The hearing took place on the 21st anniversary of Workers’ Memorial Day, which honors the workers who lost their lives, became injured or develop an illness on the job each year.
“A safe workplace depends on workers reporting unsafe conditions to their employers or the government without fear of retaliation, and with the knowledge that the government will be there to back them up if the employer does retaliate,” said U.S. Rep. Lynn Woolsey, D-Calif., chair of the subcommittee.
The Protecting America’s Workers Act (H.R. 2067) and proposed changes to legislation would update workplace whistleblower protections by mirroring other modern whistleblower statutes, such as the Consumer Product Safety Improvement Act. The bill also would ensure that victims and their families are kept informed about investigations of fatalities and incidents involving serious injuries or illnesses.
“I believe stronger whistleblower protections and more substantial rights for victims and their families can lead to safer jobsites and ultimately, more men and women who go safely home to their families at the end of the day,” said Jordan Barab, the deputy assistant secretary of OSHA. “This administration strongly supports the whistleblower provisions of the Protecting America’s Workers Act.”
Under the bill, a seriously injured worker or family member would have the right to meet with OSHA prior to the issuance of a citation, receive copies of a citation at no cost, be informed of any notice of contest and receive pleadings regarding appeals, and make a statement on the record before an agreement to change a citation is finalized.
Family Member Rights
On January 29, 2009, Robert Fitch died after a fall from a faulty manlift at a Lincoln, Neb., Archer Daniel Midland pant. Although OSHA cited ADM for operating a dangerous manlift, ADM was not fined for the faulty device that resulted in the death of Fitch. Family members were not included in the investigation and only learned of the final penalty through the media.
“This piece of equipment caused my uncle’s death, and we have since been informed it was inherently unsafe and very scary to use,” said Fitch’s niece, Tonya Ford. “Nine months after hearing about the zero penalty assessed to ADM, my family still did not have answers.”
Celeste Monforton, an assistant research professor at The George Washington University’s Department of Environmental and Occupational Health, said she learned during the Sago mine explosion investigation that family members can make a significant contribution to an accident investigation.
“There is no one more interested in finding the truth about the cause of an on-the-job death than a worker’s loved one,” Monforton testified.
The Occupational Safety and Health Act also is supposed to protect workers who raise concerns with their employers or to ‘blow the whistle’ by reporting unsafe practices to government agencies. However, the 1970 law lacks protections afforded to whistleblowers under modern whistleblower laws and it imposes numerous hurdles that result in many meritorious claims being dismissed.
“The reason I am here to tell my story today is that my employer got away with firing me without any consequences,” said Neal Jorgensen, a whistleblower formerly employed with Plastic Industries in Preston, Idaho. “Although OSHA investigated the facts of my case, found it was sound, and tried to collect the wages I would have earned if I had not been fired, the government lawyers decided not to go to court on my behalf to enforce the law. I found out that I could not have taken the company to court even if I could have afforded it.”
The Protecting America’s Workers Act would strengthen and modernize federal whistleblower statutes. The bill would provide subpoena powers to OSHA investigators, a critical tool in any investigative process, and establish administrative remedies for successful complainants, including preliminary, payment of back wages, and compensatory and punitive damages. It also allows workers to file a lawsuit if the Department of Labor fails to address the case in a timely manner.
“It is essential that Congress incorporate these sound and proven protections into the Occupational Safety and Health Act, so that workers who raise concerns about hazardous working conditions receive the same basic protections against retaliation as those who complain about corporate malfeasance, environmental or transportation hazards, or health care fraud,” said Lynn Rhinehart, general counsel of the AFL-CIO.