), punishment shall
    be by a fine in accordance with section 3571 of title 18, United States
    Code, or by imprisonment for not more than 20 years, or by both.
        ``(2) For the purpose of this subsection, the term `employer'
    means, in addition to the definition contained in section 3 of this
    Act, any officer or director.'';
                (2) in subsection (g), by striking ``fine of not more than
            $1,000 or by imprisonment for not more than six months,'' and
            inserting ``fine in accordance with section 3571 of title 18,
            United States Code, or by imprisonment for not more than 2
            years,'';
                (3) in subsection (h), by striking ``fine of not more than
            $10,000, or by imprisonment for not more than six months,'' and
            inserting ``fine in accordance with section 3571 of title 18,
            United States Code, or by imprisonment for not more than 5
            years,'';
                (4) by redesignating subsections (j) through (m) as
            subsections (k) through (n), respectively; and
                (5) by inserting after subsection (i) the following:
        ``(j)(1) Any employer who knowingly violates any standard, rule, or
    order promulgated under section 6, or any regulation prescribed under
    this Act, and that violation causes or contributes to serious bodily
    harm to any employee but does not cause death to any employee, shall,
    upon conviction, be punished by a fine in accordance with section 3571
    of title 18, United States Code, or by imprisonment for not more than 5
    years, or by both, except that if the conviction is for a violation
    committed after a first conviction of such person under this subsection
    or subsection (e), punishment shall be by a fine in accordance with
    section 3571 of title 18, United States Code, or by imprisonment for
    not more than 10 years, or by both.
        ``(2) For the purpose of this subsection, the term `employer'
    means, in addition to the definition contained in section 3 of this
    Act, any officer or director.
        ``(3) For purposes of this subsection, the term `serious bodily
    harm' means any circumstance, deficiency, or shortfall that could
    result in an injury or illness including, risk of death,
    unconsciousness, physical disfigurement, or loss or impairment (whether
    permanent or temporary) of the function of a bodily member, organ, or
    mental facility.''.
        (b) Jurisdiction for Prosecution Under State and Local Criminal
    Laws.--Section 17 (29 U.S.C. 666) (as amended by subsection (a)) is
    further amended by adding at the end the following:
        ``(o) Nothing in this Act shall preclude a State or local law
    enforcement agency from conducting criminal prosecutions in accordance
    with the laws of such State or locality.''.

                            TITLE IV--EFFECTIVE DATE

    SEC. 401. EFFECTIVE DATE.

        (a) General Rule.--Except as provided for in subsection (b), this
    Act and the amendments made by this Act shall take effect not later
    than 90 days after the date of the enactment of this Act.
        (b) Exception for States and Political Subdivisions.--The following
    are exceptions to the effective date described in subsection (a):
                (1) A State that has a State plan approved under section 18
            (29 U.S.C. 667) shall amend its State plan to conform with the
            requirements of this Act and the amendments made by this Act
            not later than 12 months after the date of the enactment of
            this Act. The Secretary of Labor may extend the period for a
            State to make such amendments to its State plan by not more
            than 12 months, if the State's legislature is not in session
            during the 12-month period beginning with the date of the
            enactment of this Act. Such amendments to the State plan shall
            take effect not later than 90 days after the adoption of such
            amendments by such State.
                (2) This Act and the amendments made by this Act shall take
            effect not later than 36 months after the date of the enactment
            of this Act in a State, or a political subdivision of a State,
            that does not have a State plan approved under section 18 (29
            U.S.C. 667).
                                     ______

               Solicitors' Dispositions of OSHA 11(c) Merit Cases
                          From 10/1/1995 to 10/1/2009

        Between 10/1/1995 to 10/1/2009 (14 years) 6.9% of the cases
    referred to SOL were litigated. Out of 467 cases OSHA referred to SOL
    in this period, only 32 lawsuits in 11(c) cases have been filed. Two
    hundred and seventy-nine merit cases have been rejected.

                                                          CASES REFERRED TO SOL 10/1/1995 TO 3/24/2009
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                            Region   Region   Region   Region   Region   Region   Region   Region   Region   Region
                                                              1        2        3        4        5        6        7        8        9        10      Total
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Litigated and lost...................................        1        1        0        0        1        0        0        0        0         0       3
    Litigated and won....................................        1        5        1        0        0        1        0        0        0         0       8
    Rejected by SOL......................................       20       16       42       29       70       67        9       18        6         2     279
    Settled before litigation............................       14       12        5       15       42       26        9       20        1        12     156
    Settled during litigation............................        0        9        0        1        2        1        1        0        0         7      21
                                                          --------------------------------------------------------------------------------------------------
      Total Referred.....................................       36       43       48       45      115       95       19       38        7        21     467
      Percent Litigated..................................     5.6%    34.9%     2.1%     2.2%     2.6%     2.1%     5.3%     0.0%     0.0%     30.3%   6.9%
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    (Data from IMS Activity Measures Report)

                                     ______

                                                 STATISTICS AND OUTCOMES ON WHISTLEBLOWER CASES FILED WITH OSHA
                                                                   [Break-out of meritorious]
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                              Litigation             Settled
                          FY 2008                          Cases     Cases                 Withdrawn  Dismissed     Total         or       Settled     by
                                                         Received  Completed                                     Meritorious   Findings    by OSHA   Parties
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    AHERA/ISCA.........................................         2      0.09%           1           0          1           0           0          0         0
    AIR21..............................................        82      3.72%          65           5         50          12           3          7         2
    CPSIA..............................................         0      0.00%           0           0          0           0           0          0         0
    Environmental......................................        52      2.36%          50           6         37          10           1          6         3
    ERA................................................        39      1.77%          30           2         23           5           0          1         4
    FRSA...............................................        42      1.90%          16           2         12           2           1          1         0
    11(c)..............................................     1,388     62.95%       1,259         227        834         261          15        203        43
    NTSSA..............................................        18      0.82%           6           0          7           0           0          0         0
    PSIA...............................................         3      0.14%           1           0          1           0           0          0         0
    SOX................................................       232     10.52%         189          24        128          42           0         15        27
    STAA...............................................       347     15.74%         322          30        183         116           8         94        14
                                                        ----------------------------------------------------------------------------------------------------
      Totals...........................................     2,205  .........       1,939         296      1,276         448          28        327        93
      Total Determinations*............................  ........  .........  ...........  .........  .........       2,020   ..........  ........  ........
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    *This number doesn't equal Cases Completed because each complainant recieves his or her own findings, so where a case has mutiple complainants, it has
      mutiple outcomes.

    Source: DOL.

                                     ______

               OSHA's Actions on 11(c) Cases Completed in FY 2009

        In FY 2009, federal OSHA completed 1,205 11(c) cases and
    recommended that the Department of Labor's Office of the Solicitor
    (SOL) litigate 24 of the cases (2%); state-plans states completed 999
    11(c) cases and recommended that 50 of the cases (5%) be litigated.

    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                       Total cases   Withdrawn by  Dismissed by   Settled by    Settled the     Litigation
                                FY 2009                                 completed       OSHA\a\       OSHA\a\       OSHA\a\       parties    recommended \b\
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Fed OSHA.......................................................    1,205 (100%)     188 (16%)     729 (60%)     210 (17%)       54 (4%)         24 (2%)
    States.........................................................      999 (100%)     151 (15%)     662 (66%)     106 (11%)       30 (3%)         50 (5%)
                                                                    ----------------------------------------------------------------------------------------
          Total....................................................    2,204 (100%)     339 (15%)   1,391 (63%)     316 (14%)       84 (4%)        74 (3%)
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    \a\ Cases shown as withdrawn, dismissed, and settled by OSHA include cases withdrawn, dismissed, and settled by the state safety and health enforcement
      agencies in state-plan states.
    \b\ Cases sent to the SOL for litigation may later be settled by the SOL or the courts.

                                     ______

                                    ------

                                    ------

                            ----Original Message----

    From: Bare, Ben--OSHA [mailto:Bare.Ben@dol.gov]
    Sent: Monday, February 01, 2010 11:35 AM
    To: tford@neb.rr.com
    Subject: RE: Emailing: Establishment Search Results Page.htm
    Dear Ms. Ford,
    Thank you for the note of sympathy for Mr. Wilson's family. We will let
    his family know.
    To follow-up on the information for the manlift fatalities and the
    number of inspections for ADM, we found 21 manlift fatalities and 9
    injuries for the period 1972 to present.
    For the ADM inspection history, we could only run a query back to 1999.
    For this period, there are 87 inspections. Running a report from 1972
    to present causes an error due to the great number of hits using
    several name variations for ADM. Please let me know if the inspection
    history from 1999 to present meets your needs. If not, I can have the
    reports run in 10-year periods. It will require a couple more days to
    get the information.
    I hope the manlift fatality information meets your needs.
    Please let me about the inspection history.
    Thank you
    Ben
                                     ______

                            ----Original Message----

    From: tford@neb.rr.com [mailto:tford@neb.rr.com]
    Sent: Sunday, January 31, 2010 9:18 AM
    To: Bare, Ben--OSHA
    Subject: RE: Emailing: Establishment Search Results Page.htm
    Dear Mr. Bare,
    I know you are probably very busy with the death of Mr. Tim Wilson, and
    I know the death was caused by a lift accident as well, however I know
    they are very different lifts. I am sure that you are someone else will
    speak with the family. I would greatly appreciate if you could give
    them our condolences.
    Thank you
    Tonya Ford
    Bare wrote:
    Thank you
    Talk with you next week
                                     ______

    From: tford@neb.rr.com [mailto:tford@neb.rr.com]
    Sent: Sat 1/30/2010 9:56 AM
    To: Bare, Ben--OSHA
    Subject: RE: Emailing: Establishment Search Results Page.htm
    Dear Mr. Bare,
    No I am sorry for the confusion I received the accident report and
    investigations that you guys were doing regarding my Uncles accident on
    January 29, 2009.
    Please let me know if you have any more questions.
    Thanks
    Tonya Ford
    Bare wrote:
    Dear Ms. Ford,
    Just so I clearly understand your message below, you have received the
    paperwork needed for the number of ADM inspections? If so, do you still
    want me to get the information?
    I just want to make sure I'm getting what you need.
    Sincerely,
    Ben
                                     ______

    From: tford@neb.rr.com [mailto:tford@neb.rr.com]
    Sent: Fri 1/29/2010 11:45 PM
    To: Bare, Ben--OSHA
    Subject: RE: Emailing: Establishment Search Results Page.htm
    Dear Mr. Bare,
    I want to thank you for all your time and effort in researching this, I
    did receive the inspection paperwork today and I thank you for that as
    well.
    Thank you and I look forward to receiving this information
    Tonya Ford
    Bare wrote:
    Dear Ms. Ford,
    I'm still collecting and verifying the information. I apologize this is
    taking longer than expected.
    The data shows 21 manlift fatalities inspections and 9 accident
    inspections that involved injuries. That is for all industries not just
    grain. The ADM inspection data is more sensitive due the possible
    spelling of the name and volume of establishments with ADM etc as part
    of the company name. I want to provide the best possible information
    and I need another day or two next week to finalize the information.
    Thanks for your understanding,
    Ben
                                     ______

                            ----Original Message----

    From: Bare, Ben--OSHA
    Sent: Thursday, January 28, 2010 5:13 PM
    To: `tford@neb.rr.com'
    Subject: RE: Emailing: Establishment Search Results Page.htm
    Dear Ms. Ford,
    Just wanted to touch base and let know I haven't the information for
    the ADM inspection numbers and manlift fatalities. Should have the
    information tomorrow afternoon.
    Sorry for the delay,
    Ben
                                     ______

                            ----Original Message----

    From: tford@neb.rr.com [mailto:tford@neb.rr.com]
    Sent: Wednesday, January 27, 2010 12:21 PM
    To: Bare, Ben--OSHA
    Subject: Re: Emailing: Establishment Search Results Page.htm
    Thank you so much for explaining how this lovely site works....I have
    to admit my background is Web design and this baffled me. Thank you and
    I look forward to getting the other information
    Tonya Ford
    Bare wrote:
    Dear Ms. Ford
    Below is the inspection information involving your Uncle.
    To run this report go to establishmnet search, enter the A D M Milling.
    Use spaces between the letters. Select open case option. The prefilled
    date range should be correct. Below is the result I got I have asked
    for additional assistance to help identify the number of manlift
    fatalities and the total number of ADM inspections. I should the
    aditional information for you in a day or two.
    Hope this helps.
    Sincerely,
    Ben
                                     ______

                            SUPREME COURT OF KANSAS

      DAVID FLENKER, Appellant, v. WILLAMETTE INDUSTRIES, INC., Appellee.

               No. 80,408; 266 Kan. 198; 967 P.2d 295; 1998 Kan.

                                  case summary
        PROCEDURAL POSTURE: The United States Court of Appeals for the
    Tenth Circuit certified the action initiated by appellant employee to
    the court to determine whether the remedy provided by OSHA, 29 U.S.C.S.
    Sec.  660(c), precluded the filing of a state common law discharge
    claim against appellee employer. Appellant contended that he was
    discharged in retaliation for filing OSHA complaints.
        OVERVIEW: Appellant employee filed OSHA complaints against appellee
    employer. Appellant was subsequently terminated by appellee. The
    federal court certified the action to the court to determine whether
    the remedy provided by OSHA, 29 U.S.C.S. Sec.  660(c), precluded the
    filing of a state common law wrongful discharge, pursuant to the Kansas
    Act Against Discrimination, Kan. Stat. Ann. Sec.  44-1001, et seq.,
    claim against appellee. The court held that OSHA did not occupy state
    common-law retaliation claims and did not conflict or preempt such
    state law. Pursuant to the alternative remedies doctrine, OSHA would be
    substituted for the state retaliation claim if the substituted statute
    provided an adequate alternative remedy. The court held that OSHA's
    alternative remedies were not adequate and that OSHA did not preempt
    appellant's state wrongful discharge claim. The court answered the
    federal court's determination and held that OSHA did not provide an
    adequate alternative remedy under the circumstances.
        OUTCOME: The court answered the federal court's determination and
    held that OSHA did not provide an adequate alternative remedy to
    appellant employee's state common law wrongful discharge claim filed
    against appellee employer pursuant to the Kansas Act Against
    Discrimination. The court held that OSHA did not occupy state common-
    law retaliation claims and that the federal statute did not conflict or
    preempt the state law.
        CORE TERMS: retaliatory discharge, alternative remedy, collective
    bargaining agreement, public policy, common-law, public policy
    exception, retaliation, discharged, at-will, certified question, cause
    of action, certification, state law, common law, statutory scheme,
    statutory remedy, deems appropriate, appropriate relief, arbitration,
    preemption, aggrieved, corrugated, plant, remedy provided, employee's
    right, wrongful discharge, violation of state, adequately protected,
    civil action, termination
        At-will employment is the general rule in Kansas. In the absence of
    a contract, expressed or implied, between an employee and his employer
    covering the duration of employment, the employment is terminable at
    the will of either party.
        There public policy exceptions to the at-will employment doctrine,
    including the whistle-blower's exception. Termination, in retaliation
    for the good faith reporting of a co-worker's or employer's serious
    infraction of rules, regulations, or law pertaining to public health,
    safety, and the general welfare, is an actionable tort. However,
    exceptions to the at-will employment doctrine should be limited to
    situations where there is no adequate alternative remedy.
        The availability of remedies for wrongful discharge under Kansas
    Act Against Discrimination, Kan. Stat. Ann. Sec.  44-1001, et seq.,
    precludes expanding the remedies available at common law.
        The trial court must investigate the adequacy of an alternative
    remedy before classifying a situation as being under the public policy
    exception to the employment-at-will doctrine. Kansas Act Against
    Discrimination, Kan. Stat. Ann. Sec.  44-1001, et seq., provides an
    adequate and exclusive state remedy for violations of the public policy
    against wrongful termination of whistleblowers.
        A retaliatory discharge action for filing a workers compensation
    claim is based on a violation of state public policy independent of a
    collective bargaining agreement. An arbitration procedures provided for
    in the collective bargaining agreement are a ``limited remedy,'' and
    might not result in the employee's right being ``adequately
    protected.''
        Preemption is an application of law concept in which federal law
    must be applied to the exclusion of state law for uniformity of
    interpretation.
        The alternative remedies doctrine, referenced sometimes as
    preclusion, is a substitution of law concept. Under the alternative
    remedies doctrine, a state or federal statute would be substituted for
    a state retaliation claim if the substituted statute provides an
    adequate alternative remedy. The question to ask in resolving
    recognition of a state tort claim for retaliatory discharge is whether
    the statutory remedy is adequate and thus precludes the common-law
    remedy.
        See 29 U.S.C.S. Sec.  660(c)(1) and (2).
        In Ohio, an at-will employee who is discharged or disciplined for
    filing a complaint with OSHA, 29 U.S.C.S. Sec.  660, et seq.,
    concerning matters of health and safety in the workplace is entitled to
    maintain a common-law tort action against the employer for wrongful
    discharge/discipline in violation of public policy.
        OSHA, 29 U.S.C.S. Sec.  660, et seq., only allows an employee to
    file a complaint with the Secretary of Labor who then decides whether
    to bring an action on the employee's behalf. 29 U.S.C.S. Sec.
    660(c)(2). The employee's right to relief is even further restricted in
    that the complaint must be filed within 30 days of the discrimination
    or discharge. The decision to assert a cause of action is in the sole
    discretion of the Secretary of Labor and the statute affords the
    employee no appeal if the secretary declines to file suit. Although an
    employee may obtain any type of relief possible under the Fair Labor
    Standards Act through the employee's own actions, the relief available
    under OSHA is limited to what the Secretary of Labor deems appropriate.
    Unless an employee acts immediately and files a complaint with the
    Secretary of Labor, there is no remedy available without the public
    policy exception.
        All appropriate relief in OSHA, 29 U.S.C.S. Sec.  660, et seq.,
    includes punitive damages, and the federal courts have the power to
    award any appropriate relief in a cognizable cause of action brought
    pursuant to a federal statute.
        OSHA, 29 U.S.C.S. Sec.  660, et seq., says that the secretary shall
    cause such investigation to be made as he deems appropriate, and if
    upon such investigation, the secretary determines that the provisions
    of the section have been violated, he shall bring an action. No
    guidance is given as to what factors the secretary must or may consider
    to constitute an investigation. The Secretary's discretion is a
    significant limitation on the employee's right of redress. In addition,
    the limitation period for filing an OSHA, 29 U.S.C.S. Sec.  600, et
    seq., complaint is 30 days from discharge.
        OSHA, 29 U.S.C.S. Sec.  660, Sec.  11(c) (1) declares discharge in
    retaliation for filing a complaint to be a violation of OSHA.
        The factfinding process in arbitration does not equate with
    judicial factfinding. Rules of evidence do not usually apply; the
    rights and procedures common to civil trials such as discovery,
    compulsory process, cross-examination, and testimony under oath are
    often severely limited or unavailable. The same observation can be made
    about the investigation that the Secretary of Labor is directed to make
    under OSHA, 29 U.S.C.S. Sec.  660, Sec.  11(c).
        Under OSHA, 29 U.S.C.S. Sec.  660, Sec.  11(c), the decision to
    pursue an employee's claim of retaliatory discharge is made by an
    administrative agency. Unless there is some kind of administrative
    appeal of OSHA's decision not to pursue the complaint, an employee is
    limited to voting against an incumbent legislator or against the
    current administration. A ballot box exercise provides less recourse
    than a suit against one's labor union in federal or state trial court.
        Under the Energy Reorganization Act (ERA), 42 U.S.C.S. Sec.  5851,
    et seq., if the complainant has made a prima facie showing, 42 U.S.C.S.
    Sec.  5851(b)(3)(A), upon receipt of a complaint the secretary shall
    conduct an investigation without OSHA's ``as he deems appropriate''
    language of the violation alleged. 42 U.S.C.S. Sec.  5851(b)(2)(A). If
    the ERA investigation reveals the complaint has merit and after a
    public hearing, the secretary shall order preliminary relief and may
    order compensatory relief after a final order is entered. 42 U.S.C.S.
    Sec.  5851(b)(2)(A) and (B). Further, an employee is given the right to
    file suit in federal court to require compliance with such an order. 42
    U.S.C.S. Sec.  5851(e).
        Under the adequate alternative remedy test, the administrative
    remedy provided by OSHA, 29 U.S.C.S. Sec.  660, Sec.  11(c), is less
    adequate than the remedy under the Energy Reorganization Act, 42
    U.S.C.S. Sec.  5851, et seq. Although OSHA entitles an employee to file
    a complaint under 29 U.S.C.S. Sec.  600, Sec.  11(c), there is no
    provision for an employee to bring a private action in federal court.
        See 42 U.S.C.S. Sec.  2000e-5(b).
        See U.S.C.S. Sec.  2000e-5(f)(1).
        Under Title VII of the Civil Rights Act, 42 U.S.C.S. Sec.  2000a,
    et seq., an aggrieved person is not left without a remedy if the
    administrative agency does not pursue the complaint; the complainant is
    given permission to sue. Also, there is no agency discretion language
    in the Title VII provision providing for agency investigation. The
    employee's remedy is more effective under Title VII than it is under
    OSHA, 29 U.S.C.S. Sec.  660, et seq.
        An employee is adequately protected contractually from retaliatory
    discharge. Employees who are fully covered and protected by a
    collective bargaining agreement are barred from bringing an action in
    tort for a retaliatory discharge.
    Syllabus by the Court
        The remedy provided by the Occupational Safety and Health
    Administration Sec.  11(c) (29 U.S.C. Sec.  660[c] [1994]) for
    employees who allege that they have been discharged in retaliation for
    filing complaints under that statute does not preclude the filing of a
    Kansas common-law wrongful discharge claim under Kansas's public policy
    exception to at-will employment.
        On a certification of a question of law from the United States
    Court of Appeals for the Tenth Circuit, ROBERT H. HENRY, judge.
        COUNSEL: Stephen J. Dennis, of Overland Park, argued the cause and
    was on the brief for appellant.
        Rody P. Biggert, of Seyfarth, Shaw, Fairweather & Geraldson, of
    Chicago, Illinois, argued the cause, andJohn L. Vratil, of Lathrop &
    Gage, L.L.C., of Overland Park, was with him on the brief for appellee.
        JUDGES: The opinion of the court was delivered by SIX, J.
        OPINION BY: SIX
                                    opinion
        [*198] [**297] The opinion of the court was delivered by
        SIX, J.: The United States Court of Appeals for the Tenth Circuit
    has certified the following question to this court under K.S.A. 60-
    3201:
        ``Does the remedy provided by OSHA Sec.  11(c) [***2] [29 U.S.C.
    Sec.  660(c) (1994)] for employees who allege that they have been
    discharged in retaliation for filing complaints under that statute
    preclude the filing of a Kansas common law wrongful discharge claim
    under Kansas's public policy exception to at-will employment?''
        The answer is, ``no.''
        This case arises out of the March 11, 1994, firing of David
    Flenker, a worker at Willamette Industries, Inc.'s (Willamette)
    corrugated paper manufacturing plant. Willamette's basis for firing
    Flenker was that he failed to comply with the terms of the
    rehabilitation agreement he had signed under Willamette's alcohol and
    drug use policy. Flenker contends that he was fired because he [*199]
    reported unsafe working conditions to Willamette and the Occupational
    Safety and Health Administration (OSHA).
        Our analysis of the certified question is advanced by posing and
    answering two secondary questions.
        1. Does the rule in Coleman v. Safeway Stores, Inc., 242 Kan. 804,
    812-13, 752 P.2d 645 (1988), extend to situations other than the
    collective bargaining agreement context? The answer is ``yes.''
        2. If Coleman extends beyond the collective bargaining context, is
    the remedy in OSHA Sec.  11(c) ``adequate''? [***3] The answer is
    ``no.''
                                     facts
        The Tenth Circuit Certification Order informs us that:
        ``Mr. Flenker worked as a Class C mechanic for Willamette, a
    corrugated paper manufacturer. After a dispute with his temporary
    supervisor concerning the safety of a piece of machinery known as a
    corrugated downstacker device, Mr. Flenker made it known at the plant
    that he intended to file a complaint with OSHA regarding the machinery.
        ``Mr. Flenker received a disciplinary warning as a result of the
    dispute with his temporary supervisor. The next day, Mr. Flenker
    received a three-day suspension from his supervisor for his improper
    installation of gauges and for the improper repair of sprockets on the
    bandler line.
        ``Mr. Flenker later filed his OSHA complaint, alleging violations
    concerning the safety of the corrugated downstacker and other matters.
    OSHA subsequently made a surprise investigation of the Willamette
    plant. Although the downstacker met OSHA safety standards, OSHA found
    that several of Mr. Flenker's other complaints were valid.
        ``About a month later, plant manager Dale McGinnis terminated Mr.
    Flenker's employment, contending Mr. Flenker failed to obey the terms
    of a Rehabilitation Agreement [***4] he had signed under Willamette's
    Alcohol and Drug Use Policy. Mr. Flenker claims he was fired because he
    reported unsafe working conditions to Willamette and to OSHA.
        [**298] ``Shortly after his termination, Mr. Flenker filed a
    section 11(c) retaliatory discharge complaint with OSHA, which he later
    withdrew. Mr. Flenker was informed, presumably by an OSHA employee,
    that because he had fixed the machine in question, which had been a
    part of his section 11(c) claim, he no longer had a claim under OSHA.
    In September 1995, he filed this action in state court. Willamette
    removed the action to federal court pursuant to 28 U.S.C. Sec.
    1446(b).
        ``Mr. Flenker claims that he was discharged because he exercised
    his statutory right to report unsafe working conditions to his
    employer. He seeks compensatory damages for lost wages and benefits and
    emotional pain and suffering.''
        [*200] Flenker chose to litigate his claims in state court;
    however, Willamette removed the lawsuit to federal court.
                                   discussion
        We restate the certified question:
        Does the remedy provided by OSHA Sec.  11(c) for employees who
    allege that they have been discharged in retaliation for filing
    complaints under that statute preclude the filing [***5] of a Kansas
    common law wrongful discharge claim under Kansas' public policy
    exception to at-will employment?
    At-Will Employment and Exceptions
        At-will employment is the general rule in Kansas. We said in
    Johnston v. Farmers Alliance Mutual Ins. Co., 218 Kan. 543, 546, 545
    P.2d 312 (1976): ``In the absence of a contract, expressed or implied,
    between an employee and his employer covering the duration of
    employment, the employment is terminable at the will of either party.''
        We have recognized public policy exceptions to the at-will
    employment doctrine. For a review of the Kansas case law, see Worth and
    Landis, Fire at Will? The Status of Judicially Created Exceptions to
    Employment-at-Will in Kansas, 64 J.K.B.A. 22 (1995). The so-called
    whistle-blower's exception was first announced in Palmer v. Brown, 242
    Kan. 893, 752 P.2d 685 (1988). Termination, in retaliation for the good
    faith reporting of a co-worker's or employer's serious infraction of
    rules, regulations, or law pertaining to public health, safety, and the
    general welfare, is an actionable tort. 242 Kan. at 900. Palmer
    involved an employee's reporting of allegedly improper medicaid billing
    practices [***6] to ``unspecified authorities.'' 242 Kan. at 894.
        Willamette argues that Flenker has no independent state law tort
    claim, relying on Polson v. Davis, 895 F.2d 705 (10th Cir. 1990).
    Federal courts in Kansas have followed Polson's interpretation of
    Kansas law (exceptions to the at-will employment doctrine should be
    limited to situations where there is no adequate alternative remedy),
    e.g., Conner v. Schnuck Markets, Inc., 906 F. Supp. 606, 614 (D. Kan.
    1995).
        [*201] Polson observed that Kansas federal district courts were
    split on whether the public policy exception should be extended to
    cover conduct protected under a statutory scheme, specifically the
    Kansas Act Against Discrimination (KAAD), K.S.A. 44-1001 et seq. 895
    F.2d at 709. Wynn v. Boeing Military Airplane Co., 595 F. Supp. 727 (D.
    Kan. 1984) held that the public policy exception permitting an
    independent cause of action should apply in cases in which a worker's
    termination is alleged to stem from conduct proscribed by KAAD. Judge
    Theis in Wynn reasoned that the fact that the various remedies might
    differ is sufficient to require recognition of a state common law
    remedy. 895 F.2d at 709. [***7]
        In contrast, Judge Rogers in Tarr v. Riberglass, Inc., 1984 U.S.
    Dist. LEXIS 19784, No. 83-4234, 1984 WL 1481 (D. Kan. February 3,
    1984), and Judge O'Connor in the lower Polson decision, 635 F. Supp.
    1130 (D. Kan. 1986), and Robinson v. Colt Indus. Operating Corp., No.
    84-2471 (unpublished D. Kan. March 5, 1986), held that the availability
    of remedies under KAAD precludes expanding the remedies available at
    common law. 895 F.2d at 709.
        Polson chose to follow the preclusive approach, discerning in
    Coleman v. Safeway Stores, Inc., 242 Kan. at 813-14, a reliance on
    ``inadequacy of arbitration to compensate employees for torts committed
    by employers.'' 895 F.2d at 709. Polson [**299] concluded: ``It appears
    that we must investigate the adequacy of the alternative remedy before
    classifying a situation as being under the public policy exception to
    the employment-at-will doctrine.'' 895 F.2d at 709. Polson reasoned
    that this court would adopt the view that KAAD provides an adequate and
    exclusive state remedy for violations of the public policy at issue.
    895 F.2d at 709. We note, however, that Polson seems to employ a strict
    view of ``adequate,'' finding there is no evidence that the [***8]
    remedies provided for in KAAD were ``constitutionally inadequate to
    compensate plaintiff,'' or ``so inadequate to enforce the stated public
    policy as to require bolstering by a common law cause of action.'' 895
    F.2d at 709-10.
    Coleman v. Safeway Stores
        Our discussion of Polson necessarily leads to a review ofColeman.
    Coleman is important here because our answer to the certified [*202]
    question is based on our precedent, not on federal rulings interpreting
    Kansas law.
        Coleman overruled Cox v. United Technologies, 240 Kan. 95, 727 P.2d
    456 (1986), Smith v. United Technologies, 240 Kan. 562, 731 P.2d 871
    (1987), and Armstrong v. Goldblatt Tool Co., 242 Kan. 164, 747 P.2d 119
    (1987). The overruled cases involved the interrelationship of Kansas
    tort law and the law of labor union contracts. In each of the three
    overruled cases: (1) a discharged employee was covered by a collective
    bargaining agreement, (2) the agreement prohibited the employee's
    discharge except for just cause, and (3) the employee was held not to
    have a cause of action in tort for wrongful discharge. Colemanreasoned
    that a retaliatory discharge action for filing a workers compensation
    [***9] claim is based on a violation of state public policy independent
    of a collective bargaining agreement. 242 Kan. 804, Syl. P1, 752 P.2d
    645. Coleman also concluded that the arbitration procedures provided
    for in the collective bargaining agreement were a ``limited remedy,''
    and might not result in the employee's right being ``adequately
    protected.'' 242 Kan. at 813-14.
    Preemption and Alternate Remedies Preclusion
        Preemption is not an issue here. Willamette does not contend that
    OSHA preempts state common-law retaliation claims. The Tenth Circuit in
    a footnote to its certification order says ``Congress did not intend
    for OSHA Sec.  11(c) to occupy this field of law, nor does OSHA
    conflict with state law, thereby preempting it. See, Schweiss v.
    Chrysler Motors Corp., 922 F.2d 473, 475-76 (8th Cir. 1990).''
    Preemption is an application of law concept in which federal law must
    be applied to the exclusion of state law for uniformity of
    interpretation. English v. General Electric Co., 496 U.S. 72, 110 L.
    Ed. 2d 65, 110 S. Ct. 2270 (1990); see also, Annot., Federal Pre-
    Emption of Whistleblower's State-Law Action For Wrongful Retaliation,
    99 A.L.R. Fed. 775, 810.
        The alternative remedies [***10] doctrine at issue here, referenced
    sometimes as preclusion, is a substitution of law concept. Under the
    alternative remedies doctrine, a state or federal statute would be
    substituted for a state retaliation claim if the substituted statute
    [*203] provides an adequate alternative remedy. Bair v. Peck, 248 Kan.
    824, 838, 811 P.2d 1176 (1991). Masters v. Daniel, Intern. Corp., 917
    F.2d 455, 457 (10th Cir. 1990), relied on Polson.The question to ask in
    resolving recognition of a state tort claim for retaliatory discharge
    is whether the statutory remedy is adequate and thus precludes the
    common-law remedy. 917 F.2d at 457 (held the Energy Reorganization Act,
    42 U.S.C. Sec.  5851 et seq. [1994], provided an adequate alternative
    remedy).
        Willamette argues that ``the majority of other jurisdictions that
    have addressed the issue preclude common law retaliatory discharge
    claims when there is an adequate alternative state or federal remedy.''
    The large number of cases Willamette cites is misleading. Most of them
    simply state the court's conclusion without an analysis of why the
    alternative remedy is adequate. See Walsh v. Consolidated Freightways,
    Inc., 278 Ore. 347, 563 P.2d 1205, 1208 [***11] (``We feel that
    existing remedies are adequate.'') Furthermore, two of Willamette's
    cases, List v. Anchor Paint Mfg. Co., 910 P.2d 1011, 1014 (Okla. 1996)
    (finding that the Age Discrimination in Employment Act, 29 U.S.C. Sec.
    621 et [**300] seq. [1994], precludes retaliatory discharge claim), and
    Wehr v. Burroughs Corp., 438 F. Supp. 1052 (E.D. Pa. 1977) (``The
    legislature would have provided additional relief in the [Human Rights]
    statute if it thought it necessary.'') evaluate the adequacy of
    statutory schemes other than OSHA. Listand Wehr are not controlling of
    the ultimate question here, whether OSHA, in particular, provides an
    adequate alternative remedy. Because of the Coleman rule that an
    alternative remedy must be adequate, whether a statute other than OSHA
    is adequate is irrelevant here. The question is whether OSHA's remedy
    is adequate.
    The Sub-issues
        We now examine whether Coleman extends to situations other than
    collective bargaining agreements. The parties have skirted this inquiry
    by focusing on Polsonand other federal cases, in which the
    interrelation of state law and usually federal statutory schemes was
    directly presented. [***12] Coleman's reasoning is a dominant influence
    in answering the certified question. Although Coleman arose in the
    collective bargaining context, we extend its ruling to employees [*204]
    protected by statutory schemes such as OSHA. In Coleman, we said: ``Our
    recognition of such causes of action is limited to wrongful discharge
    in violation of state public policy clearly declared by the legislature
    or by the courts.'' 242 Kan. 804, Syl. P4, 752 P.2d 645. Applicability
    of the Coleman rule here, therefore, depends on whether whistle-blowing
    is protected by a clearly declared public policy. It is. Palmerheld:
    ``It is declared the public policy of the State of Kansas to encourage
    citizens to report infractions of the law pertaining to public health,
    safety, and the general welfare.'' 242 Kan. 893, Syl. P1, 752 P.2d 685.
        Having extended Coleman's shadow beyond the facts of collective
    bargaining, we next ask: Is the remedy in OSHA Sec.  11(c) [29 U.S.C.
    Sec.  660(c)] ``adequate''? We conclude it is not.
        OSHA Sec.  11(c) states:
        ``(1) No person shall discharge or in any manner discriminate
    against any employee because such employee has filed any complaint or
    instituted or caused to be instituted any proceeding [***13] under or
    related to this chapter or has testified or is about to testify in any
    such proceeding or because of the exercise by such employee on behalf
    of himself or others of any right afforded by this chapter.
        ``(2) Any employee who believes that he has been discharged or
    otherwise discriminated against by any person in violation of this
    subsection may, within thirty days after such violation occurs, file a
    complaint with the Secretary alleging such discrimination. Upon receipt
    of such complaint, the Secretary shall cause such investigation to be
    made as he deems appropriate. If upon such investigation, the Secretary
    determines that the provisions of this subsection have been violated,
    he shall bring an action in any appropriate United States district
    court against such person. In any such action the United States
    district court shall have jurisdiction, for cause shown to restrain
    violations of paragraph (1) of this subsection and order all
    appropriate relief including rehiring or reinstatement of the employee
    to his former position with back pay.'' 29 U.S.C. Sec.  660(c)(1) and
    (2) (1994).
        Willamette cites six cases in which the statutory remedies in OSHA
    were held to be adequate: [***14] Miles v. Martin Marietta Corp., 861
    F. Supp. 73 (D. Colo. 1994); King v. Fox Grocery Co., 642 F. Supp. 288,
    290 (W.D. Pa. 1986); Grant v. Butler, 590 So. 2d 254 (Ala. 1991);
    Corbin v. Sinclair Marketing, Inc., 684 P.2d 265 (Colo. App. 1984);
    Burnham v. Karl & Gelb, P.C., 1997 Conn. Super. LEXIS 645, *11-15, 1997
    WL 133399 *5-6 (Conn. Super. Ct. 1997); Walsh v. Consolidated
    Freightways, [*205] 278 Ore. 347, 563 P.2d 1205 (1977). None of the six
    cases focuses on a Coleman-style search for an adequate alternative
    remedy.
        Willamette acknowledges four cases from New Jersey and California
    support Flenker's position that OSHA's remedies should not preclude a
    state common-law claim for retaliatory discharge: Jenkins v. Family
    Health Program, 214 Cal. App. 3d 440, 262 Cal. Rptr. 798 (1989);
    Hentzel v. Singer Co., 138 Cal. App. 3d 290, 188 Cal. Rptr. 159 (1982);
    Cerracchio v. Alden Leeds, Inc., 223 N.J. Super. 435, [**301] 538 A.2d
    1292 (1988); and Lepore v. National Tool and Mfg. Co., 224 N.J. Super.
    463, 540 A.2d 1296 (1988).
        The Ohio Supreme Court has also permitted a common-law tort
    retaliatory discharge claim in an OSHA setting. Kulch v. Structural
    Fibers, Inc., 78 Ohio St. 3d 134, [***15] 677 N.E.2d 308 (1997). Kulch
    held that ``an at-will employee who is discharged or disciplined for
    filing a complaint with OSHA concerning matters of health and safety in
    the workplace is entitled to maintain a common-law tort action against
    the employer for wrongful discharge/discipline in violation of public
    policy.'' 78 Ohio St. 3d at 162.
        The Missouri Court of Appeals in Shawcross v. Pyro Products, Inc.,
    916 S.W.2d 342 (1995), a retaliatory discharge preemption case, has
    analyzed the inadequacy of OSHA's remedy:
        ``OSHA only allows an employee to file a complaint with the
    Secretary of Labor who then decides whether to bring an action on the
    employee's behalf. 29 U.S.C. Sec.  660(c)(2) (1985). The employee's
    right to relief is even further restricted in that the complaint must
    be filed within thirty days of the discrimination or discharge. Id. The
    decision to assert a cause of action is in the sole discretion of the
    Secretary of Labor and the statute affords the employee no appeal if
    the Secretary declines to file suit. Id. It is obvious from the
    language of the two statutes that although an employee may obtain any
    type of relief possible under FLSA [Fair Labor [***16] Standards Act]
    through the employee's own actions, the relief available under OSHA is
    limited to what the Secretary of Labor deems appropriate. It should
    also be noted that unless an employee acts immediately and files a
    complaint with the Secretary of Labor, there is no remedy available
    without the public policy exception.'' 916 S.W.2d at 345.
        Because of Coleman's specific requirement that an alternative
    remedy be ``adequate,'' we examine OSHA Sec.  11 (c) in detail. The
    remedy under Sec.  11(c), as Shawcross observes, is the right to file a
    complaint with the Secretary of Labor. Willamette overstates what
    [*206] happens next. Willamette suggests that upon receiving the
    complaint, ``the Secretary is directed to investigate the complaint,''
    and if the Secretary finds a violation, the Secretary ``shall bring an
    action in any appropriate district court'' to recover ``all appropriate
    relief.'' Willamette cites cases that hold that ``all appropriate
    relief'' in the statute includes punitive damages,e.g., Reich v.
    Skyline Terrace, Inc., 977 F. Supp. 1141 (N.D. Okla. 1997), and that
    the ``federal courts have the power to award any appropriate relief in
    a cognizable cause of action brought pursuant [***17] to a federal
    statute.'' Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 71,
    117 L. Ed. 2d 208, 112 S. Ct. 1028 (1992).
        Willamette neglects to point out clearly that OSHA Sec.  11(c) says
    that the Secretary ``shall cause such investigation to be made as he
    deems appropriate,'' and ``if upon such investigation, the Secretary
    determines that the provisions of this subsection have been violated,
    he shall bring an action.'' (Emphasis added.) As the certification
    order notes no guidance is given ``as to what factors the Secretary
    must or may consider to constitute an investigation.'' Flenker
    correctly comments that the Secretary's discretion is a significant
    limitation on the employee's right of redress. What would, in a common-
    law tort action, be the decision of the plaintiff and plaintiff's
    counsel is, under Sec.  11(c), the decision of a government employee.
    The concerns of the government employee could range from budget
    constraints to political pressure. In addition the limitation period
    for filing an OSHA Sec.  11(c) complaint is 30 days from discharge.
        The Tenth Circuit in its certification order remarked: ``This
    remedy [section 11(c)] has been recognized as a `limited' [***18] one,
    providing only for administrative proceedings and suit in federal court
    which may be brought by the Secretary if the Secretary so elects.
    Holmes v. Schneider Power Corp., 628 F. Supp. 937, 939 (W.D. Pa.),
    aff'd 806 F.2d 252 (3d. Cir. 1986).'' We agree.
        The facts here illustrate the type of agency ruling for which the
    employee cannot receive redress. The certification order says that
    after Flenker filed his complaint with OSHA, ``Mr. Flenker was
    informed, presumably by [**302] an OSHA employee, that because he had
    fixed the machine in question, which had been a part of his section
    [*207] 11(c) claim, he no longer had a claim under OSHA.'' Section
    11(c) (1) declares discharge in retaliation for filing a complaint to
    be a violation of OSHA. Fixing the defective equipment in question does
    not cancel the wrong of retaliatory discharge. The OSHA statute,
    however, does not appear to provide a second chance for Flenker to try
    to convince the agency to see things his way.
        The inadequacy of the OSHA remedy is not outweighed by the factors
    cited by Willamette. Willamette suggests that under OSHA (1) there is a
    lower burden of proof, (2) the Secretary of Labor has considerable
    resources and expertise [***19] in investigating the complaint, (3) the
    available federal discovery process is for gathering evidence for use
    at trial, and (4) the employee has the Secretary's experienced
    representation at trial without cost to the employee. If the complaint
    is only half-heartedly investigated, or a suit is not filed by the
    Secretary of Labor, the OSHA factors do not benefit the discharged
    employee at all.
        In evaluating the collective bargaining remedy we held to be
    inadequate in Coleman, we noted: ``The factfinding process in
    arbitration does not equate with judicial factfinding. Rules of
    evidence do not usually apply; the rights and procedures common to
    civil trials such as discovery, compulsory process, cross-examination,
    and testimony under oath are often severely limited or unavailable.''
    242 Kan. at 814 (citing Alexander v. Gardner-Denver Co., 415 U.S. 36,
    56-57, 39 L. Ed. 2d 147, 94 S. Ct. 1011 [1974]). The same observation
    can be made about the investigation that the Secretary of Labor is
    directed to make under OSHA Sec.  11(c).
        We noted in Coleman that the decision to enter a collective
    bargaining agreement is made by majority vote. Such agreements are not
    designed to protect [***20] individual workers, but to balance the
    individual against the collective interest. We said:
        ``The potential result of a union's emphasis on the collective good
    is that, in some cases, the employee may be left without a remedy for
    an employer's violation of state public policy. Here, Coleman's union
    has decided for the good of the union not to support Coleman's claim by
    arbitration. If there is no independent state action for retaliatory
    discharge, and no avenue for Coleman to pursue her state public policy
    right against her employer, Coleman is limited to proceeding against
    her representative, the union, in federal or state court under * * *
    the [*208] [Labor Management Relations Act] for her union's breach of
    its duty of fair representation.'' 242 Kan. at 814-15.
        Similarly, under OSHA Sec.  11(c), the decision to pursue an
    employee's claim of retaliatory discharge is made by an administrative
    agency. Unless there is some kind of administrative appeal of OSHA's
    decision not to pursue the complaint, which neither party has suggested
    exists, an employee is limited to voting against an incumbent
    legislator or against the current administration. A ballot box exercise
    provides less recourse than [***21] a suit against one's labor union in
    federal or state court, which we found inadequate in Coleman. 242 Kan.
    at 814-15.
    Other Federal Statutory Remedies
        It is instructive to compare OSHA Sec.  11(c) to other federal
    statutory remedies. Under the Energy Reorganization Act (ERA), if ``the
    complainant has made a prima facie showing,'' 42 U.S.C. Sec.
    5851(b)(3)(A), ``upon receipt of a complaint * * * the Secretary shall
    conduct an investigation [without OSHA's `as he deems appropriate'
    language] of the violation alleged.'' (Emphasis added.) Sec.
    5851(b)(2)(A). If the ERA investigation reveals the complaint has merit
    and after a public hearing, the Secretary shall order preliminary
    relief and may order compensatory relief after a final order is
    entered. 42 U.S.C. Sec.  5851(b)(2)(A) and (B). Further, an employee is
    given the right to file suit in federal court to require compliance
    with such an order. 42 U.S.C. Sec.  5851(e).
        Under the adequate alternative remedy test, the administrative
    remedy provided by OSHA Sec.  11(c) is less adequate than the remedy
    under the ERA. Although OSHA entitles an employee to file a complaint
    under [**303] Sec.  11(c), there is no provision for an employee to
    bring a private [***22] action in federal court.
        We next turn to examine the employment discrimination provisions of
    the Civil Rights Act. 42 U.S.C. Sec.  2000a et seq. (1994). Title VII
    provides in part:
        ``Whenever a charge is filed * * * alleging that an employer * * *
    has engaged in an unlawful employment practice, the [Equal Employment
    Opportunity] Commission shall serve a notice of the charge * * * and
    shall make an investigation thereof.'' 42 U.S.C. Sec.  2000e-5(b)
    (1994).
        [*209] ``The person * * * aggrieved shall have the right to
    intervene in a civil action brought by the Commission. * * * If a
    charge filed with the Commission * * * is dismissed by the Commission,
    or if within one hundred and eighty days from the filing of such charge
    * * * the Commission has not filed a civil action under this section *
    * * the Commission * * * shall so notify the person aggrieved and
    within 90 days * * * a civil action may be brought against the
    respondent named in the charge * * * by the person claiming to be
    aggrieved.'' 42 U.S.C. Sec.  2000e-5(f)(1).
        Under Title VII, the aggrieved person is not left without a remedy
    if the administrative agency does not pursue the complaint; the
    complainant is given permission to sue. [***23] Also, there is no
    agency discretion language in the Title VII provision providing for
    agency investigation. The employee's remedy is more effective under
    Title VII than it is under OSHA.
        Polson was correct in surmising the Kansas rule to be that an
    adequate alternative remedy precludes a common-law retaliatory
    discharge action. However, neither the Polson facts nor KAAD is before
    us here. This is an OSHA case. We are not reviewing Polson's conclusion
    that we would find that KAAD provided an ``adequate and exclusive state
    remedy for violations of the public policy enunciated therein.'' 895
    F.2d at 706.
        Coleman, while never specifically saying so, assumes that an
    adequate alternative remedy would preclude a common-law cause of action
    for retaliatory discharge. The cases overruled by Coleman (Cox,
    Smith,and Armstrong) make the same assumption.
        In Cox, we said: ``An employee is adequately protected
    contractually from retaliatory discharge.'' (Emphasis added.) 240 Kan.
    at 99. In Smith we said, ``In Cox, we declined to extend the tort of
    retaliatory discharge * * * [citation omitted] to include an employee
    adequately protected [***24] contractually from such discharge by a
    collective bargaining agreement.'' (Emphasis added.) 240 Kan. at 572.
    In Armstrong, we held that the decision in Cox controlled, and
    plaintiffs who are ``fully covered and protected by a collective
    bargaining agreement'' are barred from bringing an action in tort for a
    retaliatory discharge. (Emphasis added.) 242 Kan. at 168.
        The Colemanmajority found the arguments in the Cox and Armstrong
    dissents persuasive, and, applying the adequate alternative [*210]
    remedy test, held that Cox ``did not fully recognize the limited remedy
    afforded the injured employee through collective bargaining.'' 242 Kan.
    at 813. Thus, Coleman overruled Cox, Smith, and Armstrong on the ground
    that the overruled cases wrongly found the remedy under the collective
    bargaining agreements to be adequate, not on the ground that
    ``adequacy'' was not the test. Coleman, Cox, Smith, and Armstrong apply
    the same ``adequate remedy'' test.
        We answer the certified question in the negative, on the ground
    that OSHA Sec.  11(c) (29 U.S.C. Sec.  660[c]) does not provide an
    adequate alternative remedy under the facts certified [***25] here.
                                     ______

           SANDRA SHAWCROSS, and GAYE BAILEY, Plaintiffs/Appellants,
                 vs. PYRO PRODUCTS, INC., Defendant/Respondent.

                                   no. 67859

         COURT OF APPEALS OF MISSOURI, EASTERN DISTRICT, DIVISION FOUR
                    916 S.W.2d 342; 1995 Mo. App. LEXIS 2126

        December 26, 1995, OPINION FILED
        PRIOR HISTORY: [**1] Appeal from the Circuit Court of Jefferson
    County. Hon. John L. Anderson.
        DISPOSITION: We reverse and remand for further proceedings.
        CASE SUMMARY:
        PROCEDURAL POSTURE: Plaintiff former employees sought review of a
    decision of the Circuit Court of Jefferson County (Missouri), which
    dismissed, for failure to state a claim upon which relief could be
    granted, their petition against defendant former employer for wrongful
    discharge under Missouri's public policy exception to the employment
    at-will doctrine, based on their allegation that they were fired in
    retaliation for complaints about safety problems.
        OVERVIEW: The employees alleged that the employer's fireworks
    production factory was unsafe. When their employer learned that they
    had contacted the United States Department of Labor to determine if any
    of the conditions at the factory plant violated the Occupational Safety
    and Health Act (OSHA), they were fired. The employer argued that OSHA
    provided their exclusive remedy. The court reversed the trial court's
    dismissal of their petition against the employer for wrongful
    discharge. The court held that the employees' allegations were
    sufficient to state a claim for wrongful discharge under Missouri's
    public policy exception to the employment at will doctrine for a
    discharge precipitated by an employee's report of violations of law or
    public policy. Under OSHA, 29 U.S.C.S. Sec.  660(c)(2), an employee
    could file a complaint for wrongful discharge within 30 days after the
    discharge, but the Secretary of Labor had sole discretion to determine
    whether to bring a wrongful discharge action in federal court. Because
    OSHA did not provide a complete remedy, it did not displace the common
    law remedy under Missouri's public policy exception to the employment
    at will doctrine.
        OUTCOME: The court reversed the circuit court's dismissal of the
    employees' petition.
        CORE TERMS: public policy exception, at-will, wrongful discharge,
    statutory remedy, state law, pre-emption, wrongful discharge,
    occupational safety, cause of action, retaliatory discharge, reporting,
    working conditions, plant, Health Act OSHA, Energy Reorganization Act,
    federal law, common law, state remedies, employee's rights, remedy
    provided, remedy available, sole discretion, remedial measures,
    reinstatement, discharging, discharged, pre-empted, pre-empts,
    contacted, factory
        In reviewing a trial court's dismissal of an action, the appellate
    court accepts as true the facts properly pleaded, giving the averments
    a liberal construction and making those reasonable inferences fairly
    deducible from the facts stated. Viewing the pleadings in this light,
    the court determines if the pleader has demonstrated any basis for
    relief.
        An employer may discharge an at-will employee, with or without
    cause, and not be subject to wrongful discharge liability. However,
    while employers may terminate employees at-will for no reason, or for
    an arbitrary or irrational reason, there is no right to discharge an
    employee for an unlawful reason or purpose which goes against public
    policy.
        When the discharge of an at-will employee violates a clear mandate
    of public policy, the employee has a wrongful discharge claim. Missouri
    courts have recognized four categories of cases under the public policy
    exception: (1) discharge of an employee because of his or her refusal
    to perform an illegal act; (2) discharge because an employee reported
    violations of law or public policy to superiors or public authorities;
    (3) discharge because an employee participated in acts that public
    policy would encourage, such as jury duty, seeking public office,
    asserting a right to collective bargaining, or joining a union; and (4)
    discharge because an employee filed a worker's compensation claim.
    Missouri courts have limited the public policy exception to apply only
    to those cases when the discharge of an employee violates a
    constitutional provision, a statute, or a regulation based on a
    statute.
        The Occupational Safety and Health Act (OSHA) prohibits employers
    from discharging or discriminating in any way against an employee
    because that employee has filed a complaint, instituted an action, or
    otherwise exercised any right available under OSHA. 29 U.S.C.S. Sec.
    660(c)(1).
        The Occupational Safety and Health Act permits an employee to file
    a complaint with the Secretary of Labor within 30 days after the
    discrimination or discharge has occurred. 29 U.S.C.S. Sec.  660(c)(2).
    The Secretary has sole discretion in deciding whether to bring an
    action in federal court regarding the employee's rights. 29 U.S.C.S.
    Sec.  660(c)(2). Should the Secretary choose to do so, the statute
    allows for reinstatement of the employee to the employee's former
    position with back pay. 29 U.S.C.S. Sec.  660(c)(2). The statute
    provides no means of appeal for an employee whose complaint is not
    acted upon by the Secretary. 29 U.S.C.S. Sec.  660(c)(2).
        The Occupational Safety and Health Act does not bar a state
    wrongful discharge claim.
        The remedial measures provided for in the Occupational Safety and
    Health Act do not preempt a state law wrongful discharge claim.
        Preemption can occur when (1) federal law expressly preempts state
    law; (2) federal law occupies the field so completely that preemption
    may be inferred; or (3) there is a conflict between federal and state
    law.
        The Occupational Safety and Health Act only allows an employee to
    file a complaint with the Secretary of Labor who then decides whether
    to bring an action on the employee's behalf. 29 U.S.C.S. Sec.
    660(c)(2). The employee's right to relief is even further restricted in
    that the complaint must be filed within 30 days of the discrimination
    or discharge. 29 U.S.C.S. Sec.  660(c)(2). The decision to assert a
    cause of action is in the sole discretion of the Secretary of Labor and
    the statute affords the employee no appeal if the Secretary declines to
    file suit.
        A statutory remedy shall not be deemed to supersede and displace
    remedies otherwise available at common law in the absence of language
    to that effect unless the statutory remedy fully comprehends and
    envelopes the remedies provided by common law.
        JUDGES: CLIFFORD H. AHRENS, Presiding Judge. James A. Pudlowski and
    Stanley A. Grimm, JJ., concur.
        OPINION BY: CLIFFORD H. AHRENS
                                    opinion
        [*343] Plaintiffs appeal the circuit court's dismissal of their
    petition for wrongful discharge against their employer under Missouri's
    public policy exception to the employment at-will doctrine for failure
    to state a claim upon which relief can be granted. Plaintiffs alleged
    defendant violated public policy by firing them in retaliation for
    filing complaints regarding the safety problems in defendant's factory.
    We reverse and remand.
        In reviewing a trial court's dismissal of an action, ``we accept as
    true the facts properly pleaded, giving the averments a liberal
    construction and making those reasonable inferences fairly deducible
    from the facts stated.'' Petersimes v. Crane Co., 835 S.W.2d 514, 515
    (Mo. App. 1992). Viewing the pleadings in this light, we determine if
    the pleader has demonstrated any basis for relief. Luethans v.
    Washington University, 838 S.W.2d 117, 119 (Mo. App. 1992).
        Plaintiffs, in [**2] their petition, alleged the following facts:
    Plaintiffs, Sandra Shawcross and Gaye Bailey were employed by defendant
    Pyro Products, Inc., in its fireworks production factory in Jefferson
    County, Missouri. Plaintiffs concede they were employees at-will. On
    numerous occasions prior to March 23, 1994, they complained to
    defendant that working conditions in defendant's plant were unsafe.
    Plaintiffs also contacted the United States Department of Labor to
    determine if any of the conditions at defendant's plant violated the
    Occupational Safety and Health Act (``OSHA''). On March 23, 1994,
    plaintiffs met with Ronald Walker, an officer of defendant, discussed
    their concerns regarding safety in the plant, and informed Mr. Walker
    that they had contacted the Department of Labor. On March 24, 1994,
    defendant discharged plaintiffs as a direct result of their contacting
    the Department of Labor.
        Generally, an employer may discharge an at-will employee, with or
    without cause, and not be subject to wrongful discharge liability. Dake
    v. Tuell, 687 S.W.2d 191, 193 (Mo. 1985). However, this court, while
    recognizing that employers may terminate employees at-will ``for no
    reason, or for an arbitrary or [**3] irrational reason,'' has
    specifically determined that there is no right to discharge an employee
    for an unlawful reason or purpose which goes against public policy, and
    has recognized the public policy exception to employment at-will.
    Petersimes, 835 S.W.2d at 516.
        When the discharge of an at-will employee violates a clear mandate
    of public policy, this court has determined that the employee has a
    wrongful discharge claim. Id. The courts of this state have recognized
    four categories of cases under the public policy exception: (1)
    discharge of an employee because of his or her refusal to perform an
    illegal act; (2) discharge because an employee reported violations of
    law or public policy to superiors or public authorities; (3) discharge
    because an employee participated in acts that public policy would
    encourage, such as jury duty, seeking public office, asserting a right
    to collective bargaining, or joining a union; and (4) discharge because
    an employee filed a worker's compensation claim. Lynch v. Blanke Baer
    and Bowey Krimko, Inc., 901 S.W.2d 147, 150 (Mo. App. 1995).
        The courts of this state have limited the public policy exception
    to apply only to those cases when [**4] the discharge of an employee
    violates a constitutional provision, a statute, or a regulation based
    on a statute. See Luethans, 838 S.W.2d at 120.
        Plaintiffs' petition asserts a wrongful discharge action under
    Missouri's public policy exception to the employment at-will doctrine.
    [*344] Plaintiffs alleged in their petition that their discharge by
    defendant violated OSHA because that section protects employees
    reporting to the Department of Labor from retaliatory discharge. 29
    U.S.C. Sec.  660(c)(1) (1985). OSHA prohibits employers from
    discharging or discriminating in any way against an employee because
    that employee has filed a complaint, instituted an action, or otherwise
    exercised any right available under OSHA. Id.
        Plaintiffs further alleged that because the purpose of OSHA is to
    assure workers ``safe and healthy working conditions'' and because OSHA
    prohibits employers from discharging employees for exercising their
    rights under OSHA, defendant's discharge of plaintiffs was a violation
    of public policy. Plaintiffs alleged they were employed by defendant
    at-will. They alleged that OSHA promotes public policy by ensuring safe
    working conditions. Finally, they alleged defendant [**5] violated
    public policy when it fired plaintiffs for reporting to the Department
    of Labor. We believe plaintiffs have alleged facts sufficient to state
    a claim for wrongful discharge under Missouri's public policy
    exception.
        Defendant argues that the public policy exception does not apply to
    cases such as this one where the statute, which is the basis for the
    public policy exception, provides its own remedy. OSHA permits an
    employee to file a complaint with the Secretary of Labor within thirty
    days after the discrimination or discharge has occurred. 29 U.S.C.
    Sec.  660(c)(2) (1985). The Secretary has sole discretion in deciding
    whether to bring an action in federal court regarding the employee's
    rights. Id. Should the Secretary choose to do so, the statute allows
    for reinstatement of the employee to the employee's former position
    with back pay. Id. The statute provides no means of appeal for an
    employee whose complaint is not acted upon by the Secretary. Id.
    Defendant contends the remedy provided by the statute is the exclusive
    remedy available to employees in those situations.
        Defendant bases its argument on this court's decision in Hendrix v.
    Wainwright Industries, [**6] 755 S.W.2d 411 (Mo. App. 1988). The
    employee in Hendrix did not allege the employer's actions violated
    Missouri's public policy, as plaintiffs have in the instant case. 755
    S.W.2d at 412-413. The petition in Hendrix asserted only a conspiracy
    to violate OSHA. However, defendant points to the general statement of
    law in Hendrix:
        Any remedy for retaliatory discharge must come from within the
    agency. There is no private cause of action for violation of the
    Occupational Safety and Health Act.
        Id. at 413. This pronouncement of the law was taken from Taylor v.
    Brighton Corp., 616 F.2d 256, 264 (6th Cir. 1980). Since Taylor, the
    Eighth Circuit has examined the same issue and determined that OSHA
    does not bar a state wrongful discharge claim. Schweiss v. Chrysler
    Motors Corp., 922 F.2d 473, 475 (8th Cir. 1990). In Schweiss, as in the
    instant case, the plaintiff alleged she was discharged for reporting
    violations of OSHA at her workplace. Schweiss, 922 F.2d at 474. The
    Eighth Circuit determined that those allegations were sufficient to
    state a cognizable claim under Missouri law. Id. The only issue which
    remained for the court's decision [**7] was whether OSHA pre-empted
    plaintiff's state law claim. Id.
        The Eighth Circuit found no language in the statute expressly pre-
    empting state law. Schweiss, 922 F.2d at 474. It also found no reason
    to infer pre-emption from the language of the statute, noting that
    ``[OSHA] expressly allows for state regulation in the occupational
    safety field of law.'' Id. The court specifically held that the
    remedial measures provided for in OSHA did not preempt a state law
    wrongful discharge claim. Id. at 475.
        In reaching its decision in Schweiss, the Eighth Circuit relied on
    a recently decided U.S. Supreme Court case, English v. General Electric
    Co., 496 U.S. 72, 78-79, 110 S. Ct. 2270, 110 L. Ed. 2d 65, 74 (1990).
    In English, the Supreme Court examined whether the Energy
    Reorganization Act of 1974 pre-empted a state law tort claim. That
    statute provides remedial measures to retaliatory discharge similar to
    those provided for in OSHA. 42 U.S.C. Sec.  5851 (1995). Although
    defendant disagrees, we believe the issue in this case is also whether
    [*345] OSHA pre-empts plaintiff's wrongful discharge claim. Pre-emption
    can occur when: (1) federal law expressly pre-empts [**8] state law;
    (2) federal law occupies the field so completely that pre-emption may
    be inferred; or (3) there is a conflict between federal and state law.
    English, 496 U.S. at 78-79. The Supreme Court found no pre-emption of
    the state tort claim by the federal statute, noting, ``ordinarily the
    mere existence of a federal regulatory or enforcement scheme, even one
    as detailed as [the Energy Reorganization Act], does not by itself
    imply pre-emption of state remedies.'' Id. at 80. The court found no
    actual conflict between the federal and state remedies, and thus no
    pre-emption. Id. at 81. The Eighth Circuit applied English to the facts
    of Schweiss and held that OSHA allows a state wrongful discharge claim
    under Missouri's public policy exception. Schweiss, 922 F.2d at 475.
        We believe Schweiss and English promote the more just policy of
    allowing plaintiffs remedies in addition to the single narrow remedy
    provided by OSHA. For these reasons, we follow Schweiss and English.
        Defendant further contends that state law simply does not apply
    where a federal statutory remedy exists, regardless of preemption.
    Defendant relies on Clark v. Beverly Enterprises-Missouri, [**9] 872
    S.W.2d 522, 525 (Mo. App. 1994) for this rule. However, the rule is
    merely dicta in Clark. The statute in Clark did not provide a remedy
    and plaintiff was allowed to assert a private cause of action.
    Defendant also relies on Prewitt v. Factory Motor Parts, Inc., 747 F.
    Supp. 560, 565 (W.D. Mo. 1990), which was cited by the Western District
    in Clark as authority for this rule. Prewitt is distinguishable.
        The employee in Prewitt brought suit for wrongful discharge under
    the Fair Labor Standards Act (``FLSA''). 29 U.S.C. Sec.  215(a)(3)
    (1965). In Count I of the employee's complaint, she alleged wrongful
    discharge under FLSA. Id. at 561. Count II was a claim for wrongful
    discharge under Missouri's public policy exception to the employment
    at-will doctrine. Id. The federal district court concluded the employee
    had not stated a claim upon which relief could be granted as to Count
    II. 747 F. Supp. at 565. The court reasoned that FLSA provided a
    complete range of remedies for the employee and thus the public policy
    exception did not apply in that instance. Id.
        The distinction between Prewitt and the instant case lies in the
    statutory remedies. [**10] FLSA allows an employee to bring a claim in
    either federal or state court to recover ``employment, reinstatement,
    promotion, and the payment of lost wages and an additional equal amount
    as liquidated damages.'' 29 U.S.C. Sec.  216(b) (1995 Supp.). In
    contrast, OSHA only allows an employee to file a complaint with the
    Secretary of Labor who then decides whether to bring an action on the
    employee's behalf. 29 U.S.C. Sec.  660(c)(2) (1985). The employee's
    right to relief is even further restricted in that the complaint must
    be filed within thirty days of the discrimination or discharge. Id. The
    decision to assert a cause of action is in the sole discretion of the
    Secretary of Labor and the statute affords the employee no appeal if
    the Secretary declines to file suit. Id. It is obvious from the
    language of the two statutes that although an employee may obtain any
    type of relief possible under FLSA through the employee's own actions,
    the relief available under OSHA is limited to what the Secretary of
    Labor deems appropriate. It should also be noted that unless an
    employee acts immediately and files a complaint with the Secretary of
    Labor, there is no remedy available without the public [**11] policy
    exception. We agree that, in instances such as Prewitt, a complete
    statutory remedy should replace the common law remedy, but such a
    result should not occur, in cases such as this, where the statutory
    remedy is incomplete.
        A statutory remedy shall not be deemed to supersede and displace
    remedies otherwise available at common law in the absence of language
    to that effect unless the statutory remedy fully comprehends and
    envelopes the remedies provided by common law.
        Prewitt, 747 F. Supp. at 565, citing Detling v. Edelbrock, 671
    S.W.2d 265, 271-272 (Mo. banc 1984).
        We find OSHA does not provide a complete remedy and therefore we
    conclude that Missouri's public policy exception is applicable [*346]
    notwithstanding the existence of the federal statutory remedy under
    OSHA. Plaintiffs have stated a claim of wrongful discharge under the
    public policy exception to Missouri's employment at-will doctrine.\1\
    We reverse and remand for further proceedings.
    ---------------------------------------------------------------------------
        \1\ We express no opinion on the merits of plaintiffs' claims.
    ---------------------------------------------------------------------------
                                     ______

                ROGER WOOD, APPELLANT v. DEPARTMENT OF LABOR AND
                   ELAINE CHAO, SECRETARY OF LABOR, APPELLEES

                                  no. 00-5297

      UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
                    275 F.3d 107; 2001 U.S. App. LEXIS 27258

        September 7, 2001, Argued
        December 28, 2001, Decided
        PRIOR HISTORY: [**1] Appeal from the United States District Court
    for the District of Columbia. (No. 98cv02364).
        Wood v. Herman, 104 F. Supp. 2d 43, 2000 U.S. Dist. LEXIS 9867, 16
    I.E.R. Cas. (BNA) 905, 2000 O.S.H. Dec. (CCH) P 32167 (D.D.C. 2000)
        DISPOSITION: Affirmed.
        COUNSEL: Joanne Royce argued the cause for the appellant. James R.
    Klimaski was on brief.
        Beverly M. Russell, Assistant United States Attorney, argued the
    cause for the appellees. Kenneth L. Wainstein, Acting United States
    Attorney at the time the brief was filed, R. Craig Lawrence, Assistant
    United States Attorney, and Ann Rosenthal and John Shortall, Attorneys,
    United States Department of Labor, were on brief for the appellees.
        JUDGES: Before: HENDERSON, RANDOLPH and ROGERS, Circuit Judges.
    Opinion for the court filed by Circuit Judge HENDERSON.
        OPINION BY: KAREN LECRAFT HENDERSON
                                    opinion
        [*108] KAREN LECRAFT HENDERSON, Circuit Judge: Appellant Roger Wood
    seeks review of the district court's dismissal of his appeal from the
    decision of the Department of Labor (DOL) declining to file suit on his
    behalf for retaliatory discharge under section 11(c) of the
    Occupational Safety and Health Act (Act), 29 U.S.C. Sec.  660(c). The
    district court held that the DOL's decision not to sue was committed to
    the agency's discretion by law and thus not subject to judicial review
    pursuant to the United [**2] States Supreme Court's decision in Heckler
    v. Chaney, 470 U.S. 821, 84 L. Ed. 2d 714, 105 S. Ct. 1649 (1985). In
    light of the limited issue Wood raises on appeal, we affirm the
    district court's dismissal of his complaint but on a different ground.
        I. Wood was employed as a senior electrician by United Engineers
    and Constructors (UE&C)\1\ at the Johnston Atoll Chemical Agent
    Disposal System (JACADS).\2\ JACADS is a facility consisting of several
    chemical weapons incinerators located on the Johnston Atoll in the
    Pacific Ocean. The facility is operated by UE&C pursuant to a U.S. Army
    contract to dismantle and destroy the lethal chemical weapons stockpile
    stored on the island. Due to the type of weapon handled at JACADS, the
    working conditions at the facility are probably as dangerous as any
    undertaken in the world.
    ---------------------------------------------------------------------------
        \1\ UE&C is a subsidiary of Raytheon Industries.
        \2\ On a motion to dismiss, the facts as alleged in the complaint
    are taken as true and all reasonable inferences therefrom are drawn in
    the plaintiff's favor. See Sugar D. Co. v. Niagara Frontier Tariff
    Bureau, Inc., 476 U.S. 409, 411, 90 L. Ed. 2d 413, 106 S. Ct. 1922
    (1986).
    ---------------------------------------------------------------------------
        [**3] According to his complaint, before working at JACADS, Wood
    was employed at the Pine Bluff Arsenal in Arkansas, where he gained
    extensive experience in the field of chemical weapons destruction,
    making over 1000 ``toxic entries''\3\ with various levels of protective
    clothing and respirators. Upon his arrival at JACADS in 1990, Wood
    discovered that management and many of his co-employees failed to
    appreciate the dangers associated with the destruction of chemical
    weapons. In particular, he found basic safety equipment and training,
    the norm at Pine Bluff, inadequate at JACADS. As a result, Wood began
    making a number of safety complaints about conditions at the facility.
    In November 1990, Wood's concerns were confirmed when an investigation
    conducted [*109] by the Occupational Safety and Health Administration
    (OSHA) resulted in the issuance of a ``serious'' \4\ citation for two
    violations. The violations included the provision of unapproved
    respirators, 29 C.F.R. Sec.  1910.134(c), and the standby team's use of
    improper protective equipment, 29 C.F.R. Sec.  1910.134(e)(3)(iii).
    Coincident with the citation, OSHA mandated that all toxic entries be
    [**4] discontinued until JACADS complied with a schedule of specific
    safety precautions.
    ---------------------------------------------------------------------------
        \3\ A toxic entry is an entry into an environment where toxic
    contamination exists. See Compl. P 15.
        \4\ ``Serious'' means a ``hazard, violation or condition such that
    there is a substantial probability that death or serious physical harm
    could result.'' See 29 C.F.R. Sec.  1960.2(v).
    ---------------------------------------------------------------------------
        Subsequently, Wood and his supervisors had a number of clashes
    regarding safety issues at JACADS. The supervisors saw many of Wood's
    allegations as scare tactics, intended to frighten his co-workers. The
    disputes culminated in Wood's refusal to work in a toxic area because
    UE&C had not provided him with new corrective lenses for the facepiece
    of his protective mask. Because he had already received a final
    reprimand for refusal to work,\5\ Wood was discharged for
    insubordination on February 4, 1991.
    ---------------------------------------------------------------------------
        \5\ On February 2, 1991 Wood had received and signed a ``FINAL
    REPRIMAND'' letter detailing his refusal to work as directed. The
    reprimand stated that ``any further incidents, in which your actions
    are interpreted as insubordination * * * will result in the immediate
    termination of your employment at JACADS.'' JA 123.
    ---------------------------------------------------------------------------
        [**5] On February 15, 1991 Wood filed a complaint with OSHA
    alleging that his discharge violated section 11(c)(2) of the Act, which
    prohibits reprisals against employees who raise health and safety
    concerns. See 29 U.S.C. Sec.  660(c).\6\ OSHA regional investigator
    John Braeutigam was initially assigned to investigate Wood's
    allegations and, based on his investigation, the San Francisco Regional
    OSHA Office concluded that UE&C had violated section 11(c)(2) of the
    Act by terminating Wood for making safety complaints about the
    conditions at JACADS. When attempts at settlement proved unsuccessful,
    the Regional Office forwarded the complaint to the DOL Regional
    Solicitor with the recommendation that ``a case be filed on Wood's
    behalf.'' After further research, the Regional Solicitor concluded that
    the case was inappropriate for litigation due to a possible
    jurisdictional conflict with the Department of the Army (Army), which,
    he concluded, was responsible for setting the safety standards at
    JACADS. As a result, DOL's Office of the Solicitor (DOL Solicitor)
    referred Wood's claim to the Army. The Army conducted its own
    investigation and, in February 1996, finally returned [**6] the case to
    DOL without taking any action.
    ---------------------------------------------------------------------------
        \6\ Section 660(c) has three subsections. Defining ``protected
    activity'' under the Act, section 660(c)(1) provides: ``No person shall
    discharge or in any manner discriminate against any employee because *
    * * of the exercise by such employee * * * of any right afforded by
    this chapter.'' 29 U.S.C. Sec.  660(c)(1). Section 660(c)(2) provides
    the complaint procedure and describes the prohibited action, see infra
    p. 6, and section 660(c)(3) sets forth the Secretary's notice deadline
    once a complaint is filed.
    ---------------------------------------------------------------------------
        In April 1996 OSHA and the DOL Solicitor reviewed Wood's case
    again. In a letter dated May 3, 1996 the OSHA Assistant Secretary
    notified Wood that OSHA would take no further action. Explaining that
    the right to refuse to work is very limited, the Assistant Secretary
    concluded that Wood's refusal to participate in toxic entries did not
    meet the applicable legal test and thus his termination did not violate
    section 11(c). The Assistant Secretary also [**7] suggested that UE&C's
    probable jurisdictional defense based on the Army's [*110] authority
    over JACADS would ``further complicate the litigation.''
        On October 2, 1998 Wood filed the instant action seeking judicial
    review of the DOL Secretary's decision declining to bring a civil
    action on his behalf pursuant to section 11(c)(2) of the Act. Count I
    of his complaint alleged that the Secretary ``determined that Raytheon,
    [Wood's] employer, had violated 29 U.S.C. Sec.  660(c)'' and then
    ``unlawfully declined to file suit in an appropriate U.S. district
    court against Raytheon.'' Compl. P P 57-58. Counts II and III
    alternatively charged that the statement of reasons regarding the
    decision not to sue contained in the Assistant Secretary's May 3, 1996
    letter violated the Administrative Procedure Act (APA), 5 U.S.C. Sec.
    706(2)(a).\7\ Defendants DOL and the DOL Secretary moved to dismiss.
    ---------------------------------------------------------------------------
        \7\ Count II also challenged the Assistant Secretary's additional
    rationale included in his May 3, 1996 letter that the jurisdictional
    issue would likely complicate the litigation of Wood's claim. Counts
    IV, V and VI laid out additional grounds for relief which are not
    before us on appeal.
    ---------------------------------------------------------------------------
        [**8] On June 23, 2000 the district court dismissed Wood's
    complaint, concluding that the Secretary's decision declining to bring
    a section 11(c) suit was not judicially reviewable. Wood v. Herman, 104
    F. Supp. 2d 43, 48 (D.D.C. 2000). The district court relied on the
    holding in Heckler v. Chaney, 470 U.S. 821, 84 L. Ed. 2d 714, 105 S.
    Ct. 1649 (1985), in which the Supreme Court declared that an agency
    decision declining to initiate an enforcement action is generally
    ``presumed immune from judicial review'' unless the statute ``has
    provided guidelines for the agency to follow in exercising enforcement
    powers.'' Wood v. Herman, 104 F. Supp. 2d at 45-46 (D.D.C. 2000)
    (quoting Chaney, 470 U.S. at 832-33).\8\ ``Unable to discern any
    meaningful guidelines for the Secretary to follow in deciding whether
    to bring an enforcement action,'' the district court held that ``the
    Chaney presumption of nonreviewability must govern.'' 104 F. Supp. 2d
    at 46. Without separately discussing the APA claims, the district court
    dismissed the entire action. This appeal followed.
    ---------------------------------------------------------------------------
        \8\ Chaney noted that an agency's decision to decline enforcement
    is ``generally committed to an agency's absolute discretion'' and
    ``involves a complicated balancing of a number of factors which are
    peculiarly within [agency] expertise.'' 470 U.S. at 831 (citations
    omitted). In addition, ``the agency is far better equipped than the
    courts to deal with the many variables involved in the proper order of
    its priorities.'' Id. at 831-32.
    ---------------------------------------------------------------------------
        [**9] II.
        On appeal, as he did in the district court, Wood frames the issue
    as ``whether the Secretary of Labor's decision not to bring an
    enforcement action, despite having found a violation under 29 U.S.C.
    Sec.  660(c), is reviewable.'' Appellant's Br. at 2. We review the
    dismissal of Wood's complaint de novo. Gilvin v. Fire, 259 F.3d 749,
    756 (D.C. Cir. 2001). In deciding a purely legal question, we need not
    adopt the reasoning relied upon below. See Eldred v. Reno, 345 U.S.
    App. D.C. 89, 239 F.3d 372, 374-75 (D.C. Cir. 2001). While we affirm
    the district court's dismissal of Count I, we do so on a different
    basis from the one used below. We conclude that Count I fails to state
    a claim on which relief can be granted, Fed. R. Civ. P. 12(b)(6),
    because the Secretary did not determine that Wood's discharge violated
    section 11(c) of the Act.
        In challenging the Secretary's non-enforcement decision, Wood
    relies principally upon the language of section 11(c)(2). We allow Wood
    to fall on his statutory ``sword.'' The pertinent language of section
    11(c)(2) of the Act provides:
        [*111]
        Any employee who believes that he has been discharged or otherwise
    discriminated [**10] against by any person in violation of this
    subsection may * * * file a complaint with the Secretary alleging such
    discrimination. Upon receipt of such complaint, the Secretary shall
    cause such investigation to be made as he deems appropriate. If upon
    such investigation, the Secretary determines that the provisions of
    this subsection have been violated, he shall bring an action in any
    appropriate United States district court against such person * * *
        29 U.S.C. Sec.  660(c)(2) (emphasis added). Count I mirrors the
    statutory language, alleging that the Secretary determined that Wood's
    employer had violated section 11(c)(2) and then ``unlawfully failed to
    bring an action.'' In light of the congressional mandate reflected by
    the ``shall'' language, Wood argues, the Chaney presumption of non-
    reviewability is inapplicable.
        Wood's contention is based on the premise that the Secretary's
    statutory duty to bring suit under section 11(c)(2) arises only if the
    Secretary first finds a violation. As discussed below, the Secretary
    made no such determination here and concluded instead that Wood's
    refusal to work was not protected activity under the Act. Wood appears
    to view [**11] the Secretary's determination that the subsection was
    not violated and the Secretary's decision not to bring suit as two
    sides of the same coin so that he may challenge the latter without
    regard to the former. As the complaint itself appears to recognize,
    however, the Secretary's determination that section 11(c)(2) has been
    violated at all is a requisite precondition to her enforcement
    decision. Count I alleges ``the Secretary conducted an investigation
    into plaintiff's claim of retaliation; confirmed its merits; and
    determined that Raytheon, plaintiff's employer, had violated 29 U.S.C.
    Sec.  660(c) by terminating plaintiff in retaliation for protected
    activity.'' Compl. P 57 (emphasis added). In his Reply Brief, Wood
    further argues that because the ``Secretary of Labor unquestionably
    found a violation of Sec.  11(c),'' the DOL ``was obligated to file
    suit on his behalf.'' Reply Br. at 1 (emphasis added). Although Count I
    (paragraph 57) of the complaint alleges that the first step of the
    statutory directive detailed above was met, Wood's complaint also
    recites the contents of the Assistant Secretary's May 3rd letter, which
    states in part that ``we conclude [**12] that your refusal to work does
    not meet the test set forth in [section 11(c)].'' Compl. P 50 (emphasis
    added). See generally 5A Charles Alan Wright & Arthur R. Miller,
    Federal Practice and Procedure Sec.  1357, at 319-20 (2d ed. 1990). On
    its face, then, the complaint foretells its own demise. Wood's
    challenge to the Secretary's decision not to bring suit on his behalf,
    which forms the basis of Count I, cannot be heard if the Secretary did
    not first determine that UE&C violated section 11(c)(2).
        Section 11(c)(2) designates the Secretary as the official who
    decides whether and to what extent an investigation is ``appropriate''
    and, based on that investigation, whether the complainant has made out
    a claim that his employer discriminated against him, by discharge or
    otherwise, for his protected activity. 29 U.S.C. Sec.  660(c). To
    demonstrate that the Secretary ``unquestionably'' found a violation,
    Wood sweepingly contends that ``every single Department of Labor
    official and attorney who investigated the facts found a strong merit
    case.'' Reply Br. at 1. His contention, even if true, is irrelevant.
    Only the Secretary of Labor is authorized to ``determine'' whether
    [**13] the ``subsection has been violated.'' The Secretary has
    delegated to the Assistant Secretary for Occupational Safety and Health
    ``the authority and assigned [*112] responsibility for administering
    the safety and health programs and activities of the Department of
    Labor * * * under * * * the Occupational Safety and Health Act of
    1970.'' See Secretary's Order 3-2000, 65 Fed. Reg. 50017 (August 16,
    2000). Using this authority, the Assistant Secretary for Occupational
    Safety and Health John Deer determined on May 3, 1996 that Wood's
    refusal to work was not protected activity under section 11(c)(2) and
    therefore UE&C did not violate the Act by discharging him. The first
    step of section 11(c)(2) not having been taken, then, Wood cannot as a
    matter of law make out a retaliatory discharge claim as set forth in
    Count I.\9\
    ---------------------------------------------------------------------------
        \9\ In holding that the Secretary's decision not to sue was
    unreviewable, the district court did not reach Counts II and III, Wood
    v. Herman, 104 F. Supp. 2d at 45; on appeal Wood did not raise, in the
    alternative, an issue on either, and accordingly, Wood has waived any
    objection to their dismissal. Moreover, the court does not reach the
    questions whether either the Secretary's determination of a violation
    vel non or her determination upon finding a violation not to file a
    complaint are subject to judicial review.
    ---------------------------------------------------------------------------
        [**14] For the foregoing reasons, the district court's dismissal of
    Count I of Wood's complaint is
        Affirmed.
        CASE SUMMARY:
        PROCEDURAL POSTURE: Appellant employee sought review of the United
    States District Court for the District of Columbia's dismissal of his
    appeal from the decision of defendant Department of Labor, which
    declined to file suit on his behalf for retaliatory discharge under
    Sec.  11(c) of the Occupational Safety and Health Act, 29 U.S.C.S.
    Sec.  660(c).
        OVERVIEW: The employee had filed a complaint with the Occupational
    Safety and Health Administration (OSHA) alleging that he had been
    discharged for raising health and safety concerns. The employee alleged
    that the Secretary of the Department of Labor (DOL) had determined that
    the employer had violated 29 U.S.C.S. Sec.  660(c) and then unlawfully
    declined to file suit against the employer. The district court held
    that the DOL's decision not to sue was committed to the agency's
    discretion by law and was not subject to judicial review. The court
    affirmed the district court's decision, but on a different basis. The
    court found that as a matter of law, the employee could not make out
    the retaliatory discharge claim because the Assistant Secretary for
    Occupational Safety and Health, who had been delegated the authority to
    decide whether a complainant had made out a claim that his employer
    discriminated against him, had determined that the employee's refusal
    to work was not protected activity under 29 U.S.C.S. Sec.  660(c) and
    that, therefore, the employer did not violate the Occupational Safety
    and Health Act by discharging him.
        OUTCOME: The court affirmed the dismissal of the count alleging
    that the secretary had unlawfully declined to file suit against the
    employer.
        CORE TERMS: protected activity, regional, judicial review, chemical
    weapons, declining, file suit, bring suit, enforcement action,
    jurisdictional, protective, reprimand, retaliatory discharge, agency
    decision, unquestionably, discriminated, destruction, terminating,
    retaliation, respirators, discharged, unlawfully, reviewable,
    confirmed, guidelines, assigned, insubordination, termination,
    supervisors, complicate
                                     ______

                                    ------

        [The article, ``A Pot of Gold at the End of the Rainbow: An
    Economic Incentives-Based Approach to OSHA Whistleblowing,'' by
    Jarod S. Gonzalez, may be accessed at the following Internet
    address:]

          http://papers.ssrn.com/sol3/papers.cfm?abstract--id=1538336

                                    ------

        [The GAO report, ``Whistleblower Protection Program: Better
    Data and Improved Oversight Would Help Ensure Program Quality
    and Consistency,'' January 2009, may be accessed at the
    following Internet address:]

                    http://www.gao.gov/new.items/d09106.pdf

                                    ------

             COMPARISON OF ANTI-RETALIATION PROVISIONS IN OTHER LAWS
    ------------------------------------------------------------------------
                                                                Right to get
                                    Statute of    Preliminary      hearing
               Statute              limitations  reinstatement   before ALJ
                                                                  or court
    ------------------------------------------------------------------------
    Federal Railroad Safety Act       180 days            Yes           Yes
     (amended 2007)..............
    Consumer Product Safety           180 days            Yes           Yes
     Improvement Act (2008)......
    Surface Transportation            180 days            Yes           Yes
     Assistance Act (1982,
     amended 2007)...............
    Aviation Investment And            90 days            Yes           Yes
     Reform Act (2000)...........
    Sarbanes-Oxley (2002)........      90 days            Yes           Yes
    Patient Protection and            180 days            Yes           Yes
     Affordable Care Act (2010)..
    Clean Air Act (1977).........      30 days            Yes           Yes
    Mine Safety and Health Act         60 days            Yes           Yes
     (1977)......................
    OSH Act (1970)...............      30 days             No            No
    ------------------------------------------------------------------------

        The AFL-CIO urges prompt action on the Protecting America's Workers
    Act. It is past time to update and strengthen the Occupational Safety
    and Health Act so that workers in this country will be better protected
    from job hazards and better protected when they speak out about them.
        Again, thank you for the opportunity to testify today. I would be
    happy to respond to any questions.
                                     ______

        [Additional submissions of Mr. Miller follow:]

                                    Jason M. Zuckerman,
                                      The Employment Law Group,
                                                          May 11, 2010.
    Hon. George Miller, Chairman,
    Committee on Education and Labor, 2181 Rayburn House Office Building,
            Washington, DC 20515.
    RE: Statute of Limitations in Whistleblowers Provisions of PAWA.

        Dear Representative Miller: I am a principle at the Employment Law
    Group and my practice focuses on representing employees in
    whistleblower retaliation actions. I commend the leadership of the
    Workforce Protections Subcommittee of the House Education and Labor
    Committee for focusing on the critical need to amend the whistleblower
    protection provision of the Occupational Safety and Health Act. The
    lack of a private right of action and the 30-day statute of limitations
    render the whistleblower provision wholly ineffective. Workers should
    not be forced to jeopardize their safety and health in order to keep
    their jobs. I have represented individuals who made the difficult
    choice to complain to management about the unsafe work conditions and
    as a result thereof, suffered swift and severe retaliation. As written,
    the whistleblower provision in the Protecting America's Workers Act
    (H.R. 2067) takes a balanced approach to providing long overdue
    whistleblower protections to workers. In light of the recent oil rig
    explosion off the coast of Louisiana, the tragic deaths of 29 miners at
    the Upper Big Branch mine, and other workplace fatalities, ensuring the
    right of workers to report unsafe work conditions should be a no-
    brainer.
        During the hearing held on April 28, 2010 a witness criticized the
    statue of limitations provision in Section 203, asserting that the
    ``'discovery rule' is a foreign concept in employment law'' and that a
    discovery rule is ``not expressly adopted in any other federal
    employment statute including the staples of employment discrimination
    law: Title VII of the Civil Rights Act of 1964, the Americans with
    Disabilities Act, or the Age Discrimination in Employment Act.'' In
    fact, the ``discovery rule'' has been applied to employment
    discrimination statutes. See, e.g., Eber v. Harris County Hosp. Dist.,
    130 F. Supp. 2d 847, 864 (S.D. Tex. 2001) (``The Fifth Circuit has
    adopted a discovery rule for determining when a party's claim under the
    ADA accrues. An ADA cause of action accrues when the employee receives
    unequivocal notice of facts giving rise to his claim or a reasonable
    person would know of the facts giving rise to the claim.'' [internal
    cites and quotes omitted]); Deily v. Waste Management of Allentown, 118
    F. Supp. 2d 539, 542-543 (E.D. Pa. 2000) (fact issue on when Plaintiff
    discovered his termination); Brickings v. Bethlehem Lukens Plate, 82 F.
    Supp. 2d 402, 409 (E.D. Pa. 2000; Conners v. Maine Medical Center, 42
    F. Supp. 2d 34, 51-52 (D. Me 1999), on reconsideration, 70 F. Supp. 2d
    40 (D. Me. 1999); Silk v. City of Chicago, 1996 WL 312074, at *7 (N.D.
    Ill. 1996); Washburn v. Sauer-Sundstrand, Inc., 909 F. Supp. 554, 558
    (N.D. Ill. 1995). For example, the Seventh Circuit held Cada v. Baxter
    Healthcare Corp., 920 F.2d 446 (7th Cir. 1990) that ``the rule that
    postpones the beginning of the limitations period from the date when
    the plaintiff is wronged to the date when he discovers he has been
    injured is the ``discovery rule'' of federal common law, which is read
    into statutes od limitations in federal-question cases (even when those
    statutes of limitations are barrowed from state law) in the absence of
    a contrary directive from Congress.'' Id. At 450.
        Significantly, the Supreme Court held in Ledbetter v. Goodyear Tire
    & Rubber Co., Inc., 550 U.S. 618 (2007) that the discovery rule may
    apply to claims under the Title VII of the Civil Rights Act of 1964 and
    the Equal Pay Act. Ledbetter, 550 U.S. 618, 642 n. 10 (``We have
    previously declined to address whether Title VII suits are amenable to
    a discovery rule. National Railroad Passenger Corporation v. Morgan,
    536 U.S. 101, 114, n. 7, 122 S. Ct. 2061, 153 L.Ed.2d 106 (2002).
    Because Ledbetter does not argue that such a rule would change the
    outcome in her case, we have no occasion to address this issue.'').
        Other recent decisions acknowledge that the statute of limitations
    should begin to run when the plaintiff has actual knowledge of a
    discriminatory injury. See, e.g., Foster v. Gonzales, 516 F. Supp. 2d
    17, 23 n.5 (D.D.C. 2007) citing Del. State Coll. v. Ricks, 449 U.S.
    250, 261 (1980)) (180-day period begins running on date on which
    ``plaintiff had notice of final (as opposed to a tentative) termination
    decision''); see also James v. England, 332 F. Supp. 2d 239, 245
    (D.D.C. 2004) (holding that Ricks controls start of limitations period
    for Title VII claims by private sector employees).
        The Third Circuit discussed Ricks in Colgan v. Fisher Scientific
    Co. 935 F. 2d 1407 (3d Cir. 1991). By noting that Prof. Ricks has
    received ``explicit notice that his employment would end'' upon
    expiration of his terminal contract after his denial of tenure, the
    Court implicitly provided a notice requirement to trigger the
    limitations period; i.e., when the employer has established its
    official position and made that position apparent to the employee by
    explicit notice. See Colgan, 935 F. 2d at 1416-17. In Oshiver v. Levin,
    Fishbein, Sedran & Berman, 38 F. 3d 1380 (3d Cir. 1994), the Third
    Circuit said that the discovery rule (so famous in tort cases) is
    implicit in the Ricks holding that the limitations period begins to run
    at the time the allegedly discriminatory decision is made and
    communicated to the employee. See id. At 1386 n.5 (citing Ricks, 449
    U.S. at 258); see also Merrill v. Southern Methodist Univ., 806 F.2d
    600.604-05 (5th Cir. 1986) (stating that limitations period in Title
    VII cases starts to run on date when plaintiff knows or reasonably
    should know that discriminatory act has occurred, not on date victim
    first perceived that discriminatory motive caused act).
        In sum, there is substantial precedent in employment law for
    applying a discovery rule to the statute of limitations. Please feel
    free to contact me at 202-261-2810 if you would like additional
    information.
                Very truly yours,
                                            Jason M. Zuckerman,
                                          The Employment Law Group, PC.
                                     ______

                            Office of the Solicitor

                    Strategic Goals and Performance Measures

    1. Maintain an Effective Litigation Strategy That Advances Departmental
            Goals.
    1.1 Percent of favorable outcomes in cases submitted for litigation.
            [Repeat annual targets of 95%].
    1.2 Close an increasing percentage of all cases annually. [Ascending
            Target.]
    1.3 The ratio of total resources expended for litigation to program
            recoveries demonstrates that the cost of litigation is a
            decreasing percentage of the total amount of restitution,
            recoveries and penalties awarded. [Descending Target.]
    1.4 Percent of favorable outcomes, in whole or in part, in appellate
            matters. [Repeat annual target of 98%.]
    1.5 Successfully establish/defend and important legal principle in 75%
            of all cases submitted for litigation and 75% of appellate
            matters.
    2. DOL Regulations Achieve Agency Policy Objectives and Comply with All
            Legal Requirements.
    2.1 The major provisions of final DOL rules and regulations are not
            successfully challenged an increasing percentage of the time.
            [Ascending Target.]
    2.2 Increase the rate of completion of major task regarding legal
            review and drafting by the SOL Divisions of regulation within
            deadlines established in advance with the responsible DOL
            agency. [Ascending Target.]
    3. DOL Actions Are Based on Sound Legal Advice.
    3.1 Increase in average legal opinions/advice per FTE devoted to that
    function. [Ascending Target.]

                                                                4/21/10
                                     ______

        [Questions submitted to witnesses and their responses
    follow:]

                                           [VIA Email],
                                                 U.S. Congress,
                                           Washington, DC, May 3, 2010.
    Hon. Jordan Barab, Deputy Assistant Secretary,
    U.S. Department of Labor, Occupational Safety & Health Administration,
            200 Constitution Avenue, Washington, DC 20210.
        Dear Mr. Barab: Thank you for testifying at the Workforce
    Protections Subcommittee's hearing on ``Whistleblower and Victim's
    Rights Provisions of H.R. 2067, the Protecting America's Workers Act,''
    held on Wednesday, April 28, 2010.
        Committee Members have additional questions for which they would
    like written responses from you for the hearing record.
        Representative Lynn Woolsey (D-CA) asks the following questions:
        1. Under Section 18 of the OSH Act, OSHA and ``state-plan'' states
    share joint jurisdiction over section 11(c) anti-retaliation cases, and
    workers are free to file in either venue. However, in practice OSHA has
    a policy, which sends claims from workers employed in state-plan states
    back to the states to investigate. PAWA makes clear that it is the
    option of workers in state-plan states to file with federal OSHA or the
    state, and OSHA cannot remove a case back to the state once a worker
    makes a selection. Your testimony questions whether this provision is
    necessary, implying that since state plans are presumed to be ``at
    least as effective as'' federal OSHA, there is no need to give workers
    in state-plan states the right to select a venue.
        A) Has OSHA completed its audit of all 22 state plans under the
    enhanced review launched by the Administration?
        B) Do you have evidence based on case file reviews that all 22
    state plans are currently ``at least as effective as'' federal OSHA in
    implementing anti-retaliation provisions? If not, when will you have
    this information?
        C) If PAWA is enacted, it will take at least two years before all
    states enact changes to their whistleblower laws under Section 11(c).
    Does the Administration believe workers who lose their jobs during this
    transition period should be required to file 11(c) complaints in states
    with state plans that provide inadequate whistleblower relief, while
    workers in federal OSHA states enjoy better protections?
        D) Your testimony raised a concern about giving workers the freedom
    to choose the venue in which they want to bring a whistleblower claim,
    based on a concern about agency resource demands. Could you please
    explain why Congress should enact legislation which deprives workers of
    their current statutory right to select what they believe is the best
    venue for their anti-retaliation claims?
        2. If PAWA's whistleblower provisions are enacted, the Office of
    Whistleblower Programs at OSHA would be responsible for administering
    these claims. Will it be relatively easy to get this reformed 11(c)
    process up and running?
        3. Since PAWA provides 11(c) whistleblowers with access to an
    administrative hearing process plus a private right of action if DOL
    fails to act on a timely basis, isn't it the case that the Solicitor's
    office would be relieved of having to use its scarce resources to
    evaluate and prosecute a large percentage of these 11(c) anti-
    retaliation cases?
        4. Mr. Chinn's testimony contends that none of the 17 whistleblower
    statutes administered by OSHA use the ``discovery rule'' for
    determining whether the statute of limitation should be extended in
    cases where workers did not know they were the subject of retaliatory
    action until later on.
        A) Isn't it the case that OSHA regulations at 29 CFR 1977.15(d)(3)
    extend statutes of limitations in ways that are similar to the
    discovery rule?
        B) Are there other whistleblower statutes administered by OSHA,
    which also allow for extending the statute of limitations in instances
    where the complainant learned of the discriminatory conduct outside the
    time period set forth in the statute of limitations?
        5. The U.S. Chamber of Commerce testified at a recent hearing that
    small businesses should have the right to recover attorney's fees from
    employees who file whistleblower claims and fail to prevail at a
    hearing.
        A) Does the Administration support a loser pay provision where
    workers would have to pay an employer's legal costs in a retaliation
    case?
        6. Tonya Ford testified about the January 29, 2009 incident at an
    Archer Daniels Midland plant in Lincoln, Nebraska that killed her
    uncle, Robert Fitch and questioned the sufficiency of the citations for
    which the Company was cited.
        (A) Does OSHA have any policy directives relating to use of the
    OSHAct's general duty clause in cases where portions of that standard
    deal with the design requirements of grandfathered man lifts installed
    prior to 1971?
        (B) In addition to the specific standards for which ADM was cited
    in regard to the man lift, was OSHA prohibited from using the OSHAct's
    general duty clause to cite ADM for failure to maintain a workplace
    free from recognized hazards that led to the death of Mr. Fitch? If
    there was no prohibition, why wasn't ADM also cited under the general
    duty clause?
        (C) As part of its informal settlement agreement with ADM, why
    didn't OSHA require the Company to replace all 5 of the man lifts at
    this plant instead of just one manlift?
        (D) Does OSHA plan to issue a new directive with regard to the man
    lift standard (Part 1910.68) and the applicability of the general duty
    clause?
        Please send an electronic version of your written response to the
    questions in Microsoft Word format to Lynn Dondis at
    lynn.dondis@mail.house.gov and Richard Miller at
    richard.miller@mail.house.gov by close of business Wednesday, May 12,
    2010, the date on which the hearing record will close. If you have any
    questions, please do not hesitate to contact Ms. Dondis or Mr. Miller
    at 202-226-1881.
                Sincerely,
                                                 George Miller,
                                                              Chairman.
                                     ______

         OSHA Responses to Additional Questions for the Hearing Record

                       representative lynn woolsey (d-ca)
        Question 1: Under Section 18 of the OSH Act, OSHA and ``state-
    plan'' states share joint jurisdiction over section 11(c) anti-
    retaliation cases, and workers are free to file in either venue.
    However, in practice OSHA has a policy, which sends claims from workers
    employed in state-plan states back to the states to investigate. PAWA
    makes clear that it is the option of workers in state-plan states to
    file with federal OSHA or the state, and OSHA cannot remove a case back
    to the state once a worker makes a selection. Your testimony questions
    whether this provision is necessary, implying that since state plans
    are presumed to be ``at least as effective as'' federal OSHA, there is
    no need to give workers in state-plan states the right to select a
    venue.
        A. Has OSHA completed its audit of all 22 state plans under the
    enhanced review launched by the Administration?
        B. Do you have evidence based on case file reviews that all 22
    state plans are currently ``at least as effective as'' federal OSHA in
    implementing anti-retaliation provisions? If not, when will you have
    the information?
        C. If PAWA is enacted, it will take at least two years before all
    states enact changes to their whistleblower laws under Section 11(c).
    Does the Administration believe workers who lose their jobs during this
    transition period should be required to file 11(c) complaints in states
    with state plans that provide inadequate whistleblower relief, while
    workers in federal OSHA states enjoy better protections?
        D. Your testimony raised a concern about giving workers the freedom
    to choose the venue in which they want to bring a whistleblower claim,
    based on a concern about agency resource demands. Could you please
    explain why Congress should enact legislation which deprives workers of
    their current statutory right to select what they believe is the best
    venue for the anti-retaliation claims?

        Answer:
        A. OSHA's Regional Offices are in the process of completing their
    baseline enhanced evaluations of 21 of the 22 comprehensive State
    Plans, covering both the private and public sectors, and 4 of the 5
    Public Employee Only State Plans. (Evaluation of the Nevada Plan was
    completed previously in 2009, and the Illinois public employee plan was
    only recently approved and is not yet operational.) The reports will be
    submitted to the Assistant Secretary for review prior to public
    issuance. We anticipate that the reports should all be issued by the
    end of August.
        B. The evaluations will be focused primarily on enforcement, but if
    deficiencies are identified in a State Plan's anti-retaliation program,
    the report will include recommendations for improvement. As indicated
    above, OSHA anticipates that the reports should all be issued by the
    end of August. At that time OSHA will be better able to assess the
    overall effectiveness of State Plan discrimination programs.
        It should be noted that the State Plans operate under authority of
    State law and have statutory nondiscrimination provisions parallel to
    those of Section 11(c) of the OSH Act. The States also extend these
    protections to State and local government employees. Should a State's
    occupational safety and health anti-retaliation program be found to be
    seriously flawed, OSHA would temporarily discontinue its referral of
    complaints to the State for investigation and would concurrently accept
    complaints filed directly with the State for dual Federal filing, thus
    assuring the protection of the workers' rights.
        C. No. If PAWA is enacted, the States will be expected to enact
    parallel amendments to their State laws within 12 months, as specified
    in the current bill. Until such time as State law is amended, OSHA
    would expect most complainants to take advantage of their right to file
    their complaints with Federal OSHA under PAWA. Federal OSHA would
    investigate those complaints. Until such time as each State's statutory
    authority is upgraded, OSHA would require the States to advise
    complainants of the expanded rights available to them under the Federal
    program and of their right to file their complaint with Federal OSHA
    instead of the State.
        D. Under current law, Federal OSHA retains authority to accept and
    investigate complaints of discrimination filed by private sector
    workers in State Plan States even when the State has achieved final
    approval status and the authority for concurrent Federal enforcement
    jurisdiction has been relinquished under Section 18(e). Complainants
    may file either with Federal or State OSHA or they may timely file with
    both in order to retain their rights. Dual investigation by both
    authorities is an inappropriate use of scarce resources. Thus OSHA
    routinely defers its investigation of such dually filed complaints to
    the State, but retains the authority to act later on the complaint
    should the State investigation be found lacking. OSHA similarly refers
    Federally filed complaints from workers in State Plan States to the
    State for investigation. When a complainant files his/her
    discrimination complaint only with the State Plan, Federal OSHA's
    authority is limited to monitoring the State's performance through
    investigation of Complaints About State Program Administration
    (CASPAs). OSHA is providing Federal funding to allow the States to run
    effective State Plans, including a required anti-retaliation program.
    Where the State anti-retaliation program, after any revisions mandated
    by PAWA have been accomplished, is determined to be at least as
    effective as the Federal, resources can be most effectively utilized by
    allowing the State to conduct the investigation.
        Once the states have made the statutory changes needed to comply
    with PAWA, their whistleblower programs will be as effective as OSHA's.
    Providing workers a choice between equivalent protections would not
    necessarily strengthen whistleblower protection. States with approved
    plans contribute valuable expertise, staffing and funding to the
    nation's overall safety and health effort, and their assistance is also
    much needed in enforcing workplace anti-retaliation laws. We feel that,
    from a resource allocation standpoint, it is better to leave the choice
    of state or federal remedies to OSHA rather than individual
    complainants. One alternative might be a provision that filing a
    complaint with either OSHA or a state constitutes a valid filing with
    the other authority; OSHA would have the discretion to proceed in a
    case where OSHA believes its involvement would add value.
        Question 2: If PAWA's whistleblower provisions are enacted, the
    Office of the Whistleblower Protection Programs at OSHA would be
    responsible for administering these claims. Will it be relatively easy
    to get this reformed 11(c) up and running?

        Answer:
        The reforms entailed by the enactment of PAWA would necessitate
    revision of 29 CFR Part 1977. OSHA's whistleblower investigation
    procedure regulations are not subject to the notice and comment
    procedures of the APA; nevertheless, we initially promulgate such
    regulations as interim final rules and provide the public with the
    opportunity to submit comments. A final rule will be published after
    the agency receives and reviews the public's comments.
        Changes to the law enacted by PAWA would, of course, become
    effective on the date specified by Congress. Therefore, until Part 1977
    is revised, OSHA would have to take several immediate steps to make the
    regulated community aware of the changes. We would reach out to
    employers and employees through our Web site, updated fact sheets and
    OSHA posters, and possibly other means. In addition, when a section
    11(c) complaint is filed, we would explain in the notification letters
    to the employee and employer that recent amendments to the Occupational
    Safety and Health Act resulted in new procedures and we would enclose a
    copy of the revised statute. Finally, OSHA would quickly revise the
    chapter on section 11(c) in the Whistleblower Investigations Manual.
        Question 3: Since PAWA provides 11(c) whistleblowers with access to
    an administrative hearing process plus a private right of action if DOL
    fails to act on a timely basis, isn't it the case that the Solicitor's
    office would be relieved of having to use its scarce resources to
    evaluate and prosecute a large percentage of these 11(c) anti-
    retaliation cases?

        Answer:
        Under the existing Section 11(c), complainants have no private
    right of action, a key element of whistleblower protections that is
    available under all but two other whistleblower statutes enforced by
    OSHA. The private rights of action under PAWA would ensure a hearing
    for complainants, and could also reduce the demand on SOL's litigation
    resources.
        Question 4: Mr. Chinn's testimony contends that none of the 17
    whistleblower statutes administered by OSHA use the ``discovery rule''
    for determining whether the statute of limitation should be extended in
    cases where workers did not know they were the subject of retaliatory
    action until later on.
        A. Isn't it the case that OSHA's regulation at 29 CFR 1977.15(d)(3)
    extends the statutes of limitations in ways that are similar to the
    discovery rule?
        B. Are there other whistleblower statutes administered by OSHA,
    which also allow for extending the statute of limitations in instances
    where the complainant learned of the discriminatory conduct outside of
    the time period set forth in the statute of limitations?

        Answer:
        A. 29 CFR 1977.15(d)(3) narrowly addresses one application of the
    principle of equitable tolling, by which a filing deadline may be
    delayed or suspended if the employer has concealed or misled the
    employee regarding the grounds for discharge or other adverse action.
    PAWA addresses a somewhat different principle, which comes into play
    when a complainant only discovers he has been retaliated against after
    the normal filing period has elapsed. This ``discovery rule'' would
    come into play in situations where, even though an employer has not
    affirmatively misled the complainant, the complainant only discovers
    after the end of the filing period that he did not receive a pay
    increase afforded to others, or discovers that instead of being
    temporarily laid off, his employer had decided not to call him back.
    PAWA would clarify that in such cases the filing period does not begin
    to run until the complainant knows or should reasonably have known that
    he has been retaliated against.
        B. The Supreme Court held in Delaware State College v. Ricks, 449
    U.S. 250, that the date of an adverse action is when the decision is
    made and communicated to the employee. Therefore, if an employer has
    not yet communicated the adverse decision to the employee until much
    later, then for purposed of evaluating timeliness, the adverse action
    has not occurred until the date on which it was communicated. In
    addition, OSHA accepts untimely complaints in certain circumstances
    under the doctrine of equitable tolling. The principle of equitable
    tolling, which applies in some situations, including where an employer
    has concealed or misled an employee about the grounds for adverse
    action, is well established in case law under the various anti-
    retaliation statutes, although it is not expressly set forth in the
    statutes themselves. OSHA's Whistleblower Investigation Manual has
    adopted that principle for all anti-retaliation laws administered by
    OSHA. I am not aware that such a discovery rule exists under any of
    these statutes.
        Question 5: The U.S. Chamber of Commerce testified at a recent
    hearing that small businesses should have the right to recover
    attorney's fees from employees who file whistleblower claims and fail
    to prevail at a hearing.
        A. Does the administration support a loser pay provision where
    workers would have to pay employer's legal costs in a retaliation case?

        Answer:
        The possibility that an employee--in many cases, an out-of-work
    former employee--might become responsible for paying an employer's
    attorney fees would be a powerful disincentive to any worker who
    considers filing a retaliation complaint, and would have a chilling
    effect on the exercise of employee rights in the workplace. Moreover,
    the Chamber assumes that any complaint that isn't found to have merit
    was brought frivolously. OSHA does not believe that a complainant's
    motive for bringing reasonably believed occupational safety or health
    concerns to the attention of their employers or the government should
    be called into question. We strongly oppose such a provision.
        Question 6: Tonya Ford testified about the January 29, 2009
    incident at Archer Daniels Midland plant in Lincoln, Nebraska that
    killed her uncle, Robert Fitch and questioned the sufficiency of the
    citations for which the Company was cited.
        A. Does OSHA have any policy directives relating to the use of the
    OSH Act's general duty clause in cases where portions of that standard
    deal with the design requirements of grandfathered man lifts installed
    prior to 1971?
        B. In addition to the specific standards for which ADM was cited in
    regard to the man lift, was OSHA prohibited from using the OSH Act's
    general duty clause to cite ADM for failure to maintain a workplace
    free from recognized hazards that led to the death of Mr. Fitch? If
    there was no prohibition, why wasn't ADM also cited under the general
    duty clause?
        C. As part of its informal settlement agreement with ADM, why
    didn't OSHA require the company to replace all 5 of the manlifts in the
    in the plant instead of just one manlift?
        D. Does OSHA plan to issue a new directive with regard to the
    manlift standard (Part 1910.68) and the applicability of the general
    duty clause?

        Answer:
        A. Yes. OSHA issued a directive on October 30, 1978 regarding
    inspections of man lifts. That directive is still in effect, however,
    OSHA will be updating the directive to clarify the intent.
        B. OSHA is not prohibited from using the general duty clause to
    cite design requirements of manlifts. OSHA did not identify ``design''
    deficiencies on the manlift in question at ADM. Rather, the citations
    addressed maintenance and inspection. Where existing standards apply to
    particular hazards, citing the general duty clause is not permitted
    under Occupational Safety and Health Review Commission case law.
        C. The accident involved only one manlift, therefore the
    investigation was limited in scope and did not include the other
    manlifts. The investigation was not expanded to the other manlifts,
    primarily for two reasons: 1) OSHA did not observe numerous significant
    deficiencies with the manlift associated with the accident, and 2)
    during employee interviews, no concerns were identified with other
    manlifts. When a violation is found on one manlift the employer is then
    put on notice to review others and make appropriate corrections where
    needed. Manlifts are permitted under 29 CFR 1910, therefore OSHA cannot
    require employers to replace manlifts with other forms of personnel
    transport. During the informal conference the employer proposed
    removing the manlift completely and installing an elevator. The
    proposed abatement was more extensive and more costly than compliance
    with the OSHA manlift standard. Other manlifts were not discussed, as
    they were not a point of concern during the informal conference, and
    the employer had already volunteered to abate beyond what OSHA could
    require.
        During a follow-up inspection, OSHA found that two manlifts, the
    Feed Mill and Elevator ``A'' manlifts, had not been in service for over
    5 years. One had been de-energized, with all electrical connection
    removed completely, and the other had the belt removed completely.
        Two other manlifts, Elevator ``D'' and the Mill Area manlift, were
    operational and used by employees. OSHA inspected both manlifts. The
    follow-up inspection is still open.
        D. Yes.
                                     ______

                                           [VIA Email],
                                                 U.S. Congress,
                                           Washington, DC, May 3, 2010.
    Ms. Tonya Ford,
    333 W. Chadderton Drive, Lincoln, NE 68521.
        Dear Ms. Ford: Thank you for testifying at the Workforce
    Protections Subcommittee's hearing on ``Whistleblower and Victim's
    Rights Provisions of H.R. 2067, the Protecting America's Workers Act,''
    held on Wednesday, April 28, 2010.
        Committee Members have additional questions for which they would
    like written responses from you for the hearing record.
        Representative Lynn Woolsey (D-CA) asks the following questions:
        1. If you had been permitted to participate in the OSHA settlement
    discussions with ADM, would you have raised the fact that abatement
    should have required replacement of the other four man lifts at the
    plant and not just the one that was replaced under the settlement
    agreement?
        2. I understand that you had been trying for quite a while to make
    meaningful contact with OSHA, and at this point, you have had
    conversations with the local and the national office. Have they told
    you everything you need to know, and if not, why not? How would you
    recommend Congress remedy this problem?
        Please send an electronic version of your written response to the
    questions in Microsoft Word format to Lynn Dondis of the Subcommittee
    staff at lynn.dondis@mail.house.gov by close of business Wednesday, May
    12, 2010, the date on which the hearing record will close. If you have
    any questions, please do not hesitate to contact Ms. Dondis at 202-226-
    1881.
                Sincerely,
                                                 George Miller,
                                                              Chairman.
                                     ______

               Ms. Ford's Response to Written Follow-up Questions

        Dear Chairwoman Woolsey, Ranking Member McMorris-Rodgers and
    Members of the Committee: I want to thank you again for the opportunity
    to testify to you about my family, and how we want to make sure no
    families go through what we have in the last 18 months. I hope we can
    work together to make a difference and my Uncles life will not be in
    vein.

        1. If you had been permitted to participate in the OSHA settlement
    discussion with ADM, would you have raised the fact that abatement
    should have required replacement of the other four man lifts at the
    plant and not just the one that was replaced under the settlement
    agreement?

        I want to start off by saying many families that I have met in the
    last 18 months have the same feelings, we are here to make sure that
    other families do not go through what we are going through today. There
    is no price on my Uncle's life, nothing can bring him back and the
    completion of our family will never return. We stand up and speak in
    honor of our loved ones that we have lost. I promised my Uncle that his
    death would not be in vein. I stand by those words today and will until
    I can honestly say to my Uncle; I tried with all my heart and soul for
    your horrible, preventable death to save a life and to protect a family
    from the hurt we feel.
        I truly believe that if my family would have had the chance to
    participate in the OSHA informal settlement discussion with ADM, we
    would have raised the fact that the abatement should definitely have
    required that all 5 of the belt operated man lifts in the Archer Daniel
    Midland plant be replaced. As stated in my testimony, I have done so
    much research on these devices and they are inherently unsafe. It is a
    device that causes many injuries and even deaths. My Uncle, Father and
    even my Grandfather worked for ADM. My Uncle worked 32 years at this
    plant, going up down these devices. He knew the rules, the regulations
    and he followed them. So do all the other men and women that work at
    this and many other grain milling plants in Nebraska and in the United
    States. No matter how safe a worker is, these device are a hazardous
    device and should not have been in this plant. The average age of the
    employees at the Archer Daniel Midland plant, located in Lincoln, NE,
    are employees that have been employed with ADM for 30+ years putting
    them at an average age of 50-55 years old. The chance of a man or women
    having heart attack increases each year after age of 45. Could you
    image having a heart attack on a device with no walls near you, nothing
    to hold to, nothing to jump too, the nearest landing 40 ft below?
        If we would have had the chance to participate in the settlement
    discussion with ADM, we would have made sure that OSHA knew that this
    was not the only belt-operated man lift in the plant. OSHA's decision
    to allow ADM to replace just one of the five man lifts was not
    sufficient to protect the lives of the other workers at that plant.
    Again, nothing is going to bring my Uncle back, however the men and
    women that work not only at this Grain Milling plant, but others around
    the Nation deserve to be safe. Going to work should not be a grave
    mistake, and my Uncle, Father and Grandpa were just three of the men
    that helped make Archer Daniel Midland Plant what it is today and that
    is a company that has the stock market value of $18.31 billion dollars.

        2. I understand that you had been trying for quite a while to make
    meaningful contact with OSHA, and at this point you have had
    conversations with the local and the national office. Have they told
    you everything you need to know, and if not, why not? How would you
    recommend Congress remedy this problem?

        I have to admit the past 18 months have been frustrating. Hearing
    from the local news the fines and penalties against ADM were deleted by
    OSHA was really disrespectful to both my Uncle and our entire family.
    I've heard from OSHA that they wants to receive our family's input on
    how they can communicate better with us and other families that have
    lost loved ones. I have openly given them suggestions and honestly can
    say that the local OSHA representative has tried to be responsive to
    us. We still don't have all our questions answered and it seems as
    though the answers need to come from OSHA headquarters in Washington,
    DC, but I feel they have not been eager to speak with us. I will be
    honest many families will listen and respect what OSHA has concluded in
    their loved ones investigation. Many families do not understand all of
    OSHA rules and regulations, I chose to listen and learn and educate
    myself on the investigation process. Maybe that was my fault but, today
    I need closure, I believe my family deserves the right to know why ADM,
    a company that makes so much money was not ordered to remove all of
    those belt operated man lifts. Why a company found all around the world
    was able to delete the citations from their records. We can't delete my
    Uncle from our memory and yet they deleted an accident that took a
    man's life that worked for them for 32 years.
        Family members want open lines of communication throughout the
    investigation process. We deserve that. We realize that through this
    communication we may find out things that are painful, such as what our
    loved ones went through in their last moments. We may find out the
    horrible way our loved ones died. We need to know each detail of their
    last breath. The fact is we want to know this. We need to know this to
    get some measure of closure. We want to know someone cares. We need to
    know what went wrong that day and how OSHA is working to ensure it does
    not happen again to another family.We know that OSHA will not
    necessarily know all facts, but we want to know what they know.
        I truly believe that it is very beneficial for Congress to pass
    PAWA (Protecting America's Workers Act). It is time for families to
    honor their loved ones and for all of us to work as a team, to make a
    difference and make work a safer place to be.
        I have one question to all employers, why don't you want to protect
    and honor the men and women that make your company what it is today and
    what it will become tomorrow?
                                     ______

                                           [VIA Email],
                                                 U.S. Congress,
                                           Washington, DC, May 3, 2010.
    Dr. Celeste Monforton, Assistant Research Professor,
    U.S. Department of Labor, Occupational Safety & Health Administration,
            200 Constitution Avenue, Washington, DC 20210.Dept. of Environ
            & Occup Health, School of Public Health & Health Services,
            George Washington University, 2100 M Street NW, Ste 203,
            Washington, DC 20037.
        Dear Dr. Monforton: Thank you for testifying at the Workforce
    Protections Subcommittee's hearing on ``Whistleblower and Victim's
    Rights Provisions of H.R. 2067, the Protecting America's Workers Act,''
    held on Wednesday, April 28, 2010.
        Committee Members have additional questions for which they would
    like written responses from you for the hearing record.
        Representative Lynn Woolsey (D-CA) asks the following questions:
        1. Your testimony raised a question about the views of the U.S.
    Chamber of Commerce regarding victims' rights. In particular, their
    witness, Mr. Snare testified on March 16 that:
        ``Given the legal nature of these proceedings, there does not
    appear to be much value to this presentation [by families of victims]
    other than to sensationalize, presumably, already emotional and
    sensitive matters.''
        A) Is it not the case that the OSHA's regulations and procedures
    already allow workers or their representatives to meet with OSHA Area
    Directors prior to settlements?
        B) What value could family members provide to OSHA's process of
    informal or formal settlements?
        C) Some employer representatives have suggested that having
    families in the room at the same time as employers could
    inappropriately influence the settlement process, and urged that
    meetings with families take place separately from meetings with
    employers. Is it imperative that meetings with the Area Directors and
    families include the employers or their attorneys at the same time?
        2. Mr. Morikawa, who was testifying on behalf of the US Chamber of
    Commerce at the April 28 hearing, noted that PAWA does not define the
    term ``representative'' in Section 306 of the discussion draft
    pertaining to victim's families.
        A) How would you recommend that the term ``representative'' in the
    PAWA Section 306 be defined? Or should it be left undefined?
        B) Should the law prohibit any attorney from representing victim's
    families in these meetings between families and OSHA?
        3. How does inclusion of family members in an investigation improve
    the investigation?
        4. Your testimony supports the idea of requiring abatement of
    serious hazards pending employer contest of citations. Do you think
    that this provision in PAWA, if enacted, would have had an impact of
    the outcome of OSHA's informal settlement involving ADM?
        5. Should the right of families to be involved with the
    modification of or settlement of citations include formal settlements
    or informal settlements, or both? Is the text of Section 306 of the
    March 9 discussion draft sufficiently clear on the types of settlement
    proceedings which should include families?
        Please send an electronic version of your written response to the
    questions in Microsoft Word format to Lynn Dondis of the Subcommittee
    staff at lynn.dondis@mail.house.gov by close of business Wednesday, May
    12, 2010, the date on which the hearing record will close. If you have
    any questions, please do not hesitate to contact Ms. Dondis at 202-226-
    1881.
                Sincerely,
                                                 George Miller,
                                                              Chairman.
                                     ______

         Dr. Monforton's Written Responses to Questions for the Record

        1. Your testimony raised a question about the views of the U.S.
    Chamber of Commerce regarding victims' rights. In particular, their
    witness, Mr. Snare testified on March 16 that:
        ``Given the legal nature of these proceedings, there does not
    appear to be much value to this presentation [by families of victims]
    other than to sensationalize, presumably, already emotional and
    sensitive matters.''
        A) Is it not the case that the OSHA's regulations and procedures
    already allow workers or their representatives to meet with OSHA Area
    Directors prior to settlements?

        RESPONSE: In OSHA's current Field Operations Manual (FOM), the
    agency provides guidance to its field offices on allowing workers or
    their representatives to participate in its settlement processes. For
    an informal conference, which must be held within 15 working days of
    the date the citations were issued, the FOM states:
        ``If an informal conference is requested by the employer, an
    affected employee or his representative shall be afforded the
    opportunity to participate.'' (FOM 7-3)
        To the extent that an affected worker or an employee representative
    is aware of the employer's request for an informal conference, h/she
    may request to participate. I understand, however, that some employee
    representatives do not learn of the employer's request for an informal
    conference with OSHA until after the fact, making null this
    ``opportunity to participate.'' Setting aside this deficiency in OSHA's
    application of this policy, the OSH Act explicitly states that affected
    workers or their representative have a right to participate in these
    proceedings.

        B) What value could family members provide to OSHA's process of
    informal or formal settlements?

        RESPONSE: I disagree strongly with the U.S. Chamber of Commerce's
    assertion that family member participation in OSHA's informal or formal
    settlement process adds no value ``other than to sensationalize''
    matters. I believe that the victim's rights provisions in the
    Protecting America's Workers Act (H.R. 2067), which are quite modest,
    have the potential to advance worker health and safety in a positive
    way. First, family members often have information or physical evidence
    that can be useful to the OSHA investigators. Allowing family members
    to participate in the informal contest discussions would be a final
    opportunity for OSHA to receive this potentially vital information.
    Second, allowing a family member representative to participate in
    discussions between OSHA and the company will make the settlement
    process more transparent and accountable to the public. Currently,
    these negotiations are held behind closed doors, and family members are
    not privy to the evidence and arguments offered by each side. Family
    members should have the right to know more than just the final terms of
    the settlement. The why and who benefits from the terms of the
    settlement will help the families and the public at large understand
    how our worker health and safety enforcement system operates (or fails
    to operate as intended.) Finally, many family member victims of
    workplace fatalities want steps to be taken by employers and OSHA so
    that other families are spared from suffering a similar loss. Family
    members may turn out to be our nation's best allies for securing
    improvements in worker health and safety.

        C) Some employer representatives have suggested that having
    families in the room at the same time as employers could
    inappropriately influence the settlement process, and urged that
    meetings with families take place separately from meetings with
    employers. Is it imperative that meetings with the Area Directors and
    families include the employers or their attorneys at the same time?

        RESPONSE: I expect that having family members in the room at the
    same time as employers and OSHA will influence the settlement process.
    That's the point and why I strongly support these provisions of H.R.
    2067.
        I believe that family members should have the opportunity to
    witness the negotiations between OSHA and the employer during an
    informal or formal settlement process. It is imperative that if the
    family requests to participate that the employer or his attorney be
    present to face the victim's family.

        2. Mr. Morikawa, who was testifying on behalf of the US Chamber of
    Commerce at the April 28 hearing, noted that PAWA does not define the
    term ``representative'' in Section 306 of the discussion draft
    pertaining to victim's families.
        A) How would you recommend that the term ``representative'' in the
    PAWA Section 306 be defined? Or should it be left undefined?

        RESPONSE: The term ``representative'' should be defined as any
    individual designated by the victim's next of kin, including herself or
    himself, as well as a substitute representative when necessary. (E.g.,
    if a victim's mother wants to represent herself, but on a particular
    occasion wants her sister to participate on her behalf, the designation
    process should be flexible to accommodate this mother's wishes.)

        B) Should the law prohibit any attorney from representing victim's
    families in these meetings between families and OSHA?

        RESPONSE: No. The law should not prohibit any class, occupation, or
    personal or professional distinction of an individual from representing
    the victim's family in the meetings between the company and OSHA. The
    family of a worker killed on the job should have the right to select
    whomever they wish to serve as their representative. Some may want to
    represent themselves, others may want their pastor, their counselor, or
    an attorney.
        There are some who suggest that family members should be barred
    from designating a private attorney as their representative because
    somehow it will ``lawyer-up'' the process. This argument is
    unconvincing. Federal OSHA relies on the Solicitor's Office for legal
    advice, and many employers retain attorneys, especially in fatality
    cases. Lawyers are already part of the informal and formal settlement
    process. A family member victim of a workplace fatality should have the
    option of choosing an attorney as their family representative. One
    witness at the Subcommittee's April 28, 2010 hearing suggested:
        ``involving a private attorney in settlement meetings at any level
    could have a ``chilling effect'' * * * by discouraging the parties from
    engaging in candid discussions which are necessary in order to
    accomplish the settlement of OSHA cases.'' (Dennis J. Morikawa, April
    28, 2010)
        I disagree. There are some employers who are eager to blame a
    deceased worker for his/her own death. I believe these employers will
    be less likely to do so with the victim's family present and may be
    forced to examine their firm's own practices and violations of health
    and safety standards. Moreover, some employers may be compelled to
    abate the identified hazards and improve their safety performance if
    they know that the victim's family will be present in the settlement
    negotiations. Finally, the objective of the negotiation should not be
    to merely ``accomplish the settlement of OSHA cases.'' Rather, the
    objective should be to compel a change in the employer's and the
    respective industry's behavior about eliminating hazards and preventing
    injuries, disease and deaths among the workforce. I don't foresee a
    ``chilling effect,'' but rather, sunshine on a process that demands
    more openness.

        3. How does inclusion of family members in an investigation improve
    the investigation?

        RESPONSE: Family members potentially have information or physical
    evidence that can be useful to the OSHA investigators. The information
    may relate to hazards or worksite practices the deceased worker
    communicated to his family, may lead investigators to former or current
    employees with whom OSHA investigators should speak, or examples of
    hazardous conditions that exist at other worksites under the control of
    the same employer.

        4. Your testimony supports the idea of requiring abatement of
    serious hazards pending employer contest of citations. Do you think
    that this provision in PAWA, if enacted, would have had an impact of
    the outcome of OSHA's informal settlement involving ADM?

        RESPONSE: Yes, I support PAWA's provision requiring abatement of
    serious hazards pending employer contest. My experience working at the
    Mine Safety and Health Administration informs my view and makes me a
    firm proponent of this provision. Employers should not be allowed to
    disregard known serious hazards and hold hostage the correction of
    hazards in order to strike a deal with OSHA to reduce a monetary
    penalty or the severity classification of the violation.
        In the case that resulted following the fatal fall in January 2009
    of Mr. Robert Fitch at the Archer Daniels Midland plant, OSHA made
    several errors. The outcome of the case might have been quite different
    in several respects, including had the PAWA provision requiring
    abatement of serious hazards been adopted. We can't make advances in
    preventing harm to workers when our system forces local OSHA staff to
    bargain with employers for worker protections that they are already
    required to implement. The informal settlement process should not only
    expedite abatement of the hazard, but also give OSHA leverage to
    require employers to implement measures that go above and beyond simply
    compliance with OSHA's minimum standards.

        5. Should the right of families to be involved with the
    modification of or settlement of citations include formal settlements
    or informal settlements, or both? Is the text of Section 306 of the
    March 9 discussion draft sufficiently clear on the types of settlement
    proceedings which should include families?

        RESPONSE: Yes, family members should have the right to participate
    in the modification of or settlement of citations whether in the formal
    or informal setting. The text contained in Section 9A and Section 306
    make it clear that family members will be granted the following rights:
        1. Meet with the Secretary's representative (e.g., OSHA official)
    before a decision is made to issue a citation or take no action.
        2. Receive any citations or other documents at the same time as the
    employer receives them.
        3. Be granted the opportunity to appear and make a statement before
    OSHA and the employer during informal and formal settlement
    negotiations.
        4. Be afforded the right to appear and make a victim's impact
    statement before the Occupational Safety and Health Review Commission
    (OSHRC) in those instances when a case proceeds to it for adjudication.
                                     ______

                                           [VIA Email],
                                                 U.S. Congress,
                                           Washington, DC, May 3, 2010.
    Dennis J. Morikawa, Partner,
    Morgan, Lewis & Bockius LLP, 1701 Market Street, Philadelphia, PA
            19103-2921.
        Dear Mr. Morikawa: Thank you for testifying at the Workforce
    Protections Subcommittee's hearing on ``Whistleblower and Victim's
    Rights Provisions of H.R. 2067, the Protecting America's Workers Act,''
    held on Wednesday, April 28, 2010.
        Committee Members have additional questions for which they would
    like written responses from you for the hearing record.
        Representative Lynn Woolsey (D-CA) asks the following questions:
        1. Dr. Montforton has testified that Congress should strengthen the
    Act by assigning designated family liaisons in each area office. Do you
    agree with that approach?
        2. Your testimony suggests that PAWA should define at what point in
    time and how often families should have an opportunity to make a
    statement before the OSHA Review Commission on cases which are
    contested. The discussion draft of PAWA leaves it up to the OSHA Review
    Commission to determine the proper role of a family member in its
    proceedings. Isn't the Commission is in the best position to spell out
    that process in its regulations?
        Please send an electronic version of your written response to the
    questions in Microsoft Word format to Lynn Dondis of the Subcommittee
    staff at lynn.dondis@mail.house.gov by close of business Wednesday, May
    12, 2010, the date on which the hearing record will close. If you have
    any questions, please do not hesitate to contact Ms. Dondis at 202-226-
    1881.
                Sincerely,
                                                 George Miller,
                                                              Chairman.
                                     ______

                                    ------

                                           [VIA Email],
                                                 U.S. Congress,
                                           Washington, DC, May 3, 2010.
    Ms. Lynn Rhinehart, General Counsel,
    AFL-CIO, 815 16th Street, NW, Washington, DC 20006.
        Dear Ms. Rhinehart: Thank you for testifying at the Workforce
    Protections Subcommittee's hearing on ``Whistleblower and Victim's
    Rights Provisions of H.R. 2067, the Protecting America's Workers Act,''
    held on Wednesday, April 28, 2010.
        Committee Members have additional questions for which they would
    like written responses from you for the hearing record.
        Representative Lynn Woolsey (D-CA) asks the following questions:
        1. PAWA extends the statute of limitations for filing a complaint
    to 180 days after the date the alleged violation occurred, or the date
    the employee knew or should have known that it occurred. This construct
    is known as the discovery rule. Mr Chinn's testimony contends that
    PAWA's use of the discovery rule is ``unprecedented'' and that the
    discovery rule is a ``foreign concept'' in employment law, and is not
    used ``expressly'' in any employment laws. Isn't it the case that the
    discovery rule is widely applied by courts in employment law, and a
    similar construct is used by OSHA in determining whether the statute of
    limitations should be tolled? Could you please provide specific
    examples?
        A) Mr. Chinn's testimony states that PAWA will lead to ``excessive
    litigation and false claims,'' if Congress adopts a provision which
    prohibits discrimination against workers who refuse unsafe work where
    they have ``a reasonable apprehension that performing such duties would
    result in serious injury?'' Is there any evidence to support his
    statement?
        Please send an electronic version of your written response to the
    questions in Microsoft Word format to Lynn Dondis of the Subcommittee
    staff at lynn.dondis@mail.house.gov by close of business Wednesday, May
    12, 2010, the date on which the hearing record will close. If you have
    any questions, please do not hesitate to contact Ms. Dondis at 202-226-
    1881.
                Sincerely,
                                                 George Miller,
                                                              Chairman.
                                     ______

             Ms. Rhinehart's Responses to Questions for the Record
                            From Chairwoman Woolsey

        1. PAWA extends the statute of limitations for filing a complaint
    to 180 days after the date the alleged violation occurred, or the date
    the employee knew or should have known that it occurred. This construct
    is known as the discovery rule. Mr. Chinn's testimony contends that
    PAWA's use of the discovery rule is ``unprecedented'' and that the
    discovery rule is a ``foreign concept'' in employment law, and is not
    used ``expressly'' in any employment laws. Isn't it the case that the
    discovery rule is widely applied by courts in employment law, and a
    similar construct is used by OSHA in determining whether the statute of
    limitations should be tolled? Could you please provide specific
    examples?

        Use of the discovery rule and/or the related concept of equitable
    tolling are commonplace under various employment laws.
        OSHA currently tolls (i.e. extends) the 30 day statute of
    limitations for equitable reasons or where the employer has misled the
    employee as to the reasons for the adverse action taken against him/
    her. See 29 CFR 1977.15(d)(3). Similarly, courts reviewing OSHA 11(c)
    cases have applied equitable tolling principles to allow consideration
    of complaints filed outside the 30 day statute of limitations. See,
    e.g., Donovan v. Hahner, 736 F.2d 1421 (10th Cir. 1984) (employer lied
    to employee about the reason for which he was fired, which justified
    tolling the statute of limitations); Donovan v. Peter Zimmer America,
    Inc., 557 F. Supp. 642 (DSC 1982) (applying equitable tolling).
        Relatedly, courts have applied the discovery rule in cases brought
    under other employment statutes. For example, in Cada v. Baxter
    Healthcare Corp., 920 F.2d 446, 448 (7th Cir. 1990), the Seventh
    Circuit, in a case brought under the Age Discrimination in Employment
    Act, held that the discovery rule applies in discrimination cases. In
    his opinion, Judge Posner explained that ``the `discovery rule' of
    federal common law * * * is read into statutes of limitations in
    federal-question cases * * * in the absence of a contrary directive
    from Congress.'' Several other circuits have followed Cada in applying
    the discovery rule in employment-related cases. See, e.g., Podobnik v.
    United States Postal Serv., 409 F.3d 584, 590 (3rd Cir. 2005) (ADEA
    case); Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380 (3rd
    Cir. 1994) (Title VII case); Union Pac. R.R. v. Beckham, 138 F.3d 325,
    330 (8th Cir. 1998) (ERISA case); Connors v. Hallmark & Son Coal Co.,
    935 F.2d 336, 343 (D.C. Cir. 1991) (ERISA case). See also J. Geils Band
    Employee Benefit Plan v. Smith Barney Shearson, Inc., 76 F.3d 1245,
    1253 (1st Cir. 1996) (noting that Section 1113 of ERISA explicitly
    incorporates the federal common law `discovery rule.')

        2. Mr. Chinn's testimony states that PAWA will lead to ``excessive
    litigation and false claims,'' if Congress adopts a provision which
    prohibits discrimination against workers who refuse unsafe work where
    they have ``a reasonable apprehension that performing such duties would
    result in serious injury?'' Is there any evidence to support his
    statement?

        No. In fact, the provision Mr. Chinn criticizes is simply a
    codification of OSHA regulations that have existed for decades. Under
    longstanding OSHA regulations that have been upheld by the U.S. Supreme
    Court, see Whirlpool v. Marshall, 445 U.S. 1 (1980), employees are
    protected against discrimination when they refuse in good faith to
    perform work that exposes the employee to a hazardous condition that a
    reasonable person would conclude presents a real danger of death or
    serious injury. See 29 CFR 1977.12(b)(2). I am not aware of any
    evidence suggesting that employees have excessively utilized this right
    or filed false claims concerning the exercise of this right. To the
    contrary, the evidence strongly suggests that many employees are
    reluctant to exercise their rights under the OSH Act because of fear of
    retaliation by their employers and the absence of meaningful recourse
    under the OSH Act--a problem that the Protecting America's Workers Act
    seeks to correct.
                                     ______

        Chairwoman Woolsey. With that, this hearing is adjourned.
    Thank you very much again.
        [Whereupon, at 11:55 a.m., the subcommittee was adjourned.]