On April 29, 2014, David Michaels, the Assistant Secretary of Labor for Occupational Safety and Health, testified before the U.S. Senate subcommittee of the Committee on Health, Education, Labor and Pensions regarding proposed changes to the Occupational Safety and Health Act of 1970 (“OSH Act”) whistleblower provision. After highlighting some the recent changes in the OSHA whistleblowing programs, including the development of online complaint filing processes (as discussed in an earlier blog post) and a staffing increase, Assistant Secretary Michaels urged legislators to consider increasing the statute of limitations for filing a whistleblower complaint under the OSH Act.
Currently, the OSH Act requires whistleblowers to file a complaint within thirty days of the alleged retaliatory act. 29 U.S.C. § 660(c)(2). The Assistant Secretary testified that OSHA dismisses over 200 whistleblower claims asserted under the OSH Act each year as untimely. He stated that in many cases, the employee will learn of the adverse employment action, which triggers the statute of limitations, but will not know about the employer’s unlawful retaliatory motive until later, at which point the employee cannot assert a timely claim. Assistant Secretary Michaels gave three examples of where an employee’s untimely filing of an OSHA complaint resulted in the dismissal of the employee’s potentially meritorious complaint.
Assistant Secretary Michaels added that over 600 more complaints would have been eligible for investigation if the OSH Act was amended to allow whistleblowers to file a complaint within 180 days of the alleged retaliatory act.
Assistant Secretary Michaels also asked lawmakers to consider other changes to the OSH Act whistleblower provision, including: granting OSHA the authority to order immediate preliminary reinstatement; permitting individuals to assert a judicial action when the administrative proceeding is not processed in a timely manner; adding a process for the full administrative adjudication of whistleblower claims; and adopting a burden of proof causation standard that is more favorable to whistleblowers.
Notably, Assistant Secretary stated that the majority of the whistleblower complaints OSHA currently receives are filed under the OSH Act. Thus, if accepted, his proposal of expanding the OSH Act’s statute of limitations could lead to a significant uptick in whistleblower complaints and OSHA investigations.