A February 20, 2019 article from Bloomberg Law provides statistics to explain the significant delays experienced by litigators and attorneys alike in Occupational Safety and Health Administration’s investigation of whistleblower claims A substantial increase in the number of whistleblower complaints filed with OSHA over the past five years and a contemporaneous decrease in the number of investigators available to investigate these claims has led to longer waits for OSHA decisions and delays in the adjudication of claims.
OSHA is charged with enforcing more than 20 whistleblower statutes. From fiscal year 2014 to fiscal year 2018, the number of whistleblower complaints filed with OSHA increased by 29 percent: from 7,408 to 9,566. Over this same period, the number of investigators available to investigate these claims decreased by 24 percent: from 100 to 76.
The staffing losses are due, in part, to a stagnant budget and a federal hiring freeze in 2017. The staffing restrictions resulted in OSHA opening full investigations into only 3,007 whistleblower cases in FY 2018, the fewest number of new investigations since 2013. This means, on average, each investigator opened approximately 40 new investigations in FY 2018, in addition to their already existing caseloads. Also during FY 2018, OSHA closed 2,964 investigations, down 15 percent from the prior year and the lowest since FY 2012. The average time to complete an investigation in FY 2018 for all types of whistleblower cases was 284 days, seven days more than the FY 2016 average. The Administration’s statistics are not likely to improve any time soon as it reportedly takes approximately two years for a new investigator to learn the requirements of the position.
The potential impact of these investigatory constraints is considerable. For example, under the Sarbanes-Oxley Act, a putative whistleblower has 180 days from an adverse employment action to file an administrative complaint with OSHA. The statute and regulations contemplate the entire administrative process, including OSHA’s investigation and decision, review of this decision by an Administrative Law Judge and subsequent by the Administrative Review Board, will be completed within 180 days. Based on current statistics, if OSHA opens an investigation into a complaint, it will take, on average, more than 100 days longer than the timeframe contemplated by the Act before OSHA completes its investigation. As the Act also permits whistleblowers to seek dismissal of their complaints in order to proceed de novo in federal court, more whistleblowers may elect to go this route, rather than have their claims languish at the administrative level. Since 2017, approximately 300 whistleblowers have elected to go this route, according to Bloomberg Law. However, as an employer only has 20 days to respond to a complaint filed with OSHA, the whistleblower is filing in federal court with full knowledge of the employer’s defense and the ability to craft a complaint that addresses any arguments raised by the employer. Additionally, while the claim languishes at the administrative level, an employer will typically have to deal with the loss of witnesses due to attrition or other factors, further complicating its defense of the whistleblower’s claim.