OSHA’s Whistleblower Protection Advisory Committee wants to improve safeguards for employees who experience retaliation after making workplace safety and health complaints, but most of the changes it recommends will take congressional action.
In a series of unanimous votes, the Committee on September 4 called for changes to the Occupational Safety and Health (OSH) Act’s whistleblower provision, Section 11(c). They are similar to recommendations OSHA chief Dr. David Michaels urged Congress to consider when he testified before a Senate oversight panel in April.
The recommended changes include:
- lowering the burden of proof requirement so a complainant need only show the complaint was “a contributing factor,” as opposed to having to prove dismissal was a result of raising a safety complaint;
- allowing temporary reinstatement following an initial finding favoring the employee;
- permitting appeals to Labor Department administrative law judges rather than through an internal OSHA review process;
- permitting complainants to take their cases to federal court;
- increasing opportunities to seek punitive damages and attorneys’ fees;
- increasing the filing deadline following an alleged retaliatory action to 180 days, from the current 30 days; and
- forbidding pre-dispute arbitration agreements with employers from limiting a worker’s right to file a Section 11(c) complaint.
One Committee member expressed reservations, despite the unanimous vote. Attorney George Keating questioned the recommendations lowering the burden of proof and allowing preliminary reinstatement, according to Bloomberg BNA.
Keating noted that in a 2013 discrimination case brought under the Civil Rights Act, the Supreme Court rejected an appeals court opinion that lowered the burden of proof. Among the Court’s concerns were that a lower burden of proof would encourage employees to make unfounded claims as a way to cover their dismissal for poor performance, Keating said. That could further burden OSHA’s resources, he noted, which already are taxed by a large caseload. Regarding temporary reinstatement, Keating remarked that requiring employers to reinstate workers before the appeals process had ended was not consistent with due process, Bloomberg BNA reported.
However, Billie Garde, a fellow committee member and attorney, countered that other whistleblower laws permitting the “contributing factor” burden of proof and temporary reinstatement have not brought a rush of whistleblower complaints.
There is no indication Congress will take up OSH Act reform, including its Section 11(c) provision, anytime soon.