David Michaels
Assistant Secretary of Labor
For Occupational Safety and Health

Professionals for the Public Interest
AAAS: 1200 NY Ave.,Washington, D.C.
12:30 p.m. Tuesday, May 11, 2010

Whistleblowers and OSHA:
Strengthening Professional Integrity

Thanks to David Cohen for inviting me to speak to you.

OSHA's Whistleblower Protection Program exists because of a decades-old belief held by Congress, stakeholders, employers and society, that whistleblowers play an essential role in protecting workers and the public.

Whistleblowers can make the difference between lawful workplaces and places where workers fear for their livelihoods and even their lives if they raise concerns.

Secretary of Labor Hilda Solis has a goal: Good Jobs for Everyone. Achieving the goal requires strengthening workers' voices in the workplace. Without robust whistleblower protections, these voices may be silenced -- and this silence impacts far more than just the individual workers involved.

However, the current collection of whistleblower protections is not nearly effective enough to provide the shield workers need to step out of the shadows and complain when they detect dangers or illegal activities on the job.

This isn't to say that workers never prevail...

In March, OSHA ordered Tennessee Commerce Bank in Nashville to reinstate a whistleblower and pay him more than $1 million in back wages, interest, attorney's fees, compensatory damages and other relief. The worker had been placed on administrative leave and then fired in retaliation for raising concerns about internal controls, employee accounts, insider trading and other issues.

In February, OSHA ordered the Illinois Central Railroad Co. and the Chicago, Central & Pacific Railroad to pay a worker more than $80,000 in back wages, compensatory damages and attorney's fees. The employers fired the worker in retaliation for reporting a work-related injury he sustained while performing his job.

Last year, in conjunction with the U.S. marshals, we seized a car from the president of Brocon Petroleum in New Jersey after the company failed to comply with the terms of a federal consent judgment to pay back wages to a whistleblower who had called OSHA and caused an inspection to be conducted. The U.S. marshals and OSHA used funds from the auction of the president's vehicle to pay the whistleblower and recoup our agencies' costs.

I'd like to say that all our whistleblower cases conclude as satisfactorily as these cases, and that workers nationwide feel emboldened to speak out. Sadly, the news is otherwise. Any review of the whistleblower protections will reveal a patchwork of laws protecting whistleblowers that has resulted in inconsistent, confusing and sometimes contradictory provisions.

Currently, OSHA enforces: 17 statutes including the 1970 OSH Act, 7 environmental statutes, 6 transportation-sector statutes, and a cobbled collection of nuclear energy safety, and corporate fraud and consumer product safety statutes, including the Sarbanes-Oxley Act of 2002, the Safe Drinking Water Act of 1974, and the Clean Air Act of 1977.

The "patchwork" analogy is appropriate. Over time and in various circumstances, Congress has applied legislative patches where holes in whistleblower protections have been detected.

There is little question that more change is coming. Looming on the not very distant horizon are the whistleblower protection provisions of the Patient Protection and Affordable Care Act, the recently enacted health care reform legislation. Beyond that are bills being considered by Congress on financial reform and modernization of our food safety system.

It is worth noting that these new responsibilities rarely come with any increase in funding or FTEs. They simply mean more work for our current staff, stretching an overburdened workforce that much thinner.

Beyond the funding issues, our enforcement program faces other difficulties and inconsistencies between programs:

• Filing deadlines vary among statutes from 30 to 180 days.
   
• Seven OSHA-enforced statutes permit preliminary reinstatement of a complainant; only eight authorize punitive damages.
   
• A different eight statutes give complainants the right to seek direct enforcement in district court.
   
• Most newer statutes permit a "kick-out provision," where complainants may remove their cases to district court and obtain hearings if DOL has not make a final decision within a prescribed number of days.
   
• Statutes also differ according to burdens of proof required to show retaliation.
   

Along with an inconsistent, confusing collection of provisions, we find unsatisfying outcomes of complaints. Too few complaints are reaching resolutions intended by the whistleblower protections.

In FY 2009, OSHA received 2,160 complaints and completed 1,947 investigations. Of those completed, OSHA recommended litigation or otherwise found merit in only 3 percent of whistleblower complaints; 20 percent were resolved by settlements reached either by OSHA and the parties or by the parties alone; 63 percent were dismissed; and 14 percent were withdrawn. Our results for the first half of fiscal year 2010 continue in the same disappointing vein.

I do not believe that the vast majority of whistleblower claims are simply without merit. Instead, it appears to me that there are a series of institutional, administrative and legislative barriers that stand between many whistleblowers and justice. These barriers, and our failure to protect legitimate whistleblowers creates an injustice for these workers, and it discourages other workers from asserting rights.

When two-thirds of whistleblower complaints are dismissed, it sends workers a clear message -- a very unfortunate message: "The odds are against you."

This must change, but change will not come easily or quickly.

OSHA's program now has 85 full-time specially trained whistleblower investigators with 1,421 pending cases. The national average caseload is 17 cases per investigator - three times the accepted, manageable caseload of 6-8 cases.

The unfortunate, inevitable result is a backlog of cases. On average, it's taking 174 days -- nearly half a year -- to complete a single investigation.

Here's how the Public Employees for Environmental Responsibility (PEER) summarized the situation yesterday in a news release:

"Over the past decade, Congress has charged [OSHA] with enforcing far-reaching new whistleblower laws... but has not provided funding or staff to protect millions of workers from retaliation for reporting violations...As a result, OSHA's whistleblower program is hopelessly overwhelmed."

That's pretty harsh criticism and I won't stand here and try to deny or defend. It doesn't matter to workers; the result is the same: "Justice delayed is justice denied." We have to do better.

In its release, PEER shows what we're up against:

"Altogether, OSHA's whistleblower jurisdiction has grown by a staggering 75 million workers in just the past decade, nearly doubling its previous coverage... By contrast, the number of OSHA staff assigned to investigate worker reprisal complaints has remained virtually static>."

Secretary Solis and I are not satisfied by any means, which is why, for the FY 2010 budget, the President has requested --and we have received -- 25 more investigators to bolster the program. Once we have completed hiring, we expect this will reduce the per-investigator workload, but surely not enough, especially if OSHA is delegated responsibility in three more statutes, which is likely to happen soon.

Adding more investigators will help, but we need to mend our patchwork quilt of worker protections in other ways, and Congress is considering reforms that are clearly overdue.

The OSH Act was one of the first safety and health laws to provide protections for whistleblowers. Section 11(c) was innovative in 1970, but 40 years later it is antiquated. HR 2067, Protecting America's Workers Act (PAWA), would bring it into the modern age.

PAWA would expand Occupational Safety and Health Act's anti-retaliation provisions by --

• codifying a worker's right to refuse to do unsafe work
   
• prohibiting employer policies that discourage workers from reporting illnesses or injuries
   
• prohibiting employer retaliation against workers for reporting injuries or illnesses
   
• granting workers the right to further pursue their cases if OSHA does not proceed in a timely fashion
   

PAWA is a good start, and OSHA proposes that PAWA add to OSHA two provisions already found in the Mine Safety and Health Act:

• to provide for assessment of civil penalties against employers who violate whistleblower provisions
   
• to provide for OSHA to reinstate a complainant pending outcome of the investigation
   

Let's be clear, however: PAWA would help send the right message to employers and workers alike, but this one legislative patch is only the first step. PAWA alone won't be enough to give workers the broad, strong shield they need because PAWA addresses only the inadequacies of the weakest one of OSHA's 17 whistleblower provisions -- the OSH Act.

We need to strengthen all our whistleblower statutes.

It has been said that OSHA's "whistleblower protection program does not appear to be on the radar of the agency's leadership."

I respectfully disagree. This may have been true in the past, but currently, the leadership of the Department of Labor profoundly understands profoundly the cornerstone position that whistleblower protections have in the foundation of a strong worker protection program.

Whistleblower protection is an essential part of strong enforcement, and over the last year OSHA has been struggling to shore up its foundations on several fronts -- by adding more inspectors, toughening our citations and penalties, and designing a more far-reaching enforcement initiative that will put a harsher light on recalcitrant employers with long histories of worker neglect.

We've also increased our scrutiny of employer injury and illness reporting and "disincentive programs" that discourage workers from seeking and getting help when they're hurt on the job.

We've overhauled OSHA's oversight of the 26 states that manage their own OSHA programs, to ensure consistency of quality and response and to build in measure that will alert us to any state programs that are underperforming.

We've proposed a sweeping new standard that would move employers to think in broader terms about worker health and safety by mandating an Injury and Illness Protection Program in every workplace. This mandate seeks to focus on prevention by creating a culture of safety.

We're also investing in prevention in the 2010 budget with more funds to support worker training through Susan Harwood Training Grants, more funds for the On-site Consultation Program, and more funds that have increased personnel by almost 30 percent to investigate whistleblower protection.

No single solution is going to fix everything, and with a "frugal" budget --I'm being diplomatic here -- OSHA has to make painful priority decisions.

Not everything is going to be fixed at once, but shoring up our whistleblower protection program is very much on my radar, I promise you.

For example, it came to my attention that the previous administration issued an interpretation that denied protection to whistleblowers employed by subsidiaries of publicly held corporations, even though several members of Congress noted this was not the intent of the law. We have a new Solicitor of Labor and soon after she arrived I raised this with her. We are now looking at this issue together, but between the Upper Big Branch Mine disaster and the Gulf Coast Oil Spill, we have been temporarily diverted.

More importantly, we are about to embark on a top-to-bottom review of OSHA's whistleblower protection program. We have a team that will review policy, resources, equipment and work process. The objective is to identify any weaknesses and inefficiencies in the program and make recommendations on ways to improve how we conduct this very important activity.

In addition, as many of you know, the Government Accountability Office issued a very strong report some months ago and made a series of recommendations. We are working to address those as well.

Beyond these efforts, though, I need to hear from you how we can improve our work.

In March, we held a session called OSHA Listens, where, from 9 in the morning to 6 at night, the top OSHA leadership listened to the advice -- and complaints -- of stakeholders and experts. We are committed to President's Obama's vision of Open Government, and we want to hear from any of you who can recommend steps OSHA can take to address the problems apparent to all of us.

I pledge to you today that we will work hard to improve our whistleblower protections. By attacking this problem on multiple fronts -- and with candid input from critics and friends alike -- the landscape will tilt more favorably toward shielding our working men and women.

And the nation will be better for it.

Thank you very much.