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Is Emphasis on Whistleblower Rights a Misuse of OSHA Resources?

March 23, 2016
(Howard Mavity is a partner in the Atlanta office of Fisher & Phillips LLP. He founded and co-chairs the firm's Workplace Safety and Catastrophe Management Practice Group. He attended and blogged about the American Bar Association OSHA Midwinter Meetings.) Solicitor of Labor M. Patricia Smith did not announce any positions that we have not discussed, but she confirmed our opinions on the administration’s priorities and their intentions as they energetically finish their term.

(Howard Mavity is a partner in the Atlanta office of Fisher & Phillips LLP. He founded and co-chairs the firm's Workplace Safety and Catastrophe Management Practice Group. He attended and blogged about the American Bar Association OSHA Midwinter Meetings.)

Solicitor of Labor M. Patricia Smith did not announce any positions that we have not discussed, but she confirmed our opinions on the administration’s priorities and their intentions as they energetically finish their term.

Even though I expected it, I was sobered by the repeated emphasis on a wide variety of efforts to expand and vigorously whistleblower rights. I cannot agree with the administration’s belief that retaliation is so rampant that so much of the DOL’s limited resources should be so invested.

The solicitor repeatedly described the administration’s intent to obtain and promote “the workers’ voice,” which was interpreted quite broadly, especially with regard to whistleblowers.

The solicitor discussed the action against a major manufacturer challenging their rule requiring immediate report of injuries, and not surprisingly, management attorneys expressed concern.  This case especially is noteworthy because it represents an expansion into other industries from the rail sector, where the administration has filed many such actions.

We write about the administration’s focus on expanding legal requirements through interpretations, directives and cases, and Solicitor Smith acknowledged, for example, that her office evaluates cases that “clarify or expand obligations.”

The solicitor acknowledged that many businesses are uncomfortable with the administration’s “Sub Regulatory Guidance.”

Solicitor Smith praised workplace violence cases, and the administration’s interest in cases under the 5(a)(1) General Duty provisions was later referenced by Tom Galassi, director, OSHA Directorate of Enforcement, when he explained the weighted inspection process emphasis on ”novel cases,” including:

  • Ergonomics
  • Heat stress
  • Non PEL overexposure
  • Workplace violence

Solicitor Smith expressed a commitment to focusing on enterprise enforcement and even seeking broader remedies and damages. I was pleased that the solicitor emphasized the Hannaford corporate Ergonomic Settlement because employers need to recognize their exposure to corporate-wide focus, including on ergonomic conditions. 

Howard Mavity is a partner in the Atlanta office of Fisher & Phillips LLP. He founded and co-chairs the firm's Workplace Safety and Catastrophe Management Practice Group. He draws upon his past business experience in transportation, logistics, construction, and industrial supply to work with clients as a business partner, and focuses on eliminating employee problems by commonsense management. Mavity has provided counsel for over 225 occasions of union activity, guided unionized companies, and has managed approximately 500 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state.
About the Author

Howard Mavity Blog | Senior Partner

Howard Mavity is a senior partner in the Atlanta office of Fisher & Phillips LLP. He founded and co-chairs the firm’s Workplace Safety and Catastrophe Management Practice Group. In 2013, Mavity was honored to be selected by EHS Magazine as One of the 50 Most People Who Most Influenced EHS in 2012 – 2013. Mavity has managed almost 500 OSHA fatality case in construction and general industry, ranging from dust explosions to building collapses. He has coordinated complex inspections involving multi-employer sites, corporate-wide compliance, and issues involving criminal referral.

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