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Inside OSHA Online: Rare Whistleblower Win Highlights Watchdog Push To Bolster OSHA Powers

April 09, 2018
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OSHA has ordered a Boston based flight company to reinstate a pilot who was terminated after reporting violations of Federal Aviation Administration (FAA) rules but who was protected under federal whistleblower laws, a “highly rare exception” according to government watchdog groups who are seeking to strengthen the agency's authorities.

“This pilot should be commended - not penalized - for raising legitimate safety concerns that can affect him, his co-workers, and the general public,” said OSHA Boston-area Regional Administrator Galen Blanton, in a March 28 press release.

OSHA found that the pilot's termination resulted from the reporting of safety concerns and that his disclosure was a protected activity under the federal aviation law known as AIR 21.

But Tom Devine, legal director of the Government Accountability Project (GAP), says that the pilot was one of the “lucky few” whistleblowers that OSHA backed, noting that only 2 to 3 percent of whistleblowers win their cases.

An analysis of agency data shows that from fiscal year 2007 to FY17, whistleblowers won fewer than 2 percent of cases based on merit. However, the data says that around a quarter of the cases resulted in a “positive outcome for the complainant” which includes those cases that resulted in settlements.

But Devine downplays cases where whistleblowers settle, saying they “are token” victories as whistleblowers usually do not get an acknowledgment that their rights have been violated. “It's hardly a victory,” he says.

Devine adds that OSHA's decision regarding the pilot is “a highly preliminary proceeding in which employees rarely prevail, employers can also challenge that initial decision,” he added.

OSHA oversees 22 whistleblower statutes that protect employees who report violations of various workplace safety and health, airline, environmental, financial reform, food safety, nuclear, pipeline, securities, among other laws.

But Devine explained that there are two generations of whistleblower statutes. Many issued before 2000 impose a higher burden of proof that requires whistleblowers to show that whistleblowing was the "motivating" or "but for" cause for the plaintiffs discharge or demotion.

By contrast, about a dozen additional statutes issued in 2002 or later include stronger protections for employees -- such as a longer statute of limitations and lower burden of proof that only require whistleblowers prove that their disclosure of safety and health concerns was a “motivating factor” in their termination if they are able to win protections.

While the Boston pilot was protected under AIR21 -- that was written in 2000 -- Devine says it is the “most advanced of the prior statutes,” due to it's lower burden of proof, but does not include protections like the anti-gag provision in more recent statutes.

New Legislation

To address such concerns, GAP, along with Public Citizen, have been advocating for legislation that would consolidate OSHA's whistleblower statutes, arguing that “inconsistencies with the burden of proof, due process, and temporary reinstatement, among other areas,” cripple the older statutes.

“Most federal employees enjoy whistleblower protections under one primary law, the Whistleblower Protection Act, which Congress unanimously strengthened in 2012 . . . Congress can provide similar clarity for the private sector through one whistleblower protection law that is a consolidated of all 22 DOL-administered statutes and reflects the most current rights,” the groups argue in a background memo on the issue.

Democrats have also sought legislative remedies to bolster protections for employees who blow the whistle. Sen. Tammy Baldwin (D-WI), introduced on March 23 S.2621, a bill that has been introduced many times by both House and Senate Democrats that seeks to strengthen whistleblower protections by incorporating procedures from newer whistleblower statutes and expand the Occupational Safety and Health Act.

But the legislation -- which would expand OSHA's coverage to state and local government employees in 25 states and to include federal employees -- in its many forms, has failed to advance over the past decade.

Jordan Barab, former OSHA deputy chief under the Obama administration, says that agency officials had sought to overhaul the agency's whistleblower program, which he said was considered “the neglected stepchild at OSHA.”

For example, in 2010, the Office of the Inspector General (OIG) found that OSHA was not adequately managingthe Whistleblower Protection Program, and recommended the agency strengthen its supervisory controls and improve its management of whistleblower caseloads.

To address this, the Obama administration hired more investigators, created an online complaint form, and mandated training for investigators, Barab says.

An analysis of agency data shows that from FY11 to FY12, the agency saw 42 percent more cases, yet those only resulted in a 6 percent increase in “positive outcomes” for whistleblowers.

From FY12 to FY13 however, there was nearly a 46 percent increase in favorable outcomes for complainants, increasing from 641 to 932, including settlements.

'A Slow Death'

But Barab added that even with “significant progress, the program remains troubled and underfunded, and the Trump administration's continuing hiring freeze threatens much of the progress made during the Obama administration with the backlog of open cases rising back to unacceptable levels,” he wrote in a post to his blog Confined Space.

While part of the Trump administration's federal hiring freeze was lifted for OSHA Compliance Safety and Health Officers in August 2017, this did not include whistleblower investigators.

Advocates say that the program's lack of staffing can compound long investigations -- that can routinely span two to five years -- and during that time employees are “sentenced to a slow death professionally,” as they can suffer from reputational harm and blacklisting, Devine says. Federal appropriators maintained flat OSHA funding for whistleblower enforcement, allocating $17.5 million over the past three fiscal years.

A March 29 ProPublica report found that under President Trump five panels that advised the Labor secretary on how to improve health, safety and whistleblower protections, have not met for at least nine months. Further, the report says that a variety of recommendations the committees were working on have now stalled.

The Whistleblower Protection Advisory Committee (WPAC), established in 2012 “to improve the fairness, efficiency, effectiveness, and transparency of OSHA's administration of whistleblower protections,” has not held a full committee meeting since April 26, 2016, according it's website. The FY19 budget request also seeks to eliminate the committee.

Anthony Rosa, the deputy director of OSHA's Whistleblower Protection Programs, said in emails to committee members, that DOL was not convening committee meetings due to Trump's March 2017 executive order requiring “the head of each agency to reorganize in order to improve the efficiency, effectiveness, and accountability of that agency,” according to the report.

Emily Spieler, the chair of the WPAC, told ProPublica that she and her fellow committee members “worry that the failure to convene the committee may be a lack of dedication to whistleblower issues.”

The WPAC's charter is set to expire on April 25, a request for comment from the agency in regards to whether the charter would be renewed was not answered by press time.

Rebecca Rainey
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