OSHA Strengthens DOL's Whistleblower Protection Program

New initiatives bolster whistleblower program and challenge commonly used safety incentive programs; employers should reevaluate their programs and be prepared for extensive investigations.

The Occupational Safety and Health Administration (OSHA) recently launched a series of initiatives to strengthen the Department of Labor's (DOL's) Whistleblower Protection Program. These initiatives impact virtually all employers, especially those in the transportation and energy industries and the many others who are subject to Section 11(c) of the Occupational Safety and Health Act (OSH Act).1 Highlighting all of these developments, OSHA's senior career official, Deputy Assistant Secretary Richard Fairfax, released a policy memorandum on March 12, 2012 (the Fairfax Memo), that will dramatically change the way in which employers can implement employee discipline and safety incentive programs. The Fairfax Memo confirms what many concerned employers already suspected—OSHA has taken aggressive steps toward revamping its whistleblower program and throwing its weight behind whistleblower complainants. In a May 11, 2010, speech, the then newly appointed Assistant Secretary of Labor Dr. David Michaels lamented that, in the previous year, OSHA investigators had found that only 3% of all whistleblower claims had merit. He attributed this low rate to "institutional, administrative, and legislative barriers" that he viewed as "standing between whistleblowers and justice." Dr. Michaels promised to raise this rate, which he termed an "injustice for the affected workers." As leaders at OSHA focus their attention on whistleblower protection, employers must respond in turn. This LawFlash provides an overview of key OSHA whistleblower initiatives and makes several suggestions for employers who want to prepare for these significant changes to OSHA whistleblower enforcement.

OSHA'S RESTRUCTURED AND REVAMPED WHISTLEBLOWER PROGRAM

Background

For the last several years, leaders at OSHA have called for more resources to support the whistleblower program, as well as changes to increase merit findings and further support employees' rights to assert whistleblower claims. In his May 2010 speech, Assistant Secretary of Labor Dr. Michaels pointed out that "[i]t has been said that OSHA's 'whistleblower protection program does not appear to be on the radar of the agency's leadership.' I respectfully disagree. This may have been true in the past, but currently, the leadership of the Department of Labor profoundly understands . . . the cornerstone position that whistleblower protections have in the foundation of a strong worker protection program." This call to action was spurred, in part, by 2009 and 2010 Government Accountability Office (GAO) audits finding OSHA's whistleblower program to be ineffective and overwhelmed by systemic problems with its internal controls, transparency, accountability, and training. In April 2010, OSHA commissioned a "top to bottom" review of the entire program to address issues raised by the GAO, identify new problems, and prepare recommendations. Based on the GAO audits and the internal review, OSHA announced several significant changes to its Whistleblower Protection Program in August 2011. In so doing, Dr. Michaels emphasized that the "ability of workers to speak out and exercise their legal rights without fear of retaliation is crucial to many of the legal protections and safeguards that all Americans value," and that the "new measures will significantly strengthen OSHA's enforcement of the 21 whistleblower laws that Congress charged OSHA with administering."

Actions Taken to Bolster OSHA's...