WNN has covered the U.S. Department of Labor’s Occupational Safety and Health Administration’s (OSHA) public meetings on its whistleblower program since October 2020. How have comments and complaints about the program shifted? Has the agency implemented any changes since hearing the public’s input on the program? WNN looks back on different meetings, reflects on the feedback OSHA has received, and learns about the future from a representative of OSHA’s whistleblower protection directorate.
OSHA’s Whistleblower Protection Program
OSHA’s Whistleblower Protection Program enforces 25 whistleblower statutes, conducts investigations, and issues decisions regarding whistleblowers.
The statutes protect “employees from retaliation for reporting violations of various workplace safety and health, airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health insurance reform, motor vehicle safety, nuclear, pipeline, public transportation agency, railroad, maritime, securities, tax, antitrust, and anti-money laundering laws and for engaging in other related protected activities,” OSHA’s website on the whistleblower program states.
The website spells out what retaliation can look like, what an “adverse action” could include, and provides other important information to employees searching for information on topics related to whistleblowing. It also includes information on time limits and procedures for filing whistleblower complaints, what to expect during a whistleblower investigation, and more resources.
Lee Martin is currently the Directorate of Whistleblower Protection Programs, according to an OSHA organizational chart.
Meeting Structure and Focuses
OSHA’s public meetings to hear opinions of its whistleblower program have occurred online and by phone in the past. WNN attended its first meeting on October 13, 2020, and joined by phone. The latest meeting, the tenth in the series, was held on October 19, 2022 and hosted on Microsoft Teams.
Participants typically sign up for the events on Eventbrite, and all pertinent information about the event can be found in the Regulations.gov docket. Past public meetings have included emphases on migrant workers and healthcare workers.
Input From Past Meetings
During the first meeting WNN attended in October 2020, many meeting participants mentioned how the COVID-19 pandemic was affecting industry compliance standards. The pandemic was certainly a formidable challenge for the agency: in the 2020 fiscal year, OSHA’s Whistleblower Protection Program received a record number of whistleblower retaliation complaints.
A report by the National Employment Law Project (NELP) published in October of 2020 detailed OSHA’s shortcomings and outlined measures needed to improve protections for workers.
“NELP analyzed OSHA’s public data on the 1,744 COVID-19-related retaliation complaints filed by workers from the beginning of the pandemic through August 9. The report found that over half of the complaints – 54% – were dismissed or closed without investigation,” according to prior WNN reporting. “Additionally, just 1 in 5 complaints were docketed for investigations, and a total of only 2% of complaints were resolved in the period,” NELP found. The report notes that “resolving a mere two percent of OSHA retaliation complaints in six months is a dismal record under any circumstances,” but is especially concerning in the midst of the pandemic.
During the meeting that specially focuses on migrant workers, which occurred on October 13, 2021, “[s]everal contributors talked about the challenges migrant workers face when considering blowing the whistle in the workplace,” WNN reported. Speakers mentioned that the threat of deportation and harsh retaliation is a risk that many workers choose not to take. “Additionally, some speakers mentioned that retaliation like termination and deportation have a dire effect on not only the worker but their families as well,” the article states.
WNN also attended OSHA’s most recent public meeting on its whistleblower program, which occurred on October 19. At one point, there were over 180 participants in the meeting.
One through line in regards to participant input is suggestions for improved educational materials for the whistleblower program. Several participants across different meetings have mentioned including information on whistleblower protections on OSHA posters or even creating a new poster solely dedicated to information about the whistleblower program.
Many participants suggest that OSHA improve its outreach initiatives, and several individuals have spoken about workers’ lack of knowledge about their whistleblower rights, the proper ways to report possible retaliation, and other concerns. A couple of speakers have mentioned that OSHA could include training on whistleblower rights in employee training. Some people have talked about how it’s important to make sure employees on all levels — management, entry-level, etc. — are informed about their whistleblower rights. In the most recent meeting, one person suggested that OSHA attempt to cross language barriers and focus on outreach to non-English-speaking communities.
Overall, from the meetings WNN has covered in 2020, 2021, and 2022, it seems as though people continually want employees to be able to fully understand their whistleblower protections.
Have Things Changed?
In the meeting held on October 19, 2022, Douglas Parker, Assistant Secretary for OSHA, introduced the event and talked about how the agency takes these public comments into account. He first laid out the goal of these public meetings: identifying how OSHA can deliver better customer service and assistance the agency can provide to explain the whistleblower program to employees and employers.
Parker then talked about how the agency is listening and implementing changes that are results of conversations and input from the OSHA public meetings. One change he mentioned was the updating of the investigations manual, which was the first major overhaul since 2011. Parker also said that the agency “updated internal training,” “added frequently asked questions on immigration,” and made updates to the retaliation webpage, according to WNN.
What’s Next?
A representative from OSHA’s Whistleblower Directorate told WNN via email that the agency “is in the planning stages for its next meeting, and no decisions have yet been made on possible topics.”
WNN inquired about plans to act upon speakers’ suggestions of increased education and awareness campaigns to inform employees about their whistleblower rights. “OSHA’s Directorate of Whistleblower Protection Programs reviews every comment received during stakeholder meetings to determine whether the agency is able to implement them,” the agency replied to WNN. “We are currently in the process of reviewing comments from the latest meeting to determine next steps.”
