As the COVID-19 pandemic upended society in 2020, workplace safety protections took on a new level of significance. The Occupational Safety and Health Administration (OSHA) Whistleblower Protection Program (WPP) enforces the anti-retaliation provisions of a wide range of workplace safety whistleblower statutes, including Section 11(c) of the Occupational Safety and Health Act (OSH Act), the nation’s preeminent workplace safety law. According to data shared by OSHA, in the 2020 fiscal year (FY 2020), the WPP received a record number of whistleblower retaliation complaints.
In FY 2020, which ended on September 30, 2020, whistleblowers filed 3,448 retaliation complaints with OSHA’s WPP. This is a fiscal year record for most whistleblower complaints received by OSHA, according to the data made public by the agency.
While OSHA enforces the anti-retaliation provisions of more than 20 whistleblower statutes, a vast majority of whistleblower retaliation claims filed with OSHA in FY 2020 were for OSH Act violations. In FY 2020, OSHA received 2,539 OSH Act whistleblower retaliation complaints, accounting for nearly 75% of all whistleblower complaints the agency received that year. This figure is also a new fiscal year record and is an approximately 25% increase over the previous record (2,084 in FY 2019).
Enacted in 1970, the OSH Act governs occupational health and safety in both the private sector and federal government. In passing the legislation, Congress saw employee whistleblowers as a key tool in exposing workplace safety issues. Section 11(c) of the Act prohibits employers from firing or “in any manner discrimat[ing] against” an employee who reports health and safety issues within the workplace. Whistleblowers who faced retaliation for making a protected disclosure can file a whistleblower complaint with OSHA within 30 days of the retaliatory act. OSHA’s WPP is then supposed to investigate the complaint: if it determines the complaint is meritorious, the WPP is to file a lawsuit against the employer. If victorious, the employee is entitled to “all appropriate relief” including reinstatement and back pay.
Many whistleblower advocates argue that the Section 11(c) of the OSH Act is an outdated and ineffective whistleblower statute. For example, in The New Whistleblower’s Handbook, whistleblower attorney Stephen M. Kohn of qui tam firm Kohn, Kohn & Colapinto claims that “the law has major flaws that render it impotent.” Kohn points to the short statute of limitations and the lack of a private right of action as the statute’s two major flaws. He states that the 30-day statute of limitations “results in numerous claims being automatically denied.” Kohn also explains that without a private right of action, whistleblowers are entirely reliant on OSHA to file a lawsuit on their behalf. He notes this as a problem because “OSHA’s resources are very limited and they cannot file a lawsuit on behalf of every meritorious claim.”
The record number of OSH Act whistleblower complaints filed since the start of the COVID-19 pandemic means that the issue of a lack of private action is even more pronounced now. OSHA’s WPP is under-resourced,understaffed, and unable to investigate all whistleblower complaints properly. In August 2020, the U.S. Department of Labor’s Office of Inspector General (OIG) published a report which found that OSHA must improve its handling of whistleblower complaints during the ongoing COVID-19 pandemic. The report detailed how the combination of staffing shortages and the rise in whistleblower complaints has the potential to severely hinder the agency’s ability to investigate claims in a timely manner.
The National Employment Law Project (NELP) published an even more damning report in October of 2020. The NELP report found that OSHA had resolved only 2% of COVID-19-related retaliation complaints during the first six months of the pandemic.
In December of 2020, the DOL OIG released another report documenting major issues with OSHA’s handling of whistleblower complaints. The report was focused on investigations into whistleblower complaints conducted by a specific regional office of OSHA’s WPP (Region IX). The report found that 96% of investigations did not meet all the essential elements mandated for investigations and 88% “exceeded statutory timeframes for investigations by an average of 634 days.”
Alongside OSH Act violations, the other whistleblower statutes for which OSHA received the most retaliation complaints in FY 2020 were the Surface Transportation Assistance Act
(STAA) and the Federal Railroad Safety Act (FRSA). OSHA received 308 and 154 whistleblower complaints respectively for these two acts. In March 2021, whistleblowers won retaliation cases under both STAA and FRSA.
In FY 2020, OSHA also received a record number of whistleblower complaints for violations of the Pipeline Safety Improvement Act (PSIA) and the Taxpayer First Act (TFA). Similarly to OSHA, the U.S. Securities and Exchange Commission (SEC) also received a record number of whistleblower complaints in FY 2020. Some have theorized that this can be partially attributed to the rise of work-from-home during the pandemic.
In the 2021 fiscal year, OSHA will oversee the enforcement of anti-retaliation protections of two new whistleblower statutes – the Criminal Antitrust Anti-Retaliation Act (CAARA) and the Anti-Money Laundering Act (AMLA).