OSHA wants to provide better protection for workers who  report safety concerns, urging changes in the OSH Act that  may increase the amount of whistleblower litigation.

Speaking at a Senate subcommittee hearing, OSHA chief  Dr. David Michaels outlined proposals intended to amend  whistleblower provisions in the Occupational Safety and  Health (OSH) Act.  They include giving OSHA authority to  order immediate preliminary reinstatement of employees  fired for reporting safety issues and allowing workers to  bring private suits in federal court if OSHA fails to act  within a certain time.

Observers worry, however, these changes risk burdening employers and clogging the courts with meritless cases.  In  fiscal year 2013, nearly 69 percent of 1,947 whistleblower  cases on which OSHA made a decision were dismissed or  withdrawn, according to agency data. The remainder were  either settled or found to have merit.

Michaels said OSHA also would like to extend the 30-day  statute of limitations for alleging retaliation to 180 days.   He noted that about 200 cases per year are dismissed as  untimely, in part because of the 30-day window.  

Michaels said he sees preliminary reinstatement as a way  to get employees back to work quickly.  "The lack of  authority for OSHA to order preliminary reinstatement of  employees ... delays employees' ability to return to work  and receive a regular paycheck, even if it is clear that they  were terminated for retaliatory reasons.  Without an  equivalent provision in the OSH Act, there is less pressure  for adequate settlements that include reinstatement," Michaels testified, as quoted by Law360.  

But if MSHA’s experience with discrimination claims under  the Mine Act is any indication, most whistleblowers will not  return to work because employers do not want them back.   Rather, they will be paid their wages, but kept off the job,  thwarting Michaels’s intent that they be reinstated.

Nevertheless, proponents argue the changes could be an  incentive for employers to resolve claims, especially if the  threat of litigation hangs over them.  

"As long as responding employers know that the cases will  not be litigated, there is no incentive for them to abide by  the law or to settle cases rapidly and fairly," Emily Spieler  told lawmakers at the hearing, according to Law360.   Spieler chairs OSHA’s Whistleblower Protection Advisory  Committee.

Legislation to amend the OSH Act is believed to have little  chance of passage this year in Congress.