Whistleblowing Woes

More than 3,000 workers who complain about dangerous job conditions are fired or otherwise retaliated against each year. Yet despite a protective statute on the books, whistleblowers can't count on the Occupational Safety and Health Administration (OSHA) to defend them. OSHA's section 11(c) is intended to protect workers who report hazards from discrimination by employers.The statute requires OSHA to investigate complaints and make referrals to U.S. District Courts, where employers can be forced to reinstate workers with back wages.However, according to a Labor Department audit released in June, the law leaves many workers "vulnerable to reprisals." The audit, which looked at 653 11(c) cases filed in 1995, found that 77 percent of workers who filed 11(c) complaints either withdrew their claims or saw them closed without an attempt by OSHA to seek reinstatement or back pay.More disheartening, says Joanne Royce, an attorney with the Government Accountability Project, is the small fraction of cases that go to trial. In 1993, the most recent year for which data are available, 3,328 complaints were filed under section 11(c), but only 14 cases were referred to U.S. District Courts for trial."We've got a statute that presents us with some real problems," acknowledges Thomas J. Buckley, director of OSHA's Office of Investigative Assistance, which investigates whistleblower complaints filed under 11(c) and 10 other federal statutes. He notes that section 11(c) offers no right to refuse hazardous work and no fines against employers, and that workers cannot use it as a basis for a lawsuit.Furthermore, Buckley says, the burden of proof on the employee is "heavy" in 11(c) cases, which must be referred to a federal court (instead of to an administrative law judge as in cases under eight other whistleblower statutes), where rules of evidence are very restrictive."OSHA's is the most invoked federal whistleblower protection," Royce says, adding that because OSHA covers the entire private sector, 11(c) complaints outnumber whistleblower retaliation cases under all other federal statutes combined.Royce argues that OSHA's whistleblower protection is strong enough, and that it's the agency's enforcement that is weak. "I've seen cases with tons of proof," she says. "OSHA is just not referring them for trial."Mike Ivancich, director of health and safety for Local 1-2 of the Utility Workers Union of America, which represents 11,000 Consolidated Edison workers in New York City, says OSHA inspectors discourage use of section 11(c). "They'll tell you right when they come in that there's not much they can do if someone has been fired, demoted or harassed," he says. In response to the audit and pressure from organized labor, Greg Watchman, acting OSHA director, sent a memo on August 5 to the agency's regional administrators, urging them to respond more aggressively to 11(c) complaints.OSHA's 2,000 inspectors can't possibly safeguard the nation's 6 million private-sector workplaces. Thus, empowering workers to sound the alarm is crucial to the agency's success. Yet unless there is a dramatic change in 11(c) enforcement policy, whistleblowers will remain fair game for angry supervisors and employers.Jim Young is a freelance labor writer based in New York City.


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