OSHA Falling Short On COVID-19 Whistleblower Cases

By Braden Campbell
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Law360 (October 8, 2020, 7:51 PM EDT) -- The U.S. Department of Labor's Occupational Safety and Health Administration has closed without investigation more than half the complaints it's received from workers alleging they were punished for raising COVID-19 safety concerns, according to a new report.

The workplace safety watchdog docketed for investigation roughly a fifth of the more than 1,700 COVID-related complaints it received between April and early August and resolved just 35 — 2% — within that period, according to the National Employment Law Project, a workers' advocacy group. The DOL suboffice dismissed 54% of these complaints without investigating, NELP said.

"OSHA whistleblower investigators are amazing and wonderful, but the law is weak, this administration has decided COVID is not an imminent danger, is not a serious hazard [and is] hardly doing any enforcement," report co-author Deborah Berkowitz told Law360. NELP government affairs manager Shayla Thompson also contributed to the report.

OSHA administers the Occupational Safety and Health Act, which sets workplace safety standards and protects whistleblowers who report violations to the federal government. Retaliation complaints to OSHA are the sole federal recourse for fired whistleblowers, who can't file their own retaliation lawsuits under the OSH Act, though some state safety laws allow workers to sue. The agency has scarcely wielded its power to protect workers during the pandemic, NELP found.

The group analyzed enforcement data OSHA has released for retaliation complaints filed from April through Aug. 9. The data show the agency has dismissed more than half of the 1,744 complaints it received and only opened investigations into a few hundred, the group said. Another 356 were pending as of Aug. 9 and may have been docketed or dismissed since, and OSHA rerouted to other DOL offices or state workplace safety agencies another 680 complaints, which were not counted among the 1,744 NELP analyzed, said Berkowitz, who served as OSHA chief of staff during the Obama administration.

These figures stem from several factors, including the short window workers have to file retaliation complaints and the high burden the OSH Act imposes to prove workers were punished for complaining, NELP said. Workers have 30 days to file in all but a few states with stronger supplemental laws, and workers must show they were punished "because" they complained, and not that their complaint was a "contributing" factor, as some more recent federal whistleblower statutes require.

The perennially understaffed agency is also at all-time staffing lows, which has swelled its timeline for completing retaliation investigations from 150 days in 2010 to 279 now, NELP said.

"They are greatly understaffed, which is a reflection of the administration's priorities about worker safety," Berkowitz said. "Forty percent of their leadership positions are unfilled. … This is not a one-off, this is a pattern in this administration to not prioritize hiring and filling those slots."

A DOL spokesperson said the agency's handling of whistleblower complaints during the pandemic has been consistent with its norms. The agency typically closes about 65% to 70% of all whistleblower complaints "for various legal reasons," and its disposition of coronavirus-related complaints has been "consistent with this average," the spokesperson said.

Management-side attorney Howard Mavity said he's skeptical that the data reflect inaction by OSHA. Rather, the Fisher Phillips workplace safety and catastrophe management practice co-chair said few of the retaliation complaints his firm has handled for clients have passed "the smell test." In many of those cases, workers were fired after refusing to work despite their employers following government safety recommendations, which is not illegal retaliation, Mavity said.

"If an employee refused [to work] and was terminated or disciplined, the employee is going to say, 'Well, dang, I was retaliated against,'" Mavity said. "If an employer was following CDC guidance, what's OSHA to do?"

Berkowitz disputed this idea, noting OSHA would not know whether employers were following guidance because it closed the claims without investigating.

"We don't know why they were closed," Berkowitz said.

--Editing by Bruce Goldman.

For a reprint of this article, please contact reprints@law360.com.

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