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Whistleblower Protections Must Be Enforced and Accessible

By Admin

Anthony Rosa
Deputy Director
OSHA Directorate of Whistleblower Protection Programs
Department of Labor
200 Constitution Ave., NW,
Washington, DC  20210 

                RE:     OSHA Customer Service, Whistleblower Reporting
                            Docket No. OSHA–2018–0005

Dear Mr. Rosa,

On behalf of the Transportation Trades Department, AFL-CIO (TTD), I am pleased to provide comments on OSHA’s notice regarding the administration of whistleblower statutes. TTD consists of 32 affiliate unions representing workers in all modes of transportation, including those who are afforded protections under the statutes discussed in the notice.[1] We therefore have a vested interest in the proceeding.

Through the request for comments, and its scheduled meeting, OSHA is seeking information on how it can improve customer service in its handling of whistleblower complaints, and how it can better explain the whistleblower laws it enforces. OSHA specifically highlights the Federal Railroad Safety Act, the Surface Transportation Assistance Act, the National Transit Systems Security Act, and Section 11(c) of the Occupational Safety and Health Act as the focus of this proceeding.

TTD and its affiliate unions have long advocated for strong whistleblower protections that shield transportation workers that report safety violations, accidents or injuries from employer retaliation. Not only do strong protections support workers, they also are a powerful tool in promoting safety across the transportation system. While transportation labor has historically fought hard to secure these protections through legislation, ultimately a significant portion of their success or lack thereof is determined by how the statutes are implemented. OSHA and other enforcing agencies have an important role in ensuring workers are aware of their rights to file a whistleblower report, and that whistleblower reports are processed correctly and effectively. To this point, we submit the following comments.

As OSHA recognizes, successfully receiving and adjudicating a whistleblower claim requires substantial interagency cooperation, a subject discussed at length in GAO’s 2014 report, Opportunities Exist for OSHA and DOT to Strengthen Collaborative Mechanisms. For example, in order to determine if a claim has merit, OSHA frequently has to coordinate with the modal administration to confirm if an actual safety violation took place. GAO highlighted several examples that demonstrated how this process can break down, due to procedural differences between agencies, and even between regional offices within the same agency. GAO recommended that OSHA and DOT’s modal agencies continue to update, review and strengthen their Memoranda of Agreement (MOA) which outline some of these procedures, in order to best incorporate key practices for collaboration. We believe that this recommendation has ongoing merit, and OSHA should continue to give it consideration.

In the same report, GAO notes that OSHA closed a total of 879 transportation-related reports in 2013, and that less than 30% of cases resolved in a favorable outcome for the filer (finding of merit or a settlement), with a large number of claims dismissed. GAO goes on to attribute some of these dismissals to claims that were filed after deadlines, and without sufficient evidence. Four years later, OSHA’s data shows a similar breakdown. [2] We are concerned that the paradigm identified in 2013 has not changed, and may be a result of workers continuing to not have the knowledge needed to file within the required deadlines, and with the materials necessary to put forth a complete claim. This is especially concerning given that filing a claim can be difficult in the best of circumstances. However, we know that employees filing claims have frequently been dismissed or demoted, with their livelihood put at risk. These stresses can make it even more challenging to successfully file a claim. OSHA should consider the possibility that a significant amount of claims are being dismissed for these reasons, and should investigate how to remedy this gap. It is important that claims are adjudicated based on their actual merits, and that filers have the knowledge needed to submit an effective claim, in a timely manner.

In addition to providing information on the filing of a whistleblower complaint to all covered employees, OSHA should continue to provide information to managers and supervisors on complying with the relevant statute, both to avoid the necessity of a claim in the first place, and to avoid interference when the claim is filed. TTD affiliated unions have observed that managers are frequently unaware of the existence of these protections, and the prohibitions against retaliating against workers for reporting safety concerns. OSHA should takes steps to close this knowledge gap. Further, when appropriate, OSHA should also full advantage of its statutory ability to force an employer to train managers on compliance with whistleblower statues. On this note, TTD unions have also reported that some employers are more willing to fight claims than cease retaliatory behavior. The ability of OSHA to mandate these changes for recalcitrant employers through training is one of the agency’s more powerful tools to improve safety and security for transportation operations, and should be used liberally.

To further encourage compliance for employers who violate whistleblower laws, OSHA could publish reports, broken down by relevant statute, which identifies employers who have claims above a certain total threshold (for example, claims per a set number of employees), have repeatedly been subject to OSHA whistleblower orders, and/or who have reached repeated settlements in favor of the filer. This data could be displayed alongside information on the total amount and outcomes of whistleblower cases OSHA processes, which the agency already publishes.  Placing the spotlight on employers who do not abide by the critical protections OSHA oversees may provide badly needed additional deterrence for those organizations.

While TTD appreciates the agency’s willingness to convene stakeholders for a meeting in Washington D.C., we also know that frontline workers themselves are an invaluable source of information on OSHA’s customer service and the availability of information on statutory protections. OSHA, potentially in conjunction with the GAO, should consider conducting a survey of transportation workers, broken down by relevant statutory coverage, through which the agency solicits information on how its processes are or are not effective, as well as on workers’ level understanding of the availability of these protections. TTD strongly recommends that OSHA coordinate such a survey with relevant local labor organizations. Results from this study will provide OSHA a much clearer picture of whether transportation workers are aware of their rights to be shielded from employer retaliation and how to exercise these rights.

We appreciate the opportunity to comment on this notice, and look forward to continue working with the Agency on ensuring that transportation workers are able to file whistleblower claims without fear of reprisal, improving safety and security on our nation’s transportation systems.

Larry I. Willis

[1] Attached is a complete list of TTD’s 32 affiliate unions.