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 In fiscal year 2013, nearly 69 percent of 1,947 whistleblower cases on which OSHA made a decision were dismissed or withdrawn, according to agency data.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.