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Washington Update

Washington Update: A day late

June 22, 2014

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Ross Baize is proud of his job and his work, and he does what he can to improve things.

In early 2011, Baize went to management in an effort to change his company’s operating procedure for unjamming machinery after two of Baize’s co-workers had been injured during unjamming attempts.

Following the grievance procedure outlined in the company’s collective bargaining agreement with his union, Baize told management he wished to move the grievance to the final step. On March 30, he was told his job had been eliminated.

The statute of limitations to file a whistleblower complaint with OSHA is 30 days. Although Baize’s job was officially eliminated on April 4 (29 days before he filed a complaint), he was told his job would be eliminated 34 days before the complaint was filed. According to the statute, Baize was too late and the claim was rejected.

“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,” Baize testified April 29 before the Senate Health, Education, Labor and Pensions Committee’s Employment and Workplace Safety Subcommittee.

Things turned out OK for Baize in the end – after a few weeks at a lower pay grade, he was awarded a different job within the company at his original pay level. But many other workers who try to blow the whistle on unsafe acts may not be so fortunate.

OSHA administrator David Michaels told the subcommittee that his agency rejects more than 200 complaints each year because they fall outside the 30-day deadline period. Many of these, he said, may have merit.

The agency will never know how many of these complaints could have been decided in the worker’s favor, Michaels said, or how many workers never file a complaint simply because they fear they’ve missed the 30-day window.

“I think it impacts the health and safety and the well-being of all Americans,” Michaels said during the hearing. “It’s important for workers to be able to raise those concerns for everybody’s safety.”

Ignoring whistleblowers can have tragic results, according to Michaels, alluding to whistleblower activity that was ignored or downplayed in the lead-up to the 2010 Deepwater Horizon oil rig explosion, in which 11 workers died.

I last wrote about whistleblower protections two months ago (Protecting whistleblower protections), and reflected on how OSHA is seeking more money to better ensure whistleblowers are receiving the protection they need.

For fiscal year 2015, the administration is requesting that OSHA’s whistleblower budget be increased to $21.3 million. Although Michaels told the subcommittee he would welcome additional funds, he and other witnesses at the hearing stressed the need to modernize the statute – something only legislators could do.

Extending the statutes of limitations is only one piece of the puzzle. The burdens of proof for safety whistleblowers are much greater than other modern whistleblower laws. An administrative review does not exist, so OSHA has to go to federal court when it wants to proceed on any case. If the agency chooses to deny the claim, there is no appeals process.

Ultimately, this is a story about an out-of-date law, one that fails to keep pace with its modern contemporaries. As Sen. Patty Murray (D-WA) pointed out during the hearing, it is yet another example of how the Occupational Safety and Health Act is in desperate need of updating.

“By far, the most whistleblower complaints are covered by the OSH Act, which has the oldest and weakest protections of any whistleblower law,” Murray said. “I hope we can really look at updating these laws.”

The opinions expressed in “Washington Update” do not necessarily reflect those of the National Safety Council or affiliated local Chapters.

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