[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:
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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.
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    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:[email protected]]
Sent: Monday, February 01, 2010 11:35 AM
To: [email protected]
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: [email protected] [mailto:[email protected]]
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: [email protected] [mailto:[email protected]]
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: [email protected] [mailto:[email protected]]
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: `[email protected]'
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: [email protected] [mailto:[email protected]]
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 
[email protected] and Richard Miller at 
[email protected] 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 [email protected] 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 [email protected] 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 [email protected] 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 [email protected] 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.]

                                 
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