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Whistleblower Protection Laws

Deputizing Workers to Identify and Report Hazards

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:

  • Comprehensive coverage;
  • Simplified process for exercising whistleblower rights;
  • Strong safeguards against employer retaliation;
  • Powerful remedies; and
  • Effective notice of whistleblower rights.

Read the full text on whistleblower protection laws from our Winning Safer Workplaces manual.

Additional Resources for Workers and Advocates

The Effect of Retaliation. Beyond employer retaliation, workers who have been brave enough to report problems or wrongdoing have paid a heavy toll. Read about “social penalties” of whistleblowing—strained relationships, financial struggles, and emotional trauma—in this scholarly article on the potential benefits of mandatory whistleblowing by Elizabeth C. Tippett, The Promise of Compelled Whistleblowing: What the Corporate Governance Provisions of Sarbanes-Oxley Mean for Employment Law (2007).

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.

As federal OSHA’s jurisdiction has broadened, the agency has struggled to manage the larger caseload. For more on these challenges, see the Government Accountability Office reports: Whistleblower Protection: Sustained Management Attention Needed to Address Long-standing Program Weaknesses, GAO-10-722 (Aug. 2010), and Whistleblower Protection Program: Better Data and Improved Oversight would Help Ensure Program Quality and Consistency, GAO-09-106 (Jan. 2009).

Although states that oversee their own OHS programs instead of federal OSHA may enact state laws that expand the protections provided by the OSH Act, few have done so. Read more about the weak performance of state OHS agencies in this 2012 article by Roy Maurer of Society for Human Resource Management, OSHA Finds Widespread Problems with State Whistle-Blower Programs.

Urging State Action to Improve Protections. Advocates interested in improving whistleblower protections in their state should look at model legislation found in, Securing the Right to a Safe and Healthy Workplace: Improve State Laws to Protect Workers, by the Center for Effective Government.

Also, read about why workers should have the right to report concerns to their employer, a government agency, or the media in Gerard Sinzdak’s 2008 legal commentary, An Analysis of Current Whistleblower Laws: Defending a More Flexible Approach to Reporting Requirements.

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.

Whistleblower Protection Statutes by State. Learn more about whistleblower protections in the states using the interactive map provided by the National Whistleblowers Center. Another useful resource for state-by-state whistleblower protections is the Public Employees for Environmental Responsibility (PEER) interactive State Watch map. Advocates can also search for pending legislation in their state that might involve whistleblower protections using CQ Roll Call’s interactive map.

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