Blowing the Whistle on Workplace Hazards

by Katie Tracy

March 14, 2018

Workers have the right to speak up about health and safety hazards they encounter on the job. And they should be able to feel comfortable coming forward with their concerns without having to worry that they will be fired, demoted, or in some other way retaliated against for doing so. That is exactly what the drafters of the Occupational Safety and Health Act (OSH Act) had in mind when they included a provision in the 1970 law prohibiting employers from retaliating against workers who report concerns to the Occupational Safety and Health Administration (OSHA) or to its state counterparts (in states that choose to operate their own OSH programs with approval from federal OSHA). 

Unfortunately, in the more than 47 years since the law's enactment, the anti-retaliation provisions have proven ineffective. Despite legislation introduced in Congress to update the law, no bill has ever gained enough support for passage in both the House and Senate. Consequently, workers are left without adequate protections from retaliation, and many are afraid to report health and safety concerns because they don't want to risk losing their jobs or paychecks. 

On March 15-16, I will speak at an OSH Law Boot Camp about the weaknesses of the OSH Act's anti-retaliation provisions. CPR is joining the OSH Law Project and AFL-CIO's Lawyers Coordinating Committee in cosponsoring the event. I will be joined on the whistleblower protection panel by two prominent attorneys – Ava Barbour, Associate General Counsel of International Union, UAW, and Emily Spieler, Professor of Law at Northeastern University Law School.   

In my remarks, I plan to highlight some of the most significant weaknesses of the OSH Act's whistleblower protection program, which include: 

  • Employees have only 30 days to file a retaliation complaint;
  • OSHA cannot provide workers with reinstatement while investigating the retaliation complaint, even when the case takes years to complete as they sometimes do;
  • Workers must meet a high burden of proof by showing that the employer's retaliatory action would not have occurred "but for" the worker blowing the whistle; and
  • Workers must rely solely on OSHA to vindicate their rights, meaning workers have no recourse if OSHA declines to pursue a case. 

Although Congress has never updated the OSH Act's anti-retaliation provisions, it has tasked OSHA with investigating and enforcing whistleblower protections written into 21 other federal laws, such as the Consumer Product Safety Improvement Act (CPSIA) and the Sarbanes-Oxley Act (SOX). These laws protect employees who report certain types of lawbreaking in their workplace, such as violations of product safety standards or the commission of financial and securities fraud. (To view all whistleblower laws that OSHA enforces, see OSHA's Whistleblower Statutes Desk Aid here). In many instances, the whistleblower protections in these federal laws provide workers with far greater protection than the OSH Act itself, such as by giving workers 180 days to file complaints and by providing workers with preliminary reinstatement while a complaint is under investigation. 

Addressing the failures of the OSH Act's whistleblower protections requires Congress to pass legislation modernizing the law, which is unlikely given the current political climate. Until change is possible at the federal level, states can help to ensure workers are protected from retaliation by improving their labor laws to supplement the federal whistleblower protection provisions in ...

The Center for Progressive Reform

455 Massachusetts Ave., NW, #150-513
Washington, DC 20001

© Center for Progressive Reform, 2015