Does OSHA Protect Health and Safety Whistleblowers?

June 11, 2003
With the recent passage of the Sarbanes-Oxley Act, OSHA must now administer 14 different whistleblower statutes, but only one of these is related to protecting workers who have been punished for raising occupational safety concerns under the OSH Act, or 11C cases.

"What disturbs me about OSHA picking up more whistleblower statutes to administer is it's like asking the fox to guard the hen house," charges Ron Hayes, a member of the National Advisory Committee on Occupational Safety and Health (NACOSH).

The percentage of whistleblower cases OSHA must handle that are unrelated to the OSH Act is rising, according to an official who has responsibility for the agency's whistleblower enforcement programs. In 1995, 85 percent of the cases handled by OSHA were tied to workplace safety. The number has now fallen to a little more than 70 percent.

That trend will no doubt accelerate now that Congress has given OSHA responsibility to administer discrimination cases tied to corporate fraud, under the Sarbanes-Oxley Act.

In fiscal year 2002, OSHA received 1330 complaints on 11C cases, and 444, or 24 percent, were settled in favor of the complainant, down slightly from 28 percent in 2000. The official says he believes the agency's 75 investigators are sufficient to give the merit cases all the attention they deserve.

Ron Hayes, a member of the National Advisory Committee on Occupational Safety and Health, disagrees.

"What happened to the other 886 cases that OSHA says had no merit?" asks Hayes. "Were they filed just for the fun of it? These people were left out in the cold by OSHA."

The OSHA official counters that the percentage of cases found to have merit compares favorably with that of other agencies.

Hayes charges that OSHA has a "dismal record" of protecting whistleblowers, and that in the early 1990s, OSHA normally received as many as 3,600 complaints annually. Since 1995, the number of 11C complaints has continued to decline, a possible indication that workers do not feel OSHA can protect them.

"Frankly, OSHA keeps getting more and more authority and jurisdiction over whistleblowers without the budget to go along with it," says Joanne Royce, an attorney with the Government Accountability Project.

Hayes also does not blame OSHA for the problem. "If Congress were really looking out for the worker, they'd give the agency more resources to do a proper job."

The OSHA official says he has not yet been told whether he will receive any additional resources to administer Sarbanes-Oxley.

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