Talking Points for
Dr. David Michaels
Assistant Secretary of Labor for Occupational Safety and Health
Whistleblower Protection Advisory Committee Meeting
Monday, April 20, 2015
- Good afternoon. It is my pleasure to be with you today.
- Thank you to the Whistleblower Protection Advisory Committee members for all your work and a special thanks to the Chair of the Advisory Committee, Emily Spieler, and the Work Group Chairs:
- Dave Eherts - 11(c) Work Group
- Jon Brock - Best Practices and Corporate Culture Group
- Eric Frumin - Transportation Industry Work Group
Inequality / Worker Voice
- Despite the decades-old legal requirement that employers provide workplaces free of serious hazards, every year, more than three million workers are seriously injured, and thousands more are killed on the job.
- Changes in state-based workers' compensation insurance programs have made it increasingly difficult for injured workers to receive the full benefits to which they are entitled. Employers now provide only a small percentage (about 20%) of the overall financial cost of workplace injuries and illnesses.
- This cost-shift has forced injured workers, their families and taxpayers to subsidize the vast majority of the lost income and medical care costs generated by these conditions. Workers and their families bear over half the cost - 63% when accounting for out-of-pocket and private insurance expenses.
- When employers are excused from this burden, worker safety and health often becomes less of a priority. This is especially important because preventing these injuries and illnesses in the first place would be the number one way to alleviate this type of suffering before it even begins.
- These injuries and illnesses contribute to the pressing issue of income inequality: they force working families out of the middle class and into poverty, and keep the families of lower-wage workers from entering the middle class. Work injuries hamper the ability of many working families to realize the American Dream.
- For many injured workers and their families, a workplace injury creates a trap which leaves them less able to save for the future or to make the investments in skills and education that provide the opportunity for advancement.
- This affects all workers, but often has a harsher effect on lower income and vulnerable workers. These at-risk workers have the same rights as every other worker, including the right to voice concerns over potential hazards in the workplace.
- Congress, when drafting the OSH Act, granted workers the right to raise concerns with their employers or with OSHA when they see a safety or health problem on the job, the right to ask OSHA to inspect their workplaces, and to shield them from retaliation for exercising these rights.
- If a worker is silenced, that worker is not safe, and that worker's co-workers may be endangered as well. For this reason, a vital component of our work is protecting workers from retaliation when they voice safety and health concerns.
- To ensure that workers have a voice in their workplaces and the protection they deserve when exercising their health and safety rights, OSHA reminds employers that workers have a right to speak up, without fear of retaliation, when they believe that their safety and health is at risk.
- We are making progress. OSHA has reinvigorated its Whistleblower Protection Program. We have increased staff, elevated the office to a Directorate led by a Senior Executive, and made the program a major priority in the Department of Labor
- To ensure that workers' rights are protected, OSHA has developed a closer working relationship with the Solicitor of Labor and pushed for active involvement in whistleblower cases - no matter the small size of monetary awards involved.
- Our whistleblower program is clearly getting stronger. The number of new whistleblower retaliation cases filed with Federal OSHA continues to steadily grow each year, and in FY2014, federal OSHA received 7,411 new complaints and docketed 3,098 new cases for investigation.
- Even though the Whistleblower Protection Program is receiving more cases than ever before, the hard work of our investigative staff has allowed us to keep pace; OSHA completed 3,150 cases in FY2014, awarding more than $35 million to whistleblower complainants, and reinstating 69 workers through merit determinations and settlement agreements.
- In December 2013, we launched a new Online Whistleblower Complaint Form to provide workers with an additional avenue for filing whistleblower complaints.
- This new avenue has proven to be extremely popular with the public; from December 2013 to September 2014, OSHA received approximately 3,000 online-filed complaints, which accounted for approximately 40% of all new complaints received during FY2014. So far this fiscal year (as of April 13, 2015), we have received an additional 1,853 online-filed complaints.
Improving Efficiency and Quality of Investigations
- We have come a long way in the last six years, and we know that there is still work ahead of us.
- We are focused on improving both the efficiency and quality of our investigations. Focusing on improving the investigative process, OSHA has emphasized attentive case load management, eliminated burdensome paperwork procedures, and restructured regional whistleblower programs to strengthen oversight of investigative teams. And we are increasing the training and skill levels of our investigators. Because OSHA's improved investigative efficiency has allowed it to serve more whistleblower parties, whistleblower complainants have received more damages through merit findings and settlement awards than before the backlog reduction campaign began in FY2012.
- From FY2012-FY2014, whistleblower complainants were awarded an average of approximately $30.3 million per year in merit findings and settlements, compared to an average of $14.4 million per year in the preceding three fiscal years (FY2009-FY2011). For example, in FY2014, whistleblower complainants were awarded approximately $35.8 million, which is more than double the approximately $15.2 million that were awarded to complainants in FY2011.
- More whistleblower complainants were also reinstated through merit findings and settlements in the past three years; an average of 76 complainants were reinstated each year from FY2012-FY2014 - including a record 86 reinstatements in FY2013 - while an average 63 complainants were reinstated each year from FY2009-FY2011.
- OSHA has also issued a higher number of merit findings during the past three years, issuing an average of 62 merit findings per year from FY2012-FY2014 - including a record 75 merit findings in FY2013 - compared to an average of 50 merit findings each year from FY2009-FY2011.
- In conclusion, our goal is to improve both the efficiency and quality of our Whistleblower Protections program without sacrificing one for the other.
- We understand that these cases are not just numbers; each one represents and directly affects peoples' lives. That's why we are taking steps to ensure that we have consistent and thorough investigations.
- Since I last addressed this committee, we have continued to strengthen and improve OSHA's whistleblower program.
- I am pleased to announce that I have chosen MaryAnn Garrahan to be Director for the Directorate of Whistleblower Protection Programs. MaryAnn is currently the Regional Administrator in Region 3 and has been a valuable member of the OSHA team for over 25 years.
- She is a skilled manager with extensive technical experience in all OSHA programs. She will begin her new role as Director of DWPP in the National Office this month. I am confident that MaryAnn will be an effective leader in whistleblower protection and will continue to build and strengthen this vitally important program.
- I also want to introduce Acting Director Eric Harbin and Deputy Director Anthony Rosa.
- I am pleased to announce that OSHA is seeking to fill six positions on WPAC that will become vacant on December 1, 2015. A Federal Register Notice was issued on March 17th with details about the nomination process. All nominations must be submitted to OSHA by May 18, 2015.
- OSHA is currently expanding to all of its regional programs a highly-successful management structure, which dedicates an Assistant Regional Administrator (ARA) to oversee each regional whistleblower program. ARAs report directly to our regional leadership, elevating the program in the field in much the same way as we elevated the program in the National Office.
- The new position allows for direct caseload management and oversight of whistleblower investigations by subject matter experts, resulting in more efficient and effective investigations under all statutes. Regions that have already implemented this management structure indicate that both regional supervisors and investigators benefit under this plan.
- We have been working for over a year to overhaul and expand our basic training offerings for our whistleblower investigators, and we are currently designing and developing new curriculum for advanced training courses. These new courses will help build our investigators' skills as they gain more experience during their career.
- In addition to these new courses which will be rolled out next year and Eric Harbin can fill you in on more of these, we developed webinars which will educate our staff on new statutes and regulations along with specific topics of interest. Recently, for example, DWPP presented a webinar to Agency staff which reviewed the Fairfax memo regarding OSHA's policies on incentive programs. This was the first step in responding to a recommendation from WPAC's 11(c) Work Group in September 2014.
- We are also continuing to improve our work with our partner agencies whose whistleblower provisions we enforce.
- Currently, we are reviewing a Memorandum of Understanding with the Federal Aviation Administration. The purpose of this MOU is to facilitate coordination and cooperation concerning the protection of employees who provide air safety information under the provisions of Section 519 of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21).
- The increasing number of whistleblower cases filed per year under various statutes requires close coordination between OSHA and our partner agencies.
- For example, in FY 2010, four cases were filed under the Affordable Care Act; and in 2014, there were 26 cases. In FY 2011, there were 6 cases filed under the Consumer Financial Protection Act and 17 under the FDA Food Safety Modernization Act; and in 2014, there were 48 cases and 50 cases, respectively. We also received 10 cases last year under MAP21 (Moving Ahead for Progress in the 21st Century Act), a statute just passed in 2012. Under the Seaman's Protection Act, we receive an average of approximately 6 cases per year.
- We are asking our partner agencies to add a link to www.whistleblowers.gov on their respective websites. In turn, we will make sure that the OSHA website provides a hyperlink for each partner agency. This improves customer service and helps demonstrate a strong working relationship between federal agencies.
- As communication with our partner agencies is enhanced, we will be able to assure that an effective process exists for sharing complaints and investigative information so that all concerns voiced by complainants are fully addressed. DWPP will also explore joint outreach opportunities with our federal partners and assess internal training needs so that all customers are better served.
- We are moving forward with revising our Alternative Dispute Resolution (ADR) pilot program which ran through FY13 and revealed that "early resolution" was very effective in that it provided a viable alternative to the investigative process.
- The early resolution process demonstrated that adding staff dedicated to the coordination and facilitation of early settlement negotiations provides a highly-desired service to the program's customers.
- In light of these results, OSHA is expanding the availability of the early resolution process to all regions and has developed a written Instruction to establish the policies and procedures that apply to early resolutions.
- In addition, I am happy to announce that OSHA and the Office of the Solicitor of Labor have issued a memo clarifying the Agency's position regarding investigative standards for OSHA's whistleblower investigations.
- The standard that applies to OSHA's whistleblower investigations is whether OSHA has reasonable cause to believe a violation occurred. Because OSHA makes its reasonable cause determination prior to a hearing, the reasonable cause standard is somewhat lower than the preponderance of the evidence standard that applies following a hearing.
- We have scheduled a presentation later today to explain this topic in greater detail and answer your questions.
- We've also made improvements with our Section 11(c) appeals program. Over the past year, DWPP eliminated its backlog of pending reviews and has drastically reduced the time taken to complete the reviews. Complex cases are referred to our solicitors for further review and legal analysis, and if additional investigative work is needed, the case is remanded back to the field for further investigation. We are developing ways to better track this for the public and will keep you posted
- Additionally, we have been working on a comprehensive written Outreach Plan for DWPP along with new outreach materials.
- Fourteen Fact Sheets are currently available on our website, in both English and Spanish, and more are on the way. We have also developed Section 11(c) "Quick Cards", in both English and Spanish, to quickly provide program information to the public.
- Finally, we re-designed our www.whistleblowers.gov website to enhance navigability and user friendliness.
- As you can see, we've been very busy. That's because protecting workers from retaliation for exercising their rights is one of our biggest priorities at OSHA.
- The Department's FY 2016 budget request for Whistleblower programs reflects our commitment to continuing to build the program; the $22.6 million request would support a total of 157 full time employees (FTE), 22 positions more than our current FTE level of 135.
- We cover a wide variety of workplaces at OSHA and enforce the whistleblower provisions of 22 different statutes. I wanted to share with you a few of our successes:
- As you know, we've been dealing with several 11(c) investigations against AT&T. In multiple regions, we have filed district court cases against subsidiaries of AT&T on behalf of numerous workers who suffered discipline after reporting work place injuries. In each instance, the company alleged that the employee violated a corporate workplace safety standard, but OSHA's investigation concluded that the safety standards were a being used as a pretext for disciplining workers who reported injuries. Our efforts are making a difference: In region five , for example, after we filed in district court, the company made all the workers whole-removed the discipline and compensated the workers. This is still in litigation and we will keep the committee apprised.
- In October 2014, the Kansas City Regional Office found that Burlington Northern Santa Fe Railroad violated the Federal Railroad Safety Act when it retaliated against an apprentice electrician after he reported a shoulder injury. The company terminated the employee after he suffered an injury which required him to be transported to an emergency room and medically restricted from returning to work. OSHA ordered the company to pay the apprentice electrician $225,385, including $150,000 in punitive damages, remove disciplinary information from the employee's personnel record, and provide whistleblower rights information to all its employees.
- In December 2014, our Boston Regional Office found that Metro North Railroad violated the Federal Railroad Safety Act when it retaliated against a Coach cleaner after he reported a knee injury. While driving the injured employee to the hospital, a Metro-North supervisor intimidated the worker and threatened that reporting the injury would kill his chances for career advancement in the company. Region 1 ordered Metro North to pay the employee a total of $250,000 in punitive damages (the highest amount allowed), $10,000 in compensatory damages, and to cover his attorney fees.
- Just a few weeks ago, on February 13, 2015, we won a Section 11(c) case in Seattle against USPS, who had retaliated against an employee who helped a coworker file an OSHA complaint. The District Court judge reinstated the employee to a management-level position, awarded him $229,229 in compensatory damages, and expunged his disciplinary record. The judge found USPS to be so hostile to OSHA and its employees' protected activities that the Court permanently enjoined USPS Seattle facilities from violating Section 11(c) of the OSH Act.
- This month, our New York Regional Office found that a Bronx hair salon, Salon Zoe, violated Section 11(c) of the OSH Act when it retaliated against an employee who warned her coworkers about formaldehyde in hair-straightening products and potential respiratory damage from exposure. The salon was later inspected and cited for the lack of a hazard communication program and improperly training its employees. The Department is pursuing the 11(c) charges in District Court.
- We also won a Section 11(c) case against a Boston dentist, Dr. N. Terry Fayad, who had retaliated against an employee who helped a coworker file an OSHA complaint regarding needle stick hazards. The District Court judge ordered to pay the worker $51,645 in back wages and ordered both Fayad and his practice to pay her $33,450 in compensatory damages.
- And now I want to focus on some of those areas where we need your help - the concerns on which your work groups have focused.
- First, I appreciate the efforts of the Best Practices Work Group in drafting and proposing a set of recommended practices to WPAC. I look forward to hearing the Committee's discussion on these recommended practices and to considering any recommendations.
- OSHA is committed to providing and showcasing industry recommended practices that encourage employers to establish effective anti-retaliation reporting programs in their workplaces.
- With your assistance in collecting recommended practices and through your recommendations to us, we can collectively affect a positive corporate culture change that encourages employees to report concerns without fear of retaliation while realizing benefits for employers who establish these programs in their workplaces.
- To WPAC as a whole, I would appreciate your brainstorming and advice on how OSHA may best reach out to workers and employers to educate them on Whistleblower rights, the benefits of those rights, and how to protect those rights. This will play a key role as we implement our Outreach Plan nationwide.
- Again, I thank all three work groups for your passion, dedication and time expended on these important program areas.
- We are very appreciative of your interest in promoting worker safety and health and the ability of workers to voice safety and health concerns without fear of retaliation.
- The bottom line is this: Workers have to be able to report hazards without fear of reprisal, and no one benefits if workers are silenced for sounding an alarm when they see a problem that could injure, sicken or kill someone. In fact, we all pay the price when workers are silenced.
- Thank you.