On August 4, a group of twenty-one U.S. Senators sent a letter to the U.S. Department of Labor (DOL) and the Occupational Safety and Health Administration (OSHA) regarding the disproportionate amount of whistleblower retaliation acts against Black and Latino workers. In June, the National Employment Law Project (NELP) published a report which found, among other things, that “Black workers are more than twice as likely as white workers to have seen possible retaliation by their employer.” In addition, the report found that employers were two times less likely to address Black workers’ concerns than their white peers. The report is based upon a nationwide survey conducted in May. It aimed to take stock of the state of whistleblowing and retaliation in regard to the COVID-19 pandemic and hazardous workplaces.
The Senators begin their letter by emphasizing the added significance of strong whistleblowing procedures and protections in light of the ongoing pandemic. They then express being troubled by the NELP report’s findings and raise concerns with the DOL and OSHA’s handling of whistleblower retaliation cases. The letter states:
As the nation’s top watchdog for worker safety, OSHA should bring justice to all workers facing punishment for speaking out, and it should resolve the implicit and explicit racial biases that underlie employer retaliation which disproportionately impacts Black and Latino workers. Workers need to trust that OSHA will enforce whistleblower protections to shield them against retaliation when reporting workplace hazards and hold bad employers accountable. Without confidence in OSHA, as the report illustrates, employers will be free to silence and punish Black and Latino workers.
The letter concludes with a list of questions concerning OSHA’s handling of COVID-19 related whistleblower complaints. The Senators demand a response to these questions by no later than August 14, 2020. Signers of the letter include Bernie Sanders (I-Vt.), Elizabeth Warren (D-Mass.), Robert Menedez (D-N.J.), Kamala Harris (D-CA), and Cory Booker (D-N.J.).
Whistleblowers who report on hazardous workplaces are protected from retaliation under the Occupational Safety and Health Act of 1970. Under this act, OSHA is authorized to investigate allegations of retaliation and take remedial action to prevent whistleblowers from being fired. OSHA is permitted to file lawsuits in federal court against employers who fire whistleblowers. Successful suits entitle whistleblowers to “all appropriate relief,” including reinstatement and back pay. However, major flaws in the law, like the short thirty-day window for whistleblowers to file retaliation complaints and a lack of private right of action, have rendered the act mostly ineffective.
In June, Senator Harris introduced the COVID-19 Whistleblower Protection Act alongside Representatives Jackie Speier (D-CA) and Jamie Raskin (D-MD). The bill would protect coronavirus whistleblowers and ensure the appropriate spending of coronavirus relief funds. In July, a group of whistleblower advocacy and government accountability organizations sent an open letter to Congress to support the proposed legislation.
The Senators’ Letter
The NELP Report