The US Department of Labor’s Occupational Safety and Health Administration (OSHA) held a public stakeholder meeting on May 19 to discuss its Whistleblower Protection Program and solicit feedback from interested individuals on how to improve its administration of the program. This call followed a similar call OSHA hosted in October, on which we also reported.
During the call, OSHA asked stakeholders to comment on three primary questions:
- How can OSHA deliver better whistleblower customer service?
- What assistance can OSHA provide to explain whistleblower laws to employees and employers?
- What can OSHA do to ensure workers are protected from retaliation for raising concerns related to the COVID-19 pandemic (or anything else)?
Several stakeholder groups contributed to the conversation, including representatives from industry and legal providers, along with self-described whistleblowers. Their comments fell into several broad categories, discussed below.
REINSTATING OSHA WHISTLEBLOWER PROTECTION ADVISORY COMMITTEE
Many commenters remarked that the Biden-Harris administration should prioritize reinstating the OSHA Whistleblower Protection Advisory Committee, which the Trump administration discontinued. According to the news release announcing the creation of the Advisory Committee in 2012, its purpose was to “advise, consult with and make recommendations to the secretary of labor and the assistant secretary of labor for occupational safety and health on ways to improve the efficiency, effectiveness and transparency of OSHA's administration of whistleblower protections.”
These commenters believed that making the Advisory Committee (and whistleblower concerns generally) a White House priority would benefit workers as a whole and, specifically, individuals who have filed complaints or are considering filing complaints. This is especially true, they said, for individuals who believe they were wrongfully terminated as a result of the COVID-19 pandemic.
IMPROVING EFFICIENCY AND TRANSPARENCY OF INVESTIGATIONS INTO WHISTLEBLOWER COMPLAINTS
Many commenters noted the lack of efficiency and transparency into OSHA investigations of whistleblower complaints. They emphasized that it is difficult to find statistics on the OSHA website on the number of investigations pending, ongoing, and completed, and even more difficult for individuals to track the status of their own cases. This issue has only intensified as a result of the COVID-19 pandemic, especially as OSHA now works to reduce its accumulating backlog of complaints.
Commenters agreed that improving transparency and working to ensure appropriate resources are available to OSHA to more quickly complete investigations should be a key focus. Commenters also thought OSHA should hire more inspectors and needed to improve language skills because, for many workers, English is not their first language.
MAKING STATUTES OF LIMITATIONS CONSISTENT
Additionally, many commenters discussed the lack of uniformity in statutes of limitations among the various statutes governing whistleblower complaints. The Energy Reorganization Act, for example, allows whistleblowers 180 days from the date of the adverse action to file a complaint of retaliation with OSHA. Other statutes, such as the Clean Air Act, the Safe Drinking Water Act, and the Solid Waste Disposal Act, however, are much more restrictive and allow complainants only 30 or 60 days. Commenters believed that harmonizing these statutes of limitations would benefit workers across the industry.
We will continue to monitor this area for new developments and any changes OSHA makes to its Whistleblower Protection Program.