[Senate Hearing 113-833]
[From the U.S. Government Publishing Office]
S. Hrg. 113-833
WORKERS' MEMORIAL DAY: ARE EXISTING PRIVATE SECTOR WHISTLEBLOWER
PROTECTIONS ADEQUATE TO ENSURE SAFE WORKPLACES?
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HEARING
BEFORE THE
SUBCOMMITTEE ON EMPLOYMENT AND WORKPLACE SAFETY
OF THE
COMMITTEE ON HEALTH, EDUCATION,
LABOR, AND PENSIONS
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
ON
EXAMINING WORKERS' MEMORIAL DAY, FOCUSING ON IF EXISTING PRIVATE SECTOR
WHISTLEBLOWER PROTECTIONS ARE ADEQUATE TO ENSURE SAFE WORKPLACES
__________
APRIL 29, 2014
__________
Printed for the use of the Committee on Health, Education, Labor, and
Pensions
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COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS
TOM HARKIN, Iowa, Chairman
BARBARA A. MIKULSKI, Maryland LAMAR ALEXANDER, Tennessee
PATTY MURRAY, Washington MICHAEL B. ENZI, Wyoming
BERNARD SANDERS (I), Vermont RICHARD BURR, North Carolina
ROBERT P. CASEY, JR., Pennsylvania JOHNNY ISAKSON, Georgia
KAY R. HAGAN, North Carolina RAND PAUL, Kentucky
AL FRANKEN, Minnesota ORRIN G. HATCH, Utah
MICHAEL F. BENNET, Colorado PAT ROBERTS, Kansas
SHELDON WHITEHOUSE, Rhode Island LISA MURKOWSKI, Alaska
TAMMY BALDWIN, Wisconsin MARK KIRK, Illinois
CHRISTOPHER S. MURPHY, Connecticut TIM SCOTT, South Carolina
ELIZABETH WARREN, Massachusetts
Derek Miller, Staff Director
Lauren McFerran, Deputy Staff Director and Chief Counsel
David P. Cleary, Republican Staff Director
______
Subcommittee on Employment and Workplace Safety
ROBERT P. CASEY, Pennsylvania, Chairman
PATTY MURRAY, Washington JOHNNY ISAKSON, Georgia
AL FRANKEN, Minnesota RAND PAUL, Kentucky
MICHAEL F. BENNET, Colorado ORRIN G. HATCH, Utah
SHELDON WHITEHOUSE, Rhode Island TIM SCOTT, South Carolina
TAMMY BALDWIN, Wisconsin LAMAR ALEXANDER, Tennessee (ex
TOM HARKIN, Iowa (ex officio) officio)
Larry Smar, Staff Director
Tommy Nguyen, Republican Staff Director
(ii)
C O N T E N T S
__________
STATEMENTS
TUESDAY, APRIL 29, 2014
Page
Committee Members
Casey, Hon. Robert P., Jr., Chairman, Subcommittee on Employment
and Workplace Safety, opening statement........................ 1
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia... 2
Prepared statement........................................... 3
Murray, Hon. Patty, a U.S. Senator from the State of Washington.. 18
Witness--Panel I
Michaels, David, Ph.D., MPH, Assistant Secretary for Occupational
Safety and Health, U.S. Department of Labor, Washington, DC.... 4
Prepared statement........................................... 6
Witnesses--Panel II
Spieler, Emily, A.B., J.D., Professor of Law, Northeastern
University School of Law and Chair, Whistleblower Protection
Advisory Committee, Boston, MA................................. 21
Prepared statement........................................... 23
Devine, Tom, Legal Director for Government Accountability
Project, Washington, DC........................................ 30
Prepared statement........................................... 32
Baize, Ross, Safety Committeeman for United Auto Workers, East
Peoria, IL..................................................... 42
Prepared statement........................................... 44
Keating, Gregory, Esq., Co-Chair, Whistleblowing and Retaliation
Practice Group, Littler Mendelson P.C., Boston, MA............. 45
Prepared statement........................................... 47
ADDITIONAL MATERIAL
Statements, articles, publications, letters, etc.:
Senator Harkin............................................... 56
Keith Wrightson, Worker Safety and Health Advocate, Public
Citizen's Congress Watch Division.......................... 57
Impact of Extended 11(c) Discrimination Filing Deadlines..... 58
(iii)
WORKERS' MEMORIAL DAY: ARE EXISTING PRIVATE SECTOR WHISTLEBLOWER
PROTECTIONS ADEQUATE TO ENSURE SAFE WORKPLACES?
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TUESDAY, APRIL 29, 2014
U.S. Senate,
Subcommittee on Employment and Workplace Safety,
Committee on Health, Education, Labor, and Pensions,
Washington, DC.
The subcommittee met, pursuant to notice, at 9:58 a.m., in
room SD-430, Dirksen Senate Office Building, Hon. Robert Casey,
chairman of the subcommittee, presiding.
Present: Senators Casey, Isakson, and Murray.
Opening Statement of Senator Casey
Senator Casey. Good morning, everyone. The hearing of the
Subcommittee on Employment and Workplace Safety will come to
order. We're grateful that you're here with us this morning.
We're going to be moving very quickly because of the votes at
11 o'clock.
I'm grateful to be with our Ranking Member, Senator
Isakson. He'll follow me, and I'll be as fast as I can in an
opening.
Yesterday marked the 25th anniversary of the Workers'
Memorial Day, which is observed every year on April the 28th.
It's a day to honor those workers who have died, been disabled,
injured, or made sick by their work. It is also a day to
acknowledge the suffering experienced by families and
communities and to recommit ourselves to the fight for a safe
and healthy workplace for all workers. It is the day that the
Occupational Safety and Health Administration was established
in 1971.
Too many people each year mark this day by remembering
loved ones lost in a workplace tragedy. To them we offer our
sincere condolences, and we also honor the memory of their
loved ones, and we take the opportunity to discuss ways to
reduce future workplace tragedies so that fewer families have
to face the pain of losing a loved one in an often preventable
workplace incident.
In 2012 alone, 4,383 workers were killed on the job,
including 163 workers in my home State of Pennsylvania. Nearly
3 million workers were injured, and an estimated 50,000 to
60,000 workers died from occupational diseases. That's about
150 worker deaths each day if you do the math on the total of
those who lost their lives.
OSHA does not have nearly enough inspectors for the
approximately 132 million workers nationwide. In fact, OSHA has
only one inspector for about every 69,000 workers at over 9
million work sites across the country. Let me just say that
again--one inspector for every 69,000 workers.
Workers see firsthand the hazards on the job and in the
workplace, and because OSHA cannot be everywhere, workers are
an important resource in addressing the hazards in the
workplaces. But in order for workers to properly identify and
report workplace hazards, they must first have confidence that
they will not lose their job or face other types of retaliation
for doing so.
Previous congressional hearings focused on the Upper Big
Branch mine disaster where 29 workers died, or the Deepwater
Horizon explosion where 11 perished, both in 2010. In these
instances, surviving workers and family members who lost loved
ones recounted known hazards, but workers felt threatened or
pressured to keep working fearing they might lose their job if
they spoke up.
These incidents highlight the importance of whistleblower
protections. Maybe these tragedies could have been avoided if
safety violations and concerns that were not reported had been
brought to light. OSHA has taken action to address
administrative issues with its whistleblower protection program
identified in reports by the GAO and the Department of Labor
Inspector General and made great progress in improving how the
program functions.
Despite these efforts, the gaps in OSHA's whistleblower
protection statutes, specifically Section 11(c) of the OSHA
Act, which accounts for over half of OSHA's whistleblower
caseload, still leave me with concerns--and that's an
understatement--concerns about workers' ability to freely
identify hazards to their employers and authorities without
fear of retaliation. With fewer inspectors and many more
workers to protect today than in past decades, it is imperative
that those in the best position to identify hazards--workers, I
mean--have adequate whistleblower protections.
We called this hearing today so that we can do at least
three things: No. 1, review the current whistleblower
protections in the OSHA Act, Section 11(c), and compare them to
recently updated whistleblower statutes. No. 2, we seek to
consider whether the current whistleblower protections are
sufficiently adequate to encourage workers to report safety and
ethical concerns so as to avoid future workplace disasters like
those we've seen in 2010, most recently; and, last, to evaluate
what updates, if any, are needed to make workers more
comfortable in identifying safety hazards or violations and
ultimately make the workplace safer for American workers.
I look forward to the testimony and the ensuing discussion
from our two panels. And with that, I'll turn the microphone
over to our Ranking Member, Senator Isakson, for his opening
remarks.
Opening Statement of Senator Isakson
Senator Isakson. Thank you, Senator Casey, and thank you
for calling the hearing. And out of respect for time for our
witnesses and the fact that we have votes at 11, I'll submit my
full statement for the record and ask unanimous consent to have
that included.
I want to make two specific points, however. Every worker
should leave every morning from their home for every job with
the anticipation of returning home that night safe and free of
injury. That is the goal of American business. That is the goal
of every worker in American business.
Every owner of every business ought to leave home every
morning hoping that he can do everything he can to prevent
worker injury or worker death, because the greatest cost
increase of doing business is higher workers' compensation or
the risk you have when you have injuries on the job and workers
who are hurt. So there's a financial motivation as well as a
moral and human motivation for every owner.
I want to point out that when safety and compliance are
placed as priorities within an organization from top to bottom,
workers and employers benefit from a safer and more protective
workplace. It's an attitudinal thing that we need to promote.
Compliance assistance programs, whether they be voluntary
protection programs or onsite consultation programs, have
demonstrated their extreme effectiveness over the years.
I want to commend Dr. Michaels and Secretary Perez on the
establishment of the Best Practices Working Group within the
Whistleblow Advisory Committee, which is the exact place to
build on better compliance, better programs, and better safety
for our workers. By doing this, the department is focusing on
the right thing to do, an attitudinal change within all of
business and with all employers, an attitude toward a safer
workplace, safer workers, less cost, and more productivity.
I commend Dr. Michaels and Secretary Perez on their
initiative, and I look forward to the testimony today.
[The prepared statement of Senator Isakson follows:]
Prepared Statement of Senator Isakson
I want to begin today by thanking the Chairman, Senator
Casey, for calling this hearing so that we can examine ways to
ensure safe workplaces for all Americans. Every working
American should be able to leave their home every day confident
that their workplace is safe so that they can return home to
their families at the end of the work day. One critical tool to
help ensure the safety of workers are the existing
whistleblower protections.
Since OSHA's own statistics demonstrate that there simply
cannot be an OSHA inspector at every workplace in the country
to monitor working conditions, the OSH Act ensures that
individuals who witness and report unsafe acts are protected.
In order to ensure that these employees are treated fairly and
properly, we must work to see that employers are educated and
aware of their responsibilities in these situations. In order
to achieve a safer workplace, we should be focusing our efforts
on proactive steps to prevent workplace injuries and fatalities
before they occur, rather than focus on punishments in reaction
to these tragedies after the fact. Creating a culture of
compliance is paramount to ensuring that workplaces are safe
and reliable.
When safety and compliance are placed as priorities within
and organization from top to bottom, workers and employers
benefit from a safer and more productive workplace. Compliance
assistance programs, whether they be Voluntary Protection
Programs (VPP) or onsite consultation programs, have
demonstrated their extreme effectiveness over the years. In
addition to being fiscally efficient, these programs empower
both employees and employers to take ownership in creating
cultures and safety and compliance. It remains disappointing
that this Administration continues to propose reductions in
funding for compliance assistance programs when these continue
to prove to be effective means for maintaining safe workplaces.
I am encouraged that Secretary Perez and Assistance
Secretary Michaels have established a best practices working
group within the Whistleblower Advisory Committee in order to
learn from industry experts about what has been working on the
frontlines of workplace safety. I hope that the Department can
expand on some of these best practices and find ways to
incentivize their implementation by others wanting to achieve
higher levels of safety and compliance.
I look forward to hearing the testimonies from our
witnesses today and I now yield back the balance of my time.
Senator Casey. Thank you, Senator Isakson.
Dr. Michaels, I'll do a brief introduction and then get to
your testimony.
Dr. David Michaels is the Assistant Secretary of Labor for
Occupational Safety and Health. He has served in this position
since his appointment by President Obama in December 2009.
Prior to becoming head of OSHA, Dr. Michaels was a
professor of environmental and occupational health at the
George Washington University School of Public Health, a
position he is currently on leave from while performing his
duties with OSHA.
From 1998 to 2001, Dr. Michaels served as Assistant
Secretary of Energy for Environment, Safety, and Health. He is
a graduate of the City College of New York and holds a master's
degree of public health and a Ph.D. from Columbia University.
Dr. Michaels, thank you. We'll ask you to encapsulate your
testimony in 5 minutes. Thank you very much.
STATEMENT OF DAVID MICHAELS, Ph.D., MPH, ASSISTANT SECRETARY
FOR OCCUPATIONAL SAFETY AND HEALTH,
U.S. DEPARTMENT OF LABOR, WASHINGTON, DC
Mr. Michaels. Thank you. Good morning, Chairman Casey and
Ranking Member Isakson. Thank you for the opportunity to
testify today on the importance of whistleblower protections
and how we can improve them.
As Assistant Secretary of Labor for OSHA, I am proud of the
work we are doing to protect whistleblowers. I look forward to
working with the committee to continue to strengthen and
improve our program.
Chairman Casey, as you just noted, yesterday was Workers'
Memorial Day. This is a day when we remember those who have
been killed, injured, or made sick by their work, and we
rededicate ourselves to ensuring that these tragedies don't
happen again.
April 28 is also the day that OSHA was established in 1971.
Our mission is to assure the health and safety of every worker.
Over the past 43 years, we've made dramatic progress in
reducing work-related deaths and injuries, but there's still a
great deal more work to do.
Because OSHA cannot be everywhere at once, we rely on
America's workers to be this Nation's eyes and ears.
whistleblowers serve as a check on government and business,
shining a light on illegal, unethical, or dangerous practices.
In passing the Occupational Safety and Health Act, Congress
was keenly aware of the crucial role employees play in ensuring
that their workplaces are safe. Congress also recognized that
workers would be unlikely to report a hazardous condition or
make a safety complaint if they feared their employer would
retaliate against them.
For that reason, Section 11(c) of the OSHA Act prohibits
discrimination against employees for exercising their rights.
However, in the decades since passage of the Act, Congress has
enacted other statutes which also contain whistleblower
provisions. We're a small agency with a big role to fill. Not
only is OSHA responsible for defending workers' health and
safety, but we also have the important charge of enforcing the
whistleblower provisions of the OSHA Act and 21 other statutes.
Protecting whistleblowers is a responsibility we take very
seriously. Over the last several years, we have implemented
significant changes to strengthen the whistleblower program. To
begin with, OSHA established the Whistleblower Protection
Directorate with additional resources appropriated by Congress
significantly increasing staffing.
We also developed an online form so that employees can file
complaints electronically, enhanced training, and streamlined
investigation procedures. In addition, we updated our
whistleblower investigations manual and established a Federal
advisory committee on whistleblower protections. As a result,
we have reduced the backlog of 11(c) appeals, improved
enforcement, and enhanced the consistency of our
investigations.
But these changes are not enough. Section 11(c) is badly in
need of modernization. The anti-retaliation statutes that
Congress has enacted since the OSHA Act was passed provide
greater protections and stronger remedies for workers who have
been retaliated against. To give 11(c) the teeth it needs to be
as effective, it must be updated to improve procedures for
filing, investigating, and resolving complaints.
These newer statutes should serve as a guide for reforming
and reinvigorating the protections in 11(c). To this end, OSHA
has a few recommendations to strengthen 11(c).
To begin with, OSHA should have the authority to order
immediate preliminary re-instatement where OSHA has found there
is reasonable cause to believe that an employee has suffered
illegal termination. Preliminary re-instatement allows
employees to return to work and regain a regular income quickly
and is available under all but one of the whistleblower
statutes passed since 2000.
Second, OSHA recommends modifying the adjudication process
to provide a kick-out provision. This will enable workers to
take their disputes to a Federal district court if the
department fails to reach a conclusion in a timely manner. By
encouraging timely resolution of disputes, this provision
benefits both employers and employees alike.
Third, OSHA recommends allowing a full administrative
review of OSHA determinations from the Office of Administrative
Law Judges and the Administrative Review Board.
Fourth, the statute of limitations for filing complaints
should be extended. Section 11(c) currently requires
whistleblowers to submit a complaint within 30 days of the
discriminatory action. This is an extremely short period that
disqualifies many otherwise eligible whistleblowers, and you'll
hear testimony from one such whistleblower today. All recently
passed whistleblower statutes give complainants 180 days from
the date of the adverse action to file a complaint.
And, finally, Congress should consider revising the burden
of proof under 11(c) to conform to the standard utilized in all
statutes enacted since 2000.
In conclusion, workers who stand up for what's right should
be held out as models of civic responsibility. By addressing
wrongdo-
ings or unsafe conditions, they protect themselves and the
public at large. They deserve our protection against
retaliation.
Thank you again for the opportunity to testify today. I
would be pleased to answer any questions you may have.
[The prepared statement of Mr. Michaels follows:]
Prepared Statement of David Michaels, Ph.D., MPH
Chairman Casey, Ranking Member Isakson, distinguished Members of
the subcommittee, thank you for inviting me to testify on current
whistleblower protections, the importance of these protections, and how
we can improve them moving forward. As Assistant Secretary of Labor for
the Occupational Safety and Health Administration (OSHA), I am proud of
the work we are doing to protect whistleblowers and the great strides
we have made to strengthen and improve OSHA's whistleblower program.
This hearing comes one day after Workers Memorial Day, when we
remember and mourn those workers who have been killed, injured, or made
sick by their work, and rededicate ourselves to ensuring that these
tragedies do not happen again. It is also the same day the Occupational
Safety and Health Administration was established in 1971. OSHA's
mission is to assure the health, safety, and dignity of every worker.
Over the past 43 years, working with our State partners, employers,
workers, unions, professionals, and others, OSHA has made dramatic
progress in reducing work-related deaths, injuries, and illnesses. But
over 4,000 workers still die on the job every year, and almost 4
million workers are seriously injured. Workers Memorial Day is an
occasion to remind the Nation that most of these workplace injuries,
illnesses, and fatalities are preventable.
In passing the Occupational Safety and Health Act of 1970 (OSH
Act), Congress understood that workers play a crucial role in ensuring
that their workplaces are safe, but also recognized that employees
would be unlikely to participate in safety or health activities, or to
report a hazardous condition to their employer or OSHA, if they feared
their employer would fire them or otherwise retaliate against them. For
that reason, section 11(c) of the OSH Act prohibits discrimination of
employees for exercising their rights under the law. In the decades
since the passage of the OSH Act, Congress has enacted a number of
other statutes which also contain whistleblower provisions,
acknowledging that workers are this Nation's eyes and ears, identifying
and helping to control not only hazards facing workers at jobsites, but
also practices that endanger the public's health, safety, or well-being
and the fair and effective functioning of our government.
Whistleblowers serve as a check on the Government and business, shining
a light on illegal, unethical, or dangerous practices that otherwise
may go uncorrected. Whether the safety of our food, environment, or
workplaces; the integrity of our financial system; or the security of
our transportation systems, whistleblowers help to ensure that our laws
are fairly executed.
Thus, OSHA is a small agency with a big role to fill. Not only is
OSHA responsible for defending workers' health and safety rights, we
also have the important charge of enforcing the whistleblower
provisions of the OSH Act and 21 other statutes which provide employees
with similar protections.
improvements in osha's whistleblower program
Protecting whistleblowers is a responsibility that we take very
seriously. As you are aware, there have been reports--prepared by the
Government Accountability Office (GAO) and the Department of Labor's
Office of the Inspector General (OIG)--that criticized OSHA's
whistleblower protection program. We took these criticisms seriously
and successfully implemented all of the recommendations in the GAO and
OIG reports, which not only increased the program's effectiveness, but
also made the program more efficient.
Over the last several years, we have implemented a number of
significant structural and programmatic changes to strengthen our
whistleblower program. For instance, OSHA has established the
Whistleblower Program as a separate directorate, with its own budget;
developed an online form so that employees can file complaints
electronically; enhanced training; streamlined investigation
procedures; and, with additional resources appropriated by Congress,
significantly increased staffing. In addition, by updating our
Whistleblower Investigations Manual and establishing a Federal Advisory
Committee on Whistleblower Protections, we have been able to improve
our enforcement efforts, including enhancing the consistency of our
investigations of complaints filed under the anti-retaliation statutes
that OSHA administers.
As a result of the increase in resources and the changes mentioned
above, in the past 2 years OSHA has been able to eliminate a backlog of
more than 300 ``over-age'' \1\ discrimination complaints under the
anti-discrimination protections of section 11(c) of the OSH Act. OSHA
is continuously finding ways to improve its internal investigative
processes which has proven beneficial in its management of
investigative caseloads. In addition, OSHA has significantly reduced
the number of section 11(c) complaints under ``administrative review''
\2\ in the National Office. At the beginning of the fiscal year, OSHA
had more than 200 section 11(c) cases pending administrative review. As
of April 2014, OSHA has reduced the number of pending cases in this
category to approximately 40, all of which were newly filed or are
actively under review. The changes highlighted above are described in
much more detail in ``Appendix III: Improvements in OSHA's
Whistleblower Program.''
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\1\ ``Over-age'' means ongoing investigation cases over 90 days
from complaint filing date. At present, the backlog of such complaints
stands at 1,726, down from 2,034, as of March 31, 2012.
\2\ ``Administrative Review'' means a post-determination review of
the investigative documentation by the National Office, similar to an
appeal review.
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Our efforts are bearing fruit. OSHA's strengthened whistleblower
program has had many successes. For example, in our work enforcing the
whistleblower provisions of the Federal Railroad Safety Act (FRSA),
which protects railroad workers from retaliation for reporting
suspected violations of railroad safety laws as well as on-the-job
injuries, we achieved a significant accord with BNSF Railways. OSHA
engaged BNSF in a conversation regarding a large number of
whistleblower complaints filed against the railroad. This conversation
ultimately led to an agreement, pursuant to which BNSF agreed to
voluntarily revise several personnel policies that OSHA believed
violated the whistleblower provisions of FRSA and dissuaded workers
from reporting on-the-job injuries. This accord made significant
progress toward ensuring that BNSF employees who report injuries do not
suffer any adverse consequences for doing so and represents an
important step toward improving the culture of safety in the railroad
industry.
OSHA has strengthened the administration of its whistleblower
program, and has made significant progress since the GAO and OIG
reports were issued, but these changes alone are not enough. Although
OSHA now enforces an additional 21 whistleblower statutes, cases filed
under section 11(c) of the OSH Act make up more than half of OSHA's
whistleblower program caseload--last year, 60 percent of the new cases
OSHA received were docketed under section 11(c). This whistleblower
provision, passed over 40 years ago, is badly in need of modernization.
needed changes to section 11(c) of the osh act
In the decades since the OSH Act was passed in 1970, we have
learned a great deal from newer anti-retaliation statutes, particularly
those passed by the Congress within the last decade. Indeed, all of the
recent whistleblower statutes provide a much greater level of
protection, stronger remedies, and better procedural protections for
workers who have been retaliated against. These statutes are more
effective at making whole workers who have been retaliated against,
enable OSHA to correct dangerous practices, and are leading to
significant improvements in workplace culture.
To give section 11(c) the teeth it needs to be as effective as
newer whistleblower statutes, it must be updated to establish improve
procedures for filing, investigating, and resolving whistleblower
complaints--to afford employees the same protections that are found in
these more recent anti-retaliation statutes. These newer statutes
should serve as a guide for reforming and reinvigorating the
protections in section 11(c).
To this end, OSHA recommends strengthening the procedural
requirements of section 11(c) to be consistent with more recent
whistleblower statutes, by: (1) providing OSHA with the authority to
order immediate preliminary re-instatement of employees that OSHA finds
to have suffered illegal termination; (2) modifying the adjudication
process to provide a ``kick-out'' provision which will enable workers
to take their disputes to a Federal District Court if the Department
fails to reach a conclusion in a timely manner; (3) allowing for a full
administrative review to the OALJ and ARB of OSHA determinations; (4)
extending the statute of limitations for filing complaints; and (5)
revising the burden of proof under section 11(c) to conform to the
standard utilized in more recently enacted statutes.
1. Preliminary Reinstatement
Newer statutes include provisions that authorize OSHA to order
immediate, preliminary re-instatement of wrongly discharged employees.
Preliminary re-instatement is available under all but one of the
statutes passed since 2000. Upon finding reasonable cause to believe
that the worker was illegally terminated under these statutes, the
Assistant Secretary may issue findings and a preliminary order
requiring immediate re-instatement of the employee. These provisions
provide OSHA with the authority to order that illegally terminated
employees be put back to work, and thus enable them to quickly regain a
regular income. Preliminary re-instatement provisions also promote the
efficient resolution of disputes. When OSHA issues a preliminary re-
instatement order, the onus is on the respondent to make a bona fide
offer of preliminary re-instatement. Once that offer is made, the
employee may either accept it or reject it. If the employee rejects the
offer, the employer's obligation for back pay ceases as of the date the
offer is rejected.
Preliminary re-instatement also can provide an important impetus
for the employer and employee to resolve the whistleblower case. For
example, in a recent case, an employee who led Countrywide Financial
Corporation's internal investigations discovered widespread and
pervasive wire, mail, and bank fraud. The employee alleged that
colleagues who had attempted to report fraud to Countrywide's Employee
Relations Department suffered persistent retaliation. The employee was
fired shortly after Countrywide merged with Bank of America Corp. and
subsequently filed a complaint under section 806 of the Sarbanes-Oxley
Act (SOX). Upon review of the claim, OSHA found Bank of America Corp.
in violation of the whistleblower protection provisions of SOX for
improperly firing the employee. OSHA ordered the bank to re-instate and
pay the employee approximately $930,000, which included back wages,
interest, compensatory damages and attorney fees. The case later
settled before an ALJ.
Under 11(c), on the other hand, the complainant can only gain re-
instatement to his or her former position if the District Court orders
re-instatement or if a settlement is reached. The lack of authority for
OSHA to order preliminary re-instatement of employees under section
11(c) delays employees' ability to return to work and receive a regular
paycheck, even if it is clear that they were terminated for retaliatory
reasons. Without an equivalent provision in the OSH Act, there is less
pressure for adequate settlements that include re-instatement.
2. Individual Right of Action Requirements
Individual right of action provisions are also common in newer
whistleblower protection statutes. These ``kick-out provisions''
provide complainants with an alternate route for resolving their
disputes when the Secretary of Labor's process has not provided a final
resolution in a timely fashion. By encouraging timely resolution of
disputes, these provisions benefit both employers and employees alike.
Additionally, individual right of action requirements offer a desirable
alternative course for employees who prefer to adjudicate their claim
in a Federal court setting. ``Kick-out provisions'' may be particularly
attractive for complainants that are represented by counsel, who may be
more comfortable litigating in the Federal district court forum.
In a recent SOX case, the complainant, who was employed as the
company's controller, reported to company management ``actual and
suspected frauds and improprieties'' after refusing to prepare $1
million in bonuses for top executives without proper approvals. The
controller was fired. After filing with OSHA and while waiting for a
resolution by the Department, the complainant kicked out to U.S.
District Court where, less than 2 years after filing the complaint, he
received a jury award of $6 million. Not only was this a quicker
decision when compared to past litigated 11(c) claims, the compensatory
damages award of $6 million is believed to be the highest award ever
recovered.
Employees who file under section 11(c), on the other hand, do not
have this choice. Their cases remain under investigation by OSHA until
the Department denies their claim or brings suit in Federal court on
their behalf. Currently, complainants have no right to full
administrative hearings or review of OSHA's administrative decisions.
Moreover, employees who file under section 11(c) cannot litigate their
claim in Federal district court on their own, and instead must hope
that the Department of Labor chooses to take their cases to district
court. Under section 11(c), if OSHA believes retaliation has occurred,
it must refer the case for litigation by the Department of Labor's
Office of the Solicitor, which may bring suit after seeking
authorization from the Department of Justice.
3. Full Administrative Adjudication of Cases
Unlike newer statutes, section 11(c) does not include a process for
employees to obtain administrative adjudication when OSHA dismisses a
complaint. Although OSHA's National Office conducts an administrative
review of OSHA's regional whistleblower decisions as a matter of
policy, the National Office's review is still an intra-agency process,
and there is no extra-agency check on OSHA's decisionmaking in
individual cases.
Newer statutes, on the other hand, explicitly provide parties with
the right to object to OSHA's findings and receive a de novo hearing
from the Office of Administrative Law Judges. Parties may then petition
the Administrative Review Board (ARB) to review the ALJ's decision, and
should the ARB issue a decision or decline to review an ALJ decision,
the decision may be further appealed to U.S. Courts of Appeals.
4. Statute of Limitation Requirements
All recently enacted or amended whistleblower statutes, including
FRSA, the Consumer Product Safety Improvement Act, the Surface
Transportation and Assistance Act (STAA), the Seaman's Protection Act,
SOX, the Dodd-Frank Wall Street Reform and Consumer Protection Act, the
Food Safety Modernization Act, and the Moving Ahead for Progress in the
21st Century Act, give complainants 180 days from the date of the
adverse action to file a complaint with OSHA.
In contrast, section 11(c) of the OSH Act only provides 30 days for
employees to file a whistleblower complaint. Several OSHA-approved
State plans, including those in Kentucky, California, Connecticut,
Hawaii, North Carolina, Oregon, and Virginia, have recognized the
limitations associated with the 30-day filing period and have adopted
significantly longer periods than those imposed by the Act.
Notably, there is no statutory time limit for whistleblower
complaints filed by Federal employees. The Fair Labor Standards Act,
which includes an anti-retaliation provision for workers that make wage
and hour complaints, effectively has a 2-year statute of limitations,
with a 3-year limitation period if the underlying violation was
willful. The National Labor Relations Act has a limitation period of
180 days for complaints.
Section 11(c)'s 30-day statute of limitations is especially
problematic because it begins to run when the employee learns about the
adverse employment action, not when the employee learns that the action
was motivated by an unlawful retaliatory purpose. Employees may not
know about the motivation for an adverse action for days or weeks after
the action occurred, which makes the short 30-day filing period
particularly difficult for employees to meet.
We have seen many cases of alleged retaliation in which more than
30 days passed before an employee learned he/she had the right to file
a complaint with OSHA, or before he/she learned that an action taken
against him/her violated section 11(c). OSHA receives over 200
complaints each year that must be rejected because more than 30 days
had passed since the date of the alleged retaliatory act. OSHA will
never know how many of these complaints would have led to a remedy for
the worker, or how many employees decide not to file a complaint after
learning that they missed the deadline.
Only 1 to 3 percent of complaints filed under STAA, SOX, and FRSA
during the past 3 fiscal years missed the 180-day filing deadline. In
contrast, during the last 3 years, approximately 7 percent of section
11(c) complaints were ``administratively closed'' (not docketed) for
missing the 30-day filing deadline (at least a third of which missed
the deadline by only 30 days or less). If the deadline for filing under
section 11(c) was extended to180 days, approximately 600 more
complaints would have been considered timely and eligible for an
investigation.
With so many claims determined to be untimely, there is no shortage
of examples where employees were unable to avail themselves of OSHA's
investigatory and adjudication processes because they did not file a
complaint fast enough. To illustrate the impact the 11(c) statute of
limitations has on workers, below are three examples in which OSHA was
unable to investigate a complaint of retaliation because the employee
filed with OSHA after the 30-day deadline had expired:
A worker in Georgia filed a complaint in January 2013,
alleging that she was terminated after she complained to her employer
that she was suffering from fatigue due to exposure to chemicals at her
worksite. Because she filed her complaint 41 days after her
termination, OSHA was unable to investigate the matter.
On January 30, 2014, an employee working at New York
City's World Trade Center filed a section 11(c) complaint alleging he
was terminated for raising concerns about the presence of hazardous
fumes in the workplace. On October 13, 2013, the employee had reported
to management that paint fumes were making him and others sick. The
employee was terminated shortly thereafter on October 22, 2013. Because
this complaint was not filed within the 30 day window, OSHA was unable
to investigate the alleged adverse action.
On December 27, 2013, an employee was given a tanker truck
loaded with a chemical. The tank's gauge, which was faulty, indicated
that the tank was empty. The employee alleges that his employer knew
the gauge was faulty, but that he himself was unaware. When the
employee went to unhook the tank, a chemical spilled onto the employee.
After telling his employer what had occurred, he was advised not to
report the incident. Shortly thereafter, the employee was fired. The
employee filed a complaint with OSHA on January 27, 2014, 31 days after
the incident occurred. Because the complaint was filed 1 day too late,
OSHA was unable to investigate.
The time has come to rectify the statute of limitations problem
under section 11(c). The hard evidence shows that allowing 180 days for
employees to file a complaint would advance the investigation of
retaliation complaints and help ensure that underlying violations are
remedied.
5. Burden of Proof
Under section 11(c), the burden of proof is more rigorous than the
burden of proof under newer statutes. Since 2000, all anti-retaliation
statutes passed by Congress and administered by OSHA only require the
employee to show that the employee's whistleblowing was a
``contributing'' factor to the employer's decision. Conversely, section
11(c) requires the employee to show that the adverse action was
``because'' of the whistleblowing. Therefore, OSHA recommends changing
the burden of proof to ensure the standard a whistleblower must meet is
consistent among the whistleblower statutes that OSHA enforces and is
not overly burdensome for claimants filing under section 11(c).
conclusion
Employees who stand up for what is right, who act with the public
good in mind, and who are brave enough to come forward when others will
not, should be held out as models of civil responsibility. We owe it to
all workers to provide effective recourse against retaliation for those
who have the courage to address wrongdoing or unsafe conditions to
protect themselves and the public at large.
Your continued support and commitment ensures that whistleblowers
are protected. I look forward to working with you to strengthen our
program. Thank you again for this opportunity to discuss OSHA's
whistleblower program and our recommendations for making section 11(c)
of the OSH Act as protective as the other whistleblower laws enacted
during the last 20 years.
______
APPENDIX I: PRELIMINARY REINSTATEMENT PROVISIONS
Below are statistics on the number of preliminary re-instatement
orders that OSHA has issued over the past 3 fiscal years.
------------------------------------------------------------------------
Preliminary
reinstate-
Statute ment orders
fiscal year
2011-13
------------------------------------------------------------------------
AIR21..................................................... 4
FRSA...................................................... 12
SOX....................................................... 5
STAA...................................................... 15
-------------
Total................................................... 36
------------------------------------------------------------------------
APPENDIX II: INDIVIDUAL RIGHT OF ACTION REQUIREMENTS
Below are statistics on the number of complainants that chose to
kick-out from an OSHA investigation during fiscal year 2012 and fiscal
year 2013. Please note that these statistics do not include
complainants that may have kicked-out to district court while their
matter was pending before OALJ or the ARB.
------------------------------------------------------------------------
Kick-outs Kick-outs
from OSHA-- from OSHA--
Statute fiscal year fiscal year
2012 2013
------------------------------------------------------------------------
CFPA........................................ 1 2
CPSIA....................................... 0 3
ERA......................................... 3 2
FRSA........................................ 31 34
FSMA........................................ 0 2
SOX......................................... 10 25
SPA......................................... 0 1
STAA........................................ 3 5
---------------------------
Total..................................... 48 74
------------------------------------------------------------------------
APPENDIX III: IMPROVEMENTS IN OSHA'S WHISTLEBLOWER PROGRAM
In January 2009, the U.S. Government Accountability Office (GAO)
issued a report with eight recommendations for improving OSHA's
Whistleblower Protection Program, which focused on improving
whistleblower data integrity, strengthening OSHA's audits of
whistleblower activities, and ensuring that OSHA's whistleblower
investigators have all the equipment needed to do their jobs.\3\ A
second GAO report, issued in 2010, included four additional
recommendations, which focused on the strength of OSHA's oversight of
whistleblower investigative activities, and specifically instructed
OSHA to ensure that all whistleblower investigators and their
supervisors have completed mandatory training courses.\4\ Also in 2010,
the Office of the Inspector General (OIG) issued a report that
concluded that OSHA was not adequately managing the Whistleblower
Protection Program, and issued recommendations directing OSHA to
strengthen its supervisory controls, improve its management of
whistleblower caseloads, and update the Whistleblower Investigations
Manual to incorporate these recommendations.\5\
---------------------------------------------------------------------------
\3\ GAO 09-106 ``Better Data and Oversight Would Help Ensure
Program Quality and Consistency.''
\4\ GAO-10-722 ``Sustained Management Attention is Needed to
Address Longstanding Program Weaknesses.''
\5\ 02-10-202-10-105 ``Complainants Did Not Always Receive
Appropriate Investigations Under the Whistleblower Protection
Program.''
---------------------------------------------------------------------------
OSHA has worked diligently to improve the management and
accountability of OSHA's Whistleblower Protection Program and has
implemented all of these recommendations. Key changes to OSHA's
whistleblower program are discussed below.
In 2012 OSHA reorganized the Office of the Whistleblower
Protection Program into a new ``Directorate'' of Whistleblower
Protection Program at the National Office. Instead of being housed
within OSHA's Directorate of Enforcement Program, the new whistleblower
directorate has its own budget and is led by a Senior Executive
Service-level Director who reports directly to the Assistant Secretary.
In fiscal year 2012 budget, OSHA developed a separate line
item for the whistleblower program so it could better track and report
to Congress the program's expenses.
More than 35 full-time whistleblower employees have been
hired since 2009, representing a 48 percent increase in whistleblower
field staff nationwide. These new personnel include both whistleblower
investigators to investigate whistleblower cases and whistleblower
supervisors to oversee those investigations and manage regional
investigative resources.
In December 2013, OSHA unveiled its online whistleblower
complaint form, which makes it easier for employees to file
complainants electronically via the Agency's Web site.
OSHA reorganized its whistleblower program so that all
whistleblower personnel now report to centralized, whistleblower-
dedicated supervisors that are fully trained in whistleblower
investigations.
All whistleblower investigators are now required to
complete two mandatory training courses on Section 11(c) of the OSH Act
and the other Federal anti-retaliation statutes enforced by OSHA. OSHA
is actively engaged in establishing a dedicated whistleblower Training
Track, comparable to the agency's Safety, Health and Construction
Training Tracks. A workgroup is currently working on the development of
this training track, which will expand the number of mandatory training
courses, and will be managed by the Directorate of Training and
Education at OSHA's Training Institute in Arlington Heights, IL.
In September 2011, OSHA updated its Whistleblower
Investigations Manual, the Agency's primary tool for communicating the
procedures and policies that apply to whistleblower investigations,
which incorporates the recommendations made in the GAO and OIG Reports,
and provides detailed procedures and guidance so that investigations
are thoroughly and consistently completed.
In 2012, OSHA established a Whistleblower Protection
Advisory Committee to make recommendations regarding implementation of
better customer service to workers and employers, improvement in the
investigative and enforcement processes, improvement of regulations
governing OSHA investigations, and recommendations for cooperative
activities with Federal agencies responsible for areas also covered by
the whistleblower protection statutes enforced by OSHA.
APPENDIX IV: SUCCESS STORIES
A few key examples of workers that have benefited from OSHA's
successful enforcement of the broader protections afforded by the new
whistleblower statutes are discussed below.
Section 806 of the Sarbanes-Oxley Act (SOX)
Bond Laboratories Inc., a manufacturer of nutritional
supplement beverages and other related products, terminated an officer
because he repeatedly objected to the manipulation of sales figures,
which the officer believed misrepresented the company's value to
potential investors. The officer filed a complaint against Bond
Laboratories and its former CEO under Section 806 of SOX, and OSHA's
investigation revealed that the officer's complaint was meritorious. In
September 2011, OSHA issued an order of preliminary re-instatement to
put the officer back to work, and also ordered that the company pay the
officer approximately $500,000 in back wages, interest and compensatory
damages. Settlement was approved on August 3, 2012.
Federal Railroad Safety Act (FRSA)
OSHA recently investigated a case filed under the Federal
Railroad Safety Act (FRSA) against Norfolk Southern Railway by two
employees who had been terminated by the company. Norfolk Southern
terminated both workers for reporting injuries to management they
sustained when another vehicle ran a red light and struck the company
truck in which they were riding. Prior to the incident in-question, the
employees had been employed by the railroad for more than 36 years
without incident. As a result of Norfolk Southern Railway Co.'s
retaliatory behavior (several other orders were also issued by OSHA
against Norfolk Southern Railway Co. in the past 2 years), Norfolk
Southern Railway Co. was ordered to pay more than $1.1 million for the
wrongful termination of employees, and was ordered by OSHA to
preliminary re-instate workers who were wrongfully terminated for
reporting injuries that occurred on the job.
Surface Transportation Assistance Act (STAA)
Four employees of Gaines Motor Lines filed a claim under
the Surface Transportation Assistance Act (STAA), alleging they were
terminated for participating in an inspection audit conducted by the
Department of Transportation's Federal Motor Carrier Safety
Administration (FMCSA). Following the audit and subsequent citations
issued against Gaines Motor by FMCSA, the employees suffered
retaliation by company officials, including termination, layoffs and
removal of employee benefits. As a result of OSHA's investigation,
Gaines Motor Lines was ordered to pay over $1 million in damages, on
behalf of three former employees and the estate of an employee who died
during the course of the OSHA investigation. OSHA also ordered
preliminary re-instatement for the three living employees. The company
filed a motion to stay the preliminary re-instatement order but the ALJ
denied said motion and compelled Gaines to make bona fide offers of re-
instatement, which Gaines did. Under STAA, complainants have 180 days
to file their complaints and OSHA can order both compensatory and
punitive damages. STAA also has a kick-out provision, which allows the
complainant to take their case to a U.S. District Court if the
Secretary of Labor has not issued a final decision within 210 days
after the filing of the complaint.
______
Submission for the Record
At the request of the U.S. Senate Committee on Health, Education,
Labor, and Pensions, the Occupational Safety and Health Administration
has collected 3 years of data (fiscal year 2011-13) relating to the
impact of extended filing periods for whistleblower complaints in eight
State Plan States that have deadlines that exceed the 30-day period
required by OSHA. The eight States covered include California,
Connecticut, Hawaii, Kentucky, North Carolina, New Jersey, Oregon, and
Virginia. The below summary results are based on data collected about
the 1,382 cases from these eight States during fiscal year 2011-13
where both an adverse action date and a filing date can be determined
and which are closed cases.
748 cases (54.1 percent) were filed within 30 days of the
adverse action, while 634 (45.9 percent) were filed after 30 days.
Of those 634 cases filed 31 or more days after the adverse
action, 88 (13.9 percent) were determined to be meritorious.
The percentage of cases filed within 30 days that were
determined to be meritorious (18.4 percent) was higher than those filed
31 or more days after adverse action (13.9 percent).
In summary, 88 workers received meritorious decisions for their
cases where, if filed under OSHA jurisdiction, they would have seen
their cases dismissed due to missing the filing deadline. While the
percentage of meritorious cases is somewhat lower than for cases filed
within 30 days, it stands as a testimony to the value of longer filing
windows in these States. Additionally, a total of 634 complainants
received a decision regarding the disposition of their cases based on
the merits of the case rather than the technicality of missing the
filing deadline, which provides a level of resolution that would not
otherwise be offered.
OSHA believes that extended filing deadlines are a valuable
resource in protecting worker rights, and as such would welcome the
opportunity to extend the filing deadlines throughout OSHA and the
other State Plans.
Whistleblower Cases in States With Extended Deadlines
--------------------------------------------------------------------------------------------------------------------------------------------------------
No. Percent
filed Percent Filed 31 filed 31 Percent
Total within No. filed filed or more or more filed 31
State no. of 30 days within 30 within 30 days No. days days or
cases of days days after meritorious after more that
adverse meritorious meritorious adverse adverse are
action action action meritorious
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fiscal Year 2011............................................ 423 211 23 10.9 212 21 50.1 9.9
Fiscal Year 2012............................................ 519 296 64 21.6 223 37 43.0 16.6
Fiscal Year 2013............................................ 440 241 51 21.2 199 30 45.2 15.1
-------------------------------------------------------------------------------------------
Total, fiscal year 2011-13................................ 1382 748 138 18.4 634 88 45.9 13.9
--------------------------------------------------------------------------------------------------------------------------------------------------------
Senator Casey. Doctor, thank you very much. You'll be
invited back, because you're right on the button. Senator
Isakson and I have never seen this happen before.
[Laughter.]
Senator Isakson. It's a first.
Senator Casey. It's a first. We'll do 5-minute rounds, and
we're going to try to move to our next panel at about 10:20.
But I know that, No. 1, we've both acknowledged--both
Senator Isakson and I have acknowledged the advancements you
have made in setting up an important whistleblower program. We
know that within the existing statute or within the existing
resources that you have, you might be able to make more
changes, and we look forward to working with you on that.
But just tell us--if we're going to help in reforming the
work that you can do under existing law and also consider
statutory changes, let's start with what you can do right now.
What are some of the limitations you have working within the
existing law, but also working within your current resources?
Mr. Michaels. The issues in the existing law are some of
the ones that I addressed in my testimony. Just to enumerate
them very quickly, the statute of limitations is a very serious
problem. There are 200 cases a year which we dismiss simply
because they're untimely. Some of them involve what we think
are very meritorious cases of workers who file 32, 34, or 35
days after the event, and that simply isn't fair. Congress has
passed a dozen pieces of legislation which give workers 180
days to file a complaint, and we think that would be one that
makes sense for all of them.
Senator Casey. Let me just interrupt there. You think just
that alone--there might be as many as 200 cases a year that are
meritorious that don't get considered.
Mr. Michaels. We dismiss 200 cases a year. We believe many
of them are meritorious. That's correct. And, certainly, there
are some workers who don't file, knowing full well that they've
been told, ``Well, you missed your 30 days.'' We think that
would have a big impact.
The second thing, though, is to have an administrative
review outside of OSHA. While I believe OSHA staff do an
excellent job, the system is set up so we're the final arbiter,
and I don't think that's fair. I think all Americans should
have the right to take any decision that we make to an
administrative law judge or to Federal court if they want to do
that.
We can be wrong, and, right now, there's no recourse. If
we're wrong, that's the end of the case. I think it's fair for
both employers and for employees to have administrative reviews
and the same reviews that Congress has put into these dozen
other laws. As you'll see in my testimony, there are a couple
of other areas as well--changing the burden of proof issues.
But those are the key ones.
Senator Casey. So what you've outlined or what would be
statutory.
Mr. Michaels. Exactly.
Senator Casey. Anything in the process of--we know that
sometimes the time between introduction of legislation, even
legislation that has a lot of consensus that undergirds it--
that time can be substantial. So I want to ask you about under
your existing--just the existing resources and what you can do
now. Is there anything that we can do through either oversight
or appropriations or otherwise?
Mr. Michaels. There is certainly an appropriations
approach. You know, in the years following the expansion of the
whistleblower program, where we were given new statutes every
few years, where we got a dozen new statutes since the year
2000, for many years, no additional resources came with that.
We are grateful that Congress in the last several years has
given us greater resources, and we're using them very
productively.
But we certainly could use more, because we do get new
statutes all the time, and there's no money attached to those.
There's no additional funding. Again, we're grateful in the
appropriations process to get that additional help.
One of the things we're doing with the new money that we're
getting this year is setting up a national alternative dispute
resolution process. We piloted that in a couple of regions. We
saw it was successful in getting cases to settlement very
quickly to the agreement of both the worker and the employer
involved. We want to do more of that, and certainly more
resources will help us do that under current statutes.
But let me just mention--and I think Senator Isakson talked
about it--the work we're doing through our advisory committee
to look for better ways to essentially change the culture of
ethics and compliance, which is what you'll hear later on from
Greg Keating, who is a member of our advisory committee. That's
something that we can do now, and one thing that--we've reached
out to the employer community and to others to help us get the
word out that better managed employers who have this culture of
ethics and compliance will do better. They'll treat their
employees better. They'll get the concerns and be able to
address them in a way that's effective.
You know, we just had the anniversary of the Deepwater
Horizon incident. There was a survey done weeks before that
explosion where workers told their employer in an anonymous
survey--almost half of them reported there was some fear of
reporting a safety concern. Can you imagine how much better off
this country would be if those workers had felt comfortable
raising concerns with their employer, and the employer could
address those?
I'm very glad that we're taking this approach, and I hope
the Senate also will be supportive of those attempts to change
what goes on in workplaces so employers set up compliance
management systems very much like they set up safety management
systems.
Senator Casey. I'll stop for now. I may come back and wrap
up.
Senator Isakson.
Senator Isakson. Dr. Michaels, I commended you in my
statement about what you and Secretary Perez have done in terms
of best practices promotion and trying to work with your group
to come up with recommendations on best practices. But I've
read the President's budget request year in and year out. It
seems like there's been less of an emphasis from the
administration on compliance programs, training programs, and
best practices programs, and more of an emphasis on
enforcement.
There's got to be a balance somewhere there in between. Are
there places where you could use additional support in terms of
bringing about better compliance and positive programs?
Mr. Michaels. That's a great question. Thank you for
asking. That's exactly right. There is a balance. And we know
that some employers are only impacted by fear of inspections,
and there are lots of other employers who want to do the right
thing, and we have to help them. So we generally ask for money
for both, and we certainly continue to do that.
This area of whistleblower protection is not one, though,
where we've really focused on compliance assistance, and that's
why we've asked our advisory committee to help us do that, to
help us figure out what that tool is. Right now, in the world
of safety, we're able to tell employers lots of positive
messages. We have a Web site with lots of information. We have
a free consultation program in every State to help small
employers address safety and health concerns, independent of
OSHA inspections.
But we don't yet have that for whistleblower protection,
and we'd like to develop that, and we're going to need help
doing that, because we don't yet know the message to give.
Right now, our message is simply don't retaliate against
whistleblowers, and we have to do better than that. We have to
say,
``Here's the program. Here's the management system
that will help you learn what your workers' concerns
are and how you can address them best.''
We're hoping to develop that.
Senator Isakson. I'm a big supporter of whistleblowers. In
fact, I passed legislation a couple of years ago within the
Peace Corps to create a whistleblower standard in the Peace
Corps that had not existed before. So I am on your side in
terms of recognizing that we can't hire enough inspectors to
watch the workplace all over the world. What we need is the
workers and the employers being the inspectors, bringing
forward those things that need to be changed. I'm on that team.
But I'm also on the team--there are two great motivators in
life. One is fear, and the other is reward. In your testimony,
you pointed out that the fear of an inspection is one of the
motivators where people will do better if they know they're
more often inspected. But a lot of people may hope they don't
get inspected and they might slip and slide a little bit.
Have you got any programs within the Department of Labor
where you illuminate or reward or raise up and elevate someone
you find doing positive efforts to reduce workplace accidents
and deaths and injury?
Mr. Michaels. Absolutely. We have two programs. One is
called the Voluntary Participation Program, the VPP, and we
have well over 1,000 employers across the country who are
members of that program, and those are really the best of the
best. They tend to be large employers.
They've committed to doing safety programs far beyond
anything OSHA requires them to do under the law, and we give
them a flag, and we say they're doing a great job, and they are
exempted from certain other requirements. They do it because
they know it's the right thing to do, and we recognize them.
Then we have a program like that called SHARP, which is for
small employers, and that is run through our State consultation
program. And that's the same thing, where we recognize the
small employer who has taken steps and made a commitment well
beyond what OSHA requires. They're true believers. They're
doing this not because OSHA recognizes them, though. They're
happy for our recognition, but they know they're a better, more
productive, and more profitable employer by doing this.
Senator Isakson. You've just underlined my point, because
we all know the fear is the inspector. The inspector is coming,
and everybody says, ``Oh, my God, where am I going to get''--
especially at MSHA and places like that, which I deal with mine
safety a lot. But reward is also important.
What exemptions do you give somebody for good practices and
good behavior?
Mr. Michaels. We don't put them on the inspection list.
That's what they get. After the Texas City BP explosion several
years ago, we did a national program where we did an inspection
of every single oil refinery. But those oil refineries that
were already in our VPP program were exempted from that,
because we know they're doing a good job.
We're in and out of those plants all the time on compliance
assistance activities. We're in touch with the management. So
we don't need to inspect those plants. If they're that good, we
put our resources somewhere else.
Senator Isakson. Thank you, Dr. Michaels.
Thank you, Mr. Chairman.
Senator Casey. Thanks, Senator Isakson.
Dr. Michaels, you'll be out the door in about 5 minutes.
We're almost ready to wrap up.
But I wanted to ask you about the experience that States
have had recently. I know that a lot of what--virtually
everything you've outlined in your testimony in terms of
statutory change conforms with other Federal statutes. If you
lengthen the time period within which you bring a complaint,
that's not some novel idea. It's been embedded into a lot of
Federal statutes.
I'm told that 8 of the 27 States that operate some form of
their own OSHA State plans--that these States, in particular,
have already identified at least two areas that are important.
One is the need to have complaint filing times for 11(c) type
cases longer than the existing Federal OSHA statute or longer
than Federal OSHA. And another, I guess, five States have
provisions where they allow claimants a private right of
action--so time within which to bring a complaint and then a
private right of action where an individual can bring the
action.
Can you tell us, to the extent that you know, some of the
State data, what this has meant to States that have those kind
of broader--I might call them broader remedies or more
effective remedies for a whistleblower case?
Mr. Michaels. That's a very good question. We don't have
data on hand, and we can certainly get back to you on the
impact. North Carolina, for example, allows 180 days for
whistleblowers to raise concerns, and Kentucky allows 120 days.
But there are several States across the country that, in
their wisdom, have looked at this, and they have provided more
time for whistleblowers to raise concerns under 11(c), because
they themselves are the ones that enforce the 11(c) provision.
And their State legislatures have given them private rights of
action--many of these States as well. I can look a little more
and get back to you on what the impact has been.
[The Impact of Extended 11(c) Discrimination Filing
Deadlines Within OSHA State Plans Chart may be found in
Additional Material.]
But when we look at that, we say, ``Well, obviously, these
programs are working OK.'' And when we see the problems that we
face, we believe that it would be very useful for the Federal
Government to adopt this 180-day statute, for example, for
11(c) across the country.
Once we do that--because of the way the OSHA Act is
written, it says every State has to be at least as effective as
OSHA. If we change it on a national level, then other States
which haven't gone to 180 days will do that. But a number of
States already are there, so they wouldn't have to make any
changes.
Senator Casey. And I know in your testimony starting, I
guess, at page 4, you outline the changes you had hoped for.
I'm assuming that when you--just for purposes of being specific
on the record, when you rank them--No. 1 being preliminary re-
instatement, No. 2 being individual right of action
requirements--that you're ranking them in order of priority. Is
that----
Mr. Michaels. I think they're all important.
Senator Casey. They're all important. And you've got a
total of five, the last one being burden of proof. We will
certainly take those recommendations into consideration, and we
hope that we can come together on a bipartisan piece of
legislation to make these changes. But in the meantime, while
that process grinds on, we hope that you'll stay in touch with
us and figure out and help us figure out ways that we can help
in the near term, even prior to any whistleblower statutory
changes.
Mr. Michaels. I'm grateful for that, and I promise to do
that.
Senator Casey. Before we wrap up, Doctor, Senator Murray is
here, and she'd like to ask you a question. I know that we were
going through a list of statutory changes, and we're grateful
to have those in front of us. We do want to make sure that as
we consider those changes that you continue to stay in touch
with us regarding the near term. And I was promising you'd be
out the door soon, so my questions are over, but Senator Murray
might have one or two.
Statement of Senator Murray
Senator Murray. Nice delay. Thank you. Good morning, and
thank you, Mr. Chairman, for holding this hearing. I just want
to recognize that yesterday was Worker Memorial Day, and
today--which we pause to honor and remember the more than 4,000
workers who die every year on the job and the other 4 million
workers who suffer serious job-related injuries. It's a tragedy
that this country, if it was any other thing, would really be
focused on it. But these kind of rippled out throughout the
year, and we sometimes forget.
We know things need to change, and we owe it to those who
have died or been injured to allow the voices of whistleblowers
to be heard and protected. I really appreciate you being here,
Dr. Michaels. Thank you for staying an extra moment.
I wanted to talk to you because DOL manages the
whistleblower program under several different laws. Is that
correct?
Mr. Michaels. Yes, 21 statutes in addition to OSHA's.
Senator Murray. Twenty-one. How many whistleblower programs
do you manage?
Mr. Michaels. It's one program, but 22 statutes with some
variation between them, though most of them look very much the
same.
Senator Murray. Are there differences between the laws that
you manage?
Mr. Michaels. The primary difference is between the 11(c)
and all of the new statutes, which have some of the
recommendations that we would make that also are in your bill
that would require--would give workers more time to file, would
have administrative review for cases, would have the ability
for OSHA to have preliminary re-instatements, would change the
burden of proof that we follow for 11(c) to make them
consistent with all these other statutes that Congress has
passed in the last decade and a half.
Senator Murray. Walk us through some of the practical
implications of having to manage the differences between these
laws.
Mr. Michaels. Right now, we do a tremendous amount of
training and regularly have to oversee our staff to remind them
that the burden of proof is different under 11(c), and it's
actually a higher burden of proof. So in cases that wouldn't be
dismissed under any of the new statutes--food safety,
modernization, consumer product safety--get dismissed under
11(c).
You'll hear about this later on in testimony from the next
panel. A worker who looks like he has a meritorious case that
we haven't fully investigated files 34 days after an event
occurs where they feel like they've been retaliated against,
and, you know, we dismiss the case.
Senator Murray. Just because of that?
Mr. Michaels. Yes. The law says they have 30 days.
Senator Murray. Do you think it's patently unfair and
illogical that whistleblowers in different industries get
treated differently just because Congress hasn't been able to
act to raise the protections afforded to everyone?
Mr. Michaels. Yes, and I think it impacts the health and
safety and the well-being of not just workers but of all
Americans. If workers don't feel free to raise their concerns--
and I talked about the Deepwater Horizon right before coming
out here. It's important for workers to be able to raise those
concerns for everybody's safety.
Senator Murray. As I understand it, the Department of
Labor's solicitor's office has only prosecuted 6.7 percent of
all merit claims under the OSH Act over the past 14 years, and
fully 60 percent were abandoned entirely. Is that correct?
Mr. Michaels. The good news on that is things have changed.
The solicitor of labor and I signed a memorandum 2 years ago
instructing the field to work together to make this a high
priority, and since then, our numbers have gone up
dramatically.
Senator Murray. They have.
Mr. Michaels. Yes.
Senator Murray. Do you have those numbers?
Mr. Michaels. I do. Currently, for example, we are
proceeding in litigation on 38 cases, which was more than the
entire number for the first 12 years of the program. From 1996
to 2008, we litigated 32 cases. We settled some. But right now,
I think the actual percentage--I can get back to you--is about
67 percent of the cases that we now refer to SOL are taken on
for litigation. It's totally different.
Senator Murray. What has improved that, and what can we
continue to do to improve it?
Mr. Michaels. That's been one where the solicitor of labor
and I have said very clearly that this is a priority and has to
be given resources. And when we say that from the national
office, that cascades down to every office across the country.
I think it's been very effective.
But there are still these great limits. I mean, there are
only certain things we can do. We still have to go to Federal
court to proceed on every single case. We know that if we go
through a different sort of investigation and have
administrative review, we can resolve these cases much earlier
and, in fact, not go to the Federal court if not necessary, but
also get people back to work, if we can, as quickly as possible
and get everything settled. We don't need to win the case. We
want to settle the case, so the worker and the employer are
both happy with the result.
Senator Murray. Mr. Chairman, this isn't about any one
piece of legislation. But the OSH Act itself has not been
updated since 1970, and the vast majority of whistleblowers
don't have the most up-to-date protections. In fact, as one of
our witnesses is going to point out, by far, the most
whistleblower complaints are covered by the OSH Act, which has
the oldest and weakest protections of any whistleblower law.
So I have legislation, the Protecting America's Worker Act,
that deals with this, and I hope that we can really look at
updating these laws that need to be updated. Thank you very
much.
Senator Casey. Senator Murray, thank you very much.
Dr. Michaels, you're out early because your testimony was
within the time limit. But thanks for being here. Thanks for
your public service.
Mr. Michaels. Thank you so much to all three of you.
Senator Casey. We'll move to our second panel, and as
people are getting seated, I'll begin with the introductions in
the interest of time. I'll start first on my left and your
right.
Emily Spieler is the Edwin W. Hadley Professor of Law at
Northeastern University School of Law in Boston, MA. She also
serves as chair of the Whistleblower Protection Advisory
Committee for the U.S. Department of Labor. Ms. Spieler
previously held senior government positions with the State of
West Virginia, faculty positions with the West Virginia
University College of Law and was the dean of the Northeastern
University School of Law from 2002 to 2012.
Prior to beginning her academic career, she practiced labor
and employment law in Boston and West Virginia. She received
her A.B. degree magna cum laude from Harvard University and her
J.D. from Yale School of Law.
Dean, we're grateful you're here. I'm allowed to call you
dean, I think, still. We talked about that earlier.
Second, Tom Devine is Legal Director of the Government
Accountability Project, where he has worked to assist thousands
of whistleblowers to come forward. He has been involved in all
of the campaigns to pass or defend major whistleblower laws
over the last two decades. He is a frequent expert commentator
on television and radio talk shows. Mr. Devine is the recipient
of the ``Defender of the Constitution'' Award bestowed by the
Fund for Constitutional Government.
Thank you very much.
Ross Baize is an employee of Caterpillar in Peoria, IL.
Ross began his career at Caterpillar as a material handling
specialist in the Morton, IL, world distribution headquarters
and is now a mill, drill, and bore specialist at Caterpillar's
east Peoria, IL, location. He is also on the UAW Safety
Committee. He's a committeeman for that and a member of the UAW
Local 974.
He grew up in Peoria. He is married to his wife, Laura,
with a 3\1/2\-year-old son, and they're expecting a daughter in
June.
Good luck. I have four daughters, and I'm sure you'll enjoy
all of them, if you have more, I should say.
Gregory Keating is the co-chair of the Whistleblowing and
Retaliation Practice Group at Littler Mendelson, P.C., in
Boston, MA. He's a member of Littler's board of directors. In
June 2012, Senators Enzi and Isakson nominated Mr. Keating to
serve as a management representative on the Whistleblower
Protection Advisory Committee, and he was appointed to the
committee by Secretary of Labor Hilda Solis in December 2012.
Great to be with you all this morning.
Emily, will you start us off? Thank you very much.
STATEMENT OF EMILY SPIELER, A.B., J.D., PROFESSOR OF LAW,
NORTHEASTERN UNIVERSITY SCHOOL OF LAW AND CHAIR, WHISTLEBLOWER
PROTECTION ADVISORY COMMITTEE, BOSTON, MA
Ms. Spieler. Thank you, Chairman Casey, Ranking Member
Isakson, and Senator Murray. I really appreciate the
opportunity to be here today. Please note, however, that my
testimony reflects only my own views. I'm not yet able to
present conclusions from the advisory committee nor our working
subgroups, one of which you've already referenced in the
discussions, nor, of course, am I representing the Department
of Labor or OSHA.
The mandate of the OSHA Act is broad to assure so far as
possible every working man and woman in the Nation safe and
healthy working conditions. But as you have noted, the
resources of OSHA are limited. We therefore have no choice but
to depend on workers as our first line of defense to identify
hazards. It's critical to be able to assure all workers that
the law against retaliation is strong in order to be able to
encourage them to come forward and in order to remedy any
retaliation that they may suffer.
It is also important to remember that our collective well-
being is at risk if workers fear retaliation. Safety problems
inside workplaces can lead to environmental and community
disasters. Two notorious examples of this are the BP oil spill
and the explosion in the west Texas fertilizer plant.
As you know, 11(c) was an early anti-retaliation statute,
but it's now part of a growing number of Federal statutes. All
of the recent statutes provide much stronger protections for
whistleblowers than 11(c). Section 11(c) has been left behind.
As a result, workers are afraid to come forward and
legitimately so. We're giving them an illusory promise.
The provisions of the statute are weak, and these
provisions place responsibilities on the Department of Labor
that it simply cannot meet. I want to briefly explore these two
related problems. My written testimony provides much more
detail.
A comparison of 11(c) and other whistleblower provisions
tells the story. First, many 11(c) complaints are screened out
from the beginning because they don't meet the 30-day filing
requirement. Every whistleblower law passed since 2000 allows
180 days for filing, a deadline I believe 80 percent of the
screened out 11(c) filings would meet if the time period were
extended.
Second, there is no review process for complaints that are
screened out, and there's only an informal agency review of a
dismissal by OSHA at any later stage. Cases that are held non-
meritorious by OSHA can, under other whistleblower statutes, be
pursued before DOL administrative law judges or through a kick-
out provision in Federal court.
Third, the monetary settlements in these cases tend to be
small, and re-instatement for discharged workers is rare.
Section 11(c) requires proof that the illegal motivation is a
motivating rather than a contributing factor. It has no
provision for preliminary re-instatement. There's no guarantee
to complainants that their cases will be pursued.
There's little pressure on employers to engage in serious
settlement discussions. Where, then, is the disincentive for
employers who are engaging in unlawful retaliation. Other
whistleblower statutes address all of these issues.
Fourth, once OSHA completes its work on a case, meritorious
cases that have not been settled are referred to the solicitor.
If SOL chooses to reject a case--and this has happened
frequently over the years--there's no review of this decision.
The complainant has no recourse.
Litigation may not always be better, but there are three
problems with this part of the process. First, SOL lacks the
resources to litigate all of the cases that need litigation.
Second, complainants may legitimately feel they've not been
heard if their cases are never brought forward. And, third,
without the promise of litigation, in the end, the pressure on
employers to comply with the law is lessened.
America's workers who are concerned about safety deserve
the same level of protection that is extended to those who
report about financial mismanagement. If the language of 11(c)
were consistent with other whistleblower statutes, many of
these problems would be solved.
What are the key changes? Lengthen the statute of
limitations; create a right of preliminary re-instatement;
change the burden of proof to a contributing factor; change the
process for adjudication of complaints, including a right to
hearings before administrative law judges; a kick-out provision
to allow complainants to remove cases to court; and a system
that provides legal representation.
All of these changes would be consistent with the more
recently passed whistleblower laws, including Sarbanes-Oxley,
the ACA, and Dodd-Frank. None of them are revolutionary. All of
them would change the landscape for workers who are brave
enough to come forward to raise concerns about safety and who
then face retaliation.
Thank you, and I look forward to your questions.
[The prepared statement of Ms. Spieler follows:]
Prepared Statement of Emily A. Spieler, A.B., J.D.
Chairman Casey, Ranking Member Isakson and members of the
Subcommittee on Employment and Workplace Safety: Thank you for the
opportunity to appear before you today.
My name is Emily Spieler. I am now the Edwin W. Hadley Professor of
Law at Northeastern University School of Law in Boston, having stepped
down as dean of the law school in 2012. I currently serve as the Chair
of the Whistleblower Protection Advisory Committee, the Federal
Advisory Committee that is charged with providing advice and guidance
to the Secretary of Labor and OSHA on whistleblower protection
programs. I have extensive experience in the fields of occupational
safety and health and legal issues surrounding retaliation at work, and
I have served on committees relevant to these issues for the National
Academy of Social Insurance, the National Academies of Science, and the
American Bar Association. I also served as Chair of the Federal
Advisory Committee to the Department of Energy on the implementation of
the Energy Employees Occupational Injury Compensation Program Act.
I am here today to offer my comments regarding Section 11(c) of the
Occupational Safety and Health Act,\1\ in response to the question that
you have posed: Are existing protections adequate to build a safer
workplace?
---------------------------------------------------------------------------
\1\ 29 U.S.C. Sec. 660(c)(1), commonly referred to as section
11(c); see also 29 CFR Part 1977 for the regulations governing this
section.
---------------------------------------------------------------------------
Please note that this testimony is drawn from my own research and,
in part, from what I have learned from my work as Chair of the
Whistleblower Protection Advisory Committee (WPAC). I am not here,
however, representing the advisory committee, nor am I representing the
Department of Labor or Occupational Safety and Health Administration
(OSHA): the views I express today are entirely my own. The WPAC is
considering administrative, regulatory and statutory issues relating to
section 11(c), and we have a workgroup that is actively investigating
these issues. We also have a subcommittee that is working to evaluate
and recommend best practices in industry. I hope, in the future, to be
able to provide you with the official findings on these and other
issues from the advisory committee. At this point, however, the
committee has not reached the conclusion of its inquiries.
The Occupational Safety and Health Act (OSHAct) was designed ``to
assure so far as possible every working man and woman in the Nation
safe and healthful working conditions.'' \2\ But OSHA lacks the
resources to be universally present at workplaces to enforce safety
standards: there is only about one inspector for every 59,000 workers;
one inspector per 3,600 covered workplaces.\3\
---------------------------------------------------------------------------
\2\ 29 U.S.C. Sec. 651(b).
\3\ According to the FAQs currently posted on OSHA's Web site, the
Federal and State plan agencies charged with enforcing the OSHAct have
about 2,200 inspectors who are responsible for the health and safety of
130 million workers in more than 8 million worksites. See http://
www.osha.gov/OSHA_FAQs.html#q_25.
---------------------------------------------------------------------------
In view of this, it is critical that workers be able to raise
safety concerns without fear of reprisal. They are the first line of
defense against hazards. While many employers are working to create
cultures that encourage workers to come forward with concerns, this is
by no means universal. The more we can encourage these voluntary
practices, the better.
But it is critical to be able to reassure all workers that the law
against retaliation is strong--in order to be able to encourage them to
come forward, and in order to remedy any retaliation that they may
suffer. In my opinion, section 11(c) is simply inadequate to fulfill
this purpose and to provide this essential reassurance.
Not only the safety of workers and the effectiveness of the safety
laws depend on strong anti-retaliation protection, but our collective
well-being is at risk if workers fear retaliation. Safe practices
inside worksites affect not only the workers, but also the surrounding
communities. Chemical leaks lead to community threats and evacuations.
Safety problems inside workplaces cause explosions that create
environmental and community disasters. Examples of community threats
from workplace safety hazards abound. The 2010 BP oil spill in the Gulf
was one glaring example.\4\ The ammonium nitrate explosion in the West
Texas, fertilizer plant in 2013, is another\5\ I lived for many years
in Charleston, WV, where we depended on the workers in the chemical
plants to ensure that safety rules were followed to avoid environmental
disasters--this was brought to light again in 2008 when there was an
explosion near a tank holding Methyl Isocyanate (MIC) at the Bayer
CropScience facility located in Institute, WVA.\6\ I'm sure you will
recall that it was MIC that caused the Bhopal disaster in 1984.\7\
---------------------------------------------------------------------------
\4\ Eleven workers died and thousands were affected by the oil
spill.
\5\ Fifteen people were killed, more than 160 were injured, and
more than 150 buildings were damaged or destroyed.
\6\ One worker died, and thousands in the Kanawha Valley of West
Virginia were at risk.
\7\ Thousands died in the community, over 500,000 were exposed.
---------------------------------------------------------------------------
Our communities are at risk when our workers are at risk.
In recent years, considerable attention has been paid to
whistleblower protections, and few Federal statutes that impact the
public good have been passed without whistleblower protection
provisions--from the Consumer Product Safety Act to Sarbanes-Oxley to
Dodd-Frank to the Affordable Care Act. The laudable intention of this
Congress has been to offer protection to people who act on behalf of
all of us, calling attention to the need for citizens to help in the
enforcement of laws.
Many of these statutes have been assigned to OSHA for investigation
and enforcement. All of the recent statutes provide much stronger
protections for whistleblowers than the OSHAct. Section 11(c) is also
far weaker than any of the other whistleblower provisions that address
safety in specific industries, including the mining industry (under the
Mine Safety and Health Act of 1977\8\) as well as the commercial motor
and public transportation, aviation and railroad industries, which are
covered by more recent statutes.\9\ These other statutes have longer
statutes of limitation, lower burdens of proof, and extensive
procedural rights that are not included in 11(c).
---------------------------------------------------------------------------
\8\ Mine Safety & Health Act, 30 U.S.C. Sec. 815. Even the 1969
Coal Mine Health and Safety Act provided for a public hearing regarding
retaliation complaints, a right that is not included in the 1970
OSHAct.
\9\ See: Wendell H. Ford Aviation Investment and Reform Act for the
21st Century (AIR21), 49 U.S.C. Sec. 42121; Surface Transportation
Assistance Act (STAA), 49 U.S.C. Sec. 31105; National Transit Systems
Security Act (NTSSA), 6 U.S.C. Sec. 1142, b; Federal Rail Safety Act
(FRSA), 49 U.S.C. Sec. 20109.
---------------------------------------------------------------------------
Section 11(c) has been left out and left behind.
As a result, workers are afraid to come forward, and legitimately
so. Although it is difficult to find hard data on things that are not
reported, we do know that many occupational injuries and illnesses are
not reported,\10\ and we have some windows into the level of fear and
the problems of retaliation. We know that safety ``incentive'' programs
that discourage reporting are common, and that both workers and others
are pressured not to report hazards and injuries.\11\ In discussions in
WPAC meetings, labor representatives have repeatedly brought to our
attention the extraordinary problems faced by workers who report
injuries or hazards. Retaliation is rampant. Relief is inadequate.
---------------------------------------------------------------------------
\10\ There is a large literature concerning the underreporting of
injuries and illnesses in workplaces. The majority staff report of the
Committee on Education and Labor, U.S. House of Representatives, The
Honorable George Miller, Chairman, Hidden Tragedy: Underrporting of
Workplace Injuries and Illnesses (June 2008) provides a comprehensive
review of the problem. Underreporting was also a theme in at least one
GAO report: Workplace Safety and Health: Enhancing OSHA's Records Audit
Process Could Improve the Accuracy of Worker Injury and Illness Data,
GAO-10-10 (Oct 15, 2009).
\11\ See e.g. GAO, Workplace Safety and Health: Better OSHA
Guidance Needed on Safety Incentive Programs, GAO-12-329 (April 2012);
GAO, Workplace Safety and Health: Enhancing OSHA's Records Audit
Process Could Improve the Accuracy of Worker Injury and Illness Data,
GAO-10-10 (Oct 15, 2009). See note 25 infra regarding OSHA's current
response to this particular problem.
---------------------------------------------------------------------------
Why is this so?
First, the provisions of the statute are weak. The statute fails to
protect workers, and therefore fails to send the necessary message to
those employers who need legal boundaries to discourage reprisals.
Second, these weaker statutory provisions place responsibilities upon
the Department of Labor that it simply cannot meet. In this written
testimony, I first explore these two related problems. I then will
close with suggestions that would reshape section 11(c) to make it more
consistent with contemporary whistleblower laws.
what happens to complaints under section 11(c)?
Complaints that arise under section 11(c) may involve any of the
following activities: refusal to perform dangerous work; raising
complaints to management; participation in safety and health
activities; reporting injuries and hazardous conditions; and testifying
in OSHA proceedings.
Once a complaint is received at an OSHA area office, it is assigned
to an investigator. First, the investigator reviews the complaint to
see whether it is timely filed (within 30 days of the retaliatory
action) and presents a prima facie case. Cases that do not meet these
standards can be ``screened out'' and are not docketed. Once screened
out, the complainant has no alternative recourse, and there is no clear
mechanism for any review (administrative or judicial) of a ``screen
out'' decision. The data show that many section 11(c) complaints are
screened out without docketing.\12\
---------------------------------------------------------------------------
\12\ All data in charts were provided to me by email by the
Directorate of Whistleblower Protection Programs (DWPP) on April 7,
2014, or earlier. The decision to screen out can occur without any
review. See OIG Report No. 02-10-202-10-105, Complainants Did Not
Always Receive Appropriate Investigations Under the Whistleblower
Protection Program (Sept. 30, 2010). Note that only the OSHAct,
Asbestos Hazard Emergency Response Act, and International Safe
Container Act allow OSHA to close a complaint administratively without
docketing and a written determination. Although these data include
AHERA and ISCA cases, only one case in this group was an AHERA case and
none were ISCA cases; therefore the total that are OSHA 11(c) cases is
N-1. See also GAO, Whistleblower Protection Program: Better Data and
Improved Oversight Would Help Ensure Program Quality and Consistency,
GAO-09-106 (January 27, 2009).
------------------------------------------------------------------------
Total no.
of Total Percent
complaints screened screened
received out out
------------------------------------------------------------------------
Fiscal Year 2011....................... 3,561 1,869 52
Fiscal Year 2012....................... 4,348 2,562 59
Fiscal Year 2013....................... 4,589 2,904 63
12,502 7,335 59
------------------------------------------------------------------------
The deadline for filing a section 11(c) case is 30 days. This is a
very short statute of limitations--it passes before many workers who
have been subjected to retaliation have had a full opportunity to
assess their situations and, when appropriate, consult with an
attorney. In contrast, every whistleblower law passed since 2000 allows
180 days for filing with the appropriate administrative agency\13\--a
deadline most section 11(c) filings would meet if the time period were
extended.
---------------------------------------------------------------------------
\13\ A complete compilation of the whistleblower laws enforced by
OSHA can be found in the OSHA whistleblower Investigations Manual,
Directive No.: CPL 02-03-003, eff. Sept. 20, 2011. A full chart with
the statutes and much relevant information can also be found on the Web
site of the whistleblower directorate in OSHA: http://
www.whistleblowers.gov/whistleblower_acts-desk_reference.pdf (rev. 4/4/
2013). This same information is posted on the ABA Web site: http://
www.americanbar.org/content/dam/aba/events/labor_law/2013/03/
occupational_
safetyhealthlawcommitteemidwintermeeting/
10whistleblower.authcheckdam.pdf. Statutes with 180-day filing
deadlines include: STAA, ERA, SOX, PSIA, FRSA, NTSSA, CPSIA, ACA, CFPA,
SPA, FSMA. The relevant provisions of all of these were passed after
the year 2000. Earlier statutes enforced by OSHA had shorter statutes
of limitations, but title VII and other statutes enforced by the EEOC
all have administrative statutes of limitation of 180 days or greater.
In fact, FLSA retaliation complaints may be filed within 2 years, or 3
years if the employer's violation is willful.
Cases Screened Out For Late Filing Fiscal Year 2011, 2012, 2013
--------------------------------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------------------------------
TOTAL screened out................. 31-60 days............ 61-90 days............ 91-120 days.......... 121-180 days......... 181+ days
905................................ 399 (44 percent)...... 152 (17 percent)...... 70 (8 percent)....... 95 (10 percent)...... 189 (21 percent)
If not screened out, a case is docketed. Although OSHA is now
responsible for over 20 whistleblower statutes, section 11(c) cases
constitute about two-thirds of all cases docketed. As you can see from
the following chart, the number of newly docketed 11(c) cases, and the
number pending at the close of the fiscal year, grew consistently until
fiscal year 2013.\14\
---------------------------------------------------------------------------
\14\ While the number of complaints filed continued to rise in
fiscal year 2013, the number docketed and the number pending declined.
It is difficult to know whether this decline reflects a decline in
meritorious cases, or a change in the evaluation of claims filed. The
change is too small to be significant. It is, however, notable that
OSHA has begun to make inroads on the pending case backlog.
----------------------------------------------------------------------------------------------------------------
11(c) cases
as percent of
all
Newly whistleblower 11(c) cases Total 11(c) cases pending
docketed cases (all completed in at end of fiscal year
11(c) cases statutes) fiscal year
filed with
OSHA
----------------------------------------------------------------------------------------------------------------
Fiscal Year 2005........................ 1,194 62 1,160 N/A
Fiscal Year 2006........................ 1,195 65 1,229 N/A
Fiscal Year 2007........................ 1,301 66 1,167 N/A
Fiscal Year 2008........................ 1,381 62 1,255 N/A
Fiscal Year 2009........................ 1,267 59 1,168 663
Fiscal Year 2010........................ 1,402 61 1,144 927
Fiscal Year 2011........................ 1,668 62 1,234 1,355
Fiscal Year 2012........................ 1,745 61 1,653 1,440
Fiscal Year 2013........................ 1,711 58 1,826 1,321
----------------------------------------------------------------------------------------------------------------
Once docketed, cases are investigated. They can be dismissed,
withdrawn or settled. If they are settled, the settlement may include
monetary damages or re-instatement. The data look like this:
Total Determinations Fiscal Year 2005-13
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Dismissed Withdrawn Settlements
---------------------------------------------------------------------------------------------------------------------------------------------------
Percent of total
Total Percent Total Total damages Average damages per No. of people re- settlements with
No. (of No. Percent settled Percent collected settled case (total instated reinstate- ment (total
total) excludes N/A years) excludes N/A years)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Fiscal Year 2005................... 1,200 760 63 146 12 271 23 N/A................... N/A................... N/A................... N/A
Fiscal Year 2006................... 1,276 787 62 196 15 279 22 N/A................... N/A................... N/A................... N/A
Fiscal Year 2007................... 1,204 766 64 176 15 248 21 N/A................... N/A................... N/A................... N/A
Fiscal Year 2008................... 1,318 830 63 227 17 247 19 N/A................... N/A................... N/A................... N/A
Fiscal Year 2009................... 1,200 726 61 187 16 265 22 $1,839,299............ $6,941................ 42.................... 16
Fiscal Year 2010................... 1,183 672 57 177 15 310 26 $1,741,863............ $5,619................ 49.................... 16
Fiscal Year 2011................... 1,282 694 54 177 14 388 30 $2,478,212............ $6,387................ 45.................... 12
Fiscal Year 2012................... 1,717 977 57 340 20 382 22 $2,435,831............ $6,377................ 38.................... 10
Fiscal Year 2013................... 1,946 921 47 415 21 570 29 $4,939,444............ $8,666................ 60.................... 11
------------------------------------------------------------------------------------------------------------------------------------------------------------
Total............................ 12,326 7,133 58 2,041 17 2,390 19 $13,434,649........... $7,015................ 234................... 12
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Several additional issues are worth noting:
Many of these settlements do not include any admission
that the Act was violated, and as a result they do not include notice
to other employees or employers regarding the outcome of the claim.\15\
---------------------------------------------------------------------------
\15\ Whistleblower Protection Advisory Committee (WPAC) Minutes of
Tuesday, January 29, 2013.
---------------------------------------------------------------------------
If OSHA dismisses a complaint, there is an informal agency
review of the decision, but no formal or evidentiary review. The
decision by the agency is non-reviewable and non-appealable to a
separate administrative or judicial process. Under all other
whistleblower statutes, cases that are held non-meritorious by OSHA can
be pursued before an Administrative Law Judge or through a ``kick-out''
provision in Federal court.
The number of cases dismissed is affected by the burden of
proof that is required to find that the claim is meritorious: Section
11(c) requires proof that the illegal motivation was a ``motivating''
rather than a ``contributing'' factor to the employer's decision.
Again, other whistleblower statutes use the less stringent
standard.\16\
---------------------------------------------------------------------------
\16\ Using ``contributing factor'' standard: STAA, ERA, AIR21, SOX,
PSIA, FRSA, NTSSA, CPSIA, ACA, SPA, CFPA, FSMA, MAP-21. Again, the
statutes passed more recently use this more liberal standard.
---------------------------------------------------------------------------
The amount of average monetary damages per settlement in a
section 11(c) case was less than $7,000 in every fiscal year 2005-12,
and rose to only $8,700 in fiscal year 2013. These amounts may provide
welcome relief to individual workers, but they are not large enough to
create significant disincentives for employers who are engaging in
unlawful retaliation.
The percentage of settlements that included re-instatement
was only 12 percent on average. Unlike many of the other whistleblower
statutes, there is no provision in the OSHAct for preliminary re-
instatement pending further review and litigation. Under these other
statutes, preliminary re-instatement is available when the agency finds
that there is reasonable cause to believe that the claim has merit or,
under the Mine Safety and Health Act, when the agency concludes that
the claim is not frivolous.\17\ Without an equivalent provision in the
OSHAct, there is less pressure for adequate settlements.
---------------------------------------------------------------------------
\17\ Information about OSHA-enforced statutes can be found in the
OSHA Whistleblowers Investigations Manual and on the DWPP desk
reference, supra note 13. Preliminary re-instatement is available under
all statutes passed since 2000, except for the ERA, according to the
ABA chart. This includes STAA, AIR21, SOX, PSIA, FRSA, NTSSA, CPSIA,
ACA, SPA, CFPA, and FSMA. For the provisions under the Mine Safety and
Health Act, see 30 U.S.C. Sec. 815(c)(2) (``. . . investigation shall
commence within 15 days of the Secretary's receipt of the complaint,
and if the Secretary finds that such complaint was not frivolously
brought, the Commission, on an expedited basis upon application of the
Secretary, shall order the immediate re-instatement of the miner
pending final order on the complaint.'')
If OSHA is unable to settle a meritorious complaint, the case is
referred to the Solicitor of Labor (SOL) for litigation. At this point,
OSHA considers its investigation closed, and SOL can pursue settlement
or litigation in Federal district court. There is no enforceable agency
order that can be issued, nor is there provision allowing for
adjudication before an administrative law judge, nor can a complainant
bring the case on his or her own into court.
Remarkably few cases are accepted for litigation by SOL.
11c Cases Referred to SOL by OSHA and Accepted For Litigation
------------------------------------------------------------------------
Percent
Percent of of
No. total OSHA ``merit''
determinations cases
------------------------------------------------------------------------
Fiscal Year 2005.................... 23 2 8
Fiscal Year 2006.................... 14 1 5
Fiscal Year 2007.................... 14 1 5
Fiscal Year 2008.................... 14 1 5
Fiscal Year 2009.................... 22 2 8
Fiscal Year 2010.................... 24 2 7
Fiscal Year 2011.................... 23 2 6
Fiscal Year 2012.................... 20 1 5
Fiscal Year 2013.................... 38 2 7
-----------------------------------
Total............................. 192 2 7
------------------------------------------------------------------------
As you can see from these data, only 1 to 2 percent of total OSHA
determinations result in acceptance for litigation by SOL.
If SOL decides not to pursue a case, there is no further action
that can be taken. The decision by SOL not to pursue a case is
completely non-reviewable.\18\ As you can see from the data below, in
the years 1996-2008, this occurred in 60 percent of the cases that were
referred for litigation by OSHA--and these were the cases that OSHA
considered strongest and worth pursuing!
---------------------------------------------------------------------------
\18\ See e.g. Wood v. Department of Labor, 275 F.3d 107 (D.C. Cir.
2001) and Wood v. Herman, 104 F. Supp.2d 43 (D.D.C. 2000), both holding
that the Secretary of Labor has no statutory obligation to bring an
enforcement action.
\19\ I was unable to verify some of these data from SOL. It is my
understanding, however, that these data give a reasonably accurate
picture of the treatment of these cases once referred to SOL.
11c Cases Referred to SOL Fiscal Year 2006-2008\19\
------------------------------------------------------------------------
Percent
No. of
total
------------------------------------------------------------------------
Rejected by SOL, no further action.................... 279 56
Settled before litigation............................. 156 31
Total litigated....................................... 32 6
Settled during litigation............................. 21 4
Litigated and lost.................................... 3 1
Litigated and won..................................... 8 2
------------------------------------------------------------------------
At our WPAC meetings, we have been assured that SOL and OSHA
regional offices are now working much more closely on these
determinations, and that SOL is committed to pursuing the cases that
are referred by OSHA. This commitment has resulted in an improvement in
the litigation rate of cases that are referred, as can be seen by more
recent data.
---------------------------------------------------------------------------
\20\ See comment in note 19, supra, regarding data accuracy.
11c Cases Referred to SOl CY2011, 2012, 2013 Q1\20\
------------------------------------------------------------------------
Percent
No. of
total
------------------------------------------------------------------------
Total Referred...................................... 69
Accepted for legal action or settled.................. 52 75
Declined, no further action........................... 8 12
Pending review in SOL................................. 9 13
------------------------------------------------------------------------
According to more recent correspondence from SOL, a total of 38
cases were moved forward to litigation in fiscal year 2013.
The core problem with section 11(c), however, is that it requires
complete dependence on agency and SOL action. A complainant has no way
to bring forward a meritorious claim that the employer does not settle
unless SOL pursues litigation. The design of the statute, which
requires that every case that is not settled must be filed by SOL in
Federal district court, makes the process inherently unwieldy. As long
as responding employers know that the cases will not be litigated,
there is no incentive for them to abide by the law or to settle cases
rapidly and fairly.
OSHA has been criticized by both the GAO and OIG for more than 20
years for its handling of section 11(c) complaints. Investigators have
reported that they lack the resources needed to do their jobs.\21\ In
2009, the OIG found that OSHA was failing to perform adequate
investigations on 80 percent of docketed complaints.\22\ In April 2010,
an OSHA whistleblower program review team conducted an internal
investigation and found deficiencies and challenges facing the
Whistleblower Protection Program and made extensive recommendations
regarding procedures, evaluation and performance measures.
---------------------------------------------------------------------------
\21\ See GAO-09-106 (January 27, 2009) supra n. 12 at 35-40.
\22\ OIG, Complainants Did Not Always Receive Appropriate
Investigations Under the Whistleblower Protection Program, OIG Report
No. 02-10-202-10-105 (September 30, 2010)
---------------------------------------------------------------------------
I am not here to criticize OSHA. As you know, OSHA's responsibility
for whistleblower laws has grown dramatically since the OSHAct was
passed in 1970. The agency is now responsible for more than 20 of these
laws. Staffing has not kept pace. Currently OSHA's whistleblower
program has a staff of 131 people nationwide\23\--this is hardly enough
to investigate the growing number of complaints under the growing
number of statutes that present a bewildering array of complex legal
issues.
---------------------------------------------------------------------------
\23\ OSHA had 115 full-time positions, received authorization for
an additional 16 after requesting an additional 47. See Fiscal Year
2014 CONGRESSIONAL BUDGET JUSTIFICATION, OCCUPATIONAL SAFETY AND
HEALTH, page 7, http://www.dol.gov/dol/budget/2014/PDF/CBJ-2014-V2-
12.pdf (information on current and requested staffing for whistleblower
program).
---------------------------------------------------------------------------
What we have learned at the meetings of the WPAC is that OSHA is
committed to making this as effective a program as possible. In
particular, with regard to occupational safety issues, the agency has
focused energy and resources on protecting workers. A March 2012 policy
memorandum expands protections for workers who report work-related
injuries (and discourages safety incentive programs that discourage
reporting of both hazards and injuries), noting that, ``Ensuring that
employees can report injuries or illnesses without fear of retaliation
is . . . crucial to protecting worker safety and health.'' \24\ There
has been significant movement in relation to railroad industry employer
policies that result in discipline for workers who report injuries. New
procedures have been put in place in both the regions and in the review
of non-merit findings. Coordination with regional solicitors has
improved. Training has been instituted. The new central Directorate is
overhauling procedures, creating new databases, and working to improve
consistency among the regions.
---------------------------------------------------------------------------
\24\ See Memorandum from Richard Fairfax, Deputy Assistant
Secretary, to Regional Administrators, Re: Employer Safety Incentive
and Disincentive Policies and Practices (March 12, 2012) https://
www.osha.gov/as/opa/whistleblowermemo.html.
---------------------------------------------------------------------------
The core problem remains, however: The law is weak and the
Department of Labor simply lacks the resources to enforce section 11(c)
as it is currently designed. These problems can only be remedied
through statutory revision.
In preparation for this testimony, I conducted a full search of
Federal court cases that have cited OSHA 11(c) provisions. What I found
is both remarkable and informative. First, fewer than 200 cases over
the time period since the Act was passed in 1970 came up in response to
an initial broad query; many of these cases cited section 11(c) by
analogy and did not actually involve retaliation for raising safety
concerns. Second, many of the section 11(c) cases were brought by
individuals under both State and Federal law, attempting to assert a
private right of action because OSHA had failed to act on their
complaints. This should not be a surprise, given the few cases that the
Department of Labor has filed on behalf of complainants. These cases
were almost universally dismissed, on the grounds that there is no
private right of action under the Federal law. Very few jurisdictions
have been willing to create a separate cause of action under State law,
given that the OSHAct presumably creates a remedy. In contrast, while
fewer complaints are filed under, for example, the Sarbanes-Oxley
whistleblower provisions, there are far more reported cases.
The reported litigation shows again that the situation is extremely
problematic. Individuals who are the subject of reprisal for asserting
their rights under the OSHAct do not have a reasonable, fair,
accessible system in which to assert these rights.
what is needed to correct the problem?
Section 11(c) cannot meet its objectives without statutory
revisions. While there is no doubt that there are additional
administrative improvements that can be made within OSHA and SOL, the
current statutory provision is too weak, and it is much weaker than the
whistleblower provisions in analogous and more recent statutes. Section
11(c) is too weak to provide the essential level of protection needed
to ensure both that employees will be encouraged to come forward and
that employers are discouraged from engaging in acts of reprisal.
America's workers who are concerned about safety deserve the same level
of protection that is extended to those who report financial
mismanagement.
Here are several specific statutory changes that are needed to
accomplish this:
1. Lengthen the statute of limitations to 180 days. All of the
whistleblower statutes that have been passed in the last decade include
180-day statutes of limitation for the filing of complaints. The
retaliation provisions in the anti-discrimination statutes enforced by
the Equal Employment Opportunity Commission allow employees a minimum
of 180 days (or 300 days when there is a relevant State law) to file a
charge. The retaliation provisions under the Fair Labor Standards Act
have an even longer statute of limitations. 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 recourse.
2. Create a right of preliminary re-instatement, pending final
adjudication. Given that it is the most analogous statute, it would be
appropriate to consider adopting the MSHA standard that if the
complaint was not frivolously brought, the individual should be re-
instated pending further litigation. Right now, workers who have been
discharged cannot return to their workplace unless the employer settles
the case and includes re-instatement, or the Solicitor of Labor pursues
the case in Federal court. As noted above, many other whistleblower
laws authorize preliminary re-instatement.
3. Change the process for adjudication of complaints. Currently,
complainants have no right to full administrative hearings or full
review of administrative decisions. OSHA and SOL are unable to handle
the volume of complaints; the process is opaque for many complainants;
and employers have inadequate incentives to refrain from reprisals.
Procedural aspects of OSHA 11(c) should be consistent with the
procedural aspects of the more recently passed whistleblower laws
(e.g., AIR21, SOX, ACA, Dodd-Frank), including the following:
a. Create an administrative process for adjudication of
complaints. Whether or not the OSHA investigation is complete,
complainants should have the right to bring the complaint
forward to a de novo adjudicatory hearing. This can be done
utilizing the existing Department of Labor administrative law
judges and Administrative Review Board. In order to protect the
importance of the OSHA investigatory process, the right to
bring a case forward should be triggered after a formal finding
or after the statutory time for investigation of a complaint
has elapsed (currently 90 days).
b. Create a system that provides legal representation for
complainants. I would suggest that this should have two parts.
First, SOL should have the discretion to provide representation
to complainants in meritorious cases, including ensuring that
complainants are re-instated, when appropriate, pending full
resolution. Second, amend the statute so that prevailing
complainants can recover attorneys' fees in addition to
damages; again, most of the other anti-retaliation and
whistleblower statutes provide for fees for complainants who
prevail.
c. Consider creating, in addition to the administrative
process, a private right to bring a civil action that would
allow complainants to remove cases from the agency and pursue
them in Federal court. This should not be a substitute for
administrative adjudication, however. Federal litigation is
costly and lengthy. There are, however, examples of egregious
cases that belong in court rather than before administrative
agencies.
d. To ensure that cases involving dual motives can be
successfully litigated by complainants, change the evidentiary
standard from ``a motivating factor'' to ``a contributing
factor''--the standard in all of the more recent whistleblower
laws enforced by OSHA.
I hope that this information is helpful to the committee. I would
be happy to work with the committee in any future consideration of
these provisions, and I look forward to providing you with WPAC reports
when they are available.
Thank you for the opportunity to address you today.
Senator Casey. Thank you very much, and you were right on
the button. We're really moving quickly.
Mr. Devine.
STATEMENT OF TOM DEVINE, LEGAL DIRECTOR FOR GOVERNMENT
ACCOUNTABILITY PROJECT, WASHINGTON, DC
Mr. Devine. Mr. Chairman, thank you for inviting my
testimony, which is largely in consensus with Professor
Spieler's. My name is Tom Devine. I serve as the Legal Director
of the Government Accountability Project. We're a nonprofit,
nonpartisan, public interest organization that assists
whistleblowers, those employees who use free speech to
challenge abuses of power that betray the public trust.
Since 1977, we have assisted over 6,000 whistleblowers
formally or informally through representation and through
advocacy to help create America's modern whistleblower laws in
the corporate sector as well as for government employees.
Section 11(c) is America's oldest and by far most frequently
used whistleblower law. But, ironically, it is also America's
weakest by far.
At GAP, we view credible whistleblower laws as metal
shields, because employees who rely on those rights have a
fighting chance to survive. By contrast, no matter how gaudily
decorated, cardboard shields guarantee doom for anyone who
depends on them. Compared to best practices globally, section
11(c) is a cardboard shield without the paint job.
When you review section 11(c) versus the 20 global best
practices, it only meets 25 percent of the criteria for an
effective whistleblower law. That's ironic, because modern U.S.
statutes like the Sarbanes-Oxley law and those for government
contractors reflect a gold standard of whistleblower rights.
The previously introduced Protecting America's Workers Act
would upgrade occupational safety rights to those in all modern
whistleblower laws enacted since 2002.
My testimony has a detailed analysis of these criteria. But
overall, a 25 percent pass rate is flatly unacceptable. In
putting that record in perspective, the five core principles
for credible protection are loophole-free protection, realistic
timeframe to act on rights, fair legal burdens of proof on the
evidence necessary to prevail, meaningful due process to
enforce the rights, and remedies that make the victims whole
when they prevail.
If we look at these, section 11(c) has four cornerstones of
failure by those criteria. If you look at realistic timeframes,
the best practices range from 6 months to a year. Most people
aren't even aware of their rights within 30 to 60 days. Section
11(c)'s 30-day statute of limitations ties for global worst
practice.
Or let's look at realistic standards to prove violation of
rights. Since 1989, every U.S. whistleblower law has set a
quantum of evidence for how much it takes to win your case. It
said that to do that, you have to show that your protected
activity was a contributing factor, and if you do, the employer
needs to show by clear and convincing evidence that it would
have acted for innocent reasons anyway, even if you had
remained a silent observer. Section 11(c) is the only law on
the books since 1989 that doesn't have these burdens of proof.
Or there's the right to a genuine day in court, normal
judicial due process, the same as available for citizens
generally aggrieved by illegality. The Secretary has full
access to court, but the complainant has the access neither to
judicial nor guaranteed administrative due process, even at the
informal level. It only provides for a discretionary
investigation without any administrative or due process fact
finding.
The investigations have no teeth because they can only be
enforced by the solicitor of labor, which declines to prosecute
up to 70 percent of favorable determinations in any given year.
There is no appellate judicial review of agency discretion, as
GAP learned from representing whistleblowers. The bottom line
is they have no control over their rights.
And, finally, there's relief for whistleblowers. If you win
your case, will you still lose? Under Section 11(c), that's
very likely to happen. The provisions do not include financial
relief. They do not include interim relief while the case is
proceeding. They don't include a transfer preference for those
who may not want to go back to the same supervisor. They don't
provide for attorney fees or costs or accountability for those
who engaged in wrongdoing. It's basically a symbolic victory.
Mr. Chairman, that's our analysis of a very deficient
statute. It's a primitive statute which is long overdue to
modernize so that it matches the rest of corporate
whistleblower law. Our testimony has an analysis of enforcement
practices, and it shouldn't take an act of Congress for the
Department of Labor to do a better job.
[The prepared statement of Mr. Devine follows:]
Prepared Statement of Thomas Devine
Mr. Chairman, thank you for inviting my testimony today on the
adequacy of occupational safety whistleblower protection rights. My
name is Tom Devine, and I serve as legal director of the Government
Accountability Project (``GAP''), a nonprofit, nonpartisan, public
interest organization that assists whistleblowers, those employees who
exercise free speech rights to challenge abuses of power that betray
the public trust. Since 1977 we have assisted over 6,000 whistleblowers
formally or informally through representation. GAP also has led or been
on the front lines of campaigns to enact or defend nearly all modern
whistleblower laws passed by Congress, including corporate rights
enacted since 1992, AND the Whistleblower Protection Enhancement Act of
2012.
Our work for corporate whistleblower protection rights includes
those in the Sarbanes-Oxley law for some 40 million workers in publicly
traded corporations, the 9/11 law for ground transportation employees,
the defense authorization act for government contractors, the Consumer
Product Safety Improvement Act for some 20 million workers connected
with retail sales, the Energy Policy Act for the nuclear power and
weapons industries and AIR 21 for airlines employees, among others.
We teamed up with professors from American University Law School to
author a model whistleblower law approved by the Organization of
American States (OAS) to implement at its Inter American Convention
against Corruption. In 2004 we led the successful campaign for the
United Nations to issue a whistleblower policy that protects public
freedom of expression for the first time at Intergovernmental
Organizations, and in 2007 analogous campaigns at the World Bank and
African Development Bank. GAP has published numerous books, such as The
Whistleblower's Survival Guide: Courage Without Martyrdom, and law
review articles analyzing and monitoring the track records of
whistleblower rights legislation. See Devine, The Whistleblower
Protection Act of 1989: Foundation for the Modern Law of Employment
Dissent, 51 Administrative Law Review, 531 (1999); Vaughn, Devine and
Henderson, The Whistleblower Statute Prepared for the Organization of
American States and the Global Legal Revolution Protecting
Whistleblowers, 35 Geo. Wash. Intl. L. Rev. 857 (2003); The Art of
Anonymous Activism (with Public Employees for Environmental
Responsibility and the Project on Government Oversight)(2002); and
Running the Gauntlet: The Campaign for Credible Corporate Whistleblower
Rights. (2008).
As part of our mission, I authored The Corporate Whistleblower
Survival Guide: A Handbook for Committing the Truth,'' which won the
getAbstract International Business Book of the Year Award at the 2011
Frankfurt Book Fair. Committing the Truth's legal chapter spotlighted
weaknesses in legal rights for occupational safety whistleblowers, and
enforcement practices for all whistleblowers by the Department of
Labor's (DOL)
Their foundation for occupational safety is section 11(c) of the
Occupational Safety and Health Act, which shields those who report
safety violations and is America's first Federal whistleblower
protection statute. Ironically, while section 11(c) is America's oldest
and by far most frequently used whistleblower law, it also is America's
weakest. At GAP we view credible whistleblower laws as ``metal
shields,'' because employees who rely on those rights have a fighting
chance to survive. By contrast, no matter how gaudily decorated, lowest
common denominator rights are ``cardboard shields'' that ensure doom
for anyone who depends on them. Compared to best practices globally,
section 11(c) is a cardboard shield without the paint job.
My testimony also will summarize the gap between rights on the
books and rights in reality, based on enforcement practices by OSHA's
new Directorate of Whistleblower Protection. (DWPP) It should not take
an act of Congress for DOL to far more effectively protect
whistleblowers. There is widespread consensus that prior policies
administering section 11(c) severely frustrated the law's purpose.
Under Assistant Secretary David Michaels, the Occupational Safety and
Health Administration (OSHA) which administers section 11(c) has
committed to policies that could reverse that track record. But change
would disrupt deeply ingrained priorities by OSHA's regional
leadership, which has a unique role. How much his policies make a
difference will depend on accountability through independent oversight,
from audits to hearings such as today's forum.
section 11(c) compared to global best practices
The standards below are based on comparisons with all Federal
whistleblowers laws, those at Intergovernmental Organizations (IGO)
like the United Nations or World Bank, U.S. funding prerequisites for
IGO's, and other nations such as Great Britain. While compiled by GAP,
they are consistent with those of the Council of Europe and the
Organization for Economic Cooperation and Development. By these
criteria, section 11(c) only meets 25 percent of the criteria. This is
ironic, because modern U.S. whistleblower statutes such as those in the
Sarbanes Oxley law and those for government contractors reflect the
gold standard level of whistleblower rights. The previously introduced
Protecting America's Workers Act would upgrade occupational safety
rights to those in all modern whistleblower laws enacted since 2002. It
is frustrating for whistleblower rights advocates that Congress has not
acted on legislation to modernize occupational safety whistleblower
rights to the standards that govern nearly all other private sector
contexts. The analysis below explains the criteria for effective
whistleblower protection, and evaluates section 11(c) with that
baseline.
I. Scope of Coverage
The first cornerstone for any reform is that it is available.
Loopholes that deny coverage when it is needed most, either for the
public or the harassment victim, compromise whistleblower protection
rules. Seamless coverage is essential so that accessible free
expression rights extend to any relevant witness, regardless of
audience, misconduct or context to protect them against any harassment
that could have a chilling effect.
1. Context for Free Expression Rights with ``No Loopholes''.
Protected whistleblowing should cover ``any'' disclosure that would be
accepted in a legal forum as evidence of significant misconduct or
would assist in carrying out legitimate compliance functions. There can
be no loopholes for form, context or audience, unless release of the
information is specifically prohibited by statute or would incur
organizational liability for breach of legally enforceable
confidentiality commitments. In that circumstance, disclosures should
still be protected if made to representatives of organizational
leadership or to designated law enforcement or legislative offices. It
is necessary to specify that disclosures in the course of job duties
are protected, because most retaliation is in response to ``duty
speech'' by those whose institutional role is blowing the whistle as
part of organizational checks and balances.
Best Practices: United Nations Secretariat whistleblower policy
(ST/SGB/2005/21), section 4; World Bank Staff Rule 8.02, section 4.02;
Public Interest Disclosure Act of 1998 (``PIDA''), c. 23 (U.K.),
amending the Employment Rights Act of 1996, c.18), section 43(G);
Protected Disclosures Act of 2000 (``PDA''); Act No. 26, GG21453 of 7
Aug. 2000 (S. Afr.), section 7-8; Anti-Corruption Act of 2001 (``ACA'')
(Korea--statute has no requirement for internal reporting); Ghana
Whistleblower Act of 2005 (``Ghana WPA), section 4; Japan Whistleblower
Protection Act, Article 3; Romanian Whistleblower's Law (``Romania
WPA''), Article 6; Whistleblower Protection Act of 1989 (``WPA'') (U.S.
Federal Government), 5 USC 2302(b)(8); Consumer Products Safety
Improvement Act (``CPSIA'') (U.S. corporate retail products), 15 U.S.C.
2087(a); Federal Rail Safety Act (``FRSA'') (U.S. rail workers) 49 US
20109(a); National Transportation Security Systems Act (``NTSSA'')
(U.S. public transportation) 6 US 1142(a); Sarbanes Oxley Reform Act
(``SOX'') (U.S. publicly traded corporations) 18 US 1514(a); Surface
Transportation Assistance Act (``STAA'') (U.S. corporate trucking
industry) 49 US 31105(a); American Recovery and Reinvestment Act of
2009 (``ARRA''), (U.S. Stimulus Law), P.L.111-5, Section 1553(a)(2)-
(4); Patient Protection and Affordable Care Act (``ACA''), (U.S. health
care), sec. 1558, in provision creating section 18C of Fair Labor
Standards Act, sec. 18B(a)(2)(4); Food Safety Modernization Act
(``FSMA'') (U.S. food industry), 21 U.S.C. 1012(a)(1)-(3); Dodd Frank
Wall Street Reform and Consumer Protection Act (``Dodd Frank'')(U.S.
financial services industry), sec. 1057(a)(1)-(3).
Section 11(c): PASS. Section 11(c) does not contain any context
loopholes.
2. Subject Matter for Free Speech Rights with ``No Loopholes''.
Whistleblower rights should cover disclosures of any illegality, gross
waste, mismanagement, abuse of authority, substantial and specific
danger to public health or safety and any other activity which
undermines the institutional mission to its stakeholders, as well as
any other information that assists in honoring those duties.
Best Practices: U.N. ST/SGB/2005/21, section 2.1(a); World Food
Programme (WFP) Executive Circular ED2008/003, section 5; World Bank
Staff Rule 8.02, section 1.03; African Development Bank (AfDB)
``Whistleblowing and Complaints Handling Policy, section 4; The
Whistleblowers Protection Act, 2010 (``Uganda WPA''), section II.2;
PIDA, (U.K.); PDA, section 1(i)(S. Afr.); New Zealand Protected
Disclosures Act (``NZ PDA''), 2000, section 3(1), 6(1); ACA (Korea),
Article 2; Public Service Act (``PSA''), Antigua and Barbuda Freedom of
Information Act, section 47; R.S.O., ch. 47, section 28.13 (1990)
(Can.); Ghana WPA, section 1; WPA (U.S. Federal Government), 5 USC
2302(b)(8); FRSA (U.S. rail workers) 49 USC 20109(a)(1); NTSSA (U.S.
public transportation) 6 USC 1142(a); STAA (U.S. corporate trucking
industry) 49 USC 31105(a)(1); ACCR (U.S. Stimulus Law) P.L.111-5,
Section 1553(A)(1)-(5); ACA (U.S. health care) id.; FMSA (U.S. food
industry) id; Dodd Frank (U.S. financial services industry) id..
Section 11(c): PASS. In addition to protection for specific
disclosures, protected activity in section 11(c)(1) includes exercise
of ``any right afforded by this Act.''
3. Right to Refuse Violating the Law. This provision is fundamental
to stop faits accomplis and in some cases prevent the need for
whistleblowing. As a practical reality, however, in many organizations
an individual who refuses to obey an order on the grounds that it is
illegal must proceed at his or her own risk, assuming vulnerability to
discipline if a court or other authority subsequently determines the
order would not have required illegality. Thus what is needed is a fair
and expeditious means of reaching such a determination while protecting
the individual who reasonably believes that she or he is being asked to
violate the law from having to proceed with the action or from
suffering retaliation while a determination is sought.
Best Practices: Asian Development Bank (ADB) Administrative Order
No. 2.10, section 3.5 (see AO 2.04, section 2.1 (f) for corresponding
definition of misconduct); World Bank Staff Rule 8.02, section 2.07
(see Staff Rule 8.01, section 2.01 for definition of misconduct); WPA
(U.S. Federal Government) 5 USC 2302(b)(9); FRSA (U.S. rail workers) 49
USC 20109(a)(2); NTSSA (U.S. public transportation) 6 USC 1142(a)(2);
CPSIA (U.S. corporate retail products) 15 USC 2087(a)(4); STAA (U.S.
corporate trucking industry) 49 USC 31105(a)(1)(B); ACA (U.S. health
care) sec. 18C (a)(5); FSMA (U.S. food industry) 21 USC 1012(a)(4);
Dodd Frank (U.S. financial services industry) sec. 1057(a)(4).
Section 11(c): FAIL. Although the Act has a general right to refuse
unsafe working conditions, section 11(c) does not codify protected
activity that includes the right not to violate the law.
4. Protection Against Spillover Retaliation. The law should cover
all common scenarios that could have a chilling effect on responsible
exercise of free expression rights. Representative scenarios include
individuals who are perceived as whistleblowers (even if mistaken), or
as ``assisting whistleblowers,'' (to guard against guilt by
association), and individuals who are ``about to'' make a disclosure
(to preclude preemptive strikes to circumvent statutory protection, and
to cover the essential preliminary steps to have a ``reasonable belief
'' and qualify for protection as a responsible whistleblowing
disclosure). These indirect contexts often can have the most
significant potential for a chilling effect that locks in secrecy by
keeping people silent and isolating those who do speak out. The most
fundamental illustration is reprisal for exercise of anti-retaliation
rights.
Best Practices: World Bank Staff Rule 8.02, section 2.04; AfDB
Whistleblowing and Complaints Handling Policy, section 6; Organization
of American States, ``Draft Model Law to Encourage and Facilitate the
Reporting of Acts of Corruption and to Protect Whistleblowers and
Witnesses'' (``OAS Model Law''), Article 28; ACA (Korea), Art. 31; NZ
PDA, section 4(3); WPA (U.S.), 5 USC sections 2302(b)(8) (case law) and
2302(b)(9); Energy Policy Act of 2005 (U.S. Nuclear Regular Commission,
Department of Energy and regulated corporations), 42 USC 5851(a); FRSA
(U.S. rail workers) 49 USC 20109(a); NTSSA (U.S. public transportation)
6 USC 1142(a); CPSIA (U.S. corporate retail products) 15 USC 2087(a);
STAA (U.S. corporate trucking industry) 49 USC 31105(a); ACA (U.S.
health care) sec. 18C(a); FSMA (U.S. food industry) 21 USC 1012(a);
Dodd Frank (U.S. financial services industry) Sec. 1057(a).
Section 11(c): PASS. Section 11(c)(1) protects those ``about to''
engage in protected activity,
5. ``No Loopholes'' Protection for All Citizens With Disclosures
Relevant to the Public Service Mission. Coverage for employment-related
discrimination should extend to all relevant applicants or personnel
who challenge betrayals of the organizational mission or public trust,
regardless of formal status. In addition to conventional salaried
employees, whistleblower policies should protect all who carry out
activities relevant to the organization's mission. It should not matter
whether they are full-time, part-time, temporary, permanent, expert
consultants, contractors, employees seconded from another organization,
or even volunteers. What matters is the contribution they can make by
bearing witness. If harassment could create a chilling effect that
undermines an organization's mission, the reprisal victim should have
rights. This means the mandate also must cover those who apply for
jobs, contracts or other funding, since blacklisting is a common
tactic.
Most significant, whistleblower protection should extend to those
who participate in or are affected by the organization's activities.
Overarching U.S. whistleblower laws, particularly criminal statutes,
protect all witnesses from harassment, because it obstructs government
proceedings.
Best Practices: AfDB Whistleblowing and Complaints Handling policy,
sections 5.1 & 6.2; ADB Administrative Order No. 2.10, section 8; IDB
Staff Rule No. PE-328, section 2.1 & 2.2; Anti-Corruption Initiative
for Asia-Pacific (Organization for Economic Cooperation and Development
[OECD]), Pillar 3; NZPDA, section 19A; PIDA (U.K.), sections 43
(K)(1)(b-d); ACA (Korea), Art. 25; Whistleblower Protection Act of 2004
(Japan WPA), section 2; Ghana WPA, sec. 2; Slovenia Integrity and
Prevention of Corruption Act (Slovenia Anti-Corruption Act), Article
26; Uganda WPA, section II.3; Foreign Operations Appropriations Act of
2005 (``Foreign Operations Act'')(U.S. MDB policy) section
1505(a)(11)(signed November 14, 2005); False Claims Act (U.S.
Government contractors), 31 USC 3730(h); sections 8-9.; STAA (U.S.
corporate trucking industry) 49 USC 31105(j); ACCR of 2009 (U.S.
Stimulus Law) P.L.111-5, Section 1553(g)(2)-(4); Dodd Frank, Sec.
922(h)(1).
Section 11(c): FAIL. The law is silent on these relevant contexts.
6. Reliable Confidentiality Protection. To maximize the flow of
information necessary for accountability, reliable protected channels
must be available for those who choose to make confidential
disclosures. As sponsors of whistleblower rights laws have recognized
repeatedly, denying this option creates a severe chilling effect.
Best Practices: ADB Administrative Order No. 2.10, sections 3.2,
5.1 & 5.4 and Administrative Order No. 2.04, section 4.2; AFDB
Whistleblowing and Complaints Handling Policy, sections 6.1 & 6.9.4;
WFP ED2008/003, section 10; U.N. ST/SGB/2005/21, section 5.2; OAS Model
Law, Articles 10 and 11, 49; PSA (Can.), sections 28.17(1-3), 28.20(4),
28.24(2), 28.24(4); NZ PDA section 19; ACA (Korea), Articles 15 and
33(1); Slovenia Anti-Corruption Act, Article 23 (4), (6) and (7);
Uganda WPA, sections VI.14 and 15; WPA (U.S.) 5 USC sections 1212(g),
1213(h); FRSA (U.S. rail workers) 49 USC 20109(i); NTSSA (U.S. public
transportation) 6 USC 1142(h); STAA (U.S. corporate trucking industry)
49 USC 31105(h); Dodd Frank (U.S. financial services) sec. 748(h)(2)
and 922(h)(2); Jam PDA, section 24.
Section 11(c): FAIL. The law is silent on confidential complaints,
which are protected in other statutes due to the chilling effect on
preliminary efforts to exercise rights.
7. Protection Against Unconventional Harassment. The forms of
harassment are limited only by the imagination. As a result, it is
necessary to ban any discrimination taken because of protected
activity, whether active such as termination, or passive such as
refusal to promote or provide training. Recommended, threatened and
attempted actions can have the same chilling effect as actual
retaliation. The prohibition must cover recommendations as well as the
official act of discrimination, to guard against managers who ``don't
want to know'' why subordinates have targeted employees for an action.
In non-employment contexts it could include protection against
harassment ranging from discipline to litigation.
Best Practices: ADB Administrative Order No. 2.10, section 2.11;
IDB Staff Rule No. PE-328, sections 2.41-2.44; U.N. ST/SGB/2005/21,
section 1.4; WFP ED2008/003, section 4; World Bank Staff Rule 8.02,
section 2.04; OAS Model Law, Article 28; ACA (Korea), Article 33;
Uganda WPA, section V.9(2), V.10, and V.11; WPA (U.S. Federal
Government), 5 USC 2302(b)(8) and associated case law precedents; FRSA
(U.S. rail workers 49 USC 20109(a); NTSSA (U.S. public transportation
workers) 6 USC 1142(a); CPSIA (U.S. corporate retail products) 15 USC
2087(a); SOX (U.S. publicly traded corporations) 18 USC 1514(a); ACCR
of 2009 (U.S. Stimulus Law) P.L. 111-5, Section 1553(a); ACA (U.S.
health care) Sec. 18C; FSMA (21 USC 1012(a); Dodd Frank (U.S. financial
services industry) sec. 1057(a); Jamaican Public Disclosure Act, 2011,
(``Jam PDA''), section 2.
Section 11(c): PASS. Section 11(c)(1) bans an employer from
discriminating in any manner.
8. Shielding Whistleblower Rights From Gag Orders. Any
whistleblower law or policy must include a ban on ``gag orders''
through an organization's rules, policies, job prerequisites, or
nondisclosure agreements that would otherwise override free expression
rights and impose prior restraint on speech, or even waiving access to
statutory rights.
Best Practices: WFP ED/2008/003, sections 8 and 11; World Bank
Staff Rule 8.02, para. 4.03; NZ PDA section 18; PIDA (U.K.), section
43(J); PDA (South Africa), section 2(3)(a, b); Ghana WPA, sec. 31;
Uganda WPA, section V.12 and V.13; WPA (U.S.), 5 USC 2302(b)(8);
Transportation, Treasury, Omnibus Appropriations Act of 2009 (U.S.),
section 716 (anti-gag statute)(passed annually since 1988); FRSA (U.S.
rail workers) 49 USC 20109(h); NTSSA (U.S. public transportation) 6 USC
1142(g); STAA (U.S. corporate trucking industry) 49 USC 31105(g); ACCR
of 2009 (U.S. Stimulus Law) P.L. 111-5, Section 1553(d)(1); ACA (U.S.
health care) Sec 18C(b)(2); FSMA (U.S. food industry) 21 USC
1012(c)(2); Dodd Frank (U.S. financial services industry) sections
748(h)(3) and (n)(1), 922(h)(3) and 1057(c)(2); Jam PDA, Sections 15,
20, third schedule, section 4.
Section 11(c): FAIL. Unlike nearly all modern whistleblower laws,
section 11(c) does not have an ``anti-gag'' provision.
9. Providing Essential Support Services for Paper Rights.
Whistleblowers are not protected by any law if they do not know it
exists. whistleblower rights, along with the duty to disclose
illegality, must be posted prominently in any workplace. Similarly,
legal indigence can leave a whistleblower's rights beyond reach. Access
to legal assistance or services and legal defense funding can make free
expression rights meaningful for those who are unemployed and
blacklisted. An ombudsman with sufficient access to documents and
institutional officials can neutralize resource handicaps and cut
through draining conflicts to provide expeditious corrective action.
The U.S. Whistleblower Protection Act includes an Office of Special
Counsel, which investigates retaliation complaints and may seek relief
on their behalf. Informal resources should be risk-free for the
whistleblower, without any discretion by relevant staff to act against
the interests of individuals seeking help.
Best Practices: United Nations Office of Staff Legal Assistance
(for access to legal services); NZ PDA, sections 6B, 6C; Korean
Independent Commission Against Corruption (Korea), First Annual Report
(2002), at 139; WPA (U.S.), 5 USC 1212; Inspector General Act (U.S.) 5
USC app.; ACCR of 2009 (U.S. Stimulus Law) P.L. 111-5, Section 1553(b);
U.S. WPA, 5 USC 1212-19; Jam PDA, section 21.
Section 11(c): FAIL. Section 11(c) does not impose any support or
remedial responsibilities in connection with process complaints.
II. Forum
The setting to adjudicate a whistleblower's rights must be free
from institutionalized conflict of interest and operate under due
process rules that provide a fair day in court. The histories of
administrative boards have been so unfavorable that so-called hearings
in these settings have often been traps, both in perception and
reality.
10. Right to Genuine Day in Court. This criterion requires normal
judicial due process rights, the same rights available for citizens
generally who are aggrieved by illegality or abuse of power. The
elements include timely decisions, a day in court with witnesses and
the right to confront the accusers, objective and balanced rules of
procedure and reasonable deadlines. At a minimum, internal systems must
be structured to provide autonomy and freedom from institutional
conflicts of interest. That is particularly significant for preliminary
stages of informal or internal review that inherently are compromised
by conflict of interest, such as Office of Human Resources Management
reviews of actions. Otherwise, instead of being remedial those
activities are vulnerable to becoming investigations of the
whistleblower and the evidentiary base to attack the individual's case
for any eventual day in a due process forum.
Best Practices: U.N. ST/SGB/2005/21, section 6.3; OAS Model Law,
Articles 39, 40; Foreign Operations Act (U.S. policy for MDB's),
section 1505(11); NZ PDA, section 17; PIDA (U.K.) Articles 3, 5; PDA
(S. Afr.), section 4(1); ACA (Kor.), Article 33; Romania WPA, Article
9; Uganda WPA, sections V.9(3) and (4); WPA (U.S.), 5 USC 1221, 7701-
02; Defense Authorization Act (U.S.) (defense contractors) 10 USC
2409(c)(2); Energy Policy Act (U.S. Government and corporate nuclear
workers), 42 USC 5851(b)(4) and (c)-(f); FRSA (U.S. rail workers) 49
USC 20109(c)(2)-(4); NTSSA (U.S. public transportation) 6 USC
1142(c)(4)-(7); CPSIA (U.S. retail products) 15 USC 2087(b)(4)-(7); SOX
(U.S. publicly traded corporations) 18 USC 1514(b); STAA (U.S.
corporate trucking industry) 49 USC 31105 (c)-(e); ACCR of 2009 (U.S.
Stimulus Law) P.L. 111-5, Section 1553(c)(3)-(5); ACA (U.S. health
care) sec. 18C(b)(1); FMSA (U.S. food industry) 21 USC 1012(b)(4); Dodd
Frank (U.S. financial services) sections 748(h)(1)(B)(i),
922(h)(1)(b)(1) and 1057(c)(4)(D).
Section 11(c): FAIL. The Secretary has full access to court, but
the complainant has access neither to any judicial nor guaranteed
administrative due process, even at the informal level. Section
11(c)(2) only provides for a discretionary investigation, without any
administrative or judicial due process fact finding. OSHA
investigations have no teeth, because they only can be enforced by the
Solicitor of Labor, which declines to prosecute up to 70 percent of
favorable OSHA merit determinations in any given year. There is no
appellate judicial review of agency discretion. See Wood v. Department
of Labor, 275 F.3d 107, 110 (D.C. Cir. 2001) In other words, the
whistleblowers have no control of their rights.
11. Option for Alternative Dispute Resolution with an Independent
Party of Mutual Consent. Third party dispute resolution can be an
expedited, less costly forum for whistleblowers. For example, labor-
management arbitrations have been highly effective when the parties
share costs and select the decisionmaker by mutual consent through a
``strike'' process. It can provide an independent, fair resolution of
whistleblower disputes, while circumventing the issue of whether
Intergovernmental Organizations waive their immunity from national
legal systems. It is contemplated as a normal option to resolve
retaliation cases in the U.S. Whistleblower Protection Act.
Best Practices: Foreign Operations Act (U.S. MDB policy) section
1505(a)(11); WPA (U.S. Federal Government labor management provisions),
5 USC 7121.
Section 11(c): FAIL. There is no such provision.
III. Rules to Prevail
The rules to prevail control the bottom line. They are the tests a
whistleblower must pass to prove that illegal retaliation violated his
or her rights, and win.
12. Realistic Standards to Prove Violation of Rights. The U.S.
Whistleblower Protection Act of 1989 overhauled antiquated,
unreasonable burdens of proof that had made it hopelessly unrealistic
for whistleblowers to prevail when defending their rights. The test has
been adopted within international law, within generic professional
standards for intergovernmental organizations such as the United
Nations.
This emerging global standard is that a whistleblower establishes a
prima facie case of violation by establishing through a preponderance
of the evidence that protected conduct was a ``contributing factor'' in
challenged discrimination. The discrimination does not have to involve
retaliation, but only need occur ``because of '' the whistleblowing.
Once a prima facie case is made, the burden of proof shifts to the
organization to demonstrate by clear and convincing evidence that it
would have taken the same action for independent, legitimate reasons in
the absence of protected activity.
Since the U.S. Government changed the burden of proof in its
whistleblower laws, the rate of success on the merits has increased
from between 1-5 percent annually to between 25-33 percent, which gives
whistleblowers a fighting chance to successfully defend themselves.
Many nations that adjudicate whistleblower disputes under labor laws
have analogous presumptions and track records. There is no alternative,
however, to committing to one of these proven formulas to determine the
tests the whistleblower must pass to win a ruling that their rights
were violated.
Best Practices: U.N. ST/SGB/2005/21, sections 5.2 & 2.2; WFP ED
2008/003, sections 6 and 13; World Bank Staff Rule 8.02, sec. 3.01;
AfDB Whistleblowing and Complaints Handling Policy, section 6.6.7;
Foreign Operations Act, Section 1505(11); Whistleblower Protection Act
(U.S. Federal Government) 5 USC 1214(b)(2)(4) and 1221(e); Energy
Policy Act of 2005 (U.S. Government and corporate nuclear workers), 42
USC 5851(b)(3); FRSA (U.S. rail workers) 49 USC 20109(c)(2)(A)(i);
NTSSA (U.S. public transportation) 6 USC 1142(c)(2)(B); CPSIA (U.S.
corporate retail products) 15 USC 2087 (b)(2)(B), (b)(4); SOX (U.S.
publicly traded corporations), 18 USC 1514(b)(2)(c); STAA (U.S.
corporate trucking industry) 49 USC 31105(b)(1); ACCR of 2009 (U.S.
Stimulus Law) P.L. 111-5, Section 1553(c)(1); ACA, sec. 1558(b)(2);
FSMA (U.S. food industry) 21 USC 1012(b)(2)(C) and (b)(4)(A); Dodd
Frank (U.S. financial services industry) sec. 1057(b)(3).
Section 11(c): FAIL. Unlike every corporate whistleblower law since
1992, section 11(c) has no legal burdens of proof.
13. Realistic Time Frame to Act on Rights. Although some laws
require employees to act within 30-60 days or waive their rights, most
whistleblowers are not even aware of their rights within that
timeframe. Six months is the minimum functional statute of limitations.
One-year statutes of limitations are consistent with common law rights
and are preferable.
Best Practices: ADB Administrative Order No. 2.10, section 6.5; WFP
ED2008/003, section 7; U.N. ST/SGB/2005/21, section 2.1(a) & 5.1 (no
statute of limitations); PIDA (U.K.), section 48.3; PDA (S. Afr.),
section 4(1); NZ PDA, section 17; ACA (Kor.) (no statute of
limitations); WPA (U.S. Federal employment) 5 USC 1212 (no statute of
limitations); False Claims Act (U.S. Government contractors), 42 USC
3730(h) and associated case law precedents; Energy Policy Act of 2005
(U.S. Government and corporate nuclear workers), 42 USC 5851(b)(1);
FRSA (U.S. railroad workers) 49 USC 20109(d)(2)(A)(ii); NTSSA (U.S.
public transportation) 6 USC 1142(c)(1); CPSIA (U.S. corporate retail
products) 15 USC 2087(b)(1); STAA (U.S. corporate trucking industry) 49
USC 31105(b)(1); ACCR of 2009 (U.S. Stimulus Law) P.L. 111-5, Section
1553(b)(1); ACA (U.S. health care industry) sec. 18C(b)(1); FSMA (U.S.
food industry) 21 USC 1012O(b)(1); Dodd Frank (U.S. financial services
industry) sec. 748(h)(1)(B)(iii), 922(h)(1)(B)(iii) and sec.
1057(c)(1)(A).
Section 11(c): FAIL. The provision's 30-day statute of limitations
ties for a global worst practice.
IV. Relief for Whistleblowers Who Win
The twin bottom lines for a remedial statute's effectiveness are
whether it achieves justice by adequately helping the victim obtain a
net benefit and by holding the wrongdoer accountable.
14. Compensation with ``No Loopholes''. If a whistleblower
prevails, the relief must be comprehensive to cover all the direct,
indirect and future consequences of the reprisal. In some instances
this means relocation or payment of medical bills for consequences of
physical and mental harassment. In non-employment contexts, it could
require relocation, identity protection, or withdrawal of litigation
against the individual.
Best Practices: AfDB Whistleblowing and Complaints Handling Policy,
sections 6.5 & 6.6 and Statute of the Administrative Tribunal of the
African Development Bank Art. XIII (1); OAS Model Law, Articles 17 and
18; Foreign Operations Act (U.S. policy for MDB's), Section 1505(11);
NZ PDA, section 17; ACA (Korea), Article 33; PIDA (U.K.), section 4;
WPA (U.S. Federal Government employment), 5 USC 1221(g)(1); False
Claims Act (U.S. Government contractors), 31 USC 3730(h); Defense
Authorization Act (U.S.) (defense contractors), 10 USC 2409(c)(2);
Energy Policy Act of 2005 (U.S. Government and corporate nuclear
workers), 42 USC 5851(b)(2)(B); FRSA (U.S. railroad workers) 49 USC
20109(e); NTSSA (U.S. public transportation) 6 USC 1142(c)(3)(B) and
(d); CPSIA (U.S. corporate retail products) 15 USC 2087(b)(3)(B) and
(b)(4); STAA (U.S. corporate trucking industry) 49 USC 31105
(b)(3)(B); ACCR of 2009 (U.S. Stimulus Law) P.L. 111-5, Section
1553(b)(2)(A), (B), and (b)(3); ACA (U.S. health care) sec. 18C(b)(2);
FSMA (U.S. food industry) 21 USC 1012(b)(3)(B) and (b)(4)(B); Dodd
Frank (U.S. financial industry) sec. 1057(c)(4)(B)(i) and 4(D)(ii).
Section 11(c): FAIL. Although section 11(c)(2) permits the
Secretary to seek ``all appropriate relief,'' courts do not always
consider that language sufficient to permit consequential, special or
compensatory damages that must be awarded for an employee to be made
whole.
15. Interim Relief. Relief should be awarded during the interim for
employees who prevail. Anti-reprisal systems that appear streamlined on
paper commonly drag out for years in practice. Ultimate victory may be
merely an academic vindication for unemployed, blacklisted
whistleblowers who go bankrupt while they are waiting to win.
Injunctive or interim relief must occur after a preliminary
determination. Even after winning a hearing or trial, an unemployed
whistleblower could go bankrupt waiting for completion of an appeals
process that frequently drags out for years.
Best Practices: U.N. ST/SGB/2005/21, Section 5.6 and Statute of the
United Nations Dispute Tribunal, Article 10(2); ADB Administrative
Order No. 2.10, section 7.1; AfDB Whistleblowing and Complaints
Handling Policy, sections 6.6.1, 6.6.5 & 9.6; World Bank Staff Rule
8.02, sec. 2.05; OAS Model Law, Articles 17, 32; PIDA (``U.K.''),
section 9; NZ PDA, section 17; WPA (U.S. Federal Government), 5 USC
sections 1214(b)(1), 1221(c); CPSIA (U.S. corporate retail products) 15
USC 2087(b)(1); SOX (U.S. publicly traded corporations), 5 USC
1214(b)(1); ACA (U.S. health care) sec. 1558(b)(1); FSMA (U.S. food
industry) 21 USC 1012 (b)(2)(B); Dodd Frank, sec. 748(h)(1)(B)(i), 922
(h)(1)(B)(i) and sec. 1057(b)(2)(B).
Section 11(c): FAIL. While the Secretary may litigate for a
restraining order, the complainant has no right to seek interim relief
during the OSHA proceeding.
16. Coverage for Attorney Fees. Attorney fees and associated
litigation costs should be available for all who substantially prevail.
Whistleblowers otherwise couldn't afford to assert their rights. The
fees should be awarded if the whistleblower obtains the relief sought,
regardless of whether it is directly from the legal order issued in the
litigation. Otherwise, organizations can and have unilaterally
surrendered outside the scope of the forum and avoided fees by
declaring that the whistleblower's lawsuit was irrelevant to the
result. Affected individuals can be ruined by that type of victory,
since attorney fees often reach sums more than an annual salary.
Best Practices: AfDB Whistleblowing and Complaints Handling Policy,
section 6.5.4; Statute of the Administrative Tribunal of the
International Monetary Fund, Art. XIV (4); Statute of the
Administrative Tribunal of the Asian Development Bank, Art. X (2); OAS
Model Law, Art. 17; NZ PDA section 17; WPA (U.S. Federal Government), 5
USC 1221(g)(2-3); False Claims Act (U.S. Government contractors), 31
USC 3730(h); Energy Policy Act (U.S. Government and corporate nuclear
workers), 42 USC 5851(b)(2)(B)(ii); FRSA (U.S. railroad workers) 49 USC
20109(e); NTSSA (U.S. public transportation) 6 USC 1142(d)(2)(C); CPSIA
(U.S. corporate retail products) 15 USC 2087(b)(3)(B) and (b)(4)(C);
SOX (U.S. publicly traded corporations), 18 USC 1514(c)(2)(C); STAA
(U.S. corporate trucking industry) 49 USC 31105(b)(3)(A)(iii) and (B);
ACCR of 2009 (U.S. Stimulus Law), P.L. 111-5, Section 1553(b)(2)(C) and
(b)(3); ACA (U.S. health care) sec. 1558(b)(1); FSMA (U.S. food
industry) 21 USC 1012(b)(3)(C) and (4)(D)(iii); Dodd Frank (U.S.
financial services) sec. 748(h)(1)(C), 922(h)(1)(C) and sections
1057(C)(4)(B)(ii) and (D)(ii)(III).
Section 11(c): FAIL. There is no relevant provision, even for
costs.
17. Transfer Option. It is unrealistic to expect a whistleblower to
go back to work for a boss whom he or she has just defeated in a
lawsuit. Those who prevail must have the ability to transfer for any
realistic chance at a fresh start. This option prevents repetitive
reprisals that cancel the impact of newly created institutional rights.
Best Practices: AfDB Whistleblowing and Complaints Handling Policy,
section 6.5.5; U.N. SGB/2005/21, Section 6.1; United Nations Population
Fund (UNFPA) ``Protection against Retaliation for Reporting Misconduct
or for Cooperating with an Authorized Fact-Finding Activity,'' para.
26; WFP Executive Circular ED2008/003, para. 22; The United Nations
Children's Fund (UNICEF) Whistleblower Protection Policy, para. 23; OAS
Model Law, Article 18; PDA (S. Afr.), section 4(3); ACA (Korea),
Article 33; WPA (U.S. Federal Government), 5 USC 3352.
Section 11(c): FAIL. There is no relevant provision.
18. Personal Accountability for Reprisals. To deter repetitive
violations, it is indispensable to hold accountable those responsible
for whistleblower reprisal. Otherwise, managers have nothing to lose by
doing the dirty work of harassment. The worst that will happen is they
won't get away with it, and they may well be rewarded for trying. The
most effective option to prevent retaliation is personal liability for
punitive damages by those found responsible for violations. The OAS
Model Law even extends liability to those who fail in bad faith to
provide whistleblower protection. Another option is to allow
whistleblowers to counterclaim for disciplinary action, including
termination. Some nations, such as Hungary or the United States in
selective scenarios such as obstruction of justice, impose potential
criminal liability for whistleblower retaliation.
Best Practices: U.N. SGB/2005/21, section 7; UNFPA ``Protection
against Retaliation . . .'' para. 29; UNICEF Whistleblower Protection
Policy, para. 26; AfDB Whistleblowing and Complaints Handling Policy,
section 6.6.4, 6.9.2; World Bank Staff Rule 8.01, sec. 2.01(a); OAS
Model Law, Articles 12,13 41-46; NZ PDA, section 17; ACA (Korea),
Article 32(8); Article 32(8); Hungary, Criminal code Article 257,
``Persecution of a conveyor of an Announcement of Public Concern'';
Public Interest Disclosure Act, No. 108, section 32; Uganda WPA,
sections VI.16 and 18; WPA (U.S. Federal Government) 5 USC 1215; FRSA
(U.S. railroad workers) 49 USC 20109(e)(3); NTSSA (U.S. public
transportation) 6 USC 1142(d)(3); CPSIA (U.S. corporate retail
products) 15 USC 2087(b)(3)(B) and (b)(4)(C); SOX (U.S. publicly traded
corporations), 18 USC 1513(e); STAA (U.S. corporate trucking industry)
49 USC 31105(b)(3)(C); Jam PDA, section 23.
Some Multilateral Development Banks have created hybrid systems of
accountability that indirectly protect whistleblowers from harassment
by bank contractors. The banks' policies are to apply sanctions or even
stop doing business with contractors who engage in whistleblower
retaliation. AfDB Whistleblowing and Complaints Handling Policy,
sections 6.2 and 6.3; ADB Administrative Order No. 2.10, section 8.5;
Inter-American Development Bank Staff Rule No. PE-328, section 10.3 &
11.1.
Section 11(c): FAIL. There is no relevant provision.
V. Making a Difference
whistleblowers will risk retaliation if they think that challenging
abuse of power or any other misconduct that betrays the public trust
will make a difference. Numerous studies have confirmed this
motivation. This is also the bottom line for affected institutions or
the public--positive results. Otherwise, the point of a reprisal
dispute is limited to whether injustice occurred on a personal level.
Legislatures unanimously pass whistleblower laws to make a difference
for society.
19. Credible Corrective Action Process. Whether through hotlines,
ombudsmen, compliance officers or other mechanisms, the point of
whistleblowing through an internal system is to give managers an
opportunity to clean house, before matters deteriorate into a public
scandal or law enforcement action. In addition to a good faith
investigation, two additional elements are necessary for legitimacy.
First, the whistleblower who raised the issues should be
enfranchised to review and comment on the charges that merited an
investigation and report, to assess whether there has been a good faith
resolution. While whistleblowers are reporting parties rather than
investigators or finders of fact, as a rule they are the most
knowledgeable, concerned witnesses in the process. In the U.S.
Whistleblower Protection Act, their evaluation comments have led to
significant improvements and changed conclusions. They should not be
silenced in the final stage of official resolution for the alleged
misconduct they risk their careers to challenge.
Second, transparency should be mandatory. Secret reforms are an
oxymoron. As a result, unless the whistleblower elects to maintain
anonymity, both the final report and whistleblower's comments should be
a matter of public record, posted on the organization's Web site.
Another tool that is vital in cases where there are continuing
violations is the power to obtain from a court or objective body an
order that will halt the violations or require specific corrective
actions. The obvious analogy for Intergovernmental Organizations is the
ability to file for proceedings at Independent Review Mechanisms or
Inspection Panels, the same as an outside citizen personally aggrieved
by institutional misconduct.
Best Practices: ACA, (Korea), Articles 30, 36; NZ PDA section 15;
PSA (Can.), section 28.14(1) (1990); Japan WPA, Section 9 (2004);
Slovenia Anti-Corruption Act, Articles 23 and 24; WPA (U.S. Federal
Government), 5 USC 1213; Inspector General Act of 1978 (U.S. Federal
Government), 5 USC app.; False Claims Act, 31 USC 3729 (government
contractors); FRSA (U.S. railroad workers) 49 USC 20109(j); NTSSA (U.S.
public transportation) 6 USC 1142(i); STAA (U.S. corporate trucking
industry) 49 USC 31105(i); Jam PDA, section 18. Third Schedule.
Section 11(c): PASS. The underlying Act has well-established,
actively enforced provisions for underlying safety. While they have
been the subject of justified criticism, they are far superior to
practices for enforcement of section 11(c)'s anti-retaliation rights.
20. Private attorney general option: Citizens Enforcement Act. Even
more significant is enfranchising whistleblowers and citizens to file
suit in court against illegality exposed by their disclosures. These
types of suits are known as private attorney general, or ``qui tam''
actions in a reference to the Latin phrase for ``he who sues on behalf
of himself as well as the king.'' These statutes can provide both
litigation costs (including attorney and expert witness fees) and a
portion of money recovered for the government to the citizen
whistleblowers who file them, a premise that merges ``doing well'' with
``doing good,'' a rare marriage of the public interest and self
interest. In the United States, this approach has been tested in the
False Claims Act for whistleblower suits challenging fraud in
government contracts. It is the Nation's most effective whistleblower
law in history for making a difference, increasing civil fraud
recoveries in government contracts from $27 million annually in 1985,
to over $30 billion since, including more than $1 billion annually
since 2000. Another tool that is vital in cases where there are
continuing violations is the power to obtain from a court or objective
body an order that will halt the violations or require specific
corrective actions.
Best Practices: False Claims Act, 31 USC 3730 (U.S. Government
contractors) Dodd Frank Act, sections 748 and 922 (Commodities Future
Trading Commission and Securities and Exchange Commission violations)
Section 11(c): FAIL. There is no provision for independent
enforcement.
On balance, a 25 percent pass rate is unacceptable when the
baseline is best practice standards for an effective whistleblower law.
Putting the criteria in perspective, the five core principles for
credible protection are loophole free protection, realistic timeframes
to act on rights, fair legal burdens of proof on the evidence necessary
to prevail, meaningful due process to enforce the rights, and remedies
that make victims whole if they prevail. While a pioneer statute in
achieving the first principle of clear rights, section 11(c) fails the
remaining four that are essential for the rights to be meaningful. It
is a primitive statute long overdue to modernize so that it matches the
rest of corporate whistleblower law.
section 11(c) enforcement
It is beyond credible debate that there is an unacceptable gap
between section 11(c)'s broad mandate for protection, and reality.
According to the DWPP Web site, from fiscal year 2005-13 there were
10,380 complaints, some 60 percent of the total volume for
whistleblower cases. But there were only 138 decisions that a
whistleblower's rights were violated, or a 1.45 percent success rate.
While annual settlements ranged from 15-25 percent, even that voluntary
relief generally is minimal when the chances of losing are so low.
Employee rights and union colleagues credit OSHA inspectors with using
section 11(c) to prevent retaliation against witnesses, and even
getting minimal help in up to 25 percent of cases is better than
nothing. But the track record indicates little or no realistic chance
for justice when a decision is rendered. In practice, the law rubber
stamps almost any retaliation that is challenged if the case results in
a final ruling. .
But it also is beyond credible debate that a breakdown in
enforcement, not weak statutory rights, is the primary reason the track
record has been so weak. This duty has never had priority in an
overextended agency specializing in worker safety, not employment
rights. Resources and training have been meager. Further, unusual
regional authority and lack of independent oversight have frustrated
consistent implementation of national standards for what the law means
in practice. Reviews ranging from the Government Accountability Office,
to the DOL Office of Inspector General, to GAP's own survey of
whistleblowers and practitioners consistently found that OSHA's
whistleblower program due to--excessive, even multi-year delays
processing complaints; lack of training; inadequate resources for
staff; inadequate staffing levels that sustained unrealistic workloads;
failure to interview or functionally communicate with complainants;
lack of fiscal control over appropriated funds; failure to use
alternative disputes resolution mediations to resolve cases; lack of
data to support decisions; widely varying interpretations of law
between regions; widely varying success rates between regions; lack of
authority by the national OWPP to reverse regional decisions; and most
fundamentally--lack of accountability through an independent national
audit of regional compliance with consistent national standards. In
short, Dr. Michaels faced an imposing challenge to reach the law's
available potential.
He is to be commended for establishing policies and taking actions
that are first steps in a long road to legitimacy for the new
Directorate of Whistleblower Programs. The reforms that he has
initiated include:
creation of the DWPP, with direct reporting authority to
him, moving whistleblower rights up from OWPP's subsidiary status in
the Office of Enforcement;
a separate line item budget for the DWPP, so that it can
control its own resources;
significantly increased staff for DWPP;
initiation of national training programs in whistleblower
rights, to promote consistent interpretations of legal rights;
more user-friendly procedures, such as accepting oral
complaints;
a modernized Web site that is an effective resource for
those seeking to learn their rights;
institution of a policy to conduct interviews of
complainants in all cases; and
institution of tougher standard against indirect
discrimination, such as workplace bonuses for not reporting safety
violations, and discipline for getting injured.
While OSHA is imposing increased auditing oversight, however, this
function still will be under the functional control of the regions. The
lack of independent accountability raises concerns about the strength
and consistency of these reforms in practice. Similarly, while the
national office now may reverse regional rulings, it has not yet
exercised this authority.
It also is difficult not to be concerned that OSHA reassigned the
DWPP Director, Elizabeth Slavet, shortly after she began implementing
plans for a more independent audit. Ms. Slavet is a nationally
recognized whistleblower expert, previously having served as the highly
respected Chair of the U.S. Merit Systems Protection Board adjudicating
the Whistleblower Protection Act for Federal workers. Many of the
reforms credited above occurred under her leadership at DWPP. After her
abrupt removal, it is essential that OSHA takes steps to: (1) assure
there is no violation of Ms. Slavet's own whistleblower rights; (2)
select a successor whose credibility and expertise also are beyond
dispute; and (3) add independent audit enforcement teeth to his
announced reforms.
While Dr. Michaels has created a credible blueprint for an
effective enforcement program of whistleblower rights, it will take
ongoing, independent oversight for that blueprint to make a significant
difference in practice. Toward that goal, GAP is available as a
resource both to this committee, and for the DWPP.
Senator Casey. Mr. Devine, thank you very much.
Mr. Baize.
STATEMENT OF ROSS BAIZE, SAFETY COMMITTEEMAN FOR UNITED AUTO
WORKERS, EAST PEORIA, IL
Mr. Baize. Chairman Casey, Ranking Member Isakson, thank
you for the opportunity to testify before you today. Yesterday,
as you stated, we paused on Workers' Memorial Day to highlight
the preventable nature of workplace deaths, injuries, and
illnesses. Today we continue to fight for improvements in
workplace safety. I welcome the opportunity to share my own
personal experience as a worker who attempted to use section
11(c) to protect myself from employer retaliation.
As a 7-year employee of Caterpillar, I'm proud of the
products that we manufacture, and I can say with certainty that
I personally want the company and workforce to succeed, and the
International UAW wants the same thing. I am not here to bash
Caterpillar or its reputation. I am here to simply share my
experience and describe some of the work that I so proudly do
every day.
The work tasks involved in the case I will be describing
are part of the Full Link Heat Treat process. A link is a part
of the caterpillar track that weighs anywhere from 15 to 80
pounds. In order to make the links more durable, they are heat-
treated. The process starts with a large hopper filled with
links, which shakes down the links onto the orientation track.
As the links travel down the track, it is controlled by
pneumatic stops or large air-powered gates. At the stops,
electric sensors measure the link position and, if needed, the
link is reoriented. Oftentimes, the links will get jammed on
the track, as well as debris can buildup in front of the
sensors. Workers have been injured doing these tasks.
One of my co-workers was reaching from the steps next to
the orientation track to unjam the link so the parts could
continue to the heat-treated oven. When he unjammed the link,
the electric eye sensor automatically initiated a pneumatic air
gate that came down and broke his hand. He received 2\1/2\-
months suspension without pay.
Another co-worker was injured when inspecting the cause of
an orientation track jam. This worker had 38 years of seniority
at Caterpillar and had never received any form of disciplinary
action. He had a nearly perfect attendance record as well.
He was clearing debris from the front of a sensor to get
the orientation track running. He pulled out the debris from
inside the track when a stop came down, striking his left hand.
He reported his injury to the supervisor on duty and was taken
to seek medical attention. He was suspended as well for 2\1/2\
months without pay on the grounds that he had not shut off the
air pressure valve before walking up to the platform.
He had, however, followed the employer's standard work
practice for dealing with machine jams by turning the control
switch from auto to manual on the main control panel. He had
not been issued a lock to prevent the machine from hurting him
while clearing a jam. He was the second employee in 6 months to
be injured while trying to clear a jam in this machine.
In the first week of 2011, an 11(c) whistleblower complaint
was filed on his behalf as well as a complaint about the lack
of procedures, training, or equipment for Lockout/Tagout in the
Full Link Heat Treat area. In our view, the standard operating
procedure for unjamming was a violation of the Lockout/Tagout
standard. We brought this before management using the safety
complaint procedure before going to OSHA.
On March 30th, I informed management that I wished to move
the Lockout/Tagout safety complaint to the final step of the
grievance procedure as per our collective bargaining agreement.
I had a committeeman present when I made the request. In
response, management asked my committeeman to leave and return
to work. Then they informed me that my job was going to be
eliminated.
My status was changed from a Labor Grade 4 to a Labor Grade
1 job, reducing my pay by thousands of dollars. I was at the
lower pay grade for several weeks, but thankfully, because I am
a member of the union, and with the seniority and
qualifications that I have, I was awarded a bid to a different
job back up to Labor Grade 4 pay.
The actual move was carried out on April 4, 2011.
Originally, my job was the only one affected by the reduction
in force, even though there were junior employees they were
keeping on the job. Upon filing a grievance regarding RIF
procedures used, the junior employees were subsequently moved
back to the appropriate job classification, per RIF procedures.
I successfully bid out of that particular division and vowed to
start over.
An 11(c) whistleblower complaint was filed on my behalf on
May 3, 2011. It was dismissed on procedural grounds. The stated
reason for the dismissal was timeliness of the complaint. The
actual adverse action, being job elimination and a resulting
reduction in pay, did not take place until April 4, 2011, when
I was placed on the new job and my pay was reduced.
Often, job moves are delayed by weeks or months. So I filed
my complaint on May 3d, 29 days after the adverse action had
taken effect. And our collective bargaining agreement states
that we need to try and settle things in-house before bringing
in a Federal agency, which was what I was trying to do.
The 30-day filing period for retaliation claims under 11(c)
is one of the shortest anti-retaliation limitations periods in
employment law. It is incredibly difficult to do your job,
perform your family obligations, perform your union obligations
to your co-workers, and build a retaliation case to OSHA within
a 30-day period of time. This short timeframe is made even more
draconian if it is interpreted rigidly, as it was in my case.
In my case, while I was told my job was being eliminated, I
knew that I had bumping rights to other jobs. It was impossible
on March 30th to know how my bumping rights would play out and
whether I would lose my shift or lose income due to the job
elimination. If I did not lose my shift or suffer a reduction
in salary, it could be argued that no adverse action was taken
under the OSH Act. It was therefore entirely proper to begin
the running of the 30-day statute of limitations when the
actual adverse action could be accurately determined.
Thank you.
[The prepared statement of Mr. Baize follows:]
Prepared Statement of Ross Baize
Chairman Casey, Ranking Member Isakson, Senators: Thank you for the
opportunity to testify before you today. I am Ross Baize, an employee
of Caterpillar in Peoria, IL and a UAW Safety Committeeman. Yesterday
we paused, on Workers' Memorial Day, to highlight the preventable
nature of many workplace deaths, injuries and illnesses. Today, we
continue the fight for improvements in workplace safety. I welcome the
opportunity to share my own personal experience as a worker who
attempted to use Section 11(c) of the Occupational Safety and Health
Act of 1970 to protect myself from employer retaliation.
As a 7-year-employee of Caterpillar, I am proud of the products we
manufacture and I can say with certainty that I personally want the
company and workforce to succeed and the UAW International Union wants
the same thing. I am not here to bash Caterpillar or its reputation. I
am here to simply share my experience and describe some of the work
that I so proudly do every day.
The work tasks involved in the case I will be describing are part
of the Full Link Heat Treat process. A link is a part of the
caterpillar track. This part weighs between 15 and 80 pounds. In order
to make the links more durable, they are heat treated. The process
starts with a large hopper filled with links. The hopper vibrates and
shakes the links on to an orientation track. As the link travels down
the track it is controlled by pneumatic stops or large air-powered
gates. At the stops, electric sensors measure the link position and the
link is reoriented. Often times the links get jammed on the track.
Also, debris builds up on the sensors and we have to clear the debris.
Workers have been injured doing these tasks.
One of my co-workers was reaching from the steps next to the
orientation track to un-jam the link so the parts could continue to the
heat treat oven. When he un-jammed the link, the electric eye sensor
automatically initiated a pneumatic gate that came down and broke his
hand. He received 2\1/2\ months suspension without pay.
Another co-worker was injured when inspecting the cause of an
orientation track jam. This worker had 38 years of seniority at
Caterpillar and had never received any form of disciplinary action. He
had a nearly perfect attendance record.
He was clearing debris from the front of a sensor to get the
orientation track running. He pulled out the debris from inside the
track when a stop came down, striking his left hand. He reported his
injury to the supervisor on duty and was taken to seek medical
attention. He was suspended for 2\1/2\ months without pay on the
grounds that he had not shut off the air pressure valve before walking
up to the platform. He had, however, followed the employer's standard
work practice for dealing with machine jams by turning the control
switch from AUTO to MANUAL on the main control panel. He had not been
issued a lock to prevent the machine from hurting him while clearing a
jam. He was the second employee in 6 months who was injured trying to
clear a jam in this machine.
In the first week of 2011, an OSHA 11(c) Whistleblower Complaint
was filed on his behalf as well as a complaint about the lack of
procedures, training, or equipment for Lockout/Tagout in the Full Link
Heat Treat area. OSHA issued two repeat citations and one serious
citation to Caterpillar. The company contested the citation and the
union filed a request for party status. The company eventually agreed
to accept a serious citation for a violation of OSHA's machine guarding
rule and paid a fine of $7,000, which is the maximum allowed by the
OSHA statute for such a serious violation.
In accordance with the collective bargaining agreement between the
UAW and Caterpillar, all efforts are made to reach an in-house
settlement before involving a Federal agency. Unfortunately, in these
cases, those efforts failed.
In our view, the standard operating procedure for un-jamming was a
violation of the Lockout/Tagout Standard; we brought this before
management using the grievance procedure before going to OSHA. On March
30, 2011, I informed management that I wished to move the Lockout/
Tagout complaint to the final step of the grievance procedure as per
part 8.3 of our collective bargaining agreement. I had my committeeman
present when I made the request. In response, management asked my
committeeman to leave the room. They then informed me that my job had
been eliminated.
My status was changed from Labor Grade 4 to a Labor Grade 1 job,
reducing my pay by thousands of dollars. I was at the lower pay grade
for several weeks but thankfully, because I am a member of the union
with the seniority and qualifications. I was awarded a bid to a
different job back up at Labor Grade 4 pay.
The actual move was carried out on April 4, 2011. Originally, my
job was the only one affected by the reduction in force (RIF), even
though there were junior employees kept on the job. Upon filing a
grievance regarding RIF procedures used, the junior employees were
subsequently moved back to the appropriate job classification, per RIF
procedures. I successfully bid out of that particular division and
vowed to start over.
An OSHA 11(c) Whistleblower Complaint was filed on my behalf on May
3, 2011. It was dismissed on procedural grounds. The stated reason for
the dismissal was timeliness of the complaint. I believe that since the
adverse action in my case did not take place until April 4, 2011, I was
within the 30-day statutory time limit set forth in the OSH Act. Again,
I was told on March 30, 2011 that my job would be eliminated
immediately after I put a safety complaint regarding Lockout/Tagout
into the final step of the grievance procedure. The actual Adverse
Action (job elimination and resultant reduction in pay) did not take
place until April 4, 2011, when I was placed on the new job and my pay
was reduced. Often job moves are delayed by weeks or months so I filed
my complaint on May 3, 2011; 29 days after the adverse action took
place.
The 30-day filing period for retaliation claims under section 11(c)
is one of the shortest anti-retaliation limitations periods in
employment law. It is incredibly difficult to do your job, perform your
family obligations, perform your union obligations to your co-workers
and build a retaliation case to present to OSHA within a 30-day period
of time. This short timeframe is made even more draconian if it is
interpreted rigidly, as it was in my case.
In my case, while I was told my job was being eliminated, I knew
that I had ``bumping rights'' to other jobs. It was impossible on March
30th to know how my bumping rights would play out and whether I would
lose my shift or lose income due to the job elimination. If I did not
lose my shift or suffer a reduction in salary, it could be argued that
I did not suffer an adverse action under the OSH Act. It was therefore
entirely proper to begin the running of the 30-day statute of
limitations when the actual adverse action could be accurately
determined.
I would add that during the time I was at the lower pay, I felt the
need to work as much overtime as I could in order to provide for my
wife and child who was not even 9 months old at the time. I felt like I
had to prepare for the worst case scenario that I could be stuck in
that job for a lengthy period. This incident caused me and my family to
have to scale back on certain amenities that we were previously able to
afford. It also took its toll on my wife who was dealing with the
stress that comes along with being a new mother and this was the last
thing she needed to worry about.
At the end of the day, I never attempted private action on this
case. I learned the day that I called in my complaint that it was
probably going to be deemed untimely.
Under the OSHA law, I have no legal right to pursue my case on my
own if the Department of Labor chooses not to take it up. Other
whistleblower statutes provide for more time to file a complaint and
the ability to pursue a case even if the Department chooses not to. The
OSHA law must be strengthened to protect job safety whistleblowers.
It took a little time, but I have made myself a home in the
building that I moved to. I have earned the respect of many management
and hourly employees in my current job.
In closing, I would again like to thank you for the opportunity to
testify before this subcommittee and I look forward to answering any
questions you may have.
Senator Casey. Thank you very much for your testimony.
Mr. Keating.
STATEMENT OF GREGORY KEATING, ESQ., CO-CHAIR, WHISTLEBLOWING
AND RETALIATION PRACTICE GROUP, LITTLER MENDELSON P.C., BOSTON,
MA
Mr. Keating. Good morning, and thank you, Chairman Casey
and Ranking Member Isakson, for the opportunity to be here and
to speak with you about whistleblower protections. As noted,
I'm a shareholder at Littler Mendelson, which is the largest
labor and employment law firm in the country representing
employers.
I also wrote a book that's in its fifth edition on
whistleblowing, and I have greatly enjoyed the opportunity to
serve on the Whistleblower Protection Advisory Committee, which
Senator Isakson nominated me to. And, as noted by Dr. Michaels,
I am working on the best practices committee, and I have
really, really enjoyed the opportunity to focus on that.
I'm here today, however, to encourage this body to consider
an alternative to the current approach to whistleblower
protection, one that focuses predominantly on increased
penalties and deterrents in the whistleblowing context. While
penalties and deterrents serve a purpose, providing employers
with clear guidance and incentives to foster compliance is, I
believe, more effective and more likely to result in better,
safer, and more ethical workplaces for employees in America.
In my work with employers, I find that across regions and
industries, companies of all sizes and stripes are eager to
adopt concrete measures to help facilitate a culture of ethics
and compliance. While I recognize the topic of today's hearing
is whistleblower protections in the context of workplace
safety, however, as Dr. Michaels has himself noted earlier
today, in addition to the Occupational Safety and Health Act,
OSHA enforces 21 other statutes.
I want to speak even more broadly today about how
compliance measures can improve and sustain workplaces across
many areas of corporate culture, including workplace safety.
The goal, in my view, should be to educate and incentivize
employers to create a culture of ethics and compliance across
all layers of the organization.
By culture of ethics and compliance, I mean a workplace in
which compliance with the letter and spirit of the law is both
required and encouraged at every level of the organization.
Employees feel comfortable and welcome to share concerns about
possible noncompliance, and individuals who come forward in
good faith to report possible misconduct or safety concerns can
do so without fear of retaliation.
Achieving this kind of culture will result in workplaces
that are safer, more ethical, more fulfilling, and more
compliant with the specific laws and regulations which govern
their industries. This culture can best be achieved, in my
view, through a private-public partnership with the employer
community, rather than an adversarial approach focused solely
on liability, punishment, and deterrence.
Employers are clamoring for guidance on how to create this
culture of ethics and compliance. Many are piloting innovative
new technologies to do so. Perhaps even more exciting, we have
seen a marked up-tick in revolutionary new products and
services. These innovative ideas allow employers to foster an
ethical and compliant culture by integrating compliance
solutions directly into their business.
In my role as WPAC member, I have reiterated my view that
in addition to legislative remedies to protect whistleblowers
from retaliation, we must have clear guidance on best practices
for employers to understand how to specifically create that
culture of ethics and compliance. This focus is consistent with
OSHA's mandate, and, indeed, as Dr. Michaels has indicated
today and has repeatedly shared in advisory committee meetings,
it is his hope that it will be one of the most significant
accomplishments of the committee.
Making employers more aware of specific effective measures
which they can adopt to enhance their workplace cultures will
benefit not only those employers seeking this guidance, but
also the individuals they employ. The vast majority of U.S.
employers have a strong commitment to operating safe, ethical,
and lawful workplaces, and with better guidance and stronger
incentives, I believe they can and will continuously improve
upon their efforts to do so.
I thank you again for inviting me to testify here today,
and I look forward to answering any questions you may have.
[The prepared statement of Mr. Keating follows:]
Prepared Statement of Gregory Keating, Esq.
Good morning Chairman Casey, Ranking Member Isakson and
distinguished members of the subcommittee. Thank you for the invitation
to be here before you today. My name is Greg Keating, and I am pleased
to be speaking to you about the issue of whistleblower protections. I
am a shareholder at Littler Mendelson, P.C. where I co-chair the firm's
Whistleblowing and Retaliation Practice Group and serve on the firm's
board of directors. I am also author of the book, Whistleblowing &
Retaliation, which is now in its fifth edition. In addition to my work
with clients on whistleblowing and compliance-related matters, the U.S.
Secretary of Labor appointed me in December 2012 to serve as a
management representative on the Occupational Safety and Health
Administration's Whistleblowing Protection Advisory Committee
(``WPAC'').\1\ I should note at the outset, however, that I am
testifying not on behalf of the WPAC but rather in my capacity as an
individual who has invested considerable time on whistleblower matters.
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\1\ See Whistleblower Protection Advisory Committee, available at
http://www.whistleblowers
.gov/wpac.html. The OSHA WPAC ``was established to advise, consult
with, and make recommendations to the Secretary of Labor and the
Assistant Secretary of Labor of Occupational Safety and Health on ways
to improve the fairness, efficiency, effectiveness, and transparency of
OSHA's administration of whistleblower protections.''
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With more than 1,000 attorneys and 60 offices nation and worldwide,
Littler attorneys provide advice, counsel and litigation defense
representation in connection with a wide variety of issues affecting
the employee-employer relationship. Additionally, through its Workplace
Policy Institute, Littler attorneys remain on the forefront of
political and legislative developments affecting labor, employment and
benefits policy and participate in hearings such as this in order to
give a voice to employer concerns regarding critical workplace issues.
In my own practice, I often counsel, advise and represent employers in
whistleblowing matters, including specifically advising employers on
how to structure and implement concrete mechanisms to ensure a culture
of compliance. Nevertheless, the comments I provide today are my own,
and I am not speaking on behalf of Littler Mendelson or the firm's
clients.
While I recognize that the topic of today's hearing is
whistleblower protections in the context of workplace safety
specifically, I want to speak today even more broadly about compliance
measures that can improve and sustain workplaces across many aspects of
the workplace and corporate culture, including workplace safety.
Specifically, I want to encourage this body to consider alternatives to
increased penalties and deterrents in the whistleblowing context--
alternatives that are, I believe, more effective and more likely to
result in better, safer and more ethical workplaces for employees in
America. In my work with and on behalf of employers, I find that,
across regions and industries, employers of all sizes and stripes are
eager to adopt and enhance measures that foster workplace cultures of
ethics and compliance.
By ``culture of ethics and compliance,'' I mean a workplace in
which compliance with the letter and spirit of the law is both required
and encouraged at every level of the organization; employees feel
welcomed and encouraged to share concerns about possible non-
compliance; and individuals who come forward in good faith to report
possible misconduct or safety concerns can do so without fear of
retaliation of any kind. Achieving this kind of culture would result in
workplaces that are safer, more ethical, more fulfilling and more
compliant with the specific laws, regulations and norms that govern
particular industries. What is more, this culture can be best achieved
through a private-public partnership with the employer community,
rather than an adversarial approach focused solely on liability,
punishment and deterrence.
Employers are clamoring for guidance on how to create this culture
of compliance, and many are piloting revolutionary new technologies and
techniques to do so. What these employers need most from OSHA and the
DOL is concrete guidance about how to create this kind of culture and
stronger incentives to invest company resources in doing so. To have
the greatest impact, this guidance would need to identify specific
elements of a meaningful, high-quality compliance program, identifying
expected elements, audience targets and timeframes for particular
elements. It is my hope that we cannot only provide this guidance, but
that employers who invest in such measures will have those efforts
taken into account in the liability and/or penalty phase of an
administrative or judicial proceeding enforcing whistleblower
protections. This incentive approach will serve as another important
vehicle to foster awareness of whistleblower rights and transparency
within the culture of corporate America.
In my role as WPAC member, I have expressed the view that, in
addition to legislative remedies to protect whistleblowers from
retaliation, we also need clear guidance on best practices for
employers to understand how specifically to create a culture of
compliance. This focus is consistent with OSHA's mandate and, indeed,
Dr. David Michaels, the Assistant Secretary of Labor, OSHA has shared
his hope that one of the important accomplishments of the WPAC will be
to identify specific best practices to promote a culture of compliance.
To that end, the chair of the WPAC has created three working groups
intended to focus on specific issues of paramount interest to the
committee, one of which is a ``best practices'' working group that is
charged with identifying and describing concrete measures employers can
take in order to foster a culture of compliance and minimize the risk
of retaliation.
The working group has had numerous meetings and has made
significant progress in identifying such measures, and it is my hope
that, at the next meeting in September, we can provide formal
recommendations to the U.S. Secretary of Labor. Though I cannot yet
speak to what those formal recommendations will be, I can provide just
a few examples of measures that have a real impact on workplace culture
and corporate compliance:
Measuring and Improving Workplace Culture: It can be eye-
opening for an organization to measure its workforce's level of
engagement and trust in its leaders. Employee surveys enable employers
to measure the ``tone'' of the business and focus on areas that present
opportunities for improvement. Based on the results of such surveys,
employers can target specific reminders, policies and training to
better reflect a strong commitment to ethical and safe practices. When
employees are aware of and trust their organization's values and
commitment to ethics, they are much more likely to also trust internal
reporting systems and, as a result, to come forward with any concerns.
Training at all Levels: Effective training can enhance
awareness, commitment to compliance and willingness to come forward
with concerns at all levels of an organization. There are excellent new
training products and programs that can be customized for employers of
various sizes, industries and budgets.
Integrated Complaint Management System: Employers can
adopt a new, formalized system of receiving, investigating and
responding to complaints, or they can examine and enhance existing
procedures. The best way to foster and ensure trust in the internal
reporting system is for the company to establish a track record of
responding promptly, thoroughly and consistently to internal reports
and to effectively protect employees who make internal complaints from
any form of retaliation. A strong complaint management system can
provide multiple avenues for submitting complaints--from hotlines, to
web portals to frontline supervisors and human resources professionals.
It is also important to ensure that different departments and
stakeholders communicate effectively and appropriately, working in
partnership to investigate and respond to reports of wrongdoing or
unsafe working conditions. Employers can also provide a dedicated
resource to whistleblowers in order to ensure that there are no signs
of retaliation and that any adverse employment actions are thoroughly
reviewed before making a decision affecting a whistleblower.
Comprehensive and Effective Policies and Procedures:
Employers can adopt new or revamp existing internal compliance policies
and procedures, investigation procedures, safety plans and policies,
and whistleblower and anti-retaliation policies. Although there is no
one-size-fits-all policy, there are hallmarks of effective policies and
programs that could be communicated to employers, as well as guidance
about how best to implement and enforce those policies.
It is my hope that OSHA will draft, disseminate and incentivize
compliance measures such as these. Making employers more aware of
specific, effective measures which they can adopt to enhance their
workplace cultures will benefit not only those employers seeking this
kind of guidance, but also the individuals they employ. The vast
majority of U.S. employers have a strong commitment to operating safe,
ethical and lawful workplaces and, with better guidance and stronger
incentives, I believe they can and will continuously improve upon their
efforts to do so. I thank you again for inviting me to testify here
today, and I look forward to answering any questions you may have.
Senator Casey. Thanks, Mr. Keating.
And the panel was great about time. We're setting records
today.
I want to start on my left and the audience's right with
Ms. Spieler. I want to first of all note a couple of points in
your testimony which I think bear repeating. Some of these
words kind of leaped off the page. Often, we have hearings
about improvements or changes we hope to bring to a statute
that was passed years or decades ago, and we don't often go
back to the original source about the reason for the statute.
The OSHA Act was designed to--and you say this at the
bottom of your first page, ``assure as far as possible every
working man and woman in the Nation safe and healthful working
conditions,'' which is language we should remind ourselves
about.
One more before I ask a question. We've talked already, and
we're going to explore further the defects or the problems with
section 11(c). You say at the bottom of page 2, ``All of the
recent statutes provide much stronger protections for
whistleblowers than the OSH Act.'' Unfortunately, that seems to
be the case, and that's, I guess, the reason we're here this
morning.
But I wanted to start with you about a question on some
data. You provide data in your written testimony showing that
75 percent of docketed 11(c) cases--the provision we just said
was very weak--for about an 8-year timeframe, fiscal year 2005
to 2013, that 75 percent of those cases are dismissed or
withdrawn without achieving resolution. This includes almost
10,000 cases over that same time period.
My first question is: These numbers do not include the
cases that are screened out. Is that correct?
Ms. Spieler. That's correct.
Senator Casey. And, second, this means that 75 percent of
cases that pass the initial screening process are never
resolved. Is that correct?
Ms. Spieler. They're resolved in the sense that they don't
go forward.
Senator Casey. They don't go forward. You said it better
than I did. So how do you deal with that in terms of making
changes here? We're talking about making statutory changes to
11(c) to help the workers. Tell us how that would work and what
you would hope would happen.
Ms. Spieler. Obviously, some of those cases may, indeed, be
non-meritorious, and it's totally appropriate for them to be
screened out through an investigative process. And we can't
really say how many of them should go forward. I think part of
the problem is that when cases don't go forward, and the
individual or group that has filed the case has no further
recourse, then the sense of unfairness is very deep in the
people who can't pursue their cases.
So when a case is dismissed by OSHA, it goes into--I
believe it to be quite informal. I think it's been somewhat
formalized recently. But it's an informal review, I believe,
now at the Central Directorate that can be obtained over a
dismissal of a case. But it's not--it's a review of a file, and
it doesn't give a complainant a sense that they've really been
heard.
I think it's incredibly important for people who are in
that situation to have some mechanism to bring their case
forward and actually have it heard. Those other statutes all
allow the individual to bring their case forward to an
administrative law judge for a de novo hearing in which their
cases will be heard.
I don't have these data, but as I understand it, some of
the cases in which OSHA has found that there's no reasonable
cause have, in fact, been heard by ALJs and the complainant has
won them. So there has to be, I think, a sense that the
complainant has a place to go, and now, under 11(c), they have
nowhere to go.
That, of course, also has an effect on employers'
reactions, those employers, and I agree with Greg Keating that
there are employers who very much want to comply with the law.
But for those employers who don't have that motivation, there's
very little back pressure on them to comply with the law
because of the way the current system works on 11(c)
compliance.
Senator Casey. And I guess some of the words you used in
your answer--it almost reminds me of a due process argument.
Right?
Ms. Spieler. Yes.
Senator Casey. That you get notice, and you get to be
heard, or the opportunity to be heard. But you're saying that
the second part of that, in essence, the full measure of a
hearing, is not the current policy.
Ms. Spieler. That's right. And, actually, I don't know that
the current statue would allow it to be.
Senator Casey. I know we're trying to keep within our
timeframe, but I have a quick question for Mr. Devine before I
move to Senator Isakson.
A lot of what you said struck me, but the one part of your
testimony which was especially significant to me, at least, was
the statement you made--and I'm paraphrasing--but saying that
even if you win the case, you still lose. Explain that again
just in terms of the--how would you itemize your list of how
you lose?
Mr. Devine. You may not be made whole in terms of the
financial impact from losing your job. You could end up being
reassigned to the same position that you were fired from, and
it's very difficult to work for a boss you just defeated in a
lawsuit. You may not be able to afford the victory, because the
lawyers' fees and the cost of the litigation and expenses may
outweigh any benefits that you gain.
And, finally, there's no accountability for the wrongdoers,
which is the basic premise of our legal system. They have no
reason not to keep doing--not to keep engaging in retaliation.
The worst that would happen is they might not get away with it,
but most likely they will. Almost certainly they will.
Senator Casey. I know I'm over time, but I'll go to Senator
Isakson and then I'll come back.
Senator Isakson. Thanks to all of you for testifying today.
I want to focus on Mr. Keating for a minute if I can.
You talked about creating a culture of compliance, and you
talked about some of the specific hallmarks of a culture of
compliance which you would have seen in the workplace. How,
specifically, can employers be incentivized to create a culture
of compliance? How would it work?
Mr. Keating. Senator Isakson, I think the starting point
for that is that we all have to recognize--and this is
something that I have heard over and over again in surveys
we've done with employers. Their most important and valuable
asset, by far, is their employees. When their employees' morale
is up, when they're safe, when their injuries are down, when
they trust their employer, productivity soars.
And the corollary is true. When things aren't working,
things slow to a crawl, and bad things can happen in the safety
area as well.
But, specifically, to answer your question, the way to
incentivize employers--No. 1, provide the clear guidelines that
we're talking about and we're working out at the advisory group
level so that employers know what's out there and what they can
do, things like an integrated complaint management system,
using some of the new technology I referred to in my testimony.
There's some really exciting new technology out there that
allows employers to no longer be reactive but to be integrated
and to see what's happening in their workplace in real time
through technology. And when complaints come in, there's
transparency and there's communication by and among a lot of
constituents, so the process goes more smoothly.
And then, last, training. That's another hallmark of a
compliant culture. There are some exciting products out there
in the safety area, in the Sarbanes-Oxley area, and in all
areas of compliance and ethics that are available online, that
are cost-effective, and that can allow you to train the person
who always gets the complaint to begin with, who is the
frontline supervisor.
Senator Isakson. You know, I attended a--I didn't attend,
but I visited a Siemens plant in Alpharetta, GA, that makes the
drive train systems for some of the largest pieces of equipment
operating in the mining industry in the world. And I was not
there for the purpose of looking at their safety compliance at
all.
But I happened to notice as I went through the plant--at
every stage in the production along the way--and this is
probably similar to Caterpillar, I would hope, and you might
comment on that, Mr. Baize. They had their safety score record
and their safety recommendation record, and they had a
solicitation for safety hints or tips the employees could give
to the employer to better improve the safety environment. Is
that the type of thing you're talking about?
Mr. Keating. That is an example of something I'm talking
about. And another example of what I'm talking about with
regard to your question, Senator Isakson, about incentives--and
you asked Dr. Michaels earlier. I firmly believe that similar
to the sentencing guidelines under the Foreign Corrupt
Practices Act, if an employer is given clear guidance about the
seven, eight, nine concrete steps it should take, and if an
employer takes those steps, and then say there's a rogue actor
who lets something fall through the cracks, I think at the time
when the DOL is considering its punishment, it should take into
account all of the things the employer did right and perhaps
consider a lesser penalty as an incentive to implement all
these measures.
Senator Isakson. Any comment, Mr. Baize?
Mr. Baize. We do have something similar to that at
Caterpillar, where its encouraging employees to put in safety
ideas to improve the workplace. In my personal opinion, it's
good on paper, the way I've seen it play out, and the theory is
good behind it. But the actual execution of it has been fairly
subpar throughout the years that they've been implementing
that.
Senator Isakson. That makes a good point. It needs to be a
culture within the company. I mean, anybody can paint a wall
red, white, or blue, or put a new wallpaper on the wall and
make it look better. But you've got to really have a part of
the culture of the company where they're promoting that type of
safety.
I know in my business before I came to Congress, I ran a
company that, among other things, developed subdivisions and
golf courses. I had a lot of maintenance workers and entry
level workers, and compliance with safety rules was my No. 1
incentive for them, because every time one of them got hurt, my
premiums went up or I had to go replace them with something
else.
I tried to promote it from a positive aspect, not only for
their health and safety, but for my cost of doing business. And
I think that's the way businesses could better create a culture
or environment that benefits the worker but also benefits the
company as well.
Thank you, Mr. Keating and Mr. Baize.
Mr. Baize. Thank you.
Mr. Keating. Thank you.
Senator Casey. Thanks very much. I'm told the vote has not
started. At least, I'm not aware that it has started. That's
good news. But we have some--OK. We have less time than we
thought. But I just have one or two more questions.
Mr. Baize, the experience you had was aided and assisted by
the fact that you had a union, which I would argue that in a
lot of instances--maybe not every instance--does help create
the right culture that we talked about. A lot of companies I've
been to--when you visit a manufacturing site, there's a great
spirit of cooperation in trying to keep injury rates or
incident rates down, and that's very positive to see that.
But in terms of your own situation, in terms of the concern
that you identified in your case, where do you think it stands
now? Has that work site been made safer or not? Or can you
assess that?
Mr. Baize. I'm no longer over in that area anymore. But
from what I've been told, it's been made safer to a point.
However, in our opinion, it's still not in compliance with the
Lockout/Tagout, because they're using controlled circuitry to
isolate energy, and it's spelled out in the standard that you
cannot use controlled circuitry. But it has been made safer to
a point. They have done a better job getting the garbage out of
the tubs that the links come into the heat treat operation.
Senator Casey. When you say controlled circuitry, what does
that mean?
Mr. Baize. Controlled circuitry would be like electronic
disconnects, not actually physically isolating the energy with
a lock. They still have not issued employees locks over in that
area, so we're still not able to lockout when we have to go
clear a jam. But, like I said, cleaning the garbage out has
been a big help. Little things like that will help them out.
Senator Casey. In your own case--and I'm referring back to
the question I asked Mr. Devine about when you prevail on
something, you can still be in a losing position. In your own
case, how about financial challenges that you experienced
through this process?
Mr. Baize. The demotion that they gave me from a Labor
Grade 4 to a Labor Grade 1 equated out to be about $6 or $7 an
hour. So me and my wife had to scale back on certain amenities
that we were previously able to afford. I had to prepare for
the worst case scenario, that I was going to be stuck in this
job for a lengthy period of time. So I felt the need to work as
much overtime as possible, to do what I had to do to provide
for my family.
Senator Casey. What would you hope would happen with regard
to the law? If you could make a list or even itemize one or two
changes, what would you hope would happen?
Mr. Baize. What I would hope would happen was something
like this, that we could change some of the verbiage in the
standard stating that it's going to be the actual adverse
action that's going to start your statute of limitations, not
just a threat, because in my situation, if I would have pulled
the trigger right away and gone to OSHA instead of trying to
settle things in-house, then OSHA could have investigated and
seen that I hadn't been displaced and my pay hadn't been
dropped down at all. So they could argue that no adverse action
had been taken. And then once my pay was affected, I couldn't
file a second time on the same situation.
I'd also like, as many other people have stated today, to
see the statute of limitations be extended from 30 days to
possibly 6 months, like most of the other standards are.
Senator Casey. I will go back to Ms. Spieler. One of the
things we try to arrive at in hearings like this is an action
plan or a set of steps we can take to strengthen the system.
Your recommendations are on page 10 of your testimony. I guess
you have three, and then those three have a number of subsets.
But you have as No. 1 to lengthen the statute of
limitations to 180 days, which was just referred to a moment
ago. Create a right of preliminary re-instatement pending final
adjudication. Third, change the process for adjudication of
complaints.
Could you walk through some of those? Obviously, the 180
days is more self-evident maybe than the others. But for folks
that may not be familiar with the procedure, could you just
walk through a little bit on two and three?
Ms. Spieler. Sure. The preliminary re-instatement issue
has, I think, really two components as a practical matter in
the way it plays out, and it's part of the majority of the
statutes and all of the recent statutes I'm pretty sure that
OSHA is enforcing. One is that they can, in fact, move in in a
situation where things are clear cut and insist that the
individual, if they've been discharged, be re-instated while
the case is pending.
That's important in part because the longer someone is away
from a job, the less likely it is that they will be re-
instated. That's true across the board if you look at the OC
cases or any of the cases.
And the second thing is that if there's a right of
preliminary re-instatement, it brings the employer to the table
in a very serious way very early on so that if the individual
doesn't want to go back, it can increase the monetary
settlement that the individual has. These are always in cases
in which the investigator believes that the law has been
violated. So it's not non-meritorious cases in which this
should be happening.
As I note, the strongest provision, actually, on
preliminary re-instatement is not in one of OSHA's statutes,
but actually is the MSHA statute.
Senator Casey. For mine safety.
Ms. Spieler. For mine safety, yes, and is quite
aggressively used by the Mine Safety and Health Administration
in reinstating people pending litigation of those complaints.
I grouped a whole set of things under what I call the
process for adjudication of complaints, because I think that
they all revolve around the problem of there not being any way
for a complainant to pull a case out of the existing process.
You have the problem of the informal review on the OSHA side,
but you also have the problem of the fact that the solicitor
has a very hard time litigating all the cases that come over
the transom to the solicitor's side, and they are litigating
many more now. But it's still quite a small number in terms of
the number of potentially meritorious cases.
First, the creation of an administrative process, and that
would take, frankly, a lot more cases into the ALJ system at
the Department of Labor, which may create a separate issue that
we're not discussing today. That's the first thing.
The second would be making sure that complainants have some
mechanism of having legal representation, and that would be
either that the solicitor's office would provide it, or that
attorney's fees would be available for cases in which the
complainant prevails, because, otherwise, it's actually quite
difficult to find representation. And, frankly, I think neither
judges nor ALJs like dealing with pro se complainants in any
event.
Third, a private right of action, a right to pull a case
out from the administrative process and into court. You know,
those are expensive and complex processes, and, in general,
lawyers don't want to take cases out of the ALJ process and
into court unless there's a really good reason. But when
there's a really good reason, it should be available.
And, finally--and I included in this the burden of proof
issue, because I think that the higher the standard of the
burden of proof in these cases, the more likely they're going
to get kicked out--no, I shouldn't use that word because it's a
term of art--but the more likely they're going to die along the
way, even when a complainant can prove that it was a
contributing factor in the adverse action that was taken.
All of those things together would provide what I think--
maybe not technically constitutional due process, but would
provide a sense of due process for people. And although I
completely agree with Mr. Keating with regard to the importance
of being able to educate employers, at the same time I think we
have to provide a protection to the people for whom that isn't
working.
Senator Casey. Thank you very much. I know we have to wrap
up because of the vote.
But we're grateful for all of our witnesses. Please know
that members may submit additional questions to you for written
response.
And, without objection, I'd like to include for the record
the written testimony of Keith Wrightson, Worker Safety and
Health Advocate for Public Citizen's Congress Watch Division.
I also submit for the record a statement from Chairman
Harkin, chairman of the HELP Committee.
[The prepared statement of Mr. Wrightson and Chairman
Harkin may be found in additional material.]
And we are adjourned. Thank you very much.
[Additional material follows.]
ADDITIONAL MATERIAL
Prepared Statement of Senator Harkin
Yesterday marked the 25th year that workers, family
members, and safety advocates have come together to honor and
remember those that have been killed on the job and advocate
for safer workplaces. April 28th was chosen as the date to
recognize the creation of the Occupational Safety and Health
Administration (``OSHA'').
The passage of the Occupational Safety and Health (``OSH'')
Act and creation of OSHA was a major legislative accomplishment
and one that has improved the lives of millions of Americans.
Four decades ago, this landmark legislation finally put into
law the fundamental American value that workers shouldn't have
to risk their lives to earn their livelihood, and it required
workers, employers, and the government to partner together to
keep people safe and healthy on the job.
Since that time, workplace safety and health conditions
have improved dramatically. In the year the OSH Act was
enacted, our country saw 13,800 on-the-job deaths. In 2012,
that number was 4,628--down by almost 70 percent--providing
concrete evidence that the OSH Act has saved the lives of
hundreds of thousands of American workers.
We should take a moment today to reflect on the lives of
all the workers that have been saved because of the OSH Act and
OSHA, and then recommit ourselves to continue to push for
stronger worker protections and safer and healthier workplaces.
It is unacceptable that on average almost 13 workers die in
this country every day just trying to earn a decent wage and
provide for their families. Additionally, nearly 3 million more
will suffer from injuries and illnesses at work. Altogether,
these fatalities, injuries, and illnesses hurt families and
take a massive toll on our economy and society--estimated at
$250 billion to $300 billion a year. Preventing illnesses and
injuries isn't just the morally right thing to do; it makes
economic sense as well.
Although the OSH Act and OSHA have saved the lives of
countless workers, we must also acknowledge the Act's
limitations too. In 2014, too many workers remain at serious
risk of injury, illness, or death on the job, as demonstrated
by last year's fertilizer explosion in West Texas that killed
15 and injured over 200.
This hearing will examine one of the most important aspects
of the OSH Act that drastically needs reform: ensuring that
workers have adequate whistleblower protections when they speak
out about unsafe working conditions. We know that
whistleblowers are critical to bringing safety problems to
light, but they won't come forward unless the law contains
stronger protections against retaliation.
It is also common knowledge that OSHA doesn't have the
necessary resources to inspect every workplace in the country
on a regular basis, so whistleblowers play a vital role in the
agency's ability to identify dangerous work conditions.
However, OSHA's whistleblower statute has not been
significantly amended or improved in over 40 years, and it is
outdated and weak compared to retaliation protections in other
worker protection, public health, and environmental laws. Right
now, we have stronger protections for financial whistleblowers
under Sarbanes-Oxley than we do for workers trying to save
lives, and that just isn't right.
The Department of Labor, under the leadership of Assistant
Secretary Michaels, has taken many substantive administrative
actions to improve OSHA's Whistleblower Protection Program.
However, legislation is necessary to provide a safe environment
for workers to blow the whistle on unsafe working conditions
without fear from retaliation from their employers. That's why
I am a proud cosponsor of the Protecting America's Workers Act
(``PAWA'')--legislation that greatly expands current
whistleblower protections to foster workplace environments
where workers will feel comfortable reporting dangerous
conditions, thus, improving safety and health for all.
Among other reforms, PAWA extends the amount of time a
worker has to file a complaint, provides an administrative
process that allows workers to go back to work while they
pursue their cases, and gives them a private right of action
consistent with other modern anti-retaliation statutes.
Collectively, these reforms represent a critical step toward
providing a safer workplace for every worker in our country.
Today's hearing is important because it allows us to honor
and remember those that have been unnecessarily lost while
working on the job, and gives us an opportunity to examine and
discuss ways to improve workplace safety and health by
protecting workers who bravely choose to speak up. Although
tremendous progress has been made over the last 40-plus years,
much work remains to be done. All Americans have the right to a
safe workplace, and we should not rest until all of our
fathers, mothers, sisters, brothers, families, and friends can
go to work each day knowing they will be able to come home
safely to their families each night.
Prepared Statement of Keith Wrightson, Worker Safety and Health
Advocate, Public Citizen's Congress Watch Division
Mr. Chairman and members of the subcommittee: Thank you for the
opportunity to present written testimony on the government's authority
over whistleblowers rights and anti-retaliation provisions. I am Keith
Wrightson, worker safety and health advocate for Public Citizen's
Congress Watch division. Public Citizen is a national nonprofit
organization with more than 300,000 members and supporters.
Public Citizen commends the subcommittee for taking up this
critical issue. There are a number of statutory and common-law
provisions aimed at safeguarding private-sector whistleblowers, and the
Occupational Safety and Health Administration (OSHA) is charged with
enforcing 22 of these statues. Generally, these provisions provide that
employers may not discharge or retaliate against an employee if an
employee has filed a complaint or otherwise exercised any rights
provided to employees.\1\
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\1\ Whistleblower statutes enforced by the Occupational Safety and
Health Administration. http:// www.whistleblowers.gov/
statutes_page.html, retrieved on (April 23, 2014).
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As one part of OSHA's whistleblower responsibilities, the agency is
responsible for the enforcement of 29 U.S.C. 660, section 11(c)
(1970), (hereafter 11(c)), an enactment that provides whistleblower and
anti-retaliation protections to any employee who discloses an
occupational health or safety violation. Unfortunately, the protections
allotted to workers under 11(c) are grossly inadequate and not
conducive to building a safe workplace because the statutory language
denies workers protection after 30 days, prohibits access to jury
trials and does not provide reasonable remedies to prevailing
whistleblowers. As it stands today, 11(c) is in dire need of
modernizing and its directive should provide workers with the strongest
language possible.
Of particular concern under 11(c), is the 30-day statute of
limitations that has been provided to employees who think they have
been retaliated against for disclosing a workplace hazard. Thirty days
is simply not enough time for a worker to gather information and
present a clear case to OSHA This time restriction provision is
troubling because it takes immense courage to stand up to an employer
to identify waste, fraud and or abuse, and a 30-day window could
inhibit that courage.
In other, more recent, whistleblower and anti-retaliation
legislative efforts, Congress agreed that this 30-day statute of
limitations found in 11(c) was too short. For example, when Congress
amended 49 U.S.C. 31105, the Surface Transportation Assistance Act in
2007, it provided a 180-day statute of limitations to employees who
felt they had been discharged, disciplined or discriminated because
they filed a complaint or began a proceeding related to a violation of
a commercial motor vehicle safety regulation. This longer window
provides the employee with adequate time to gather information for a
clear case record. Another example can be found in Federal Railroad
Safety Act 49 U.S.C. 20109 (1970) (as amended by the 9/11Commission
Act of 2007 and The Rail Safety Improvement Act of 2008), wherein
Congress provided employees the same 180-day statute of limitations.
11(c) has other problems beyond the issues with the statute of
limitations. 11(c) also does not provide due process rights to workers
and limits the worker to an initial investigation by OSHA and an
administrative hearing by its Office of Administrative Law Judges. The
ability to hold companies accountable for wrongdoing is critical to an
injured person, and at present 11(c) denies the injured party access to
court for a jury trial.
Access to the court is a cornerstone philosophy of our democracy.
When Congress enacted the Sarbanes-Oxley Act they introduced jury
trials to end the monopoly of administrative hearings, but
unfortunately this right is only attainable after a 180-day
administrative exhaustion period. In 2008 Congress also reaffirmed
access to courts for whistleblowers by enacting 15 U.S.C. 2087, the
Consumer Product Safety Improvement Act. Under this Act, whistleblowers
can seek relief via a jury trial after a 210-day administrative
exhaustion period or within 90 days of a final administrative ruling.
Another area of concern with 11(c) is the available remedies
extended to workers who disclose waste, fraud and abuse. As laid out in
the statute, workers will only be allotted re-instatement and back pay
if they are successful in their claim. Comparatively, 49 U.S.C.
42121, the Wendell H. Ford Aviation Investment and Reform Act for the
21st Century (AIR21) (2001) calls for re-instatement, back pay,
attorney's fees, and compensatory damages for workers who disclose
waste, fraud, and abuse. The provisions allotted in the AIR21 are more
appropriate and do not place the onus on the employee to provide their
own legal funding if unsuccessful.
In addition to the limited statute of limitations period the lack
of meaningful due process, and insufficient remedies, the so-called
worker protections found in 11(c) are also neither comprehensive nor
well enforced by government agencies and the courts.\2\ 11(c) is in
urgent need of reform. Workers who seek relief under this antiquated
statute are both unlikely to receive it and face unnecessary
challenges.
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\2\ Whistleblower Protection: Sustained Management Attention Needed
to Address Long-standing Program Weaknesses (August 2010). Government
Accountability Office (GAO) 10-722).
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______
Impact of Extended 11(c) Discrimination Filing Deadlines
Impact of Extended 11(c) Discrimination Filing Deadlines Within OSHA State Plans
[Fiscal Year 2013 Cases] \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Percent
No. filed Percent Filed 31 filed 31 Percent
Total No. within 30 No. filed filed or more or more filed 31
State of Cases days of within 30 within 30 days No. days days or
\2\ adverse days days after meritorious after more that
action meritorious meritorious adverse adverse are
action action meritorious
--------------------------------------------------------------------------------------------------------------------------------------------------------
CA...................................................... 114 75 28 37.3 39 6 34.2 15.4
CT \3\.................................................. 0 0 0 0.0 0 0 0.0 0.0
HI...................................................... 20 17 3 17.6 3 0 15.0 0.0
KY...................................................... 51 34 4 11.8 17 2 33.3 11.8
NC...................................................... 90 44 8 18.2 46 8 51.1 17.4
NJ \3\.................................................. 2 1 1 100.0 1 0 50.0 0.0
OR...................................................... 122 40 6 15.0 82 13 67,2 15.9
VA...................................................... 41 30 1 3.3 11 1 26.8 9.1
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Total................................................. 440 241 51 21.2 199 30 45.2 15.1
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\1\ Open cases from fiscal year 2013 are not included in the totals.
\2\ Cases where the gap between the adverse action and filing dates cannot be determined are excluded from the totals.
\3\ Indicates the State plan covers State and local government workers only.
[Fiscal Year 2012 Cases]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Percent
No. filed Percent Filed 31 filed 31 Percent
Total no. within 30 No. filed filed or more or more filed 31
State of cases days of within 30 within 30 days No. days days or
\1\ adverse days days after meritorious after more that
action meritorious meritorious adverse adverse are
action action meritorious
--------------------------------------------------------------------------------------------------------------------------------------------------------
CA...................................................... 206 127 36 28.3 79 14 38.3 17.7
CT \2\.................................................. 2 1 1 100.0 1 1 50.0 100.0
HI...................................................... 8 7 1 14.3 1 0 12.5 0.0
KY...................................................... 62 42 8 19.0 20 1 32.3 5.0
NC...................................................... 84 34 6 17.6 50 9 59.5 18.0
NJ \2\.................................................. 8 5 4 80.0 3 1 37.5 33.3
OR...................................................... 114 48 6 12.5 66 11 57.9 16.7
VA...................................................... 35 32 2 6.3 3 0 8.6 0.0
-----------------------------------------------------------------------------------------------
Total................................................. 519 296 64 21.6 223 37 43.0 16.6
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Cases where the gap between the adverse action and filing dates cannot be determined are excluded from the totals.
\2\ Indicates the State plan covers State and local government workers only.
[Fiscal Year 2011 Cases]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Percent
No. filed Percent Filed 31 filed 31 Percent
Total no. within 30 No. filed filed or more or more filed 31
State of cases days of within 30 within 30 days No. days days or
\1\ adverse days days after meritorious after more that
action meritorious meritorious adverse adverse are
action action meritorious
--------------------------------------------------------------------------------------------------------------------------------------------------------
CA...................................................... 179 103 12 11.7 76 8 42.5 10.5
CT \2\.................................................. 2 0 0 0.0 2 1 100.0 50.0
HI...................................................... 6 4 1 25.0 2 1 33.3 50.0
KY...................................................... 33 27 4 14.8 6 0 18.2 0.0
NC...................................................... 51 27 3 11.1 24 2 47.1 8.3
NJ \2\.................................................. 3 1 0 0.0 2 0 66.7 0.0
OR...................................................... 133 38 3 7.9 95 9 71.4 9.5
VA...................................................... 16 11 0 0.0 5 0 31.3 0.0
-----------------------------------------------------------------------------------------------
Total................................................. 423 211 23 10.9 212 21 50.1 9.9
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Cases where the gap between the adverse action and filing dates cannot be determined are excluded from the totals.
\2\ Indicates the State plan covers State and local government workers only.
[Total Cases--Fiscal Year 2011-13]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Percent
No. filed Percent Filed 31 filed 31 Percent
Total no. within 30 No. filed filed or more or more filed 31
State of cases days of within 30 within 30 days No. days days or
\1\ adverse days days after meritorious after more that
action meritorious meritorious adverse adverse are
action action meritorious
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fiscal Year 2011........................................ 423 211 23 10.9 212 21 50.1 9.9
Fiscal Year 2012........................................ 519 296 64 21.6 223 37 43.0 16.6
Fiscal Year 2013........................................ 440 241 51 21.2 199 30 45.2 15.1
-----------------------------------------------------------------------------------------------
Total, Fiscal Year 2011-13............................ 1382 748 138 18.4 634 88 45.9 13.9
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Cases where the gap between the adverse action and filing dates cannot be determined are excluded from the totals.
[Whereupon, at 11:16 a.m., the hearing was adjourned.]
[all]