OSHA Weaknesses Force Workers to Choose: Report Safety Violations, or Keep Their Jobs?

Mike Elk

Weaknesses in OSHA's whistleblower protection laws leave employees vulnerable to retaliation for speaking out against workplace hazards. (Greg Younger / Flickr / Creative Commons)

Accord­ing to a report released last week by the Cen­ter for Effec­tive Gov­ern­ment (CEG), the Occu­pa­tion­al Safe­ty and Health Admin­is­tra­tion (OSHA) inspects only 1 per­cent of work­places in the Unit­ed States in a giv­en year. In the absence of inspec­tions, that means more of the bur­den to report safe­ty abus­es falls on indi­vid­ual work­ers them­selves. How­ev­er, the CEG study shows that due to weak pro­tec­tion laws, many work­ers find them­selves choos­ing between report­ing a safe­ty vio­la­tion and keep­ing their jobs — cre­at­ing a vicious cycle that can lead to work­ers too fear­ful to report poten­tial­ly dead­ly work­place hazards.

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,” says Katie Weath­er­ford, reg­u­la­to­ry pol­i­cy ana­lyst at CEG 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.”

A big part of the prob­lem is the law, say advo­cates. The pro­tec­tions allot­ted to work­ers under 11© of the OSH Act [of 1970] are gross­ly inad­e­quate and not con­ducive to build­ing a safe work­place,” says Pub­lic Cit­i­zen’s Work­place Safe­ty and Health Advo­cate Kei­th Wright­son. As it stands today, 11© is in dire need of mod­ern­iz­ing and its direc­tive should pro­vide work­ers with the strongest lan­guage possible.”

Work­place safe­ty and health advo­cates cite sev­er­al prob­lems with the cur­rent reg­u­la­tions. First, the statute of lim­i­ta­tion on when work­ers can file a com­plaint for retal­i­a­tion is too short, they say. Because work­ers only have 30 days to file a claim under 11©, the sec­tion of the Occu­pa­tion­al Safe­ty and Health (OSH) Act that con­cerns retal­ia­to­ry mea­sures, work­ers unfa­mil­iar with the law or uncer­tain of how to pro­ceed may miss the window.

Fur­ther­more, 11© states that OSHA will inves­ti­gate all claims of retal­i­a­tion with­in 90 days of their fil­ing. Accord­ing to the study, how­ev­er, it takes OSHA an aver­age length of 150 days to com­plete an inves­ti­ga­tion. That’s in part due to OSHA’s lim­it­ed fund­ing — the agency employs only 96 whistle­blow­er retal­i­a­tion inves­ti­ga­tors to look into more than 1,500 annu­al complaints.

CEG also says that the bur­den of proof need­ed to win legal action against an employ­er is cur­rent­ly too high. Under the OSH Act, a work­er must show that their safe­ty com­plaint was a moti­vat­ing fac­tor” in their firing.

The result is that in the end, a tiny frac­tion of retal­i­a­tion com­plaints make their way to court. Accord­ing to the report, Between 2005 and 2012, OSHA received 11,153 com­plaints of retal­i­a­tion. While 10,380 were reviewed, only 2,542 were found to have mer­it’” — in oth­er words, OSHA only felt that a quar­ter of the work­ers could prove that their employ­ers specif­i­cal­ly retal­i­at­ed against them for stick­ing up for their safe­ty or for cowork­ers’. Of these,” the report con­tin­ues, 2,390 were set­tled out of court; 152 were rec­om­mend­ed for litigation.” 

Pre­vi­ous reports have found that OSHA files suit in only 7 per­cent of cas­es rec­om­mend­ed for lit­i­ga­tion. And because work­ers lack the right to pri­vate­ly sue on their own if OSHA fails to take up the case in civ­il court, many work­ers are left strand­ed with­out legal recourse when they’re fired from their jobs.

OSHA, pri­or­i­tiz­ing its cas­es, [pass­es] on what they think are the best allo­ca­tions of resources,” says Weath­er­ford, argu­ing that OSHA, with its lim­it­ed funds, tends to focus only on try­ing to lit­i­gate the most clear-cut cas­es of retal­i­a­tion — the ones they think they’re like­ly to win. They also avoid “,” Weath­er­ford says, instead pri­or­i­tiz­ing cas­es that are like­ly to set a precedent.

And even if OSHA does find that a case has mer­it, the OSH Act can­not pre­lim­i­nar­i­ly rein­state work­ers to allow them to sup­port them­selves and their fam­i­lies. Mean­while, a case may take years to complete.

When reached for com­ment, OSHA said that it was review­ing CEG’s report. OSHA takes whistle­blow­er pro­tec­tions very seri­ous­ly, and [has] made major changes in the pro­gram in the last sev­er­al years to increase its effec­tive­ness, and will con­tin­ue to improve the pro­gram. [The] abil­i­ty of work­ers to speak out and exer­cise their legal rights with­out fear of retal­i­a­tion is a cru­cial part of the legal pro­tec­tions and safe­guards that all Amer­i­cans val­ue,” wrote OSHA spokesper­son Jesse Lawder in an email to Work­ing In These Times. Over the last four years, OSHA has imple­ment­ed new mea­sures to strength­en enforce­ment — includ­ing adding more staff, increas­ing train­ing of inves­ti­ga­tors, ele­vat­ing the Office of Whistle­blow­er Pro­tec­tion Pro­grams and cre­at­ing the Whistle­blow­er Pro­tec­tion Advi­so­ry Com­mit­tee. WPAC has a work­ing group specif­i­cal­ly ded­i­cat­ed to 11©.”

Though there have also been efforts to improve the retal­i­a­tion pro­tec­tion laws on a fed­er­al lev­el, such as the Pro­tect­ing America’s Work­ers Act put forth this year by Sen. Tom Harkin (D‑Iowa) and Rep. George Miller (D‑Calif.), Weath­er­ford says that they have been con­tin­u­ous­ly stalled in Con­gress. In the mean­time, she says, the gov­ern­ment should work to pro­tect employ­ees on a state-by-state basis.

Under Con­necti­cut state law, for instance, if OSHA dis­miss­es a work­er’s com­plaint of retal­i­a­tion, he or she can pri­vate­ly sue the employ­er for the chance to receive back wages and reim­burse­ment of court and attor­ney fees. Six oth­er states — Delaware, Mon­tana, New Jer­sey, Penn­syl­va­nia, Col­orado and Mass­a­chu­setts — have vary­ing degrees of whistle­blow­er pro­tec­tion mea­sures that go above and beyond fed­er­al law.

We think until Con­gress acts,” Weath­er­ford main­tains, that the states should move for­ward to offer leg­is­la­tion to bet­ter pro­tect workers.”

Stronger pro­tec­tion laws like these, advo­cates say, won’t just help work­ers with­in that state — they’ll also increase OSHA’s effec­tive­ness overall.

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 of the Cen­ter for Effec­tive Gov­ern­ment. Increased reports of work­place haz­ards will help fed­er­al OSHA and state pro­grams iden­ti­fy and tar­get their lim­it­ed resources to the most dan­ger­ous facilities.”

Mike Elk wrote for In These Times and its labor blog, Work­ing In These Times, from 2010 to 2014. He is cur­rent­ly a labor reporter at Politico.
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