Blowing the whistle
Investigating, resolving cases a complicated processBy Marvin V. Greene, associate editor
In November 2004, an Illinois man working as a driver for a small fuel hauler added another entry to his resume – whistleblower. John Simon of Lake Villa claimed his employer told him he did not need to keep a daily driver’s log, as required by Department of Trans-portation regulations. The employer’s instruction did not sit well with Simon, who, having worked as a commercial truck driver since 1986, knew DOT logs were needed to record hours of service.
Testifying before the House Committee on Education and Labor’s Subcommittee on Work-force Protections in May 2007, Simon said his complaints about keeping logs led to him being fired. He ultimately filed a federal whistleblower lawsuit and got his job back. However, workers who blow the whistle on alleged unsafe practices face a long road that raises myriad issues about the responsibilities of both employees and employers.
OSHA is responsible for investigating whistleblower claims under 17 federal statutes, including Section 11(c) of the Occupational Safety and Health Act of 1970. More than 1,800 complaints are filed with OSHA annually; nearly 65 percent are dismissed following an investigation.
Federal whistleblower statutes amount to a hodgepodge of bureaucratic rules and regulations – covering some workers and not others, and offering various and confusing deadlines for filing actions. Workers complain about the time span between submitting an action and learning how the claims will be settled. Employers argue that too many claims are based on unjustified and frivolous actions and result in negative publicity for the companies involved.
Attorney Jason Zuckerman, a principal with the Employment Law Group in Washington, which represents complainants, characterizes U.S. whistleblower cases as having “an inordinately high level of objective reasonableness” that stymies workers who file claims and hinders Congress’s intent to protect them.
Zuckerman and others say whistleblower laws are interpreted too narrowly at the investigative level. They also say cases with merit take too long to resolve. “We want an airline mechanic to be able to raise a concern about an unsafe engine and to prevent that plane from going up in the sky,” Zuckerman said.
In his testimony before Congress, Simon said that although he won reinstatement, back pay and attorney fees, his employer’s actions took the fight out of him and he eventually left the company. “Had I known then what I know now, I may not have blown the whistle on my employer,” he said.
Claims commonly dismissed
Most whistleblower claims fall under Section 11(c) of the OSH Act, which prohibits employers from retaliating against workers who bring claims against companies. During fiscal year 2007, OSHA completed 1,163 invest-igations of 11(c) complaints. Workers prevailed in 22 percent of the investigations and most were settled, but the majority of claims were dismissed with workers having no further recourse. Twenty-six OSHA state programs completed an additional 1,022 investigations in FY 2007, with employees prevailing in 24 percent of those.
In 2002, Congress enacted the Notification and Federal Employee Antidiscrimination and Retaliation Act – known as the “No FEAR Act” – which places accountability on federal agencies for violations of anti-discrimination and whistleblower protection laws. However, legislators are intent on increasing protections for whistleblowers. Rep. Lynn Woolsey (D-CA), who chairs the Subcommittee on Workforce Protections, said intimidation and blacklisting of whistleblowers occurs despite current laws. Woolsey and Rep. George Miller (D-CA), chairman of the House Education and Labor Committee, are co-sponsors of the Private Sector Whistleblower Streamlining Act (H.R. 4047). Introduced in December 2007, the legislation aims to standardize corporate whistleblower laws.
Congress also has added new whistleblower protections to more than 20 million workers in consumer product industries with the enactment of the Consumer Product Safety Improvement Act of 2008. In addition, the Protecting America’s Workers Act (S. 1244) – introduced in April 2007 by Sen. Edward Kennedy (D-MA) to substantially raise civil penalties on employees who flout the law – contains provisions that enhance Section 11(c) protections. One provision would make “reporting any injury, illness, or unsafe condition to the employer, agent of the employer, safety and health committee involved, or employee safety and health representative involved” apply to the OSH Act. Another provision would increase the time an employee can file a claim to 180 days from the current 30.
Corporate scandals spur Congress
Richard E. Moberly, an assistant professor of law at the University of Nebraska College of Law in Omaha, has studied whistleblower laws. He said Congress has been receptive to closing loopholes in whistleblower statutes since corporate scandals such as Enron surfaced during the early 2000s. According to Moberly, laws are applied largely on an ad-hoc basis. “Congress has clearly recognized the importance of whistleblowers as part of our law enforcement-monitoring regime for both the private sector and government. The tension comes in on how those protections play out once a whistleblower brings a claim,” he said.
Moberly added that since such corporate scandals came to light, whistleblowers are viewed differently. “Before that, whistleblowers were really analogous to snitches and traitors. Some people still characterize them that way, but there is more of a momentum and a formal acknowledgement that employees can play a role in corporate monitoring, and companies can benefit from that,” he said. Zuckerman of the Employment Law Group said he hopes to see changes in the way dismissed cases are handled under the OSH Act.
Under the act, the Department of Labor has the final authority – leaving no recourse for the whistleblower to pursue private legal action. “There are these narrow pockets of protection that Congress has enacted, and those claims are adjudicated through the Department of Labor. We need more laws in more sectors of the economy,” he said.
In turn, employers can protect themselves from whistleblower complaints by carefully following the law, according to attorney Michael T. Taylor. Taylor is an associate with Arent Fox LLP, a Washington-based labor law firm that represents employers, and formerly served as acting general counsel of the Occupational Safety and Health Review Commission.
For instance, if OSHA is coming into a workplace to conduct an inspection, it is imperative that employers assure workers that nothing they say to OSHA compliance officers will be used to alter the terms and conditions of their employment, Taylor said. He added that although it is appropriate for employers to debrief workers following an inspection, they should reiterate that workers’ jobs will not be affected.
Cases growing more complex
Some stakeholders believe Congress needs to clarify OSHA’s increasingly complicated role in administering whistleblower statutes, arguing that the agency lacks sufficient resources to carry out the laws. OSHA’s Office of Investigative Assistance, which operates within the agency’s Directorate of Enforce-ment Programs, develops policies and procedures for the statutes administered by OSHA and manages appeals of dismissed cases.
Richard Fairfax, director of OSHA’s Directorate of Enforcement Programs, testified before Congress in 2007 that whistleblower cases have grown more complex over the years, resulting in investigations that can skirt statutory deadlines (see “Determining a case”).
During FY 2007, 72 OSHA field investigators, nine supervisors and a field program manager handled cases for OSHA. Investigators are charged with determining where complaints fall under whistleblower statutes before proceeding. Much of the groundwork is done at the OSHA regional office level. “Not only do our investigators juggle the competing demands of numerous open cases at any one time, they must have knowledge and expertise in applying numerous related statutes and implementing regulations,” Fairfax told Congress.
Moberly said he believes whistleblower cases involving financial activities prompt particular concern for the agency. “The more far afield that whistleblower projections become from OSHA’s core mission of safety and health, I think, the more difficult it becomes for those investigators to fulfill their role adequately. You’re really asking a department focused on safety and health to know nuances of securities law and corporate securities law,” he said.