OSHA Head Calls for More Investigators, Technical Knowledge to Investigate Whistleblower Claims

The U.S. government’s Whistleblower Protection Program will undergo a “top to bottom review” to better protect workers who report workplace dangers or illegal activities, the program’s top administrator said at a AAAS-hosted event.

David Michaels

David Michaels

With the recent hiring of 25 new investigators and a thorough reexamination of policies and resources, David Michaels, head of the Occupational Safety & Health Administration (OSHA), said that his agency will be better able to protect employees reporting workplace violations against employer retaliation.

“I do not believe that the vast majority of whistleblower claims are simply without merit,” said Michaels. “Instead, it appears to me that there are a series of institutional, administrative and legislative barriers that stand between many whistleblowers and justice. These barriers, and our failure to protect legitimate whistleblowers creates an injustice for these workers, and it discourages other workers from asserting rights.”

Michaels spoke at a meeting of Professionals for the Public Interest, a coalition of professional associations and unions focused on helping organizations and their members defend against external pressures challenging the integrity of their work. The diverse membership includes AAAS, the American Federation of Teachers, American Chemical Society, the Actors’ Equity Association, the National Association of Social Workers, the United Steelworkers, and the Department for Professional Employees, AFL-CIO.

Launched last year, the coalition provides a forum for organizations to share experiences and case studies to ensure that they and their members are able to use their specialized knowledge and experience to serve the public interest.

Al Teich

Al Teich

Al Teich, director of AAAS Science and Policy Programs, said that just as scientists are asked to use their expertise to answer complex questions, “professionals are asked to use their knowledge to provide technical service through their careers.”

“It’s important that professionals be allowed to use their judgment and expertise without undue outside influence,” said Teich, who offered opening remarks at the 11 May event.

Teich called Michaels “a nationally-recognized leader in the scientific community’s effort to protect the science on which public health and environmental policy are based.” Michaels received the 2005 AAAS Award for Scientific Freedom and Responsibility.

Michaels said that OSHA’s Whistleblower program is charged with investigating claims of unsafe work environments or illegal activities observed on the job, as well as protecting employees who report violations from employer retaliation.

One of the largest challenges for OSHA, said Michaels, is navigating the “patchwork of laws protecting whistleblowers that have resulted in inconsistent, confusing and sometimes contradictory provisions.”

Michaels said OSHA investigates employee whistleblower provisions under 17 different federal statutes, in industries including nuclear power, financial securities, consumer products, and drinking water. He added that several new whistleblower provisions are on the horizon, including the recently enacted Patient Protection and Affordable Care Act healthcare reform legislation.

Beyond the diversity of the statutes, Michaels said that his 85 full time whistleblower investigators are inundated with cases. In fiscal year 2009, OSHA completed 1,947 cases, issuing merit findings in only 3% of whistleblower complaints. Of the total, two-thirds were dismissed.

Michaels attributes the high dismissal rate and the length of time it takes to investigate a claim—174 days—in part to drastic understaffing.

“I do not believe that the vast majority of whistleblower claims are simply without merit,” he said. “And when two-thirds of whistleblower complaints are dismissed, it sends a very unfortunate message that the odds are against you.”

Michaels was quick to point out that OSHA has successfully protected some workers.

In March 2010, OSHA ordered a bank in Nashville to reinstate a whistleblower to his former position and pay him more than $1 million in back wages, interest, attorney’s fees, and other relief after he had been placed on administrative leave and then fired in retaliation for raising concerns, including about insider trading.

One month earlier, OSHA ordered two Midwest railroads to pay a worker more than $80,000 in back wages and compensatory damages after he was fired in retaliation for reporting an injury sustained while working.

Michaels said that he wishes all whistleblower cases could end “as satisfactorily as these cases, with workers nationwide feeling emboldened to speak out.”

“Sadly, the news is otherwise,” he said.

Michaels is hopeful that with more inspectors and whistleblower investigators, toughened citations and penalties, and far-reaching enforcement initiatives that put a “harsher light on recalcitrant employers with long histories of worker neglect,” OSHA will be in a better position to protect employees and the public.