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Whistleblower protections under OSH Act are lacking, new report finds

With OSHA functioning on a shoestring budget that only has the resources to inspect workplaces, on average, once every 131 years, it is vitally important that workers who face on-the-job hazards be able to speak up and flag potential dangers.

But according to a report issued this week by the Center for Effective Government, the protections in place to shield employees from retaliation should they report a concern are lacking. 

OSHA’s resources are about to get even more limited. Mandatory budget cuts, required by the 2011 budget deal, will further undermine the agency’s ability to protect America’s workers. As a result, it is even more important for workers to be the eyes and ears of OSHA and report health and safety problems in factories, laboratories, construction sites, and other workplaces.

"But too often, when workers raise concerns about health and safety hazards on the job, employers retaliate with reduced hours or dismissal, even though doing so is clearly illegal," noted Katie Weatherford, regulatory policy analyst at the Center for Effective Government and the author of the report. "Neither federal OSHA nor its state-level counterparts currently do enough to protect workers from being harassed, suspended, or fired for reporting health and safety problems, leaving workers with no place to turn."

The report, “Securing the Right to a Safe and Health Workplace,” details particular problems with the OSH Act’s protections, including the fact that the amount of time required to file a retaliation complaint is too short, investigations take too long, the burden of proof is too high, OSHA cannot preliminarily reinstate an employee once it determines that a complaint has merit, and employees cannot pursue a remedy independently, even if OSHA takes no action on their behalf. 

The Center strategically highlights state legislation as an avenue to improve workers’ safety, knowing that efforts to strengthen workers’ safety on the federal level are sure to meet partisan deadlock.

The Center calls for state governments to improve state laws that protect workers who report health and safety hazards from employer retaliation. Specifically, the Center calls for state laws that will:

  • Give employees adequate time to file a retaliation complaint;
  • Require state agencies to conduct prompt and thorough investigations of retaliation complaints;
  • Authorize state agencies to preliminarily reinstate terminated employees;
  • Make the burden of proof reasonable; and
  • Provide employees the right to pursue legal action on their own if the agency dismisses their complaint or refuses to pursue their case

The report also highlights a number of states that already have additional protections for whistleblowers above the OSH Act’s 11c protections, including Connecticut, Massachusetts, Delaware, Montana, New Jersey, Pennsylvania, and Colorado.

National COSH applauds the Center for calling attention to the shortcomings in whistleblower protections, and encourages the organization – along with all worker safety advocates – to continue to work with state legislatures on crafting bills to shield workers from retaliation. National COSH believes that worker safety groups will have the best chances of enacting change on the state level, as Washington is stuck in partisan gridlock and anti-regulatory sentiments.

"Adding these protections to state law will reduce the fear of retaliation and encourage workers to come forward to report health and safety hazards," said Ronald White, director of regulatory policy for the Center. "Increased reports of workplace hazards will help federal OSHA and state programs identify and target their limited resources to the most dangerous facilities."

Added Tom O’Connor, executive director of National COSH, “Workers who report safety and health hazards on the job are supposed to be protected from retaliation under section 11c of the OSH Act. Sadly, the system for protecting whistleblowers from retaliation is badly broken and has never effectively functioned to protect workers from retaliation. Several independent government audits have found that very few workers who are fired for reporting hazards ever get their jobs back.”

The National COSH Network continues to fight for stronger whistleblower protections on the local, state, and federal levels. If workers are afraid to voice up about hazards they face on the job, everyone’s safety is in jeopardy.

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