Workers face powerful disincentives to raise concerns about health and safety in the workplace. Those who do sometimes face retaliation in the form of reduced hours, firing or other adverse action. Workers may also face retaliation for filing workers’ compensation claims for injuries and illnesses that occur because of unsafe work environments. All these types of retaliation are illegal, but workers report that they often occur nonetheless.
All states have some form of whistleblower protection law, though they vary widely in their scope and implementation, and in the actual safeguards they provide. State laws that provide narrow coverage or weak remedies effectively discourage workers from reporting health and safety hazards when they fear retaliation. When state statutes establish a system that relies heavily or exclusively on overburdened government agencies to act as their gatekeepers for whistleblower claims, significant backlogs and extensive delays can also be a huge discouragement.
Because they live such problems every day, workers are the on-the-ground experts in identifying workplace hazards and recommending fixes before work-related injury and illness occur. This whistleblowing role is especially critical as OHS agencies’ budgets dwindle. Fewer inspectors, combined with weak penalty provisions in the law, make it less likely that employers who break the law will be punished severely enough to discourage them from breaking the law in the future.
What’s the Solution?
Every state can improve its whistleblower protection laws and make management changes to ensure improved enforcement of both new and existing laws. Strong whistleblower protections must shield workers from employer retaliation and encourage workers to identify and report health and safety hazards. Such laws are necessary to counter the disincentives that potential whistleblowers face. Rooting out hazardous workplace conditions has benefit beyond the workplace too, because of the costs they impose on public health and safety.
A strong whistleblower protection law should have five characteristics:
Simplified process for exercising whistleblower rights;
OSHA’s Whistleblower Protection Program. Federal OSHA’s Whistleblower Protection Program oversees investigations and enforcement of over 20 federal whistleblower protection statutes, including the OSH Act. Some of the federal laws offer better protections than the weak protections in the OSH Act, and those can serve as a starting point for state and local advocacy efforts. For information on how federal OSHA performs investigations and the variations in federal whistleblower laws, see OSHA’s Whistleblower Investigations Manual.
Another useful model for advocates is New Jersey’s Conscientious Employee Protection Act (CEPA), one of the most comprehensive state whistleblower protection laws. Though it extends to all forms of potential workplace wrongdoing, it has been used in several cases to protect workers who report occupational health and safety violations. However, it is not perfect and advocates should consider how to improve upon some of its weaknesses if they choose to adopt this model for their state.