[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
WHISTLEBLOWER AND VICTIM'S RIGHTS
PROVISIONS OF H.R. 2067, THE
PROTECTING AMERICA'S WORKERS ACT
=======================================================================
HEARING
before the
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
COMMITTEE ON
EDUCATION AND LABOR
U.S. House of Representatives
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
__________
HEARING HELD IN WASHINGTON, DC, APRIL 28, 2010
__________
Serial No. 111-58
__________
Printed for the use of the Committee on Education and Labor
Available on the Internet:
http://www.gpoaccess.gov/congress/house/education/index.html
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COMMITTEE ON EDUCATION AND LABOR
GEORGE MILLER, California, Chairman
Dale E. Kildee, Michigan, Vice John Kline, Minnesota,
Chairman Senior Republican Member
Donald M. Payne, New Jersey Thomas E. Petri, Wisconsin
Robert E. Andrews, New Jersey Howard P. ``Buck'' McKeon,
Robert C. ``Bobby'' Scott, Virginia California
Lynn C. Woolsey, California Peter Hoekstra, Michigan
Ruben Hinojosa, Texas Michael N. Castle, Delaware
Carolyn McCarthy, New York Mark E. Souder, Indiana
John F. Tierney, Massachusetts Vernon J. Ehlers, Michigan
Dennis J. Kucinich, Ohio Judy Biggert, Illinois
David Wu, Oregon Todd Russell Platts, Pennsylvania
Rush D. Holt, New Jersey Joe Wilson, South Carolina
Susan A. Davis, California Cathy McMorris Rodgers, Washington
Raul M. Grijalva, Arizona Tom Price, Georgia
Timothy H. Bishop, New York Rob Bishop, Utah
Joe Sestak, Pennsylvania Brett Guthrie, Kentucky
David Loebsack, Iowa Bill Cassidy, Louisiana
Mazie Hirono, Hawaii Tom McClintock, California
Jason Altmire, Pennsylvania Duncan Hunter, California
Phil Hare, Illinois David P. Roe, Tennessee
Yvette D. Clarke, New York Glenn Thompson, Pennsylvania
Joe Courtney, Connecticut
Carol Shea-Porter, New Hampshire
Marcia L. Fudge, Ohio
Jared Polis, Colorado
Paul Tonko, New York
Pedro R. Pierluisi, Puerto Rico
Gregorio Kilili Camacho Sablan,
Northern Mariana Islands
Dina Titus, Nevada
Judy Chu, California
Mark Zuckerman, Staff Director
Barrett Karr, Minority Staff Director
------
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
LYNN C. WOOLSEY, California, Chairwoman
Carol Shea-Porter, New Hampshire Cathy McMorris Rodgers,
Donald M. Payne, New Jersey Washington,
Raul M. Grijalva, Arizona Ranking Minority Member
Timothy H. Bishop, New York Peter Hoekstra, Michigan
Phil Hare, Illinois Joe Wilson, South Carolina
Gregorio Kilili Camacho Sablan, Tom Price, Georgia
Northern Mariana Islands
C O N T E N T S
----------
Page
Hearing held on April 28, 2010................................... 1
Statement of Members:
McMorris Rodgers, Hon. Cathy, Ranking Minority Member,
Subcommittee on Workforce Protections...................... 6
Prepared statement of.................................... 7
Additional submission: National Labor Relations Board
case, April 19, 2010................................... 58
Miller, Hon. George, Chairman, Committee on Education and
Labor, submissions for the record:
Letter, dated May 11, 2010, from Jason M. Zuckerman, the
Employment Law Group................................... 120
``Strategic Goals and Performance Measures,'' Office of
the Solicitor.......................................... 121
Questions for the record sent to witnesses............... 122
Woolsey, Hon. Lynn C., Chairwoman, Subcommittee on Workforce
Protections................................................ 1
Prepared statement of.................................... 4
Additional submissions:
Discussion draft for Protecting America's Workers Act
(H.R. 2067), March 9, 2010......................... 71
Data on the Solicitor of Labor's disposition of 11(c)
retalitaion cases, 1995-2009....................... 80
Statistics and outcomes on whistleblower cases filed
with OSHA for 2008................................. 81
OSHA's actions on 11(c) cases completed in fiscal
year 2009.......................................... 81
DOL's letter to Neal Jorgensen dated April 7, 2005... 82
A D M Milling Company informal settlement agreement.. 84
E-mail from OSHA to Ms. Ford......................... 85
Kansas supreme court case, Flenker v. Willamette
Industries, Inc.................................... 87
Missouri court of appeals case, Shawcross v. Pyro
Products, Inc...................................... 95
U.S. Court of Appeals case, Wood v. Department of
Labor.............................................. 99
Article: ``Federal Protection of Private Sector
Health and Safety Whistleblowers,'' by Eugene
Fidell, Administrative Law Journal................. 103
Article: ``A Pot of Gold at the End of the Rainbow:
An Economic-Incentives Based Approach to OSHA
Whistleblowing,'' by Jarrod Gonzalez, Employee
Rights and Employment Policy Journal, Internet
address to......................................... 119
GAO report: ``Better Data and Improved Oversight
Would Help Ensure Program Quality and
Consistency,'' Internet address to................. 120
``Comparison of Anti-Retaliation Provisions in Other
Laws,'' prepared by AFL-CIO........................ 120
Statement of Witnesses:
Barab, Hon. Jordan, Deputy Assistant Secretary for
Occupational Safety and Health, U.S. Department of Labor... 8
Prepared statement of.................................... 10
Responses to questions submitted......................... 123
Chinn, Lloyd B., partner, Proskauer Rose LLP................. 36
Prepared statement of.................................... 38
Ford, Tonya, niece of Robert Fitch........................... 14
Prepared statement of.................................... 16
Responses to questions submitted......................... 127
Jorgensen, Neal, whistleblower and former employee, Plastic
Industries................................................. 33
Prepared statement of.................................... 34
Monforton, Celeste, DrPH, MPH, department of environmental &
occupational health, School of Public Health and Health
Services, George Washington University..................... 25
Prepared statement of.................................... 27
Responses to questions submitted......................... 129
Morikawa, Dennis J., partner, Morgan, Lewis & Bockius LLP, on
behalf of the U.S. Chamber of Commerce..................... 19
Prepared statement of.................................... 22
Responses to questions submitted......................... 132
Rhinehart, Lynn, general counsel, AFL-CIO.................... 42
Prepared statement of.................................... 44
Responses to questions submitted......................... 135
WHISTLEBLOWER AND VICTIM'S
RIGHTS PROVISIONS OF H.R. 2067,
THE PROTECTING AMERICA'S WORKERS ACT
----------
Wednesday, April 28, 2010
U.S. House of Representatives
Subcommittee on Workforce Protections
Committee on Education and Labor
Washington, DC
----------
The subcommittee met, pursuant to call, at 10:07 a.m., in
room 2175, Rayburn House Office Building, Hon. Lynn C. Woolsey
[chairwoman of the subcommittee] presiding.
Present: Representatives Woolsey, Shea-Porter, Payne,
Bishop, Hare, Sablan, and McMorris Rodgers.
Staff Present: Aaron Albright, Press Secretary; Andra
Belknap, Press Assistant; Jody Calemine, General Counsel; Lynn
Dondis, Labor Counsel, Subcommittee on Workforce Protections;
David Hartzler, Systems Administrator; Sadie Marshall, Chief
Clerk; Richard Miller, Senior Labor Policy Advisor; Revae
Moran, Detailee, Labor; Alex Nock, Deputy Staff Director; James
Schroll, Junior Legislative Associate, Labor; Michele
Varnhagen, Labor Policy Director; Kirk Boyle, Minority General
Counsel; Ed Gilroy, Minority Director of Workforce Policy; Rob
Gregg, Minority Senior Legislative Assistant; Alexa Marrero,
Minority Communications Director; Brian Newell, Minority Press
Secretary; Jim Paretti, Minority Workforce Policy Counsel;
Molly McLaughlin Salmi, Minority Deputy Director of Workforce
Policy; Linda Stevens, Minority Chief Clerk/Assistant to the
General Counsel; and Loren Sweatt, Minority Professional Staff
Member.
Chairwoman Woolsey. A quorum is present. The hearing of the
Subcommittee on Workforce Protections will come to order.
I will open the hearing with my own remarks and then yield
to my ranking member, who is on her way, but she probably
doesn't care if she doesn't hear my opening remarks. She will
read them, read them in the record.
So, welcome, everybody. Today is Workers Memorial Day, a
day when Americans from all walks of life remember and honor
workers who have been killed or seriously injured in the
workplace. We have in our audience today many, many family
members and loved ones of workers who have been killed in the
workplace. I thank you for coming. This is an honor for us, the
very idea that you would take your time and come here, knowing
how important PAWA is but also how emotional this must be for
you, so thank you very much for being here.
Workers Memorial Day started on April 28, 1989, a day which
is also the anniversary of the Occupational Safety and Health
Act, OSHA. This is the 40th anniversary. Well, this is the 40th
year. It is the 39th anniversary.
Unfortunately, over 20 years later, it is the 21st century,
and workers continue to die on the job. This past month has
been a particularly tragic one for American workers.
Last week, on April 20, 11 workers were lost and 17 injured
following an explosion on the Transocean Deepwater Horizon
drilling ship leased by British Petroleum, BP, in the Gulf of
Mexico 50 miles off the coast of Louisiana.
On April 5, 29 miners were killed and two injured in a
massive explosion which ripped through Massey Energy's Upper
Big Branch mine in Montcoal, West Virginia.
Three days earlier, on April 2, a blast at the Tesoro Oil
Refinery in Anacortes, Washington, caused the deaths of seven
workers who were engulfed in a fire wall.
There are thousands of equally tragic deaths that occur in
ones and twos away from the limelight.
Last Friday, another West Virginia miner was killed at ICG
Beckley Pocahontas mine after he was crushed between a
continuous miner and a rib vault.
Last month, the committee held a hearing on the civil and
criminal penalties of H.R. 2067, the Protecting America's
Workers Act, which we call PAWA, and I will refer to it as that
for the rest of the day. It is shorter. These changes are long
overdue, and they are changes and reforms to the OSH Act.
Today's legislative hearing will examine the victims'
rights and whistleblowers' rights as they are contained in the
March 9 discussion draft of the same bill that further improves
PAWA. When workers are killed on the job, family members need
to be included in the investigations, as they may be a rich
source of knowledge. Victims want investigations to get to the
whole truth and to ensure that the death of their loved one was
not in vain, and they want meaningful changes so that other
workers do not meet the same fate.
One of our witnesses today is Tonya Ford. Hi, Tonya. Her
uncle fell 90 feet to his death from a continuous-belt-operated
man lift at an Archer Daniels Midland plant in Nebraska. The
company replaced this one man lift as part of its agreement
with OSHA but not the others located throughout the plant and
other plants that they own. Tonya's father, who still works at
the plant, rides up and down on this inherently dangerous
equipment on a daily basis.
Unfortunately, families have been marginalized by the
Occupational Safety and Health Administration during the
investigations. Families oftentimes get investigation results,
and when they do it too often arrives after OSHA has met
privately with the employers and reached a closed-door
settlement. Some employers will insist the deceased worker is
responsible for the tragedy in closed-door meetings with OSHA,
yet OSHA informally settles these cases without the benefit of
input from the families, those nearest to the victim, those who
could have inside information shared with them by their loved
ones.
OSHA's current policy assumes communication with the next
of kin. This policy, however, is not consistently implemented
and certainly does not meet the needs of families.
The discussion draft of PAWA strengthens existing policy by
bringing family members into the process.
The OSH Act recognizes that providing healthy and safe
workplaces depends on the willingness of workers to raise
concerns with their employers or to blow the whistle by
reporting unsafe practices to government agencies if or when
the concern is not addressed.
Too often, however, workers are fired, demoted or punished
for raising concerns with OSHA; and OSHA fails to protect them
enough by recovering their back pay or getting them their jobs
back. One of the main reasons for this is that section 11(c) in
the OSH Act, as the oldest whistleblower statute, lacks due
process and other essential protections and really is stuck
back in the 20th century, as a matter of fact. As a result, few
cases that are filed are found to have merit, but when they are
considered merit cases and OSHA cannot settle the case between
the parties, its only option, OSHA's only option is to refer it
to a solicitor of Labor. The solicitor then has the sole
discretion whether or not to pursue the case in court.
Between October 21, 1995, and October 1, 2009, fewer than 7
percent of the merit cases sent to the solicitor were ever
litigated, because it appears that, first, the solicitor's
office only takes those cases that have a very high chance of
winning and, second, demands on that office far exceed its
scarce resources. And, further, agency policies tend to
discourage litigation where the amount that can be recovered
for the worker or the worker's family is small compared to the
resources needed to litigate the claim.
One of our witnesses, Neal Jorgensen from Preston, Idaho,
will testify how he lost his job after filing a safety
complaint with OSHA. He filed a whistleblower claim; and while
OSHA found his case had merit, the solicitor declined to
prosecute because it did not think either of the two Federal
judges in Idaho, who would be the ones to hear the case, would
be receptive to it.
Under current law, Mr. Jorgensen had no right to file a
case in court. PAWA modernizes the OSH Act to bring it in line
with modern whistleblower laws such as the Consumer Product
Safety Improvement Act.
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. The
legislation before us today will achieve that goal.
I am pleased the administration supports the victims'
rights and whistleblower provisions and look forward to the
testimony from our wonderful panel of witnesses.
With this, I would defer to our ranking member, Cathy
McMorris Rodgers, who isn't here yet. She will give her opening
statement before we hear from all of our witnesses and before
the questioning begins.
[The statement of Ms. Woolsey follows:]
Prepared Statement of Hon. Lynn Woolsey, Chairwoman,
Subcommittee on Workforce Protections
Today is Workers Memorial Day, a day when Americans from all walks
of life remember and honor workers who have been killed or seriously
injured in the workplace.
Workers Memorial Day started on April 28, 1989, a day which is also
the anniversary of the Occupational Safety and Health Act (OSH Act).
Unfortunately, over 20 years later, in the 21st century, workers
continue to die on the job.
This past month has been a tragic one for the American worker.
Last week, on April 20, eleven workers were lost and seventeen
injured following an explosion on the trans-ocean deepwater horizon
drilling ship leased by British Petroleum in the Gulf of Mexico, fifty
miles off the coast of Louisiana.
On April 5, twenty-nine miners were killed and two injured in a
massive explosion which ripped through Massey energy's Upper Big Branch
mine in Montcoal, West Virginia.
Three days earlier on April 2, a blast at the Tesoro oil refinery
in Anacortes, Washington caused the deaths of seven workers who were
engulfed in a ``firewall.''
There are thousands of equally tragic deaths that occur in ones and
twos, away from the limelight.
Last Friday another West Virginia miner was killed at the ICG
Beckley Pocahontas mine after he was crushed between a continuous miner
and the rib wall.
Last month the subcommittee held a hearing on the civil and
criminal penalties in H.R. 2067, the Protecting America's Workers Act
(PAWA), which makes long overdue reforms to the OSH Act.
Today's legislative hearing will examine the victims' rights and
whistleblower provisions as they are contained in the March 9
discussion draft of the same bill that further improves PAWA.
When workers are killed on the job, family members need to be
included in investigations, as they may be a rich source of knowledge.
Victims want investigations to get to the whole truth and ensure
that the death of their loved one was not in vain.
And they want meaningful changes so that other workers do not meet
the same fate.
One of our witnesses today is Tonya Ford.
Her uncle fell 90 feet to his death from a continuous belt-operated
manlift at an Archer Daniels Midland plant in Nebraska.
The company replaced this one manlift as part of its agreement with
OSHA, but not the others located in the plant.
And Tonya's father, who still works at that plant, rides up and
down on this inherently dangerous equipment on a daily basis.
Unfortunately, families have been marginalized by the Occupational
Safety and Health Administration (OSHA) during investigations.
Families oftentimes don't get investigation results, and when they
do, it too often arrives after OSHA has met privately with the
employers and reached a closed door settlement.
Some employers will insist the deceased worker is responsible for
the tragedy in closed door meeting with OSHA.
Yet, OSHA informally settles these cases without the benefit of
input from families * * * those nearest the victim * * * who could have
inside information shared by their loved one.
OSHA's current policy assumes communication with the next of kin.
This policy, however, is not consistently implemented and certainly
does not meet the needs of families.
The discussion draft of PAWA strengthens existing policy by
bringing family members into the process.
The OSH Act recognizes that providing healthy and safe workplaces
depends on the willingness of workers to raise concerns with their
employers, or, to `blow the whistle' by reporting unsafe practices to
government agencies, if or when, the concern is not addressed.
Too often, however, workers are fired, demoted or punished for
raising concerns with OSHA, and OSHA fails to protect them by
recovering their back pay or getting them their job back.
One of the main reasons for this is that section 11(c) in the OSH
Act, as the oldest whistleblower statute, lacks due process and other
essential protections.
As a result, few cases that are filed are found to have ``merit,''
but when they are considered ``merit'' cases and OSHA cannot settle the
case between the parties, its only option is to refer it to the
Solicitor of Labor (SOL).
The Solicitor then has the sole discretion whether or not to pursue
the case in court.
Between October 1, 1995 and October 1, 2009, fewer than 7% of the
merit cases sent to the Solicitor were ever litigated, because it
appears that first, the Solicitor's office only takes those cases that
have a very high chance of winning, and second, demands on that office
far exceed its scarce resources.
And further, agency policies tend to discourage litigation where
the amount to be recovered [for the worker] is small compared to the
resources needed to litigate the claim
One of our witnesses, Neal Jorgensen from Preston, Idaho, will
testify how he lost his job after filing a safety complaint with OSHA.
He filed a whistleblower claim, and while OSHA found his case had
merit, the Solicitor declined to prosecute because it did not think
either of the two federal judges in Idaho who would hear the case would
be receptive to it.
Under current law, Mr. Jorgensen had no right to file a case in
court.
PAWA modernizes the OSH Act to bring it in line with modern
whistleblower laws, such as the consumer product safety improvement
act.
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.
The legislation before us today will achieve that goal.
I am pleased the administration supports the victims' rights and
whistleblower provisions and look forward to the testimony from our
witnesses.
I defer to ranking member, Cathy McMorris-Rodgers for her opening
statement.
______
Chairwoman Woolsey. Without objection, all Members will
have 14 days to submit additional materials for the hearing
record.
Now I would like to introduce our panel of witnesses. They
are a very distinguished panel, and we are very pleased to have
you here this morning. We will start at my left, and that will
be the order of the testimony. I will introduce you all, and
then we will go from one to the other to the other as we
progress through the hearing.
First we have Mr. Jordan Barab, who is the Deputy Assistant
Secretary of Labor of the Occupational Safety and Health
Administration. He formerly served as a senior labor policy
advisor on this committee, so we are really out front with you
that we love Jordan very, very much, and we respect his words.
He also worked as a health and safety specialist at the
U.S. Chemical Safety Board and served as a special assistant to
the OSHA administrator. Prior to his government service, Jordan
was the director of Health and Safety at the American
Federation of State, County, and Municipal Employees, called
AFSCME. He holds a master's degree from Johns Hopkins
University and an undergraduate degree from Claremont McKenna
College.
Thank you for being here, Jordan.
Ms. Tonya Ford is a resident of Lincoln, Nebraska, and the
niece of Robert Fitch, who died, as I told you earlier, in a
preventable accident at the Archer Daniels Midland plant in
Lincoln. As the family member of a worker killed on the job,
she has worked to raise awareness of the need for better
workplace safety.
Mr. Dennis Morikawa is a partner in the Morgan, Lewis &
Bockius law firm, where he heads the Occupational Safety and
Health practice. He represents management regarding labor and
employment law issues, focusing on matters arising under the
Occupational Safety and Healthy Act and Mine Safety and Health
Act. Mr. Morikawa received his JD from Syracuse University and
a BA from Denison University.
Dr. Celeste Monforton is an assistant research professor in
the Department of Environmental and Occupational Health at the
George Washington University School of Public Health and Health
Services. She worked as a policy analyst at OSHA from 1991 to
1995 and at MSHA from 1996 to 2001 as special assistant to the
assistant secretary. Dr. Monforton earned a bachelor's degree
from the University of Michigan and earned a master's degree
and a doctorate of public health from George Washington
University.
Mr. Neal Jorgensen. Neal is a whistleblower who lives in
Preston, Idaho. He filed a complaint with OSHA under section
11(c) of the Occupational Safety and Health Act in 2004 after
being fired from his job at Plastic Industries, and he has a
real story to tell us.
Mr. Lloyd Chinn. Mr. Chinn is a partner at the Labor and
Employment Law Department at Proskauer Rose law firm. He
litigates employment disputes before Federal and State courts,
arbitration tribunals, and before administrative agencies. Mr.
Chinn received his JD from New York University and a BS from
Georgetown University.
Ms. Lynn Rhinehart. Lynn is the general counsel at the AFL-
CIO, and her focus is on safety and health law policy. She is a
former staffer to Senator Howard Metzenbaum on the Senate Labor
Committee and is a member of the Obama Transition Team for the
National Labor Relations Board. She has also served as co-chair
of the ABA Committee on Occupational Safety and Health Law. Ms.
Rhinehart received her BA from the University of Michigan and
her JD from Georgetown University.
We are going to stop at this moment, and I am going to
introduce our ranking member, Congresswoman McMorris Rodgers,
for her opening remarks.
Mrs. McMorris Rodgers. Thank you, Madam Chairwoman. I
sincerely apologize for being late. We are going to do a better
job, because I have a terrible record here, and I am sorry. I
was over on the Senate side, and it just takes a while.
Since today is recognized around the world as Workers
Memorial Day, I would like to begin my comments by
acknowledging the family members who have come to Washington,
D.C., to share their stories about loved ones injured or killed
on the job. Yesterday, the House passed House Resolution 375
honoring those who lost their lives in the workplace, and I
would like to extend my deepest sympathies and condolences to
them.
Turning to the focus of today's hearing, I would like to
thank the chairwoman for providing another opportunity to
further examine H.R. 2067, the Protecting America's Workers
Act. We have before us a large panel of distinguished
witnesses; and I look forward to hearing their expertise on two
specific issues, whistleblowers and victims' rights.
As I mentioned during our hearing last month, providing a
safe workplace should be an employer's number one
responsibility; and it should be a shared responsibility, one
that reflects partnerships between the Federal, State, local
governments, the private sector, employers, and other
interested stakeholders.
Notwithstanding these shared efforts, there is no doubt in
my mind that workers should be able to report illegal or unsafe
practices without fear. I don't think anyone here would have
sympathy for an employer who did not take safety seriously.
The provisions in the current OSH Act that protect
employees who report these illegal and unsafe practices from
retaliation are the subject of today's hearings hearing. I look
forward to hearing from our witnesses as to how these
protections are implemented, what changes are needed, why they
are needed, and why the changes proposed by H.R. 2067 are the
most appropriate. I say this because with any legislative
proposal, particularly one that changes long-standing policies,
we have to be certain that we are not doing more harm than
good.
In addition, today's hearing will examine what is known as
victims' rights, the information and cooperation afforded to
those employees who are injured and families who have lost a
loved one in the workplace. We will hear from one family about
OSHA's failure to inform them of conclusions reached in
fatality investigations, which is unacceptable. Current OSHA
policy should have precluded this oversight, and I am
interested to learn why these policies were not implemented
appropriately.
Finally, I would just like to thank the chairwoman for
interest in this topic, for giving us the opportunity to look
more closely at workplace safety. This hearing is the latest in
a series of hearings looking at the aspects of H.R. 2067, the
Protecting America's Workers Act, and the broader issue as how
to keep Americans safe and healthy on the job.
I look forward to a productive, lively debate this morning
and yield back.
[The statement of Mrs. McMorris Rodgers follows:]
Prepared Statement of Hon. Cathy McMorris Rodgers,
Ranking Minority Member, Subcommittee on Workforce Protections
Thank you Madam Chair and good morning everyone.
Since today is recognized around the world as Worker Memorial Day,
I would like to begin my comments by acknowledging the family members
who have come to Washington, DC to share their stories about loved ones
injured or killed on the job. Yesterday, the House passed H. Res. 375
honoring those who lost their lives in the workplace. I would like to
extend my deepest sympathies and condolences to them.
Turning to the focus of today's hearing, I would like to thank the
Chairwoman for providing another opportunity to further examine H.R.
2067, the Protecting America's Workers Act. We have before us a large
panel of distinguished witnesses and I look forward to hearing their
expertise on two specific issues: whistleblowers and victim's rights.
As I mentioned during our hearing last month, providing a safe
workplace should be an employer's number one responsibility.
And, it should be a shared responsibility--one that reflects
partnerships between the federal, state, and local governments, the
private sector, employers, and other interested stakeholders.
Notwithstanding these shared efforts, there is no doubt in my mind
that workers should be able to report illegal or unsafe practices
without fear. I don't think anyone here would have sympathy for an
employer who did not take safety seriously.
The provisions in the current OSH Act that protect employees who
report these illegal and unsafe practices from retaliation are the
subject of today's hearing. I look forward to hearing from our
witnesses as to how these protections are implemented, what changes are
needed, why they are needed, and whether the changes proposed by H.R.
2067 are the most appropriate.
I say this because with any legislative proposal, particularly one
that changes longstanding policies, we must be certain that we are not
doing more harm than good.
In addition, today's hearing will examine what's known as
``victim's rights''--the information and cooperation afforded to those
employees who are injured and families who have lost a loved one in the
workplace. We will hear from one family about OSHA's failure to inform
them of conclusions reached in fatality investigations, which is
unacceptable. Current OSHA policy should have precluded this oversight.
I am interested to learn why these policies were not implemented
appropriately.
Finally, I would just like to thank the Chairwoman for her interest
in this topic and for giving us the opportunity to look more closely at
workplace safety. This hearing is the latest in a series of hearings
looking at aspects of H.R. 2067, the Protecting America's Workers Act,
and the broader issue about how to keep Americans safe and healthy on
the job.
I look forward to a productive, lively debate this morning and
yield back.
______
Chairwoman Woolsey. Thank you very much.
Now just for those of you who have not been witnesses in
the past, I would like to explain our lighting system.
We will turn on a green light when you begin your
testimony, which means you have 5 minutes. When the light turns
orange, you know you have 1 minute left, and we would hope you
would be wrapping up your testimony at that point. I assure
you, the floor does not open up, you do not fall into outer
space if you get beyond the 5 minutes, but in order to keep the
hearing going and have everybody have time. If you miss some
point, then when the members are asking their questions, you
can probably get to your point at that time.
So now we are going to hear from our witnesses, starting
with Deputy Assistant Secretary Barab.
STATEMENT OF JORDAN BARAB, DEPUTY ASSISTANT SECRETARY OF LABOR,
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT
OF LABOR
Mr. Barab. Thank you, Madam Chair, Ranking Member McMorris
Rodgers, and members of the subcommittee.
I recognize the significance of today's hearing being held
on the 39th anniversary of the creation of the Occupational
Safety and Health Administration, OSHA, and Workers Memorial
Day. Today is the day set aside to recognize workers killed,
disabled, injured, or sickened by their work; and today we meet
under the shadow of three recent tragedies, the loss of 29
miners in West Virginia, 7 refinery workers in Washington
State, and the 11 workers still missing from the Deepwater
Horizon.
Now more than ever is the time to think seriously and act
courageously to ensure that OSHA has the tools it needs to
enforce safe working conditions and that this government
provides workers and the victims the tools they need to help
ensure those safe working conditions.
Secretary Solis' vision for the Department of Labor is good
jobs for everyone. Good jobs are safe jobs, but American
workers still face unacceptable hazards.
The administration supports the Protecting America's
Workers Act, which would make meaningful, substantial, and
long-overdue statutory changes in the Occupational Safety and
Health Act, providing OSHA with important tools to strengthen
and expand its enforcement programs. Two of the critical tools
included in PAWA are the enhanced whistleblower protections and
increased victims' rights.
OSHA's inspectors are not able to visit more than a small
fraction of this Nation's workplaces. The OSH Act therefore
relies heavily on workers to help identify hazards at their
workplaces. The authors of the OSH Act realize that employees
are not likely to participate in safety and health activities
if they fear they will lose their jobs. That is why Congress
wrote 11(c) to protect employees from discrimination and
retaliation when they report safety and health hazards or
exercise other rights under the OSH Act. Without robust
whistleblower protection, these voices may be silenced.
PAWA would strengthen 11(c) by providing workers with basic
rights like other, more recent whistleblower laws passed with
broad bipartisan support have provided workers. PAWA would
better protect the workers' rights to participate in making
those working conditions safer by providing workers with a
private right of action, an important element that is lacking
in OSHA's current 11(c) provision. We believe it is critically
important that if an employer fails to comply with an order
providing relief, both OSHA and the workers should be able to
file a civil action.
PAWA will also grant workers the right to further pursue
their case if OSHA does not proceed in a timely fashion, codify
a workers' right to refuse to perform unsafe work, protect
employees who refuse work because they fear harm to other
workers, prohibit employer policies to discourage workers from
reporting illnesses or injuries and prohibit employer
retaliation against employees for reporting injuries or
illnesses.
PAWA would also increase the existing 30-day deadline for
filing an 11(c) complaint to 180 days. Over the years many
complainants, who might otherwise have had a strong case of
retaliation, have been denied protection simply because they
did not file within the 30-day deadline.
Finally, PAWA would codify a number of OSHA's high
standards for professionalism and transparency and conducting
whistleblower investigations that are of critical importance to
this administration. For example, PAWA requires OSHA to
interview complainants and to provide them with a response and
the evidence supporting the respondent's position. PAWA affords
complainants the opportunity to meet with OSHA and to rebut the
employers statements or evidence.
Turning to victims' rights, OSHA has long known that
workers and often their family can serve as OSHA's eyes and
ears, identifying workplace hazards. Injured workers and their
family often provide useful information to investigators
because employees frequently discuss work activities and
coworkers with family members.
I want to thank Tonya Ford, whose uncle, Robert Fitch, was
killed at Archer Daniels Midland on January 29, 2009, for
coming to Washington today to testify and describe the tragic
circumstances of Mr. Fitch's death and the unnecessary problems
that she and her family faced getting information about what
happened. We appreciate her suggestions on how to enforce or
how to improve our enforcement proceedings to better involve
victims and their families.
It is OSHA's policy to talk to families during the
investigation process and inform them about our citation
procedures and settlements. Families are normally provided a
copy of the citations when issued.
We found, however, that some of OSHA's policies on victims'
rights have not always been implemented consistently and in a
timely manner. It is also clear that a letter is not adequate.
Therefore, we will be strengthening those policies by putting
them into a directive and adding them to the field operations
manual.
We will also be instructing our area directors to call the
family to express condolences, advise that a letter is coming,
and assure families that we will be staying in contact. In
addition, we will be appointing family liaisons in every one of
OSHA's 70 area offices.
In general, OSHA supports the changes in PAWA for victims
and their families. Our only concern is that we find a way to
both fully ensure family and victim participation without
unduly burdening or lengthening the process.
Madam Chair, I appreciate the opportunity today to have
discuss PAWA and how it would improve whistleblower protections
and victims' rights. I believe stronger whistleblower
protections and more substantial rights for victims and their
families can lead to safer job sites and, ultimately, more men
and women who go home safely to their families at the end of
the day.
I would be happy to answer your questions.
[The statement of Mr. Barab follows:]
Prepared Statement of Hon. Jordan Barab, Deputy Assistant Secretary for
Occupational Safety and Health, U.S. Department of Labor
Chair Woolsey, Ranking Member McMorris Rodgers and Members of the
Subcommittee, thank you for the opportunity to testify today on the
Protecting America's Workers Act (PAWA) particularly on the issues of
whistleblower protections and victim's rights in OSHA's enforcement
process.
I recognize the significance of today's hearing being held on both
the 39th anniversary of the creation of the Occupational Safety and
Health Administration and Workers Memorial Day. Today is the day set
aside to recognize workers killed, disabled, injured or sickened by
their work--to honor the men and women who have died on the job and to
rededicate ourselves to improving safety and health in every American
workplace.
This commitment is especially needed now, as we commemorate this
Workers Memorial Day not only to remember the 29 brave miners who lost
their lives at the Upper Big Branch mine, the 7 refinery workers who
were killed the week before at the Tesoro refinery in Washington, but
also the 14 workers who die on the job every day in this country.
This hearing focuses on two areas that are crucial to reaching the
goal set by the Occupational Safety and Health Act (OSH Act) to assure
safe and healthful working conditions for all working men and women in
the United States: 1) ensuring that workers are safe from retaliation
for exercising their health and safety rights; and 2) ensuring victims
of workplace incidents and their family members have information and a
meaningful role in OSHA enforcement activities.
Whistleblower protections
Congress realized that OSHA inspectors would never be able to visit
more than a small fraction of the nation's workplaces. The OSH Act
therefore relies heavily on workers to help identify hazards at their
workplaces. The authors of the OSH Act also realized that employees are
not likely to participate in safety and health activities if they fear
that they will lose their jobs or otherwise be retaliated against. That
is why Congress wrote Section 11(c)--to protect employees from
discrimination and retaliation when they report safety and health
hazards or exercise other rights under the OSH Act. The OSH Act was one
of the first safety and health laws to contain a provision for
protecting whistleblowers.
Section 11(c) was innovative and forward looking in 1970, but 40
years later it is clearly antiquated and in dire need of substantial
improvement. Achieving Secretary Solis' goal of Good Jobs for Everyone
includes strengthening workers' voices in their workplaces. Without
robust whistleblower protections, these voices may be silenced.
This Administration strongly supports the whistleblower provisions
of the Protecting America's Workers Act (PAWA), which expands the OSH
Act's anti-retaliation provisions, codifies a worker's right to refuse
to perform unsafe work, prohibits employer policies that discourage
workers from reporting illnesses or injuries, prohibits employer
retaliation against employees for reporting injuries or illnesses, and
grants workers the right to further pursue their case if OSHA does not
proceed in a timely fashion.
OSHA currently administers the whistleblower provisions of sixteen
other statutes, protecting employees who report violations of various
trucking, airline, nuclear power, pipeline, environmental, rail,
consumer product, and securities laws. In the four decades since the
OSH Act became law, Congress has enacted increasingly expansive
whistleblower protections in these other laws, leaving section 11(c) of
the OSH Act in significant ways the least protective of the 17
whistleblower statutes. It is time to bring OSHA's protections up to
the same level of these other laws.
Notable weaknesses in section 11(c) include: inadequate time for
employees to file complaints; lack of an administrative forum for the
adjudication of cases; lack of a statutory right of appeal; lack of a
private right of action; and OSHA's lack of authority to issue findings
and preliminary orders, so that a complainant's only chance to prevail
is through the Department of Labor filing an action in U.S. District
Court.
PAWA would strengthen section 11(c) by including the full range of
procedures and remedies available under the more modern statutes and by
codifying certain provisions, such as exemplary damages and the right
to refuse work that could result in serious injury or illness, which
have been available but not expressly authorized by current statute.
There is no reason that workers speaking up about threats to their
safety and health should enjoy less protection than workers speaking up
about securities fraud or transportation hazards. PAWA would also make
explicit that a worker may not be retaliated against for reporting
injuries, illnesses or unsafe conditions to employers or to a safety
and health committee. This protection is already implicit in the OSH
Act, but PAWA would leave no doubt in employers' or employees' minds
about this right.
PAWA is an improvement on OSHA's current law in significant ways.
It would increase the existing 30-day deadline for filing an 11(c)
complaint to 180 days, bringing 11(c) more in line with some of the
other whistleblower statutes. Over the years many complainants who
might otherwise have had a strong case of retaliation have been denied
protection simply because they did not file within the 30-day deadline.
For example, we received an 11(c) complaint from a former textile
employee who claimed to have been fired for reporting to management
that he had become ill due to smoke exposure during the production
process. The worker contacted OSHA to file an 11(c) complaint 62 days
after he was fired, compelling OSHA to dismiss the case as untimely
under existing law. Under PAWA, however, OSHA would be able to
investigate the merits of cases such as this one. Increasing the filing
deadline to 180 days would greatly increase the protections afforded by
section 11(c).
PAWA's adoption of the ``contributing factor'' test for determining
when illegal retaliation has occurred would be another significant
improvement in 11(c). This test, which examines the employer's decision
to take adverse action against the employee following whistleblower
activity, is less stringent than the current ``motivating factor'' test
to which OSHA is currently restricted. Adoption of the ``contributing
factor'' test would make 11(c) consistent with other more recently
enacted whistleblower statutes and would strengthen the whistleblower
protections afforded to America's workers.
The private right of action is another key element of whistleblower
protections that is lacking in OSHA's current 11(c) provision and is
contained in PAWA. It is critically important that, if an employer
fails to comply with an order providing relief, both DOL and the
complainant should be able to file a civil action for enforcement of
that order in a U.S. District Court. We strongly support this
provision.
PAWA also allows complainants to move their case to another
prescribed venue if the Department does not make prompt decisions or
rulings. For example, PAWA would allow complainants to ``kick out''
from an OSHA investigation to a de novo Administrative Law Judge (ALJ)
hearing if the Secretary has not issued a decision within 120 days from
the case filing; ``kick out'' from an ALJ hearing to district court if
an ALJ has not issued a decision within 90 days of the request for a
hearing; or ``kick out'' from an Administrative Review Board (ARB)
hearing to district court if the ARB has not issued a final order
within 60 days of the request for an administrative appeal. ``Kick-
out'' provisions have become a standard feature of whistleblower
protection statutes, and OSHA believes it is appropriate for 11(c)
complainants to have the same right.
The provision in PAWA allowing employees in states administering
OSHA-approved plans to choose between Federal and State whistleblower
investigations would likely result in a significant increase in the
number of Federal complaints. All 22 states and territories that
administer private sector plans are required to provide protections at
least as effective as Federal OSHA's. We have some reservations about
this provision because we are not convinced it would add much
protection to workers in those states and it would be a significant
drain on OSHA and Solicitor resources. We would welcome further
discussions on how to best ensure whistleblower protections in these
states.
Finally, PAWA would codify a number of OSHA's high standards for
professionalism and transparency in conducting whistleblower
investigations that are of critical importance to this Administration.
For example, PAWA requires OSHA to interview complainants and to
provide them with the respondent's response and the evidence supporting
the respondent's position. PAWA affords complainants the opportunity to
meet with OSHA and to rebut the employer's statements or evidence.
While we train our investigators on the critical importance of
conducting thorough interviews with complainants and involving
complainants in the rigorous testing of proffered employer defenses, we
believe that requiring these investigative steps by statute would
assist OSHA in its mission of providing robust protection to
occupational safety and health whistleblowers.
These legislative changes in the whistleblower provisions are a
long-overdue response to weaknesses that have become apparent over the
past four decades. This legislation makes good on the promise to stand
by those workers who have the courage to come forward when they know
their employer is cutting corners on safety and health and guarantees
that they do not have to sacrifice their jobs in order to do the right
thing.
Not only do we support the provisions of PAWA intended to improve
whistleblower protections, we would like to explore areas where we
might want to go further.
I would propose amending the OSH Act to provide for assessment of
civil penalties against employers who violate the whistleblower
provisions. Currently, while an employer found to be discriminating
against an employee must make the employee whole again, there is no
provision for civil penalties against employers. The provisions are not
in the current version of PAWA but similar provisions were included in
the S-MINER Act that was passed by this Committee and the full House of
Representatives in 2008. Under such a provision, any employer found to
be in violation of Section 11(c) of the Act would be subject to civil
penalties of not less than $10,000 and not more than $100,000 for each
occurrence of a violation.
Additionally, as conclusion of these cases can often take many
months, a provision should be made to reinstate the complainant pending
outcome of the case. The Mine Safety and Health Act provides that in
cases when the Mine Safety and Health Administration (MSHA) determines
that an employee's complaint was not frivolously brought, the Review
Commission can order immediate reinstatement of the miner pending final
order on the complaint. OSHA's 11(c) complainants should have the same
reinstatement rights.
Victims' rights
OSHA has long known that workers, and often their families, can
serve as OSHA's ``eyes and ears,'' identifying workplace hazards.
Workers injured in workplace incidents and their friends and family
often provide useful information to investigators, because employees
frequently discuss work activities and co-workers with family members
during non-work hours.
We are dedicated to findings ways to involve workers and their
families in OSHA's enforcement investigations. Both Assistant Secretary
Michaels and I make it a priority to set time aside to talk with
victims' families whenever we have the opportunity.
Last month, as part of an effort to reach out and hear from
stakeholders on a variety of safety and health issues, we hosted ``OSHA
Listens.'' As part of the event, we heard recommendations from the
family members of workers killed on the job on how to enhance victims'
and families' participation in the enforcement process.
I want to thank Tonya Ford whose uncle, Robert Fitch, was killed at
Archer Daniels Midland on January 29, 2009, for coming to Washington
today to testify and describe to us the tragic circumstances of Mr.
Fitch's death and the unnecessary problems she and her family faced
getting information about what happened and what OSHA was doing. We
appreciate the suggestions she has on how to improve our enforcement
process and better involve victims and their families.
Katherine Rodriguez, whose father was killed at the BP Texas City
Refinery on September 2, 2004, also spoke at OSHA Listens and made
several recommendations to OSHA officials on how to enhance the rights
of victims' families. She said that before her father died in the
hospital her family received information about the incident that might
have been useful to OSHA investigators, noting that ``fellow coworkers
are more willing to talk to the family members than any investigator.''
Family members and co-workers are sincerely and understandably
interested in learning how an incident occurred, finding out if
anything could have been done to prevent it, and knowing what steps
employers and employees will take in the future to ensure that someone
else is not injured or killed in a similar situation.
It is OSHA's policy to talk to families during the investigation
process and inform them about our citation procedures and settlements.
OSHA first contacts the family at the beginning of the inspection. All
families get a letter from the Area Director discussing the process and
advising that they will be kept informed. In some cases the families
initially get a phone call. Families are then normally provided a copy
of the citations when issued.
However, we have found that some of these policies have not always
been implemented consistently and in a timely manner. It is also clear
that a letter is not adequate. Therefore, we will be putting these
policies into a directive and adding them to our Field Operations
Manual. We will also be instructing the Area Directors to call the
family to express condolences, advise that a letter is coming, and
assure families we will be staying in contact.
In addition, we need to work on interacting with families following
a tragedy. As might be expected, many OSHA inspectors understandably
have trouble knowing how to interact with a person who has just lost a
loved one in tragic circumstances. While brief training on this issue
is provided to Compliance Officers at the Initial Compliance Course at
the OSHA Training Institute, clearly more training is needed and will
be developed. We will also develop webinars and webcasts for training
of all compliance officers, team leaders, and Area Directors.
In general, OSHA is supportive of expanding interactions with
families and victims. Therefore, the Agency is examining the issue of
victims' rights from the administrative level to seek ways to better
ensure the rights of victims and their families to participate in
OSHA's enforcement efforts. OSHA supports many of the changes to the
OSH Act embodied in PAWA for victims and their families.
PAWA would place into law, for the first time, the right of a
victim (injured employee or family member) to meet with OSHA regarding
the investigation and to receive copies of the citation or resulting
report at the same time as the employer at no cost. PAWA would also
enable victims to be informed of any notice of contest and to make a
statement before an agreement is made to withdraw or modify a citation.
However, we also want to ensure--and I think the families would
also want to ensure--that the provisions of PAWA do not unduly slow
down the inspection, enforcement and adjudication process, which only
hurt victims and their families in the long run. We believe therefore
that clarification is needed of the provisions allowing victims or
their representatives to meet in person with OSHA before the agency
decides whether to issue a citation, or the right to appear before
parties conducting settlement negotiations. This could be logistically
difficult for victims and OSHA's regional and area offices, resulting
in significant delays in the negotiations and ultimate citation. OSHA
would be happy to work with the Committee to address this issue.
Madam Chair, I appreciate the opportunity to appear today to
discuss PAWA and how it would improve whistleblower protections and
victim's rights. 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. I would be happy to answer your
questions.
______
Chairwoman Woolsey. Thank you.
Ms. Ford.
STATEMENT OF TONYA FORD, NIECE OF ROBERT FITCH,
A WORKER KILLED AT ARCHER DANIELS MIDLAND PLANT
Ms. Ford. Dear Chairman Woolsey, Ranking Member McMorris
Rodgers and members of the committee, my name is Tonya Ford;
and I live in Lincoln, Nebraska.
I would like to start off by saying thank you so much for
this opportunity. It is a great honor to sit here and represent
my family and other families who have lost their loved ones due
to preventable work-related accidents.
I support the Protect America's Workers Act because of what
happened on January 29, 2009, when I lost my Uncle, Robert
Fitch, or as I called him, Uncle Bobby, to a horrible,
preventable work-related accident at the Archer Daniels Midland
plant in Lincoln, Nebraska. My Uncle Bobby was 51 years old.
Our lives changed forever that day when my uncle stepped
into a belt-operated man lift in order to go to his work break,
fell approximately 40 feet. As he fell, he impacted each wall
in the cement elevator shaft and landed on the air duct,
hitting it so hard it slid 19 feet from the connection point.
At that point, my uncle slid off and fell through a manhole and
then fell another 40 feet to the cement ground below. My dad,
Uncle Bobby's brother-in-law, found him that day. My dad still
works at this ADM plant.
Since that moment, my life has become filled with gathering
dates, statistics, evidence, and information. I started our
research to answer our family's simple rules or--sorry--
questions: What happened? Did he suffer? Did the device
malfunction? Was the device too old and unsafe for my uncle and
other employees that work at ADM?
Something went terribly wrong that day; and my cousins,
Jessica and Jeremy Fitch, my mom, and the rest of our family
deserve to know what happened and why.
I have come to the conclusion that if PAWA had been passed
when it was first introduced, my uncle might have been alive 3
weeks ago to place a rose on his mother's casket. Instead, when
my grandmother passed away last month, we placed a single rose
on an empty chair where he should have sat.
PAWA is important not only because it included tougher
penalties to discourage companies letting safety problems
continue, because it extended additional rights to family
members. If PAWA had been in place when my uncle died, my
family would not have learned about the findings against ADM
from a local news reporter. With the television camera rolling,
the reporter asked me, what do you think about the penalties
assessed by ADM? I could only respond we are not aware what the
penalty is and that the investigation was even closed.
This is how our family learned that ADM was fined $0 for
having an old and dangerous belt-operating man lift in their
plants. This piece of equipment caused my uncle's death, and
that I have since been informed is inherently unsafe and very
scary to use, a device that you should require specialized
training for anyone to use it and a device that causes many
injuries and even deaths. Yet ADM received no monetary
penalties for having this deadly equipment in their plants.
We asked why was ADM not fined from OSHA for the device
that took my uncle from us? Nine months after hearing about
zero penalties assessed to ADM, my family still did not have
the answers. I reached out to OSHA for answers in January,
2010, and OSHA agreed to meet with us. I was ready to ask them
all the questions that resulted in my months of research in
belt-operating man lifts. To my amazement, I learned that OSHA
issued two citations to ADM that were classified as serious and
specifically related to the dangerous belt-operating man lift.
However, as part of the informal settlement between OSHA and
ADM, the two citations related to the man lift and the monetary
penalties were deleted.
When we asked why OSHA told us that these dangerous man
lifts were not covered by an OSHA standard under an OSHA
standard issued in 1971, man lifts installed prior to August
1971 are grandfathered in, meaning that OSHA standards did not
apply to them. OSHA explained that because of this grandfather
clause they could not have pulled the citation if ADM contested
it, but through their settlement with the company ADM agreed to
replace the belt-operating man lift that killed my uncle with
an elevator.
OSHA thought this was a good compromise, getting ADM to get
rid of a highly dangerous piece of equipment and install
something safer in its place. That is not good enough and here
is why. This ADM facility where my uncle was killed and my dad
still works had a total of five of these belt-operating man
lifts. Stating they only had to replace just one of them did
not get rid of the problem. These man lifts are operating in
other ADM facilities across the country. This equipment kills
workers. A company like ADM with a stock market value of $18.31
billion should be compelled to replace all of these dangerous
lifts immediately.
I urge Congress to pass the Protect America's Workers Act
because it would improve OSHA's ability to ensure workers are
protected from dangers on jobs. I support the provision to
increase OSHA's penalties and have them routinely adjusted for
inflation, but penalties are only effective if OSHA has the
ability to compel abatement, even if the employers contests the
citation and penalties.
The Federal mine safety agency has this authority for the
300,000 workers it covers, and OSHA needs it for the 111
million workers who rely on its protection. As a family, we
believe if we are going to prevent more deaths and hurt, OSHA
must be able to force abatement during the contest period.
We strongly support all the provision of PAWA, including
the new rights that would be given to family members. We
believe it is very important for OSHA to meet with a family or
their representatives before the agency finishes its
investigation and for the families to have the opportunity to
make a victims' impact statement if the case proceeds to the
Occupational Safety and Health Review Commission.
My Uncle Bobby gave 32 years to ADM, often working 7 days a
week. My dad still works there, as do many other men and women.
This month alone we have seen too much deaths and grief because
of preventable workplace hazards. If the companies do not set
the bar high enough for workers' health and safety, then OSHA
must be empowered to do so. Thank you.
[The statement of Ms. Ford follows:]
Prepared Statement of Tonya Ford, Niece of Robert Fitch
Dear Chairwoman Woolsey, Ranking Member McMorris-Rodgers and
Members of the Committee: My name is Tonya Ford and I live in Lincoln,
Nebraska. I would like to start off by saying thank you so much for
this opportunity. It is a great honor to sit here and represent my
family and other families who have lost their loved ones due to
preventable work-related accidents.
I support the ``Protecting America's Workers Act'' (PAWA) because
of what happened on January 29, 2009 when I lost my Uncle Robert Fitch
or as I called him Uncle Bobby to a horrible preventable work-related
incident at the Archer Daniel Midland plant in Lincoln, NE. My Uncle
Bobby was 51 years old.
Our lives changed forever that day when my uncle stepped onto a
belt-operated manlift in order to go on his work break and fell
approximately 40 feet. As he fell, he impacted each wall in the cement
elevator shaft, and landed on the airduct, hitting it so hard it slid
19 feet from the connection point. At that point, my uncle slid off and
fell through a manhole, and then fell another 40 feet to the cement
ground below. My dad, uncle's Bobby's brother-in-law found him that
day. My dad still works at this ADM plant.
Since that moment, my life has become filled with gathering dates,
statistics, evidence, and information. I started my research to answer
our family's simple questions:
What Happened?
Did he suffer?
Did the device malfunction?
Was the device too old and unsafe for my uncle and the other
employees working at ADM?
I have come to the conclusion that if PAWA had been passed when it
was first introduced, my uncle might have been alive three weeks ago to
place a rose on his mother's casket. Instead, when my grandmother
passed away last month, we placed a single rose on the empty chair
where Uncle Bobby should have been seated. PAWA is important not only
because it includes tougher penalties to discourage companies letting
safety problems continue, but because it extends additional rights to
family members. If PAWA had been in place when my uncle died, my family
would not have learned about the fines assessed against ADM from a
local news reporter.
With the television camera rolling, the reporter asked me ``What do
you think about the penalty assessed to ADM?''
I could only respond: ``We are unaware what the penalty is and that
the investigation was closed.''
This is how our family learned that ADM was fined $0.00 for having
the old and dangerous belt-operated man-lift in their plant. This piece
of equipment caused my uncle's death, and that have since been informed
it was inherently unsafe and very scary to use. A device that should
require specialized training before anyone should use it a device that
causes many injuries and even deaths. Yet, ADM received no monetary
penalty for having this deadly equipment in their plant.
We asked: Why was ADM not fined by OSHA for the device that took my
uncle from us?
Nine months after hearing about zero penalty assessed to ADM, my
family still did not have answers. I reached out to OSHA for answers in
January 2010, and OSHA agreed to meet with us. I was ready to ask all
of the questions that resulted from my months of research on belt-
operated manlifts.
To my amazement, I learned that OSHA issued two citations to ADM
that were classified as serious and specifically related to their
dangerous belt-operated manlift. However, as part of an informal
settlement between OSHA and ADM, the two citations related to the
manlift and the monetary penalties were DELETED.
When we asked why, OSHA told us that these dangerous manlifts were
not covered by an OSHA's standard. Under an OSHA standard issued in
1971 (29 CFR 1910.68.), manlifts installed prior to August 1971 were
``grandfathered in,'' meaning the OSHA standard did not apply to them.
OSHA explained that because of this ``grandfather clause'' they could
not uphold the citation if ADM contested it, but through their
settlement with the company, ADM agreed to replace the belt-operated
manlift that killed my uncle, with an elevator. OSHA thought this was a
good compromise: getting ADM to get rid of a highly dangerous piece of
equipment and install something safer in its place. That's not good
enough. Here's why: This ADM facility where my uncle was killed and
where my dad still works had a total of 5 of these belt-operated
manlifts. Stating that they only had to replace just one of them does
not get to the root of the problem. These manlifts are operating in
other ADM facilities across the country. This equipment kills workers.
A company like ADM, with a stock market value of $18.31 billion, should
be compelled to replace all of these dangerous lifts immediately.
I urge Congress to pass the Protecting America's Workers Act (H.R.
2067 and S.1580) because it would improve OSHA's ability to ensure
workers are protected from dangers on the job. I support the provisions
to increase OSHA penalties and have them routinely adjusted for
inflation. But, penalties are only effective if OSHA has the ability to
compel abatement even if the employer contests the citation and
penalty. The federal mine safety agency (MSHA) has this authority for
the 300,000 workers it covers, and OSHA needs it for the 111 million
workers who rely on its protections. As a family, we believe that if we
are going to prevent more deaths and hurt, OSHA must be able to force
abatement during the contest period.
We strongly support all the provisions of PAWA, including the new
rights that would be given to family mem*bers. We believe it is very
important for OSHA to meet with a family or their representative before
the agency finishes its investigation and for a family to have the
opportunity to make a victims' impact statement if the case proceeds to
the Occupational Safety and Health Review Commission.
My Uncle Bobby gave 32 years to ADM, often working seven days a
week. My dad still works there, as do many other men and women. This
month alone we have seen too much death and grief because of
preventable workplace hazards. If companies do not set the bar high for
worker health and safety, then OSHA must be empowered to do so.
Thank you.
______
Chairwoman Woolsey. Thank you.
Mr. Morikawa.
STATEMENT OF DENNIS MORIKAWA,
MORGAN, LEWIS & BOCKIUS LLP
Mr. Morikawa. Thank you very much, Chairwoman Woolsey,
Ranking Member McMorris Rodgers, members of the subcommittee,
and fellow members of this panel.
My name is Dennis Morikawa, and I am a partner at the
Philadelphia law firm of Morgan, Lewis & Bockius. I appreciate
the opportunity to appear before you at this hearing to address
the victims' rights provisions of the latest draft of the
Protecting America's Workers Act legislation. I am testifying
today on behalf of the U.S. Chamber of Commerce and my
testimony, and comments are not intended to represent the views
of Morgan, Lewis & Bockius or its clients.
On this very special Workers Memorial Day, I want to assure
that our thoughts and prayers are with the families and victims
who have lost their lives on the job. I think it should be a
common goal of all of us to prevent accidents and to end
fatalities in the American workplace, and I share Ms. Ford's
sentiment with respect to that issue.
As I mentioned, I am a partner with Morgan, Lewis, having
been with them since 1974; and during that time I have
practiced in the area of Occupational Safety and Health law. As
a consequence of that, I have had a good opportunity to see the
inner workings of how OSHA works both in the inspection, in the
citation, the settlement, and the litigation process of OSHA
cases. I have literally represented clients in hundreds of OSHA
cases.
However, the aspect of my practice in which I am most proud
has been in providing the basis for the creation of coalitions
of employers dedicated to cooperating for the purpose of ending
accidents and fatalities on the job.
I refer specifically to the work that I did with the
Electrical Contractors Transmission and Distribution Strategic
Partnership for Safety, better known as the ET&D partnership,
which represents a coalition of six of the largest union and
nonunion electrical transmission contractors in the United
States who, in 2004, banded together to create a unique
partnership which matched these contractors with the
International Brotherhood of Electrical Workers, the National
Electrical Contractors Association, and the Edison Electric
Institute.
The express purpose of that partnership was to bring about
a substantial reduction in injuries and fatalities in the
electrical construction industry and to create rigorous
standards for best practices to be utilized by companies in
that industry to bring about a real change in the industry
safety culture, in other words, to really make a difference.
I am very proud to tell you that the statistics that have
been done with respect to the success of this partnership
indicate that between 2003 and 2009 fatality rates for ET&D
partners declined by almost 80 percent; and the lost workday
injury and illness rate for partners was reduced to a
remarkable. 89, which represents less than one injury per 100
workers in an industry which has long been characterized by
OSHA as a high hazard industry.
It demonstrates that when a coalition of employers and
labor and employees and associations get together for the
common purpose of ending accidents, stopping injuries, and
stopping fatalities on the job, it can, in fact, be effective
and be a 21st century model for new safety and health
approaches.
Let me make it clear today that my brief comments are
intended to focus solely on the issue of victims' rights in
section 306 of PAWA. As you are aware, the Chamber has made
previous comments earlier on March 16 with respect to broad
aspects of this legislation. It is important to point out that
the basic substance of victims' rights as set forth in section
306 of PAWA is in many respects a codification of existing
procedures already set forth in OSHA's Field Operations Manual,
or the FOM, or FOM, as it is referred to.
I think Deputy Assistant Secretary Jordan Barab did an
excellent job in talking about and summarizing the OSHA
procedures that have been in effect for over 15 years, which
address communications with and the provision of information to
victims and their family members. We commend Mr. Barab for his
recognition that some of the FOM policies have not always been
followed by OSHA consistently and in a timely manner, and Mr.
Barab has pledged to place new policies into a directive and to
make new amendments to the FOM to address these issues.
Mr. Barab also states that OSHA will be revising their
training and compliance office to address interactions with
victims' families. We applaud OSHA's initiatives in that
regard.
But in contrast to the FOM procedure, section 306 now
provides that victims and their family members are to be given
the right to meet with OSHA prior to OSHA's decision to issue
or not issue a citation and requires that, prior to OSHA
entering into any agreement to settle a citation, OSHA must
notify the victims or the representatives of the victims about
the settlement meeting in order to give the victim or their
representative an opportunity to appear and make a statement in
front of the parties conducting those settlement negotiations.
We agree with Assistant Secretary David Michaels' view
expressed on March 16 that victims and their families desire to
be more fully involved in the remedial process, but we also
agree with Dr. Michaels' comments given to the subcommittee in
which he urged that clarification was needed with respect to
section 306, particularly as to the provisions allowing victims
and their representatives to meet in person with OSHA before
the agency decides to issue a citation and also to make
statements at contested hearings that follow. Dr. Michaels has
pointed out that this could create logistical difficulties for
victims as well as OSHA's regional and area offices, which
could result in significant delays in the negotiations and
ultimate resolution of cases which, according to Dr. Michaels,
could hurt the victims and their families in the long run.
Deputy Assistant Secretary Barab's comments today strongly
support that point.
In addition to the issues identified by Dr. Michaels, we
would add that section 306 is made potentially more problematic
by the provision for the involvement of representatives of the
victim, as that term has not been defined specifically in the
section. While section 306 does define victim and family
member, the section does not make clear what representatives
are contemplated within 306.
Now, Tonya Ford's moving and eloquent tribute to her uncle
this morning is an excellent example of where a family member
represents the deceased loved one in conveying the thoughts and
emotions of her family; and we thank her for those comments.
However, we would submit that further clarification needs to be
made with respect to whether the ``representatives'' of the
victim contemplated by this section is intended to be somebody
other than a family member, such an attorney, for example, the
involvement of which may, in the concept of Assistant Secretary
Michaels, create delays that could hamper the process.
In conclusion, we urge this committee to more clearly
clarify the rights, duties, and responsibilities of the
entities covered under discussion in draft section 306, which
purports to address victims' rights, and to determine if
section 306 truly advances the interests of safety and health
through a fair, efficient, and prompt resolution of matters
before OSHA and the Commission.
We would point out that OSHA needs the opportunity to
exercise prosecutorial discretion with respect to the matters
that they handle. They are an understaffed agency with a very,
very big mission. We support their efforts, and we hope that
they will continue those efforts towards ending accidents and
fatalities on the job.
Thank you.
[The statement of Mr. Morikawa follows:]
Prepared Statement of Dennis J. Morikawa, Partner, Morgan, Lewis &
Bockius LLP, on Behalf of the U.S. Chamber of Commerce
Good morning, Chairwoman Woolsey, Ranking Member McMorris Rodgers
and members of the Subcommittee. My name is Dennis J. Morikawa and I am
a Partner with the Philadelphia office of Morgan, Lewis & Bockius LLP.
I appreciate the opportunity to appear before you at this hearing to
address the victim's rights provisions in Section 306 of the latest
draft of the Protecting America's Workers Act legislation (HR 2067; S
1580). My testimony will largely focus on these provisions but I would
be happy to answer questions on any of the important issues raised by
this proposed legislation.
I am testifying today on behalf of the U.S. Chamber of Commerce,
the world's largest business federation with over three million
businesses of all sizes, sectors and regions, as well as state and
local chambers and industry associations. Critical to the issues that I
will be discussing this morning, approximately 96% of the Chamber's
members are small businesses employing 100 or fewer employees. I have
been a participant in activities of the Chamber's Labor Relations
Committee and have appeared before and participated in meetings of the
OSHA Subcommittee. My testimony and comments are not intended to
represent the views of Morgan, Lewis & Bockius LLP or any of our
clients.
Background and experience in occupational safety and health law
I have been with Morgan, Lewis & Bockius LLP since 1974. In the 36
years that I have practiced law, I have devoted a significant part of
my practice to labor and employment matters, specifically focused on
workplace safety and health, including matters arising under the
Occupational Safety and Health Act (``OSH Act'') and OSHA state plans.
I am past Management Co-Chair of the American Bar Association Committee
on Occupational Safety and Health Law and have participated in numerous
panels and symposiums on OSHA Law with representatives from OSHA, the
Occupational Safety and Health Review Commission, leading trade
associations and labor unions as well as leading practitioners in this
field.
Morgan Lewis's OSHA Practice Group, which I lead, has a combined
total of more than 100 years of experience and includes among others,
the former Acting Assistant Secretary of Labor and Deputy Assistant
Secretary for OSHA, Jonathan L. Snare, as well as the past Solicitor of
Labor, Howard M. Radzely. Throughout my years of practice, I have
represented numerous clients in a wide variety of industries, such as
oil refineries, construction, manufacturing, electrical utilities,
retail, shipping, shipbuilding, meat packing and poultry processing,
supermarkets, healthcare, chemical manufacturing, steelmaking and auto
making.
Over the course of my career, I have represented clients in every
conceivable type of OSHA-related activity including rulemaking, advice
and counseling, strategic planning and handling OSHA inspections and
citations. On the enforcement side of my practice, I have participated
in all stages of the contested case process before the Occupational
Safety and Health Review Commission (``Commission'' or ``OSHRC''), as
well as with OSHA's state plan partners, from the initial contest
decision, through discovery and trial, as well as appeals, and
including numerous settlement negotiations and mediations. On the
compliance side of my practice, I have assisted clients in developing
methods and strategies to comply with all applicable OSHA workplace
safety and health rules and requirements.
In fact, the area of my OSHA practice in which I have been involved
that has given me the greatest sense of achievement has been my work
with OSHA compliance and cooperative programs and, in particular, the
Electrical Contractors Transmission and Distribution (``ET&D'')
Strategic Partnership for Safety, a coalition of six of the largest
union and non-union electrical transmission construction contractors in
the United States representing over 70% of the employees in that
industry. In August of 2004, these contractors, along with OSHA, the
International Brotherhood of Electrical Workers (IBEW), the National
Electrical Contractors Association (NECA) and the Edison Electric
Institute (EEI) created the ET&D Strategic Partnership whose principal
purpose was to change the safety culture of their industry in order to
reduce injuries and fatalities involving industry workers.
In the six years since the ET&D Partnership was created, there have
been dramatic reductions in injuries and fatalities with fatality rates
of the Partners being reduced by almost 80% and the Lost Workday Injury
Rates of Partners reduced to a remarkable .89 (less than one injury per
100 workers) in an industry which has long been regarded by OSHA as a
``high hazard industry.'' In our view, the ET&D Partnership represents
a prototype 21st century model for effective management of workplace
safety and health which places the greatest emphasis on the prevention
of injuries and fatalities rather than focusing only on OSHA
violations. In my view and based on my experience during my 36 years of
legal practice, the vast majority of employers do take safety seriously
and many employers have made extraordinary efforts to bring about
positive changes in their industries as evidenced by the ET&D
Partnership.
Comments on the Protecting America's Workers Act victim's rights
provisions
At the outset, let me be clear that the brief comments I am
offering this morning are not intended to focus on the broad issues set
forth in the PAWA discussion draft, but are limited to the issue of
Victim's Rights as set forth in draft Section 306. As you may be aware,
on March 16, 2010, my Partner, Jonathan Snare, testified with respect
to the broad scope of PAWA and its subparts and I do not intend to
reiterate the points that he made at that time. Rather, I have been
asked today to speak to the issue of what rights should be accorded to
a victim or the representative of a victim, either in matters before
OSHA or in contested matters pending before the Commission.
While we have some questions, we understand the discussion draft as
saying that an employee who has sustained a work-related injury, or a
family member on behalf of that employee (because the employee dies on
the job or is physically incapacitated and unable to exercise his or
her rights under this Section), would be able to meet with the
Secretary regarding the inspection or investigation prior to the time
that the Secretary has made a decision to issue a citation or to take
no action. Thereafter, the victim or his/her representative is entitled
to receive copies of any citation or reports issued as a result of the
inspection or investigation, to be informed of any Notice of Contest or
addition of parties to the proceedings and finally to be provided
notification of the date and time of any proceedings, service of
pleadings or other relevant documents, as well as to be informed of
his/her rights in a proceeding under Section 10(c).
With respect to matters pending before the Commission, it is our
understanding that the victim or representative of the victim will, in
addition to being notified of the time and dates of any proceedings
before the Commission, receive pleadings and any decisions related to
the proceedings and will be provided an opportunity to appear and make
a statement in accordance with the rules prescribed by the Commission.
In addition to the above, Section (c) ``Modification of Citation''
provides that, before entering into any agreement to withdraw or modify
a citation, the Secretary must notify the victim or the victim's
representative and provide such person the opportunity to appear and
make a statement before the parties conducting settlement negotiations.
The provisions of Section 306 basically codify provisions of OSHA's
Field Operations Manual (``FOM'') which provides in Chapter 11-12(G)
that OSHA must contact the family members of employees who have been
involved in fatal or catastrophic occupational accidents or illnesses
and provide them with information regarding OSHA's activities with
respect to any inspection and citation which may result from the fatal
or catastrophic occupational accident or illness. Indeed, Chapter 11-
12(G)(4) of the FOM provides that contact persons on behalf of the
family should be kept up-to-date on the status of the investigation and
OSHA will provide family members or their representatives with a copy
of all citations, subsequent settlement agreements or Commission
decisions that are issued as a result of the investigations and
citations. In compliance with the Freedom of Information Act
(``FOIA''), case files and other confidential investigative information
assembled by OSHA as part of its investigation and citation are not
made available to the family or their representatives until after the
litigation has been completed.
As evidenced by the FOM provisions, OSHA has for many years
provided to victims or the families of victims' information that is
very similar to that which is provided for in Section 306. However, as
set forth in the FOM, the procedures for notifying family members with
respect to the status of investigations have never required face-to-
face meetings with OSHA to discuss possible citations or settlements or
opportunities to appear and make statements to the parties prior to any
settlement of the citations. Nor have the Commission's rules included
the rights of victims to appear at proceedings before the Commission.
To that end, we fully concur with the comments of Assistant Secretary
of Labor for OSHA, Dr. David Michaels, at this Subcommittee's March 16,
2010 hearing on PAWA, that further clarification needs to be made
because provisions for face-to-face meetings and the making of public
statements could present logistical challenges which could delay
resolution of the citations and, in Dr. Michaels' words, ``hurt the
victim in the long run.'' (Michaels Statement at p. 14)
Another issue which needs further clarification is what is intended
by the use of the term ``representative of the victim.'' (Section 306,
of the discussion draft adding Section 9A(a) to the OSH Act.) The term
``victim'' is defined in Section 9A(f) to include a ``family member''
``if'' (and thus only if) the victim is deceased or incapacitated and
thus cannot appear. The term ``representative'' is not defined and
could be read to include yet another person in the proceedings. Because
the structure of Section 9A(f) provides that a representative in the
form of a family member may only appear when the victim is deceased or
incapacitated, the term ``representative of the victim'' should be
clarified to include only family members. Any broader reading of the
term ``representative'' would fundamentally change the impact of the
provision.
For example, a ``representative of the victim'' could be
interpreted to include a private attorney who is involved in third-
party litigation related to the matter. The involvement of an attorney
could create the potential for further delays as envisioned by Dr.
Michaels in his March 16, 2010 testimony (Michaels Statement at p. 14)
and exacerbate the settlement process. Further, involving a private
attorney in settlement meetings at any level could have a ``chilling
effect'' on those settlement meetings by discouraging the parties from
engaging in the candid discussions which are necessary in order to
accomplish the settlement of OSHA cases. Because OSHA is committed in
the first instance to enforcing OSHA laws and standards on behalf of
employees, it stands to reason that OSHA must have the prosecutorial
discretion with respect to its investigation to determine what actions
it needs to take to enforce OSHA standards, consistent with its
resources and priorities, without interference and/or delays related to
meetings with outside parties. (Michaels Statement at p. 14) In our
view, providing information directly to victims or the victims'
families is fully consistent with past practice as set forth in the FOM
and has been proven to be a manageable and non-disruptive method for
involving victims or victims' families in the OSHA enforcement process.
This discussion of representation at settlement meetings raises
another issue in the draft version of PAWA requiring clarification. In
my many years of experience I have found that settlements, particularly
in the types of complex cases that arise following a fatality, require
several meetings to reach settlement. Often the first meeting is an
Informal Conference with OSHA. Thereafter, for any contested case
before the Commission with penalties over $100,000, such case is
assigned to Mandatory Settlement Proceedings including a meeting with
an assigned Settlement Judge. Section 9A(c) of the discussion draft
provides in the singular that a victim may make ``a statement.''
However, the discussion draft version of PAWA does not address when
that statement will be made except that the opportunity must be
provided prior to entering into an actual agreement. Thus that version
of PAWA is unclear on whether the victim must be provided an
opportunity to appear at a particular proceeding or, when there are
multiple meetings, whether the victim must be provided the opportunity
to appear at multiple proceedings. Consistent with the structure of the
discussion draft version of PAWA, the opportunity to appear at a single
meeting to make a statement would be consistent with the goals of the
legislation and would not be disruptive. On the other hand, requiring
that victims, or their representatives, be included in all settlement
proceedings would create scheduling difficulties and likely delay
proceedings.
By these comments we do not mean to diminish in any way the tragedy
of employee injuries and fatalities which have occurred, particularly
those in recent weeks. Our thoughts and prayers are with the victims
and their families. We are fully supportive of the right of victims or
their families to be kept fully informed as to OSHA's inspections,
citations and subsequent enforcement actions with respect to any
accident or other catastrophe that may have caused serious injuries or
death to these employees. However, we are also mindful of the need for
OSHA to have the ability to make reasoned and independent prosecutorial
decisions with respect to the nature and manner of their investigations
and whether, and to what extent, citations should be issued with
respect to these investigations. Similarly, decisions related to
settlements or litigation of matters must continue to be within the
exclusive province of those entities which are statutorily mandated to
enforce the Occupational Safety and Health Act and to act as the
``representative'' of the employee in terms of assuring that employees
are provided with a safe and healthy workplace.
Conclusion
Accordingly, for all of the reasons I have outlined above, I
believe further clarification of the rights, duties and
responsibilities of the entities covered under discussion draft Section
306, which purports to address Victim's Rights, is necessary to truly
advance the interests of safety and health in the workplace. Indeed, as
I previously mentioned, we all agree that employees who are injured on
the job and families who have lost a loved one due to workplace
accidents should be an important part of this process, and we all
deeply sympathize with all such employees and their families. In fact
the most important goal of any OSHA legislation that this Subcommittee
considers, including the Section 306 that we have discussed here today,
is whether it will result in the prevention of workplace injuries and
fatalities. Preventing injuries and fatalities would reduce the number
of injured employees, as well as families of employees who lost their
lives, who need to rely upon the victim's rights provisions in Section
306 of PAWA. This should be our ultimate objective.
Thank you for providing this opportunity for me to discuss these
important issues with you today, and I would be happy to answer any
questions that you may have.
______
Chairwoman Woolsey. Thank you very much.
Dr. Monforton.
STATEMENT OF CELESTE MONFORTON, ASSISTANT RESEARCH PROFESSOR,
DEPARTMENT OF ENVIRONMENTAL AND OCCUPATIONAL HEALTH, THE GEORGE
WASHINGTON UNIVERSITY
Ms. Monforton. Chairwoman Woolsey and members of the
subcommittee, I am Celeste Monforton, an assistant research
professor at the George Washington University School of Public
Health. I appreciate the opportunity to be here today and ask
that my written statement be made part of the hearing record.
One of the most rewarding and enlightening experiences of
my public health career was my involvement in 2006 in the Sago
Mine disaster investigation, and some of those family members
are here today. I came to understand and appreciate that family
member victims can make a meaningful contribution to the
accident investigation process.
I heard then and I still hear today that family members
will impede the investigation, that family members have a
conflict of interest, or that family members are just too
emotional to be useful in fact finding. My experience tells me
that nothing is further from the truth.
With Sago, no one paid closer attention to the details,
pressed the investigators harder for answers, and raised the
bar higher for mine safety reforms. I relish the opportunity in
the question and answer period to respond to Mr. Morikawa's
comments about having attorneys representing family members.
It is my experience, working with the Sago families and
other family member victims that inform my views today. OSHA
does have a long-standing policy related to victims' families.
From my experience, however, the objective of that policy is
vague, leading to vastly different experiences among family
members, depending on the OSHA area office or the State plan.
A condolence letter sent to the wife of Ray Gonzalez, for
example, was mailed to her in September, 2004, after he
suffered burns at the BP Texas City facility. Mr. Gonzales,
however did not die until November, 2004.
In addition, in the second and third paragraphs of the
letter, it does not mention her husband but a different
deceased worker. Gross and insensitive errors such as this do
not give families much confidence in the quality of OSHA's
accident investigations.
In my testimony, I describe the experience of Maureen
Ravetta, whose husband was killed in September, 2009. No widow
should feel incompetent for not understanding or comprehending
OSHA's procedures. It should be OSHA's duty to make sure that
family members understand their procedures, taking into account
how shock and grief can affect one's ability to process
information.
I also heard at last month's hearing the witness
representing the Chamber of Commerce asserting that involving
family members does not appear to add much value other than to
sensationalize. That comment is terribly uninformed,
particularly with the reality of what families can offer to
investigators. Speak to any of the family members present here
today. They will impress you with their knowledge of the
factors that contributed or caused their loved one's death and
their suggestions for ways a worker injury and illness
prevention system can be improved.
PAWA could go further and build on provisions for a family
liaison, as contained in the Miner Act of 2006. Family liaison
requirements must be strengthened and elevated to statutory
duties of the agency. Rights for family members and injured
workers are too important to be contained in policy.
I fully support PAWA's provisions to reform the
whistleblower protections in section 11(c) of the OSH Act. When
I worked at OSHA in the early 1990s, it was apparent to me, a
newcomer to the Labor Department, that the 11(c) program was a
stepchild of the agency. The whistleblower witness here today,
Mr. Neal Jorgensen, is an excellent example of why individuals
should not be held captive because of Labor Department's
failures.
Whether the problems at the DOL are resource constraints,
lack of interest, litigation anxiety, or their client is a
secretary, not the claimant, health and safety whistleblowers
must be afforded a private right of action to pursue their
case.
At one time, I thought that the whistleblower protection
functions delegated to OSHA could be at the heart of a health
and safety protection system, but I no longer believe that to
be the case. The subcommittee should consider a bolder reform
to improve protection for whistleblowers. I applaud your
efforts, Chairwoman Woolsey, and your leadership on this
crucial issue; and I support your proposal from the 110th
Congress to create a separate, independent agency to administer
all Federal whistleblower statutes.
Vigilant defense of workers who exercise their
whistleblower rights, especially issues related to health and
safety, is fundamental to an effective occupational injury and
illness prevention system. I am pleased to answer your
questions.
[The statement of Ms. Monforton follows:]
Prepared Statement of Celeste Monforton, DrPH, MPH, Department of
Environmental & Occupational Health, School of Public Health and Health
Services, George Washington University
Chairwoman Woolsey, Ranking Member Ranking Member McMorris-Rodgers
and Members of the Committee: I am Celeste Monforton, an assistant
research professor in the Department of Environmental and Occupational
Health at the George Washington University School of Public Health &
Health Services, and immediate past chair of the Occupational Health &
Safety Section of the American Public Health Association.
Today, people around the globe are marking Worker Memorial Day, the
day set aside to remember workers killed, disabled, injured or made
unwell by their work, and to act to improve protections for the world's
workers. In the U.S, if we compare our occupational fatality injury
rate to those, for example, in Germany or Norway, their rates are 82%
and 150% better than ours. [See Appendix A] We can do much better.
Let's honor the men, women and young workers whose lives were cut short
or irreparably harmed by on-the-job conditions by making needed changes
to our nation's worker health and safety system. The Protecting
America's Workers Act (H.R. 2067) is a step in the right direction. I
appreciate the opportunity to appear before you today to discuss
provisions of the bill, in particular those related to whistleblowers'
and victims' rights.
Section 306: Victims' rights
One of the most rewarding and enlightening experiences in my public
health career was my involvement in the 2006 Sago mine disaster
investigation. I came to understand and appreciate that family-member
victims can make a meaningful contribution to the accident
investigation process. 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.
I heard then (and still hear today) that family members will impede
the investigation, that family members have a conflict of interest, and
that family members are too emotional to be useful in the fact-finding.
My experience tells me that nothing is further from the truth. With
Sago, no one paid closer attention to details, pressed the
investigators harder for answers, or raised the bar higher for mine
safety reforms than those daughters, wives and brothers.
Putting oneself in the family members' shoes, you realize that
dozens of people (people you don't know and have never met) are
learning the circumstances that led to your loved one's death, but
you--his parent, his wife, his child--are left in the dark. As I talked
with family members in the early days of the Sago investigation, as
these interviews were first taking place, I realized that we needed to
balance the families' right to know with the needs and the legal
responsibilities of technical investigators. Although not ideal for the
families because they were forced to wait until all interviews were
completed, we gave each family a complete set of the transcripts.
Despite the unease and anxiety expressed by some, including the
historically based assertion that such disclosures would impede the
investigation, no calamity ensued. In fact, some of the family members
devoted long days and nights to studying the transcripts and were able
to alert us to inconsistencies in witnesses' testimony and identify
topics deserving closer scrutiny.
It is my experiences working with the Sago miners' families and
since that time providing advice and encouragement to other family-
member victims that inform my views.
At the subcommittee's hearing on March 16, 2010, OSHA assistant
secretary David Michaels indicated that OSHA:
``* * * for the past 15 years has informed victims and their
families about our citation procedures and about settlements, and
talked to families during the investigation process.'' \1\
It's true that OSHA has a policy about sending a condolence letter
and giving family members an opportunity to discuss the circumstances
of their loved one's work-related death.\2\ From my experience,
however, the objective of that policy is vague, leading to vastly
different experiences among family members depending on the OSHA area
office or State Plan. Some of policy's failures are illustrated by the
errors contained in the condolence letters sent by OSHA. For example, a
letter sent to the wife of Ray C. Gonzalez, 54, by the OSHA area office
expressing sympathy for her loss was sent to her in September 2004
shortly after he suffered severe burns at the BP Texas City facility.
Mr. Gonzalez did not die, however, until November 12, 2004. In
addition, the letter mentioned her husband, Ray Gonzalez, in the first
paragraph, but in the second and third paragraphs, it listed Mr.
Maurice Moore, Jr., another worker who was fatally injured in the
deadly incident. Gross and insensitive errors such as this do not give
families much confidence in the quality of OSHA's work, let alone its
accident investigation.
Other failures involve the appropriateness or usefulness of the
information provided to a family. For example, Ms. Maureen Ravetta's
husband Nicholas, 32, was killed on September 3, 2009 in an explosion
at a U.S. Steel plant in Clairton, PA. Maureen recalls receiving a
condolence letter from OSHA and knew that they were investigating the
circumstances surrounding his death. In mid-March, she had been
corresponding on the social networking site Facebook with other family
members and wanted advice on how to find out the status of OSHA's
investigation. Before contacting her, I did a little research and
discovered that OSHA finished their investigation and closed the case
on February 2nd (exactly six months after their investigation began.)
Tammy Miser of United Support and Memorial for Workplace Fatalities
(USMWF) and I immediately called Maureen Ravetta to tell her what I'd
learned about her husband's case. She was shocked to learn the case was
closed and hurt that she didn't know it. She said something like:
``I feel like a fool. I've been sitting around waiting for OSHA to
call or let me know, and now I find out they closed the case 5 weeks
ago.''
I dreaded hearing, but anticipated her next question: ``What did
OSHA find?''
Regretfully, I explained that information I found on OSHA's website
indicated that U.S. Steel was not cited for any violations related to
her husband's death and no monetary penalties were assessed. I tried to
explain both OSHA's investigation process and their focus on
identifying violations of specific safety standards. I could tell that
none of that was making any sense to her; she was numb from the news.
I asked if she had received a letter from OSHA following her
husband's death and if it explained the agency's procedures. She
recalled the letter, but said it didn't mention anything about a six-
month deadline for issuing citations. Ms. Ravetta said:
``Had I known about the six-month deadline, I would have picked up
the phone on that exact date and called OSHA to hear what they found.
Instead, I've been waiting for them to contact me.''
She repeated again, ``I feel like a fool.''
No widow should feel incompetent for not comprehending OSHA's
procedures. It should be OSHA's duty to make sure that family members
understand their procedures, taking into account how shock and grief
can affect our ability to process information. For some individuals, a
simple letter may suffice, but for others, perhaps most, OSHA may need
to follow up with a phone call, or to check in from time to time during
the investigation and contest period to see if the family has questions
or concerns. I hear about the luncheons and speeches that OSHA
officials attend across the country throughout the year to keep trade
associations and business groups apprized of OSHA activities. Surely,
frequent and open communication with victims' families should take a
higher priority.
At the subcommittee's hearing last month, the witness representing
the U.S Chamber of Commerce asserted that involving family members
``does not appear to be much value * * * other than to sensationalize
presumably already emotional and sensitive matters.'' That comment is
terribly uninformed, particularly to the reality of what family members
can offer to investigators. I would invite Members of this Subcommittee
to speak to any of the family members present here today. They will
impress you with their knowledge of factors that contributed to or
caused their loved ones' deaths, and their suggestions for ways our
worker injury and illness system can be improved.
I've reviewed the victims' rights provisions of the discussion
draft of H.R. 2067. It will offer family members the following
opportunities to be involved in the investigation process:
1. Meet with the Secretary's representative (e.g., OSHA official)
before a decision is made to issue a citation or take no action. This
is particularly important for those family members who may have
information or physical evidence that may be germane to OSHA's
investigation.
2. Receive any citations or other documents at the same time as the
employer receives them. This should eliminate the situation experienced
by numerous victims' families who learn through a news report that
their loved one's employer received a citation and penalty (or none at
all), rather than being informed directly by OSHA.
3. Be granted the opportunity to appear and make a statement before
OSHA and the employer during informal and formal settlement
negotiations. This will shine a light on the process, allowing victim's
families the chance to observe how OSHA, DOL Solicitor's Office lawyers
and company attorneys bargain over classification of violations and
penalty amounts.
4. Be afforded the right to appear and make a victim's impact
statement before the Occupational Safety and Health Review Commission
(OSHRC) in those instances when a case proceeds to it for adjudication.
At the subcommittee's hearing on March 16, 2010, the OSHA assistant
secretary's testimony noted that the provision requiring OSHA to meet
with family members before a citation is issued or to appear before
parties in settlement negotiations ``could be logistically difficult
for victims and OSHA's regional and area offices.'' Under the current
statute, OSHA has six months to conduct inspections, including fatality
investigations. I find it hard to believe that during this six-month
period, OSHA field staff would not be able to coordinate a time to meet
or speak on the phone with the victim's family. In fact, some OSHA area
offices already do this, and the affected families sincerely appreciate
it.\3\
It's true that OSHA is under certain time constraints. There is a
15 working day time period in which the employer and OSHA may negotiate
an informal settlement in lieu of a formal contest before the OSHRC. We
know that many cases are handled through this informal conference
process, with OSHA and the employer motivated to have the hazards
abated and resolve the citations and penalties. This motivation compels
the parties to identify a date and time to meet during this three-week
window, whether in person or by phone.
It's only fair that family members who've lost so much because of
workplace hazards have a chance to witness negotiations to reduce
penalties and/or the severity classification of violations. PAWA would
give the victim's family the right to be notified about these meetings
and be given an opportunity to attend and make a statement during them.
Just as many employers will juggle their schedules in order to meet
with OSHA during this pre-contest period, I believe family members
would do the same. Ms. Deb Koehler-Fergen, whose son Travis was
asphyxiated in a confined space incident in February 2007, told me:
``I would have done anything to be at a meeting between NV-OSHA and
Boyd Gaming when they discussed Travis' case. If my boss told me I
couldn't have the day off of work, I would have quit my job to be at
that meeting.''
I do not believe that the rights extended to family members under
PAWA would be as ``logistically difficult'' as OSHA officials claim.\1\
Furthermore, OSHA may find that participating family members turn
out to be their best allies for securing health and safety
improvements. Family members may endorse the terms of the informal
settlement if they believe that the employer's proposed corrective
actions will substantially improve safety for their loved one's co-
workers. In fact, the mantra I hear from family members more often than
any other is this:
``We don't want this to happen to any other family; we don't want
them to go through what we've been through.''
I believe that involving family members in finding solutions to
workplace hazards has the potential to substantially advance
occupational injury and illness prevention in the U.S.
I support PAWA's provisions to provide family members copies of
citations or reports at no costs. I would go further and recommend that
family members be given access to all documents gathered and produced
as part of the accident investigation, including records prepared by
first responders and state and federal officials. In addition, all fees
related to the production of documents should be waived for family
members. The release of this information should be prompt, and no later
than the day that any citations are issued to the employer. Exceptions
should be permitted when bona fide evidence demonstrates that a
criminal investigation could be hampered by such release.
PAWA could go further and build on the provision for a family
liaison contained in the MINER Act of 2006.\4\ Congress should consider
directing the Secretary to appoint a Department of Labor official to
serve as a family liaison in cases of worker fatalities or serious
injuries. Some OSHA area offices already make sincere efforts to
provide information and timely updates to family members, but the
agency's and the State Plan States' performance in this regard is
inconsistent and needs to be improved. Family liaison requirements must
be strengthened and must be elevated to statutory duties of the
agencies. Rights for family member and injured worker are too important
to be contained only in policy.
Title II: Whistleblower protections
I fully support PAWA's provisions to reform and improve the
whistleblower protections in Section 11(c) of the OSH Act. I applaud
Chairwoman Woolsey for her leadership on whistleblower protection
legislation, and for this Subcommittee's focus on this critically
important topic.
I agree that whistleblowing is a vital safeguard for our democracy
and ensuring justice, and that individuals who stand up for what is
right often suffer devastating personal consequences.\5\ As we read the
recent newspaper accounts of deaths and injuries in U.S. workplaces,
and we hear President Obama emphasize that workers need to be empowered
to report safety problems,\6\ it's vital that we have the laws in place
to protect whistleblowers.
When I worked at OSHA in the early 1990's, it was apparent to me, a
newcomer to the Labor Department, that the 11(c) program was a step-
step child of the agency. At that time, OSHA only had a few statutes to
administer; now it's responsible for 17 whistleblower laws. Still,
about 60% of all the complaints filed are related specifically to
workers exercising their health and safety rights, rights allegedly
protected under Section 11(c) of the OSH Act. Defending workers in
these situations is essential to OSHA's core mission, yet this program
continues to be treated worse than a second-class citizen. My
characterization is based on investigations conducted by the Government
Accountability Office (GAO), Congressional teams, independent
researchers and individuals who have attempted to use the system on
behalf of aggrieved workers.
PAWA's whistleblower provisions will substantially improve the
protections and procedures for workers who raise concerns about safety
and health problems. They will revise the law to make it comparable to
other more modern whistleblower statutes. Most importantly, it will
allow workers to pursue their discrimination case independently, if the
Solicitor of Labor (acting on behalf of the Secretary) declines to take
the case or fails to act in a timely manner. This private right of
action is already granted to workers employed in the nation's mining
industry,\7\ and simple fairness warrants its extension to workers
covered by the OSH Act. The whistleblower witness here today, Mr. Neal
Jorgensen, is an excellent example of why individuals should not be
held captive because of the Labor Department's failures. Whether the
problems at the Labor Department are resource constraints, lack of
interest, litigation anxiety or that their client is the Secretary, not
the claimant, health and safety whistleblowers must be afforded a
private right of action to pursue their case. PAWA would do just that,
and this improvement is sorely needed.
The Subcommittee should consider a bolder reform to improve
protections for whistleblowers. I support Chairwoman Woolsey's proposal
from the 110th Congress, the Private Sector Whistleblower Protection
Streamlining Act (H.R. 4047) to create a separate independent agency or
bureau to administer all federal whistleblower statutes. From my 20
years of observing the administration of the whistleblower program at
OSHA, it is subordinate to the agency's core mission, thus individuals
with valid whistleblower complaints are relegated to a system without
independent leadership and commitment. The small staff of investigators
and program managers is responsible for 17 different statutes,\8\ [and
will soon (if not already) be adding the whistleblower provisions
contained in ``The Patient Protection and Affordable Care Act'' \9\]
yet it is constrained within a deep administrative hierarchy and a
system riddled with ``inadequate internal controls.'' \8\
At one time, I thought that the whistleblower protection functions
delegated to OSHA could be at the heart of our worker health and safety
protection system, but I no longer believe that is possible. Vigilant
defense of workers who exercise their whistleblower rights--especially
on issues related to health and safety----is fundamental to an
effective enforcement system. As Jason Zuckerman of the Employment Law
Project warned that failing to aggressively investigate and pursue
allegations of discrimination will embolden these lawbreaking
employers.\10\ I believe Congress should consider creating an
independent bureau or agency to administer all the federal
whistleblower statutes. With dedicated leadership, specialized
investigators and skilled attorneys it could operate efficiently by
focusing exclusively on the investigation and defense of valid
whistleblower complaints.
Investigations of worker fatalities and serious injuries
PAWA would direct OSHA to investigate worker fatalities and serious
injury events, and require employers to notify OSHA promptly of these
incidents. This is a needed improvement to the OSH Act; however, I
recommend an important modification. Under the MINER Act of 2006, the
law was changed to require miner operators to notify MSHA within 15
minutes of the time that the employer realizes that the death of an
individual has occurred, or an injury or entrapment has occurred which
has a reasonable potential to cause death.'' \11\ Under OSHA's current
regulations, employers are given 8 hours to report such events,
potentially delaying the commencement of their investigation by a day
or more. Worker deaths and life-threatening injuries would receive the
public attention can spur much-needed regulatory reforms, if immediate
notification were required of all employers, not just those in the
mining industry.
Injury and illness prevention requires abatement of hazards
Under the OSH Act, employers are not required to correct a
hazardous condition(s) until the citation(s) assessed by an OSHA
inspector become(s) a final order of the OSHRC.\12\ PAWA would change
this situation and require abatement of hazards--hazards that can kill
or injure workers--while the employer contests them. If a person gets
pulled over for violating a traffic law, such as driving without a
license, that person isn't allowed to get right behind the wheel and
proceed to break the law just because s/he plans to challenge the
ticket. Likewise, if a health inspector finds evidence of live rodents
and roaches, or cross-contamination of raw and prepared meats, the
restaurant owner has to fix the problem immediately if it wants to open
its doors for business. The same should hold true when OSHA inspectors
identify violations of health and safety standards.
OSHA inspectors should have comparable authority to that extended
to their counterparts at the Mine Safety and Health Administration
(MSHA). Under the Mine Act, when a federal mine inspector identifies a
violation of an MSHA standard or regulation, mining companies are
required to begin fixing the problem immediately. Employers in the
mining industry have the right to challenge citations and penalties
before the Mine Safety and Health Review Commission (MSHRC), but an
employer's decision to litigate an inspector's finding and/or the
proposed penalty does not give that employer permission to let
workplace hazards persist. OSHA needs comparable authority, and PAWA
would provide it. I strongly support this provision of PAWA.
Currently, an employer cited by OSHA has the right to contest four
aspects of the citation: (1) the classification of the violation (e.g.,
serious, willful); (2) the OSHA rule, standard or statutory clause
affixed to the violation; (3) the abatement date; and/or (4) the
proposed penalty. Briefly, when an employer receives an OSHA citation
and penalty, s/he has 15 working days to (1) accept the citation, abate
the hazards and pay the penalties; (2) schedule an informal conference
with the local OSHA area director to negotiate an informal settlement
agreement; or (3) formally contest the citation and/or penalty before
the OSHRC.
Instead of formally contesting one of these aspects, an employer
may request to meet with the director of the local OSHA office for an
informal conference before the 15-day period to file a notice of
contest expires. The majority of employers who receive OSHA citations
participate in informal conferences, and the majority of OSHA
inspection cases are resolved this way. The adverse consequence,
however, is that OSHA's managers in its local offices across the
country often have to choose between levying a tough penalty or getting
a hazard corrected quickly.
OSHA's area directors have the authority to reclassify violations
(e.g., downgrade from willful to serious, serious to other-than
serious); withdraw or modify a citation, an item on a citation or a
penalty; and negotiate the proposed penalty. If both parties agree to
the negotiated terms, the employer must then abate the hazard in the
agreed-upon time period; if no agreement is reached, the employer will
likely choose to formally contest it through the OSHRC system and can
refrain from correcting the safety problem in the meantime.
When cases move through the OSHRC system, the administrative law
judges and Commissioners typically reduce the penalty amount proposed
by OSHA. (OSHA proposes a penalty amount, but the OSHRC determines the
final penalty.) In practical terms, when a citation is contested, years
can pass before an employer can be compelled to abate the workplace
safety or health problem. Even if the employer doesn't succeed in its
OSHRC appeal, they have bought substantial time (and saved money) by
not correcting the hazard during the appeal process. Furthermore, by
holding in abeyance the correction of hazardous conditions, these
employers have gained an economic advantage over their competitors:
employers who do obey OSHA standards and regulations.
OSHA's area directors offer penalty reductions and
reclassifications of citations (e.g., from serious to other-than-
serious) in order to compel prompt correction of the hazard. From a
local OSHA manager's perspective, s/he would rather get the dangerous
situation rectified so that workers at the site are protected from
potential harm, rather than risk a chance that the employer will
contest the citation and penalty.
OSHA's inspectors and local managers are truly in a difficult
position because the citations and penalties are linked to hazard
abatement. The principle of prevention must be enshrined in our
workplace OHS regulatory system. This means providing OSHA the
authority to compel immediate abatement of hazards that are known to
contribute to serious injury, illness or death. We can't make advances
in preventing harm to workers when our system forces local OSHA staff
to bargain with employers for worker protections that they are already
required to implement. The informal settlement process should not only
expedite abatement of the hazard, but also give OSHA leverage to
require employers to implement measures that go above and beyond what
is required by OSHA.
Further, PAWA discussion draft, provides employers with a right to
seek an expedited review of abatement if they believe it is
unwarranted. This due process protection will ensure that employers are
not forced to make investments where they can argue it is unnecessary.
This is intended to prevent a backlog of cases before the OSHRC and
avert the situation now experienced by the Mine Safety and Health
Review Commission.
Civil and criminal penalties
Ultimately, our nation's health and economy would be served best by
an occupational health and safety regulatory system that prevents work-
related injuries and illnesses. In a regulatory system like OSHA's,
penalties must be severe enough to compel violators to change their
behavior, and to deter lawbreaking by those who might be tempted to
flout safety and health regulations in an effort to increase production
or cut costs.
Our occupational health and safety (OHS) regulatory system should
require the equivalent of ``points on their permanent record.''
Employers who flagrantly, willfully or repeatedly violate laws designed
to protect workers from injuries and illnesses should see their
finances and reputations suffer. Our system should take advantage of
the times when such employers are caught, and capitalize on these
grievous situations for their value as a deterrent for companies
nationwide. It may not deter other bad actors, but it will catch the
attention of those who might be tempted to cut a few corners when under
pressure.
I believe the majority of employers respect worker health and
safety laws and intend to comply with them. At times, however,
competing forces color their judgment, and they break a rule because
the likelihood of causing harm is low, as is the risk of getting
caught. Responsible employers know that workplace OHS standards are
based on lessons learned and have a public health and safety purpose.
But, from time to time, when certain competing forces weigh on them,
they make a calculation. They weigh the risk of suffering harm or
causing harm to another and the likelihood of getting caught breaking
the law.
The deterrent effect of OSHA's penalty system could be amplified to
outweigh the influence of competing forces. This is particularly
relevant today; the U.S. needs an effective system to prevent
occupational injuries and illnesses, but OSHA's responsibilities are
grossly mismatched with its budget and resources. I strongly support
PAWA's provisions to increase OSHA penalties and ensure they are
adjusted regularly for inflation. I also endorse the proposed criminal
provisions, especially the classification from misdemeanor to felony,
and the extension to include serious bodily injuries, not just worker
fatalities. OSHA's penalty calculation should also include a specific
factor that assesses the economic benefits reaped by an employer for
violating health and safety regulations, which will level the economic
playing field for firms that invest in progressive, effective OHS
labor-management systems.
The OSH Act places a duty on employers to provide safe and healthy
workplaces,\13\ but it imposes no obligation on them to address hazards
on a company-wide basis. Congress should mandate such a duty on large
companies. When a serious hazard has been identified by OSHA at one
facility, the firm should be required to conduct an audit to determine
whether the same hazard exists at other facilities. If comparable
hazards or violations are found at another site, citations for those
violations should be classified using the new category of ``reckless
disregard.'' The corresponding civil penalty should be hefty (e.g.,
$220,000 as provided in the MINER Act of 2006).\14\
I appreciate the opportunity to appear before you today, and would
be pleased to answer any questions you may have.
appendix a
COMPARISON OF FATAL INJURY RATES FOR SELECTED NATIONS (2005-2007)*
------------------------------------------------------------------------
2005 2006 2007
------------------------------------------------------------------------
Canada................................. 6.8 5.9 6.3
France................................. 2.7 3.0 3.4
Germany................................ 2.4 2.5 2.2
Norway................................. 2.1 1.3 1.6
Russian Federation..................... 12.4 11.9 12.4
Sweden................................. 1.6 1.6 1.7
United States.......................... 4.01 4.01 4.01
------------------------------------------------------------------------
*Per 10,000 workers.
Source: International Labour Organization (ILO), LABORSTA.
endnotes
\1\ Assistant Secretary of Labor David Michaels. Written testimony
before the Workforce Protections Subcommittee of the House Education
and Labor Committee, March 16, 2010.
\2\ OSHA. Field Operations Manual, CPL 02-00-148, page 11-12.
\3\ For example, Mrs. Diane Lillicrap, whose son Steven, 21 was
killed on a construction site while disassembling a crane, was invited
by the OSHA area director in St. Louis to meet with his entire staff.
She was able to talk about her son, and share information that was
potentially valuable to the front-line investigators. I understand the
meeting was a valuable experience for all; sometimes we need very
personal reminders of why we chose a career in public service. Her
meeting with the OSHA St. Louis office took place a number of weeks
before OSHA issued citations to the employer. It did not delay the
investigation.
\4\ Section 7 of the Mine Improvement and New Emergency Response
Act of 2006. Public Law 109-236.
\5\ Christy Carpenter, Introductory Remarks, ``Anyone Can Whistle:
The Essential Role of the Whistleblower in American Society,''
sponsored by the Government Accountability Project and the Paley Center
for Media, February 17, 2010.
\6\ Remarks by the President on Mine Safety, White House Rose
Garden, April 15, 2010.
\7\ Section 105(c) of the Federal Mine Safety & Health Act of 1977.
Public Law 95-164.
\8\ See GAO report `` Whistleblower Protection Program: Better Data
and Improved Oversight Would Help Ensure Program Quality and
Consistency,'' GAO-09-106; January 2009. http://www.gao.gov/new.items/
d09106.pdf
\9\ Public Law 111-148.
\10\ Zuckerman JM. Submission to OSHA Docket 2010-0004, ``OSHA
Listens,'' February 28, 2010.
\11\ Section 5 of the Mine Improvement and New Emergency Response
Act of 2006. Public Law 109-236.
\12\ Section 10(b) of OSH Act.
\13\ Section 5(a) of OSH Act.
\14\ Under the Miner Act of 2006, Congress created a new violation
category called ``flagrant'' representing ``reckless or repeated
failure to make reasonable efforts to eliminate a known violation of a
mandatory health or safety standard that substantially and proximately
caused, or reasonably could have been expected to cause, death or
serious bodily injury.'' A civil penalty of up to $220,000 can be
assessed. Since the law was passed, MSHA has used the ``flagrant''
classification 92 times with assessed penalties totaling $14,552,400.
______
Chairwoman Woolsey. You get the prize. You didn't even go
all the way for 5 minutes, but we will get you later.
Mr. Jorgensen.
STATEMENT OF NEAL JORGENSEN, WHISTLEBLOWER AND FORMER EMPLOYEE,
PLASTIC INDUSTRIES
Mr. Jorgensen. Thank you for inviting me here today. My
name is Neal Jorgensen. I live in Preston, Idaho. I became a
whistleblower after being fired by Plastic Industries for
filing a complaint with OSHA about the company's safety
problems.
Here are some things to think about while I am giving my
testimony. If you are my friend and you had violations in your
workplace and you came to me and asked my opinion, I would say,
work safe, look for a new job. You work safe so you don't get
hurt and look for a new job because it will cost you your job
and twice as much as it cost the employer.
The company fired me 2 weeks after I filed the complaint
because OSHA went to the company and conducted a safety
inspection and found eight safety violations, including two
serious, considered serious, by OSHA and one for not having
machine guards on a band saw and one for not having proper
shut-off controls on a bailing machine and a pressure washer.
After the company fired me, I filed another complaint with OSHA
known as a whistleblower complaint. Filing that complaint did
not work well for me. I was not protected by OSHA law.
The reason I am here to tell my story is that my employer
got away with firing me without any consequences. 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 take my case
to court. Under OSHA law, only the government can take these
cases to court. That does not seem fair to me.
It also does not seem fair that the only thing that the
owner of the company, Rex Pitcher, was asked to pay was the
fines for the violations OSHA found during this safety
inspection; and those fines were later reduced, a lot. OSHA
initially asked the company to pay $2,550, but it was later
reduced to $1,500.
OSHA recommended the government lawyers take my case to
court, but they decided not to. The main reason they gave was
it was a resource-intensive case and two judges in Idaho who
would get these cases were not likely to decide in my favor.
I was advised that lawyers sent a memo which says, we
believe we have an approximate 25 percent chance of success.
There are two U.S. District Court judges in Idaho, one of whom
routinely is not well disposed towards government cases and the
other who can go either way.
It is sad to me that the company can treat an employee this
way and get off scot-free. Isn't the purpose of the
whistleblower laws to protect workers who report unsafe
conditions?
I thought I did the right thing, but the system did not
work for me. The OSHA law did not provide the protections I
needed; and the only lesson the owner of the company learned is
that he can treat his employees any way he likes, then lie
about it and nothing will happen to him, nothing.
Would I recommend that someone would file a whistleblower
complaint? No way. Absolutely not. The way the law is written,
not a chance.
I have found in my life for something that will really make
an impression it has to have teeth in it. When I was 5 years
old, I followed some friends on my trike up to a pond to go
frog hunting. My parents found me and my tricycle, and my
tricycle got a ride home with mom. I got to ride a switch home
in front of Dad all the way home.
The next time I went to that pond, I was about 11 years
old, and it was winter, no chance of drowning there. I think
OSHA needs a ``switch'', something with some teeth in it.
Thank you for letting me tell my story. I hope you are able
to do something to improve the OSHA law that is supposed to
protect workers.
[The statement of Mr. Jorgensen follows:]
Prepared Statement of Neal Jorgensen, Whistleblower and Former
Employee, Plastic Industries
Thank you for inviting me here today.
My name is Neal Jorgensen. I live in Preston, Idaho. I became a
whistleblower in 2004 after being fired by Plastic Industries for
filing a complaint with OSHA about the company's safety problems.
Here's something to think about while I'm giving my testimony. If
you were a friend and you had violations in your place of work and
asked my opinion, I would say ``work safe, so you don't get hurt, and
look for a new job, because it will cost you your job and twice as much
as the employer is fined if you report the violations.''
The company fired me two weeks after I filed the complaint because
OSHA went to the company and conducted a safety inspection, and found
eight safety violations--including two that were considered ``serious''
by OSHA: one for not having machine guards on a bandsaw, and one for
not having the proper shut-off controls on a baling machine and a
pressurized washer. OSHA originally fined the company $2,550 for these
violations. After the company fired me, I filed another complaint with
OSHA known as a ``whistleblower'' complaint. Filing that complaint did
not work out well for me--I was not protected by the OSHA law.
The reason I am here to tell my story today is that my employer got
away with firing me without any consequences. 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 OSHA law does not allow
individuals who file these types of whistleblower complaints to go to
court--only the government can take these cases to court. That does not
seem fair to me.
It also does not seem fair that the only thing the owner of the
company, Rex Pitcher, was asked to pay was the fines for the violations
OSHA found during its safety inspection. And those fines were later
reduced a lot. Although OSHA initially asked the company to pay $2,550,
it was later reduced to $1,500.
I filed my whistleblower complaint and an investigator from OSHA
interviewed several people at the company to check out the facts.
However, the owner, Rex Pitcher, lied to OSHA. First, he told OSHA I
was fired because I was a temporary employee and had found another job.
Then, he changed his story and said I was fired for poor performance.
Luckily, the OSHA investigator was pretty good and said the
company's explanations for my firing were inconsistent and not
believable. He also found there was no evidence to support the
company's claim that I was only given a job until I found work
elsewhere. The only reason I got a second job was because I needed it
to support my family. The owner knew I had gotten a second job and had
no problem with it.
The OSHA investigator found no evidence of any of my so-called
performance problems in the company files. He also found out that,
after I filed the whistleblower complaint, Rex Pitcher asked a shift
foreman to write a letter to the company about my work. He did, but
when the investigator showed the foreman the typewritten letter and
asked him if he wrote it, the foreman said he sent a handwritten letter
to the company and that the good things he said about my work were
deleted. The foreman said the company must have removed the positive
comments before typing it up and giving it to OSHA! Again, the owner of
the company lied.
In October 2004, OSHA completed its investigation and decided that
my case was worth pursuing. OSHA tried to get the owner to pay me back
wages of $2,912, but he refused.
October 2004 was a pretty bad month for me. In addition to Rex
Pitcher refusing to agree to pay the back wages I was owed, my wife
left me and filed for divorce. I also found out that her lawyer was
also representing my former employer in my whistleblower case! I told
the OSHA investigator about this. He contacted the government lawyer
and asked about this apparent conflict of interest. The lawyer said it
wasn't a problem because he was ``against Neal either way.'' At that
point, I felt I could not win.
In December 2004, OSHA sent the case to the Department of Labor's
lawyers and recommended that they take the company to court. Sadly, the
lawyers decided not to pursue my case. They sent it back to OSHA to do
more digging. After OSHA did this, the government lawyers decided not
to go to court.
The main reason they gave was that the two judges in Idaho who get
these cases were not likely to decide in my favor. The lawyers stated--
and I'm quoting here:
``we believe we have an approximate 25% chance of success.
There are two U.S. District Court judges in Idaho, one of whom
is routinely not well disposed towards the government's cases,
and the other who can go either way.''
I have attached a copy of their report to the written version of my
testimony.
It's sad to me that the company could treat an employee this way
and get off scot free. Isn't the purpose of the whistleblower laws to
protect workers who report unsafe conditions?
I thought I did the right thing, but the system did not work for
me. The OSHA law did not provide the protections I needed and the only
lesson the owner of the company learned is that he can treat his
employees any way he likes, and then lie about it, and nothing will
happen to him. Nothing.
Would I recommend that someone file a whistleblower complaint with
OSHA? Absolutely not, the way the law is written.
I have found to really make an impression on someone, there has to
be some real consequences. Let me illustrate.
When I was 4 or 5, I followed my neighbors to a pond to go frog
hunting. My parents found out and found me on my tricycle just before I
got to the pond. Mom took my trike home and Dad chased me home with a
switch. The next time I even thought of going to that pond I was 11 and
it was winter, so there was no chance of drowning. OSHA needs a
``switch'' to provide more help to workers to keep them safe.
I have also worked for companies that have had dealings with the
EPA, which seems to be able to deal with possible safety and health
problems better than OSHA. For example, at the company where I work
now, the manager found there was a floor drain under the extruder, so
the water that flows into the drain could have been contaminated.
Because the company had previously been fined by EPA for a similar
situation, it decided to spend a lot of time and money to recycle the
water back to the extruder so the drain could be closed, which
eliminated the chance of violating EPA's rules. The EPA has some teeth,
unlike OSHA, which needs to be able to provide more help to workers to
keep them safe.
Thank you for letting me tell my story. I hope you are able to do
something to improve the OSHA law that is supposed to protect workers.
______
Chairwoman Woolsey. Thank you, Mr. Jorgensen.
Mr. Chinn.
STATEMENT OF LLOYD CHINN, PARTNER,
PROSKAUER ROSE LLP
Mr. Chinn. Yes. Thank you. Good morning, Chairwoman
Woolsey.
Chairwoman Woolsey. I don't believe you have your
microphone on. If you do, put it closer to you.
Mr. Chinn. My apologies for that. If that's the worst
trouble I get into today, that would probably be a successful
day. In any event, I will start again.
Good morning, Chairwoman Woolsey, Ranking Member McMorris
Rodgers, members of the subcommittee, my fellow panel members,
and representatives of employers in the audience, as well as
the individuals in the audience who are family members of those
who have been killed or injured terribly while working on the
job.
My name is Lloyd Chinn; and I am a partner in a law firm,
Proskauer Rose. I practice labor and employment law. I advise
employers as to what they need to do to comply with the laws. I
litigate disputes between employers and their employees.
A significant component of my practice is the litigation of
what may generically be referred to such as whistleblower or
retaliation claims; and it is a privilege and an honor for me
to speak with you today about this important topic, this topic
as it is addressed in the Protecting American Workers Act, or,
as I believe we have license to call it from the chairwoman,
PAWA.
I am going to focus on Title II of PAWA, which I think we
would all agree completely rewrites the current section 11(c)
of the OSH Act.
The first question for me is what exactly is motivating
this complete rewrite of the statute. I mean, at the end of the
day, it may well make sense to do some of this, but I think it
is an appropriate question at the outset to pose.
The purpose of the statute, as stated in the statute and as
everyone on this panel would agree, is to advance workplace
safety. It is not to promote employment litigation. This is not
an employment litigation statute as such, like Title VII of the
Civil Rights Act.
The claim apparently is that the current whistleblower
protections in the statute are inadequate, but what is the
evidence to support that claim? There are something like 1,200
to 1,300 claims per year made under 11(c) of the OSH Act. And
while it tugs at the heartstrings to listen to Mr. Jorgensen's
story, and I admit that, one, I don't think it is appropriate
to formulate policy based on one example or perhaps an example
in Ms. Rhinehart's paper of a Mr. Wood who had an incredible
odyssey through the legal system that lasted something like a
decade in the 1990s. I don't think it makes sense to base
policy involving thousands of claims made per year based on
minimal anecdotes, a minimal number of anecdotes like that.
And while it may be unpopular to say this in this room, for
every example like Mr. Jorgensen's, there are hundreds of
meritless claims filed per year, and everybody, if people are
being honest, Mr. Barab, who is currently in this role at OSHA,
will agree that the overwhelming majority of claims, measured
by any objective standard filed with OSHA, are meritless. And,
for that matter, that is true for virtually every statute,
employment statute on the books, and there really is no
disputing this.
Now, again, this story about meritless claims and the
expenses associated with those claims, or defending those
claims, is not the sort of story that is going to bring a tear
to your eye, as did Ms. Ford's as I was listening to it.
But in a time when we have approximately 10 percent
unemployment in this country, it strikes me that it is at least
relevant, it is at least worth putting into the mix, into the
arguments being considered, every action you take, like these
whistleblower protections in PAWA, will be an additional
expense to employers. That is, it will make it more expensive
to employ someone should you enact these provisions.
Now, you may decide, as one might be willing to do, that it
is worth it. But I think that it is at least worthwhile to have
that issue on the table. And the primary way in which PAWA will
increase the expenses of litigation is that PAWA bestows
significant new rights of action on 11(c) complainants.
PAWA's simultaneously provides section 11(c) whistleblowers
the opportunity to take their claims to the OALJ, the Office of
Administrative Law Judges, or to the Administrative Review
Board and sets very tight timelines within which those bodies
must reach final decisions on those claims. This is not
realistic. Of the total whistleblower claims under all statutes
addressed by OSHA per year, those filed under 11(c) account for
a large majority, approximately 65 percent in 2007. This is a
potential tripling of the pool of cases that will be going
through the OALJ and ARB system; and I am unaware, although Mr.
Barab may be able to address this, of any plans to expand those
bodies in a significant fashion to address these additional
claims.
So what this means, in reality, is that every OSH
whistleblower will really have an immediate right to go to
court, because OALJ and ARB will never meet these timelines
that are in the statute currently, and nobody in this room can
debate that. I really don't think that is a debatable point.
Liberal academics writing in the field agree completely with
what I am saying right now.
So what we have here is this logjam that already exists in
the OALJ and ARB. It will be worsened dramatically by this
addition of new cases, so everything goes to Federal court
then.
My understanding is that there is a lot of criticism of the
time it takes for these complaints to be addressed. Well, for
those of you who litigate in Federal court in this room, I
assure you that the Federal litigation process is not the most
efficient for resolving disputes of this matter. It is very
lengthy, very time-consuming, and very expensive.
If you look at the GAO's recent report, interestingly
enough the most efficient procedure described in that report is
the appeals committee that addresses 11(c) complaints. That
appeals committee addresses matters on a far rapid, far more
efficient basis than either OALJ, ARB, and certainly the
Federal courts.
In closing, I would simply ask the subcommittee to maintain
an open mind with respect to certain particulars of the
statute, which we will be talking about more during the course
of the hearing.
Thank you very much.
[The statement of Mr. Chinn follows:]
Prepared Statement of Lloyd B. Chinn, Partner, Proskauer Rose LLP
Good morning Chairwoman Woolsey, Ranking Member Rodgers and Members
of the Subcommittee. My name is Lloyd Chinn, and I am a partner with
the law firm Proskauer Rose LLP in its New York City office. It is an
honor to appear before you at this hearing to address the Protecting
America's Workers Act (``PAWA''), specifically Title II ``Increasing
Protections for Whistleblowers.'' My testimony is not intended to
represent the views of Proskauer or any of the firm's clients.
Although I practice out of my firm's New York City office, I have
handled employment matters in federal and state courts and
administrative agencies around the country. My eighteen year legal
career has been almost exclusively devoted to the representation of
employers in employment matters, whether engaged in counseling for the
purpose of avoiding employee disputes or litigating those disputes as
they arise. Throughout, I have advised and represented clients in
connection with litigating or avoiding retaliation and whistleblower
claims.
PAWA's rewriting of the OSH Act whistleblower provisions
Title II of PAWA re-writes Section 11 (c) (29 U.S.C. 660 (c)) of
the Occupational Safety and Health Act, fundamentally changing the
statute in a variety of ways including:
Adding an entirely new form of protected whistleblower
activity--an employee's refusal to perform his or her duties--that is
(i) unprecedented among the seventeen statutes whistleblower statutes
administered by OSHA; and (ii) supplants an already comprehensive and
reasonable OSHA regulatory scheme on the topic.
Modifying the current statute of limitations by triggering
the commencement of the running of limitations period not only upon the
date of the alleged violation but alternatively upon the date that a
complainant ``knows or should reasonably have known'' that a violation
occurred.
Allowing any a complaint to bring any time-barred claims
(other than a termination claim) provided that just one alleged adverse
action is timely.
Lengthening the current limitations period from 30 to 180
days.
Providing the right for a de novo hearing before an
administrative law judge.
Providing the right for an administrative appeal to the
Secretary of Labor (in effect, the Department of Labor's Administrative
Review Board).
Providing a complainant the right to bring a de novo
action in a United States District Court, if either the administrative
law judge or the Secretary of Labor has failed to meet very strict (and
unrealistic time periods).
Providing a right of appeal to the United States Court of
Appeals following a final decision.
Allowing either the Secretary of Labor or the complainant
to commence an action in the United States District Court to enforce
any order--even if preliminary--issued under this statute.
Adopting a complainant-favorable burden of proof,
requiring only that the complainant prove that his or her protected
activity was a ``contributing factor'' in the alleged adverse action.
Providing a variety damages recoverable by a complainant
including, in addition to backpay, unlimited ``consequential'' damages
and attorneys' fees and costs--while notably providing no right of
recovery of costs or attorney's fees by a prevailing employer.
Prohibiting (at least arguably) pre-dispute arbitration
agreements, whether executed by individual employees or contained
within a collective bargaining agreement.
Where is the empirical rationale?
Before turning to the more problematic of these provisions, a
rather obvious question is ``Why?'' The stated purpose of the
Occupational Safety and Health Act of 1970 is ``to assure so far as
possible every working man and woman in the Nation safe and healthful
working conditions and to preserve our human resources.'' 29 U.S.C.
651(b). None of the provisions alluded to above bears directly on the
question of workplace safety; rather, they all enhance the position of
complainants in employment litigation. If PAWA is, in fact, about
workplace safety, it is only by virtue of several unstated assumptions:
(i) that Occupational Safety and Health whistleblowers (``OSH
whistleblowers'') contribute to overall workplace safety by bringing to
light dangerous conditions; (ii) OSH whistleblowers will only come
forward if there are adequate legal protections to prevent retaliation
and; (iii) the current legal protections for such whistleblowers are
inadequate. While it may be fair to assume the truth of assumptions (i)
and (ii), at least for the sake of argument, the third proposition
rests on a questionable empirical judgment about the inadequacy of
protections provided under the current law.
I am unaware of any empirical data supporting the assertion that
the current statute fails to protect occupational safety and health
whistleblowers. Indeed, my concern is that this assumption is supported
by nothing more than cherry-picked anecdotes or conclusory assertions
that occupational safety and health OSH whistleblowers do not ``win
often enough.'' According to data for fiscal year 2007, OSHA received
1205 OSH whistleblower complaints under the Occupational Safety and
Health Act alone. U.S. Gov't Accountability Office, ``Whistleblower
Protection Program: Better Data and Improved Oversight Would Help
Ensure Program Quality and Consistency,'' 26 (2009) [hereinafter 2009
GAO report]. Pointing to one or even a handful of anecdotes is of no
statistical significance when addressing numbers like this.
Moreover, to decry the fact that the ``win rate'' for OSH
whistleblowers is ``low'' assumes that either that there is an
objective standard for judging whether the ``win'' rate is high or
low--and there isn't--or that there has been a study of case outcomes,
and (based on some objective criteria) those outcomes incorrectly
favored employers. The recent GAO study of OSHA's Whistleblower
Protection Program expressly disavowed undertaking any such analysis,
``[W]e did not address the quality of [OSHA's] investigations or the
appropriateness of whistleblower outcomes because these aspects were
beyond the scope of the engagement.'' 2009 GAO report, at 4-5.
In fact, although PAWA apparently posits access to the federal
courts as a panacea for OSH whistleblowers, there is no reason to
believe the ``win'' rate there will be any better than before OSHA.
Indeed, in every administrative forum and court system in which I've
practiced as an employment lawyer, it has been well understood that, in
the aggregate, employment litigation plaintiffs lose more often than
they win. This state of affairs is not, in my opinion, because of any
particular bias in any of these court or administrative systems against
plaintiffs; rather, it is simply because in the context of a particular
employment statute, there is some substantial number of meritless
claims filed.
And finally, if assumptions (i), (ii) and (iii) were each valid,
then one would expect (all other things being equal) that inadequate
OSH whistleblower protections have led to a less-safe workplace. But
Bureau of Labor Statistics data support no such conclusion. According
to BLS, both nonfatal injuries as well as fatalities in the workplace
have continually declined over the past decade. See BLS, http://
www.bls.gov/iif/oshwc/cfoi/cfch0007.pdf; http://www.bls.gov/iif/oshwc/
osh/os/osnr0032.txt.
Particular concerns regarding PAWA
Given the degree to which PAWA re-writes Section 11 (c), one could
go on at some length about the proposed changes. I will focus my
remarks on a few sections that, in my view, merit some discussion.
Refusal to Work
PAWA amends 29 U.S.C. 660(c), to add an entirely new form of
protected activity under the act. It prohibits the discharge or any
other form of discrimination against an employee ``for refusing to
perform the employee's duties if the employee has a reasonable
apprehension that performing such duties would result in serious injury
to, or serious impairment of the health of, the employee, or other
employees.'' To receive protection under the section, the complainant
must merely conclude, as a ``reasonable person'' would, that there is
``bona fide danger of a serious injury, or serious impairment of
health, resulting from the circumstances.'' Id.
It is, of course, a sensible proposition that an employee should
not have to engage in work that will result in his or her injury or
death. But PAWA's particular definition of protected activity appears
to be unprecedented in federal whistleblower statutes.\1\ And,
moreover, OSHA regulations already address the issue of when an
employee may refuse to work due to work conditions in a comprehensive
and reasonable fashion.
---------------------------------------------------------------------------
\1\ Although some states recognize, either at common law or by
statute, a cause of action for being retaliated against for failing to
perform certain job duties, these states generally limit the protection
to a refusal to perform unlawful activities. For instance, under Texas
law, employees may refuse to work in unsafe work environments if they
were to perform an illegal act that carries criminal penalties. See
Hancock v. Express One Intern., Inc., 800 S.W.2d 634, 636 (Tex. App.
Dallas 1990), writ denied, (Nov. 11, 1992). Likewise, N.Y. LAB. LAW
Sec. 740 prohibits employers from taking retaliatory action against an
employee who ``objects to, or refuses to participate in an activity,
policy or practice of the employer that is in violation of law, rule or
regulation,'' if ``the violation creates and presents a substantial and
specific danger to the public health or safety.''
---------------------------------------------------------------------------
Current OSHA regulations already prohibit discrimination against an
employee who refuses to work. 29 CFR Sec. 1977.12. But the regulations
make clear that ``as a general matter, there is no right afforded by
the Act which would entitle employees to walk off the job because of
potential unsafe conditions at the workplace.'' 29 CFR Sec.
1977.12(b)(1). The regulations recognize that ``an employer would not
ordinarily be in violation of section 11(c) by taking action to
discipline an employee for refusing to perform normal job activities
because of alleged safety or health hazards.'' Id. To avoid frivolous
employee complaints and work stoppages, OSHA regulations provide that
for an employee's refusal to work to be protected, a reasonable person
must agree that there is ``a real danger of death or serious injury.''
29 CFR Sec. 1977.12(b)(2). The employee must also demonstrate that he
or she has refused to work in ``good faith.'' Id. In addition, before
discontinuing work, OSHA regulations require that an employee take
various steps to place the employer on notice of the unsafe working
conditions: (i) apprise the employer of the alleged hazard, if
possible; (ii) ask the employer to rectify the danger; and (iii) unless
there is insufficient time, ``resort to regular statutory enforcement
channels.'' Id.
Section 202 of PAWA's use of the ``reasonable apprehension''
standard and its failure to incorporate the employer protections
contained in the OSHA regulations have the potential to encourage
excessive litigation and false claims. If it is truly necessary to
address this issue through legislation, the standards set forth in the
OSHA regulations should be used as a guide.
Statute of Limitations Issues
Section 203 of PAWA amends the existing statute of limitations
provision in three ways: (i) by incorporating an alternative
``discovery rule'' concept for triggering the limitations period; (ii)
by permitting ``continuing violation'' claims of virtually any sort,
without regard to whether there is any connection between the timely
assertions and the untimely ones; and (iii) by extending the current
limitations period from thirty (30) to one hundred--eighty (180) days.
The most dramatic of these statute of limitation changes permits a
complaint to be filed on the later of either the ``date on which the
alleged violation occurs'' or ``the date on which the employee knows or
should reasonably have known that such alleged violation occurred.''
\2\ The latter option, a ``discovery rule'', is a foreign concept in
employment law. For example, of the seventeen OSHA-enforced
whistleblowing laws, the statute of limitations under all of these
statutes only begins to run when the alleged violation occurred. A
discovery rule is not only unprecedented with respect to the OSHA-
enforced whistleblowing statutes, it is not expressly adopted in any
other federal employment statute, including the staples of employment
discrimination law: Title VII of the Civil Rights Act of 1964, the
Americans with Disabilities Act, or the Age Discrimination in
Employment Act. It is hard to imagine how an OSH whistleblowing claim
so unique that it would be alone among federal employment laws to apply
a discovery rule.
---------------------------------------------------------------------------
\2\ Proposed paragraph 4(A) in Section 203 refers to ``paragraph
(3)(A)'', although there does not appear to be a subparagraph (A) to
paragraph 3.
---------------------------------------------------------------------------
Legislatures and courts have presumably rejected a discovery rule
in employment litigation because it is a bad idea. ``One can never be
sure exactly when on that continuum of awareness a plaintiff knew or
should have known enough that the limitations period should have begun.
A discovery rule thus substitutes a vague and uncertain period for a
definite one.'' J.D. Hamilton v. 1st Source Bank, 928 F.2d 86, 88 (4th
Cir. 1990). As a discovery rule has no firm outer limit, it would
permit claims to be asserted years after the fact. Over the course of
time, witnesses become unavailable and memories fade. Records are lost
as electronic storage systems change. Moreover, it is not at all clear
how a discovery rule benefits workplace safety--stale claims advanced
many months or years after the fact will unlikely have any effect
whatsoever on a practice that may well have changed with time. Indeed,
that is precisely why the OSHA-enforced whistleblower statutes contain
relatively brief (30--180 day) statutes of limitation--so to encourage
the prompt reporting of conduct that is allegedly violative of the
underlying statutes. While one can imagine the rationale behind a
discovery rule in the context of certain personal injury-type cases
(e.g., a surgical instrument left inside a person following surgery),
there is no similar imperative in the employment litigation field.
Section 203 also provides that, for statute of limitations
purposes, except for a termination, any series of alleged violations is
timely provided that one alleged violation occurred within the
limitations period. Although this subparagraph is labeled ``Repeat
Violation'', it really should be referred to as ``Continuing
Violation.'' In the Title VII context, the Supreme Court has held quite
clearly that discrete discriminatory acts outside the limitations
period are time barred, even if related to alleged acts that are
timely. National Railroad Passenger Corp. v. Morgan, 536 U.S. 101
(2002); see also Delaware State College v. Ricks, 449 U.S. 250 (1980).
Even the more liberal approaches to the continuing violation doctrine
adopted by the circuit courts of appeal that existed prior to Morgan
required some relationship between the timely allegations and the
untimely ones. See, e.g., Morgan v. Amtrak, 232 F.3d 1008, 1015-1016
(9th Cir. 2002). Under PAWA, no such requirement exists. A complainant
could theoretically link an act taken years earlier, of a completely
different nature, by different managers, in response to a totally
distinct complaint, to a timely adverse action and proceed against the
company with respect to both claims.
Finally, PAWA extends the existing statute of limitations period by
a factor of six, from 30 to 180 days. In other words, of the OSHA-
administered whistleblower statutes, the OSH whistleblower provision is
now among the longest instead of among the shortest. As noted above in
a different context, it is unclear how this lengthening of the
limitations period improves workplace safety, given that it encourages
complainants to sit on claims instead of advancing them promptly.
New rights of action
Currently, 29 U.S.C. Sec. 660 (c) allows a complainant to file a
complaint with the Secretary of Labor, which the Secretary of Labor is
to investigate. The Secretary may then bring an action in the United
States district court against the employer. By regulation, an employee
submits his or her initial complaint to OSHA, and it is investigated.
29 CFR Sec. 1977.15. Once an initial determination is made, only the
whistleblower (not the employer) may request a review by OSHA's Appeals
Committee. The Appeals Committee either returns the matter for further
investigation or denies the appeal.
While it is true that, of the 17 OSHA-administered whistleblower
statutes, only three follow this particular procedure (the other two
are the Asbestos Hazard Emergency Response Act and the International
Safe Container Act), there is a sensible policy rationale for employing
this process for the OSH whistleblower provisions. The substantive OSH
Act is, after all, the area of law most familiar to the typical OSHA
investigator. It is the one substantive Act (out of the seventeen) on
which all OSHA whistleblower investigators are trained. 2009 GAO
report, at 39.
Permitting OSH whistleblowers to take their claims before the
Department of Labor's Office of Administrative Law Judges (``OALJ'')
and Administrative Review Board (``ARB'') will have a significant
impact on these bodies. OSH whistleblower claims make up, by far, the
largest number of whistleblower claims addressed by OSHA under the 17
whistleblower statutes. For fiscal year 2007, of the 1,864
whistleblower complaints addressed by OSHA, 1,205 (approximately 65%)
were OSH whistleblower claims. In essence, the adoption of PAWA would
increase by approximately 200 percent the number of potential cases to
be addressed by the OALJ and ARB. So doing will undoubtedly cause
substantial delays in the processing of these claims. It is unclear how
such delays will result in a safer workplace. What is certain is that
employers will be forced to expend substantial sums defending OSH
whistleblower claims through these additional processes--the majority
of which will ultimately be found to be meritless.
Of course, PAWA would permit OSH whistleblowers to proceed to
United States district court if the OALJ has not issued a decision and
order within 90 days of a hearing request or if the ARB has not issued
a decision within 60 days of receiving the administrative appeal. Given
that the vast majority of cases handled by the OALJ and ARB do not
currently meet these timelines, it seems particularly unlikely they
will do so once their pool of cases is dramatically increased. So the
assumption under PAWA should be that every OSH whistleblower will at
least have the opportunity to take his or her claims to United States
district court. Again, it is not at all clear how this expansion of
United States district court jurisdiction will improve workplace
safety, but subjecting employers to federal court litigation in 1200
potential additional cases per year will certainly cost employers
dearly.
______
Chairwoman Woolsey. Thank you.
Before we go to Ms. Rhinehart, those with placards, you
need to hold them down and please don't stand up. Thank you
very much. I mean, yes, in front of you but just not up. Thank
you. Thank you.
Ms. Rhinehart.
STATEMENT OF LYNN RHINEHART, GENERAL COUNSEL,
AFL-CIO
Ms. Rhinehart. Thank you, Chairwoman Woolsey, Ranking
Member McMorris Rodgers, and the other members of the panel for
holding this hearing and for inviting me here today to testify
on the need to strengthen the anti-retaliation whistleblower
protections in the Occupational Safety and Health Act.
My name is Lynn Rhinehart, and I am the general counsel at
the AFL-CIO. We are a labor federation representing about 11
million workers across the United States, and we are in strong
support of the Protecting America's Workers Act and the
provisions in it to strengthen the penalties and strengthen the
whistleblower protections in the law. We really appreciate your
holding this hearing today on Workers Memorial Day, a day when
we honor and pay tribute to workers who are killed on the job.
I want to acknowledge the family members who are here on
the panel and here in the room and express our sympathies for
their loss. We are all here for the same reason, which is that
we believe strongly that those fatalities should not have
occurred in vain and that we need to redouble our efforts to
take measures, strengthen the law, do what we need to do to
make sure that further fatalities don't happen in America's
workplaces; and, frankly, we have a lot of work to do.
Still today, 5,000 workers, more than 5,000 workers, die on
the job each year. That is 14 workers each and every day who
are killed from workplace hazards, and millions more are
injured. Five thousand workers a year is the population of many
small towns across America, and it is that number of workers
killed on the job each and every year from workplace hazards.
It is just an unacceptable level of tragedy in America's
workplaces that we have much work to do to address.
I think everybody on the panel would agree that in order to
address workplace hazards and to try to get preventive actions
in place before injuries, illnesses, and fatalities occur, that
you need the full and active involvement of workers. Workers
are the eyes and ears in the workplace. It is their jobs. They
see the hazards. They know the hazards. They know what
solutions might be put in place to address those hazards.
So employers who are being proactive about health and
safety in their workplaces want and need the full and active
involvement of their workers in identifying hazards, and
especially given the fact that OSHA can't be everywhere at all
times. In fact, it would take them 137 years to be in each
workplace just once, all the more reason why we need the active
and full involvement of workers in identifying hazards and
protecting their health and safety on the job.
In order to have that active involvement, workers need to
feel secure that if they raise a hazard, if they bring a
concern forward, if they file a complaint with OSHA, that their
jobs are going to be secure. They are not going to be fired or
demoted or transferred or suffer other retaliation for speaking
out. The system really depends on that.
And, unfortunately, we don't have that situation today. As
Mr. Jorgensen's story so painfully shows, workers today do not
have a right to speak out about job hazards without retaliation
and have a remedy behind them for speaking out and pursuing
their rights.
It is even more important in today's bad economy that the
law be strengthened. The fear of retaliation, the fear of
losing one's job is even more intense when you are looking at
an almost 10 percent unemployment situation, and that just
exacerbates workers' fears of speaking out.
Workers who are covered by a union contract are in a better
position because they have their union in that contract backing
them up if they suffer retaliation for reporting job hazards.
But, unfortunately, that is protection that is only afforded
this moment to a minority of workers in America's workplaces.
So most workers are left with the protections of the
Occupational Safety and Health Act; and these protections, by
any measure, are exceedingly weak. They are the weakest of any
of the 17 whistleblower laws that OSHA itself enforces. How
ironic that the weakest law enforced by OSHA is the OSH Act.
I attached a chart to my testimony that laid out some of
the ways that the OSH Act's anti-retaliation whistleblower
protections fall short of the standard laid out in so many
other laws, including Sarbanes-Oxley, including the Surface
Transportation Act, including the recent health care reform
that was adopted. By any meaningful measure, the OSH Act
whistleblower protections fall short of the mark.
The statute of limitations is exceedingly short, only 30
days. There is no right under the OSH Act for workers to get
their job back, for preliminary reinstatement while their cases
are pending, and they have no right to get a hearing before an
administrative law judge or a court. They are completely
dependent on the Secretary of Labor bringing their cases
forward; and, as we have heard, that rarely happens.
And the burdens on the Department of Labor are significant
as well. They can't pursue an administrative process
themselves. They need to go to Federal District Court to pursue
these whistleblower cases in court.
So the law is extremely weak. There is a saying in the law
that rights without remedies are really no rights at all; and,
frankly, that is what we are talking about here with the
whistleblower protections and the Occupational Safety and
Health Act. The provisions are so weak as to really be
meaningless.
So we support the provisions in the Protecting America's
Workers Act. We think that they would make a real, positive
difference in protecting workers' ability to raise safety and
health hazards on the job. It would update the law, bring it up
to par with other anti-retaliation protections in other laws,
including laws that have been passed over the past 5 years with
bipartisan support and signed into law by both Republican and
Democratic Presidents. We think that these measures would give
workers more meaningful rights to participate in safety and
health on the job and bring about preventive efforts before
injuries, illnesses, and fatalities occur.
I would like to make just two other brief comments in the
time that I have. One is that, while we fully support the
provision in the Protecting America's Workers Act that would
give workers a right to pursue their own case before an ALJ or
a Federal court if the Secretary did not pursue their case or
if the case was proceeding too slowly, we don't do that right
as a substitute for the Secretary of Labor still having her own
robust anti-retaliation whistleblower program. We think that
you need both. You need the agency program, and you need the
private right of action.
The other comment I would make is that it really seems to
me that employers ought to support the provisions, the anti-
retaliation provisions in this legislation, because employers
who want their workers to feel secure speaking out about job
hazards should support there being a law to back workers up
when they do step forward and exercise those rights.
These are modest measures. They are not novel. They are not
radical. They would simply bring the OSH Act into the
mainstream and make it more uniform with other anti-retaliation
whistleblower laws that have been passed by Congress over the
years. So we think it is necessary, we think it is overdue, and
we urge their prompt adoption.
Thanks very much.
[The statement of Ms. Rhinehart follows:]
Prepared Statement of Lynn Rhinehart, General Counsel, AFL-CIO
Chairman Woolsey, Ranking Member Rodgers, and Members of the
Subcommittee:
My name is Lynn Rhinehart, and I am the General Counsel of the AFL-
CIO, a federation of 56 national unions representing more than 11.5
million working men and women across the United States. Thank you for
the opportunity to testify today about the urgent need to strengthen
the anti-retaliation provisions in the Occupational Safety and Health
Act (OSH Act), and about how H.R. 2067, the Protecting America's
Workers Act, addresses this need.
Today is Workers Memorial Day, a day unions and others here and
around the globe remember those who have been killed, injured and made
ill on the job. The recent tragedies at the Massey coal mine in West
Virginia, the Tesoro refinery in Washington State, and the Kleen Energy
Systems facility in Connecticut, are vivid and painful reminders of the
need to continue and redouble our efforts to assure safe and healthful
working conditions for all workers. In 2008, the last year for which
comprehensive data are available, 5,214 workers were killed on the
job--an average of 14 workers each day, and millions of workers were
injured. Clearly, more needs to be done to bring about the OSH Act's
promise of safe and healthful jobs for all workers. We greatly
appreciate your holding this hearing today, on Workers Memorial Day, to
focus attention on workplace safety and health, on shortcomings in the
existing law, and on proposals to strengthen it.
Today marks the 39th anniversary of the day the Occupational Safety
and Health Act took effect. In the nearly 40 years since the OSH Act's
enactment, it has never been significantly amended or strengthened.\1\
As a result, many provisions in the law, including its penalty
provisions and its anti-retaliation provisions, have fallen far behind
other worker protection, public health, and environmental laws. It is
past time for these provisions to be updated and strengthened.
There is universal agreement about the importance of workers being
involved in addressing safety and health hazards at the workplace.
Workers see first-hand the hazards posed by their jobs and their
workplaces, and they are an important source of ideas for addressing
these hazards. But in order for workers to feel secure in bringing
hazards to their employer's attention, they must have confidence that
they will not lose their jobs or face other types of retaliation for
doing so. All too often, fear of retaliation for ``rocking the boat''
leads workers to stay quiet about job hazards, sometimes with tragic
results, as we saw with the Massey mine explosion earlier this
month.\2\
The importance of workers being able to raise concerns about
workplace hazards with their employers without risking their jobs is
especially acute under the OSH Act, because, given limited resources
and the vast number of workplaces under OSHA's jurisdiction, actual
inspection and oversight of workplaces by OSHA inspectors is quite
rare. In its most recent annual report on the state of workplace safety
and health, released today in conjunction with Workers Memorial Day,
the AFL-CIO found that, according to the most recent statistics, it
would take 91 years for federal and state OSHA inspectors to conduct a
single inspection of each of the 8 million workplaces in the United
States.\3\ Given the paucity of inspectors and inspections, OSHA needs
workers to be the eyes and ears on the ground, bringing problems and
hazards to the attention of their employers to bring about prompt,
corrective action before injuries, illnesses, and fatalities occur.
Unfortunately, the anti-retaliation provisions in the OSH Act are
exceedingly weak. Ironically, they are far weaker than the other 16
anti-retaliation laws that are also enforced by OSHA, and they are
weaker than the anti-retaliation provisions in the Mine Safety and
Health Act. As a consequence, workers who are fired or face other
retaliatory action for filing an OSHA complaint or raising concerns
about workplace hazards are left with very little recourse, unless they
are fortunate enough to be covered by a union contract, which provides
far stronger protections and quicker remedies.
The U.S. Government Accountability Office (GAO) surveyed seventeen
whistleblower statutes enforced by OSHA and found that the OSH Act
contains much weaker whistleblower provisions than these other federal
laws.\4\ Four weaknesses are particularly problematic: (1) the Act's
short statute of limitations for filing whistleblower complaints; (2)
the absence of preliminary reinstatement while cases are proceeding
through the system; (3) the lack of an administrative process for
hearing cases; and (4) the absence of a private right of action for
workers to pursue their own cases before the agency or in federal court
in situations where the Secretary of Labor fails or chooses not to act.
Short Statute of Limitations. Under the OSH Act, workers must file
a retaliation complaint within 30 days or their claims are barred by
the statute of limitations. This is an exceedingly short statute of
limitations when compared to other laws, which provide a minimum of 60
days and more typically 180 days for workers to file a complaint.
Indeed, many of the whistleblower statutes enforced by the
Department of Labor--ranging from the Surface Transportation Assistance
Act (which protects whistleblowers who complain about violations of
federal truck safety regulations) to the Energy Reorganization Act
(which protects whistleblowers who work at nuclear facilities) to the
Sarbanes-Oxley Act (which protects whistleblowers who report corporate
fraud) to the whistleblower provisions contained in the newly-passed
Patient Protection and Affordable Care Act (which protects
whistleblowers who complain about violations of the health care law)
allow employees between 60 and 180 days to file a complaint.\5\ And, of
course, the many anti-discrimination statutes enforced by the Equal
Employment Opportunity Commission (EEOC), such as Title VII and the
Americans with Disabilities Act, allow employees either 180 or 300 days
(depending on the state) to file a charge based on retaliation for
complaining about discrimination.
The OSH Act's exceedingly short statute of limitations makes it far
more likely that workers who face discharge or other retaliation will
miss the deadline for filing a complaint, meaning that they will have
no real recourse under the OSH Act.
No Preliminary Reinstatement. The second major shortcoming in the
OSH Act's anti-retaliation provisions is the absence of language
authorizing preliminary reinstatement of a worker while his or her case
is pending and working its way through the process. Here again, almost
all of the other anti-retaliation laws enforced by OSHA authorize the
Secretary to order preliminary reinstatement where she finds reasonable
cause, after an initial investigation, to believe that a violation has
occurred. The preliminary reinstatement provisions in the Federal Mine
Safety and Health Act are even stronger. They call for the Federal Mine
Safety and Health Review Commission to order immediate preliminary
reinstatement in all cases unless the Secretary determines that the
complaint was frivolously brought. 30 U.S.C. Sec. 815(c).
Preliminary reinstatement is an important component to a meaningful
anti-retaliation process, because it means that a worker will not be
out of work losing pay and benefits while the case is pending. It is a
common feature of other anti-retaliation statutes, including statutes
enforced by OSHA, and it has proven workable. It should be added to the
OSH Act.
No Administrative Process. Unlike most other whistleblower laws
enforced by OSHA, there is no administrative process for pursuing anti-
retaliation claims under the OSH Act. Instead of conducting an
investigation and issuing a preliminary order, with review before an
administrative law judge within the agency, as is the case with most
other whistleblower laws, the Secretary must file suit on the worker's
behalf in federal district court--a costly, resource intensive, and
time-consuming process that the Secretary rarely pursues.
According to data provided by OSHA, in FY 2009, OSHA received 1,280
complaints alleging violations of the 11(c) anti-retaliation provisions
in the OSH Act, 29 U.S.C. Sec. 659(c). The majority were dismissed.
Nearly 20 percent of the cases (246 cases) settled. OSHA recommended
that the Secretary pursue litigation in 15 cases; 4 cases were actually
brought. Since 1996, the Secretary of Labor has filed only 32 cases in
federal district court under Section 11(c). And, because the OSH Act
does not authorize workers to pursue their cases on their own, workers
in the thousands of cases the Secretary did not pursue were left
without meaningful recourse.
The absence of an administrative process greatly weakens the
effectiveness and utility of the anti-retaliation provisions in the OSH
Act.
No Right of Appeal or Private Action. The fourth major shortcoming
in the OSH Act's anti-retaliation provisions is the absence of a right
for workers to get a hearing or pursue their own case before an
administrative law judge or the court. Under the OSH Act, workers are
entirely dependent on the Secretary of Labor to pursue their cases,
because there is no administrative process for them to access and no
right to bring their case in federal district court if the Secretary
elects not to proceed. As the statistics outlined above reveal, the
Secretary pursues only a handful of cases each year, leaving the rest
of workers without a forum to pursue their own cases.
The absence of a private right of action for workers to pursue
their own cases before an administrative agency or the court makes the
OSH Act's anti-retaliation provisions far weaker and far outside the
mainstream of other anti-retaliation laws. As the chart attached to
this testimony shows, other whistleblower provisions enacted by
Congress provide workers with the ability to seek a hearing before an
administrative law judge, or a de novo hearing before a federal
district court, or both. In contrast, an employee who brings a
whistleblower complaint under the OSH Act is wholly dependent on the
Secretary of Labor to vindicate his or her rights; if the Secretary
delays or declines to pursue the employee's case--which, as explained
above, is what happens in the vast majority of cases--the whistleblower
has no recourse under the law. This is a serious shortcoming that
greatly undermines the effectiveness of the OSH Act and its anti-
retaliation provisions.
The case of whistleblower Roger Wood illustrates the problem. Wood
was an experienced electrician who worked at a chemical weapons
disposal facility, a facility where the working conditions were
described by a federal court as ``probably as dangerous as any
undertaken in the world.'' \6\ Wood repeatedly complained about unsafe
working conditions, including inadequate safety equipment, resulting in
an OSHA investigation and the employer being cited for two serious
safety violations. Subsequently, Wood was fired after he refused to
work in a toxic area without adequate safety equipment.\7\ Wood filed a
whistleblower complaint with the Department of Labor, and a regional
Department of Labor official recommended that the agency file suit on
Wood's behalf. But after over five years of internal review, the
Department ultimately declined to pursue Wood's case. Wood sued in
federal court seeking to force the Department of Labor to file suit on
his behalf. A full ten years after he was fired, the U.S. Court of
Appeals for the D.C. Circuit denied Wood's claim, finding that the
Occupational Safety and Health Act's whistleblower provision left all
determinations as to whether to bring suit solely in the hands of the
Department of Labor.\8\
The Anti-Retaliation Provisions in the Protecting America's Workers
Act Will Help Bring the OSH Act's Protections into the Mainstream
The Protecting America's Workers Act (PAWA) will update and improve
the OSH Act's anti-retaliation provisions and bring them up to par with
other anti-retaliation laws enforced by OSHA. By providing more
meaningful anti-retaliation protections to workers, PAWA will help
encourage employees to speak out when they become aware of hazardous
workplace conditions, which will help bring about corrective action and
prevent injuries, illnesses, and deaths on the job.
PAWA accomplishes these goals by making the following common-sense
changes, as reflected in the March 9, 2010 Discussion Draft of
Modifications to H.R. 2067:
It extends the statute of limitations for filing
complaints from the current 30 days to 180 days;
It establishes clear and reasonable timeframes for the
Secretary of Labor to complete her investigation and for administrative
law judges to hear and decide cases, and authorizes workers to pursue
their cases before an ALJ or federal court when these deadlines are
missed;
It provides for preliminary reinstatement of workers after
an investigation and determination by the Secretary of Labor. The
Secretary is given 90 days to investigate cases and issue a preliminary
order. In cases where the Secretary of Labor finds reasonable cause to
believe that a violation of the anti-retaliation provisions has
occurred, the bill allows the Secretary to issue a preliminary order
reinstating the employee to his or her position, along with other
relief;
In the event that the Secretary dismisses a complaint, or
does not issue a timely preliminary order, i.e., within 120 days, PAWA
permits an employee to request a hearing before an administrative law
judge;
If an administrative law judge does not timely issue a
decision (i.e., within 90 days), or there is no timely decision on an
internal appeal of an ALJ decision, PAWA authorizes workers to bring
their case to federal district court;
PAWA codifies the longstanding rule that workers are
protected against retaliation when they refuse in good faith to perform
work they reasonably believe poses an imminent danger to their health
or safety. OSHA's regulations to this effect have been upheld by the
U.S. Supreme Court, see Whirlpool Corp. v. Marshall, 445 U.S. 1 (1980);
PAWA codifies these rules;
PAWA also codifies OSHA's existing regulations providing
that the OSH Act's anti-retaliation protections extend to workers who
report injuries and illnesses, 29 CFR Sec. 1904.36. The General
Accountability Office has found that fear of discharge or other
retaliation is a significant factor in workers being reluctant to come
forward to report workplace injuries and illnesses.\9\ Explicitly
stating that workers are protected against retaliation for reporting
injuries will help ensure that workers are not discouraged from coming
forward when they are injured on the job;
PAWA clarifies the remedies that are available to workers
who are victims of unlawful retaliation. These remedies are well-
established, even in the few cases that have been brought under the OSH
Act, but including them in the statute removes any doubt about their
availability.
In sum, there is nothing novel about any of these improvements to
the OSH Act's anti-retaliation protections. Rather, all of PAWA's
proposed improvements are well-established means to protecting
whistleblowers that Congress has routinely included in other federal
statutes in the four decades since the Occupational Safety and Health
Act was passed. 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.
As the Subcommittee considers legislative change to improve worker
protections, including the ability to speak out about job hazards
without retaliation, we suggest that the Subcommittee also look at
additional measures for protecting these rights, such as the civil
penalty provisions for violations of the anti-retaliation provisions of
the Mine Safety and Health Act that were adopted by Congress in 2008 as
part of the S-MINER Act, H.R. 2768. The S-MINER Act authorized civil
penalties of not less than $10,000 and not more than $100,000 for each
violation of the Mine Act's anti-retaliation provisions. Adopting a
civil penalty for violations, in addition to the individual remedies
provided for in the Protecting America's Workers Act, would strengthen
the tools for enforcing these rights and help deter violations of them.
The AFL-CIO urges prompt action on the Protecting America's Workers
Act. It is past time to update and strengthen the Occupational Safety
and Health Act so that workers in this country will be better protected
from job hazards and better protected when they speak out about them.
Again, thank you for the opportunity to testify today. I would be
happy to respond to any questions.
endnotes
\1\ The OSH Act's civil penalties were last increased in 1990 as
part of the omnibus budget reconciliation bill. P.L. No. 101-508.
\2\ Dan Barry, et al., ``2 Mines Show How Safety Practices Vary
Widely'', N.Y. Times (April 22, 2010). See also Peter Kilborn, ``In
Aftermath of Deadly Fire, a Poor Town Struggles Back,'' N.Y. Times
(Nov. 25, 1991) (workers at the Imperial Food chicken processing plant,
where 25 workers died in a fire, did not raise safety complaints
because they feared losing their jobs).
\3\ AFL-CIO, Death on the Job: The Toll of Neglect (April 2010).
\4\ Government Accountability Office, Whistleblower Protection
Program: Better Data and Improved Oversight Would Help Ensure Program
Quality and Consistency 50-65 (Jan. 2009).
\5\ See id. at 51; see also P.L. 111-148, 124 Stat. 119 (2010).
\6\ Wood v. Department of Labor, 275 F.3d 107, 108 (D.C. Cir.
2001).
\7\ Id.
\8\ Id. at 111-12.
\9\ GAO, Workplace Safety and Health: Enhancing OSHA's Records
Audit Process Could Improve the Accuracy of Worker Injury and Illness
Data (Oct. 2009).
______
Chairwoman Woolsey. Thank you very, very much.
I need to say, before we start our questions, I have two
committees that are both marking up legislation. So if I get up
and leave, I will be back. It is because I have to go vote at
another committee, and one of our members will take the chair.
So please don't take it personally. But so far, so good.
So I am going to begin the questioning with you, Jordan.
At last month's committee hearing on OSHA penalties,
Assistant Secretary Michaels testified that OSHA had
reservations about certain victims' rights provisions in PAWA,
namely, allowing a family member to meet with OSHA before the
agency decides to issue a citation and family members appearing
before the parties conducting settlement discussions. You have
also reiterated this in your testimony today.
So, you know, the family members are here. You have heard
from them. We have all--we can't question whether what we are
doing is necessary or not necessary. What we want to find out
is how to do it so it works, works for them, and doesn't get
all bogged down. We have learned some things from MSHA. So how
does the MSHA's experience relate to your reservations and how
can we settle those reservations? Or do we need to continue
discussion on it? What would you think would be the best way to
proceed?
Mr. Barab. Well, first of all, let me clarify. Dr. Michaels
expressed--I wouldn't--I would say we have not even
reservations. We have some concerns. We obviously need the law,
and everybody needs the law--workers, families--to work as
efficiently as possible.
But I want to reiterate that we fully support family
involvement. We fully support the provisions in this law. In
fact, we are already going to be implementing some of the
provisions of this law even before it is passed, which we hope
will happen soon. So our statements of concern, you know, are
in no way--should in no way communicate that we are not fully
in support of this or fully in support of family participation.
We do want to talk to--we have been actually talking to
MSHA. We realize MSHA has learned some important lessons
certainly from Sago and Crandall Canyon on how to relate to
families and how this can be done best, and we will be talking
to them. We are talking to them, we will be talking to them
more, and we will be learning from them.
We learned an incredible amount just from the families that
are here today. They came into town. They talked with Secretary
Solis yesterday. We are in frequent contact with them.
We have already, you know, told our field staff not only to
make sure that we implement what we already have consistently,
but we will be actually assigning OSHA staff to be family
liaisons. We do want to improve the way we are doing things;
and, again, we fully support what is in the law.
So I don't want it to be taken, because we have expressed
some concerns that this work right, that we aren't--we don't
have full confidence that that can be done, either through the
law or through the regulatory process.
Chairwoman Woolsey. Okay. I hear that. But tell us how,
what needs to be fixed to work right, with the idea that this
administration follows 8 years of not giving a hoot. So how do
we make sure we put into place the right programs, the right
policies that will carry on from administration to
administration?
Mr. Barab. Okay. Just one example that was raised today
that Ms. Ford has raised, which I think was quite legitimate,
that she and her family found out about the settlement we
reached with ADM through the news media.
Now we followed the letter of our instructions of informing
the family immediately. But by ``inform'', we meant we dropped
a letter in the mail. Obviously, that was not adequate. That
was, in retrospect, particularly inexcusable. That is no way to
inform a family of a settlement, and we are going to be
changing that.
And we are going to be redefining the word ``inform'' to
you call them. You call the family. You talk to the family
before the media is notified, certainly.
We are going to be doing training for our field staff to
make sure that they are comfortable. Some of the problem we
have is people, you know, understandably are just not
comfortable dealing with family members who are in the midst of
tragedy, and we are going to be dealing with that as well.
So there are a number of actions we are going to take, a
number of things we have learned and have been learning. And,
again, we fully support what you are doing here.
Chairwoman Woolsey. Congresswoman McMorris Rodgers.
Mrs. McMorris Rogers. Well, again, just let me say thank
you to everyone for being here. Your testimony is extremely
helpful to us as we are working on this legislation. And the
previous administration, the 8 years before this
administration, I believe that we actually saw both injury and
workplace-related death rates decrease.
And, as I sit here, I think that part of the key is making
sure that we have better partnerships between everyone that is
involved and working together, because we do have a shared
goal, and not make it adversarial.
Mr. Jorgensen, I wanted to ask, because I understand that
these whistleblower complaints are to be anonymous, and I just
wanted to ask how you think your employer learned that you were
the one that had brought the case forward.
Mr. Jorgensen. Previous to my blowing the whistle----
Chairwoman Woolsey. Do you have your microphone on, Mr.
Jorgensen?
Mr. Jorgensen. Previous to my turning in the complaint, my
wife and a friend of hers had worked there, and they quit quite
fiery. And when the complaint come down, it was kind of--I
think it was kind of obvious the route that it came from. They
were disgruntled. I was upset because I had talked to a couple
of the employees there who had had their finger cut in the band
saw, which was my concern, but I think they kind of figured it
out because my wife and her friend had quit.
Mrs. McMorris Rogers. Okay. Thank you.
Mr. Chinn, your testimony highlighted the many provisions
in the draft legislation that would make changes to the current
whistleblower system. Are there any provisions that you believe
merit more attention?
Mr. Chinn. Yes, I do. Thank you for that question, because
I think there are a couple of areas that--even if you accept
everything that has been said so far in the testimony, I think
there are a couple of areas here that deserve some attention,
and maybe it is the sort of attention that only a lawyer who
lives these kind of phrases and words and provisions in
litigation, you know, can appreciate, I suppose.
One area that I think deserves some particular attention is
the limitations area, that is, the statute of limitations. And
I will save for last my comments on what has been the focal
point so far, and that is simply the increase in the period
from 30 to 180 days.
What I would like to focus on first is, in this statute
there is a novel, at least as employment law goes, insertion of
something that lawyers refer to as a discovery rule for the
purpose of commencing the limitations period. That is, the
limitations period begins either within a certain period of the
alleged violation itself, that is the norm, or the date on
which the employee knows or reasonably should have known that
such a violation occurred. And it is that second component that
I think is troubling.
To my knowledge, it is a foreign concept in employment
litigation, completely. It is a vague and uncertain standard;
and, moreover, it doesn't really make any sense in the context
of retaliation and whistle blowing. It might make sense in the
context of, like, a medical malpractice case where a surgical
instrument is left inside a person and it is not discovered for
years afterwards. But here we are talking about the
whistleblower context.
Think about what Mr. Jorgensen described. We are talking
about cause and effect. We are talking about--and that is the
crux of a whistleblower complaint. That is, I complained and
something happened to me because of that complaint. It is not a
mystery. There is not some mysterious--if it really is true, if
someone is being fired because they are a whistleblower, there
is going to be some temporal connection between those concepts.
So there is no need for--even if this weren't foreign to
employment law, there is no need for it here.
Secondly, with respect to the limitations period provisions
in the statute, there is an extremely broad continuing
violation provision lurking behind a heading called repeat
violations. And essentially, what that means, as written, is if
you have one timely----
Chairwoman Woolsey. Finish your thought.
Mr. Chinn. Okay. If you have one timely complaint to make,
you may also complain about any untimely complaints that you
want to going back as many years as you want to relating to any
sorts of incidents, prior complaints, prior actions you want
to.
Chairwoman Woolsey. Okay. Mr. Hare.
Mr. Hare. Thank you, Madam Chairman.
Mr. Chinn, I don't know if you noticed when you were
testifying but several of the people in the audience were
holding up pictures of their families, family members. I want
to be very honest with you. A couple of times, you know, you
were talking about the expense to the employers and things of
this nature and that this--you know, about the numbers of
meritless cases.
It would seem to me, from my opinion, that looking at these
families--these are sisters, brothers, husbands, wives, dads,
grandfathers. We just lost 29 miners because you had an
employer that cared more about profits than he cared about
keeping the people safe. And we have had four of those.
And I have to be honest with you. I don't know. I am much
less interested in the expense to the employers to keep their
workers safe than keeping the workers actually safe. I mean, I
think that every employer has a responsibility and I think
every worker has every right to assume that when they go into
work every day that they are going to go to work under safe
circumstances, as best they can, and be able to come home to
their families. I don't think it is rocket science.
I also think that when you referred to Mr. Jorgensen's
case, here is a guy that saw something and reported it and lost
his job. And then he was told, you can't even--basically,
because you got a couple of lawyers out there you are probably
going to roll the dice on whether or not you are going to be
able to prevail in your case.
This system is upside down. It is completely upside down.
I would much rather look at the statistics, as was
mentioned, that 5,000 people every year die in this country.
And I think there are a number of good employers in this
country. But they have an obligation, those that aren't, to
clean up their act. And if they don't, they shouldn't just be
fined. They ought to end up in prison if they are not going to
change what they are doing, the way they are acting. They would
rather pay fines than keep people safe. I think that is--I
don't know how these guys can go to sleep at night, to be
honest with you.
But I just wanted to ask, if I could--the person from the
AFL-CIO, you were kind of shaking your head when some of that
was being testified--I am sorry--Ms. Rhinehart--the testimony
that will lead to excessive litigation and false claims and
those kinds of things. I wondered if, you know, you didn't get
an opportunity to, but you could probably tell this is a very
emotional issue to me. I came out of a factory.
I would like to hear your take maybe to respond to what Mr.
Chinn had to say. Maybe I got it wrong, but I was shaking my
head, too, to be honest with you.
Ms. Rhinehart. Thank you for the opportunity to address
some of those points. I tried not to shake too hard, but I
couldn't help myself.
A couple of things. In terms of the concern that actually
giving workers a remedy for these rights would lead to false
claims, I completely disagree. Workers are not going to file
these claims lightly. Filing a claim about retaliation with the
government is a big deal. Workers know that they can lose their
jobs. They know that these cases take a long time to be
pursued. They know that there is no assurance that they are
going to win at the end of the day.
What we get in this legislation is workers get a fair shot.
They get a fair shot to bring their case forward and to try to
prove up their case, which is much more than they have right
now under current law.
The information that we have shows the problem isn't
frivolous claims. The problem is workers don't have the right
right now to bring forward their claims, and that is the
problem that the PAWA legislation is seeking to address and the
reason why we fully support it.
If I could just say a word about the notion that the
statute of limitations in the legislation is somehow an outlier
and bizarre in the area of employment law. That is just not the
case. The discovery rule that the statute of limitations is
from the time of the act or from the time the victim discovered
the act is well settled in employment law, in Title VII law,
even under the Occupational Safety and Health Act for
whistleblower cases, and so it is just not accurate to say that
this is a novel or bizarre concept in the area of labor and
employment law.
If I could make just one final point, which is one of the
premises of Mr. Chinn's testimony seemed to be that
whistleblower protections don't have anything to do with safety
and health. They have to do with employment litigation, but
they don't have anything to do with worker safety and health.
We couldn't disagree more. We think they have everything to
do with workers feeling secure to speak out, raise hazards, and
be involved in protecting their health and safety on the job
before injuries and illnesses occur.
Mr. Hare. Well, I know I am out of time, but it would just
seem to me that if Mr. Jorgensen or any worker sees something
that is dangerous, that could be harmful to people that they
work with, and they report it and they get fired for doing
that, A, that is obscene to fire the person. And B, it doesn't
allow the employer to do anything to correct the problem for
the people that are there in the plant or wherever to keep them
out of harm's way. It makes absolutely no sense to me.
Chairwoman Woolsey. Ms. Shea-Porter.
Ms. Shea-Porter. Thank you very much.
I have several concerns that I heard in front of me.
First, I would like to start, Ms. Ford, and say I am very
sorry about your loss. And I wondered if you have spoken to
other families that are in the same situation, and do they feel
like they have been shut out.
Ms. Ford. I have spoken to many of the families behind me.
I have spoken to many families in Nebraska, many families. I
have spoken to an individual that actually fell from a grain
elevator after my uncle passed in the accident. And they said,
we can't come forth because he still works there. I don't think
that is right.
Ms. Shea-Porter. So you think having a voice and allowing
them to speak early would help other families as well?
Ms. Ford. Oh, yes. I mean, from day one after this accident
I started my research and there was so much I had found out.
And if I had understood about the whole 6-month time frame this
outcome would have been so different. I mean, I sat at my
kitchen table and spoke to the OSHA representative and said,
no, this was not grandfather-claused in. And it wasn't. I was
right. And I find out in January, 2010, that I was right; and
it could have been prevented. Things could have changed.
Ms. Shea-Porter. You could have had a voice at the table.
Ms. Ford. Yes.
Ms. Shea-Porter. And, Dr. Monforton, what about that 8-hour
rule that they have that they don't have to report a death or
something that could have led to a death in 8 hours? What is
your concern about that?
Ms. Monforton. That is a very big disparity between the
Mine Safety Act and the OSHA law. Under the Mine Safety Act, it
was immediate notification of a fatality, which was fuzzy
language. So after the Miner Act passed, they stipulated that
within 15 minutes of the employer learning of the incident, not
just of a fatality but for a serious injury that is likely to
cause a death, and under the OSHA statute it is 8 hours for a
fatality which, for many reasons, is problematic, including,
you know, the employer could actually change the scene of the
crime, so to speak.
And, also, under OSHA, it is only if there are three or
more people that are hospitalized. So there are huge
disparities between the two statutes.
And I think something that this subcommittee could look at
is how do we take some of the things that are terrific in the
Mine Act and extend them to all workers and vice versa, OSHA to
MSHA.
Ms. Shea-Porter. And, in all fairness, it could be
accidental, where they don't realize over the 8-hour period of
time that they are changing or interfering with some evidence.
So it could be accidental, simply trying to clear things up.
Ms. Monforton. Right. Maybe just, you know, cleaning up the
scene.
Ms. Shea-Porter. But the point is that the evidence should
be intact, I think is what you are getting at.
Ms. Monforton. Exactly. So as soon as OSHA knows, you know,
if it is the type of thing they hear the initial information,
they may want to give the employer some instruction about what
to do or what not to do.
Ms. Shea-Porter. Okay. Thank you.
I also had a question for you. The U.S. Chamber of Commerce
testified at a recent hearing that small businesses should have
the right to recover attorneys' fees from employees who file
whistleblower claims and then fail to prevail at a hearing. Do
you think that would have any kind of chilling effect? Do you
have any concerns about the loser having to pay?
Mr. Barab. Yeah, I think it is clear it would have a
chilling effect. Workers already face enough intimidation about
filing complaints, and I think the fact that they not only
might lose that or be fired due to a failure to sustain a
whistleblower complaint but to think that they also might be
essentially fined for that I think would have a chilling
effect. We don't want to just allow workers to file
whistleblower complaints or file health and safety complaints.
We want to encourage them to do that. And this goes in exactly
the opposite direction.
Ms. Shea-Porter. Thank you.
Do you agree, Mr. Chinn?
Mr. Chinn. Do I agree as to the attorneys' fees provision?
Ms. Shea-Porter. Yes.
Mr. Chinn. As PAWA is written, I don't see that there is
any possibility of an employer recovering, if the employer
prevails.
Of course, in Federal court, if the action proceeds to
Federal court, the matter would be governed by rule 11 of the
Federal Rules of Civil Procedure. If the matter were frivolous,
an employer could recover attorneys' fees under that provision.
Ms. Shea-Porter. But I wondered if you just agreed with the
chambers perspective on that.
Mr. Chinn. Well, if what Ms. Rhinehart said was true, I
don't agree with what was just stated. Ms. Rhinehart said that
employees will not bring forward meritless claims. Now, we know
statistically that that is just an incorrect statement. I mean,
even under the Obama OSHA, claims are rejected as meritless.
But if Ms. Rhinehart were accurate, then claimants have
nothing to fear, because they will always win under this
legislation. Therefore, there should be, at least for small
businesses or, at a minimum, if the matter is frivolous or
brought in bad faith, there should be some provision for
attorneys' fees, but nobody here should be concerned about it
because, as Ms. Rhinehart said, no action will ever be brought
without merit.
Ms. Shea-Porter. And in all fairness then you would also
have to say that, since cases are found to be meritless, that
there is enough protection in there for business as well.
Thank you. I yield back.
Chairwoman Woolsey. Congressman Payne.
Mr. Payne. Thank you very much.
Mr. Barab, looking at the testimony, although I didn't hear
it, but Mr. Jorgensen testified that he had filed a complaint
with OSHA regarding unsafe working conditions, and he was
terminated a week after the inspection. Despite the employer
claiming that he was fired for poor performance, the OSHA
inspector discovered that the employer altered job performance
documents which they gave to OSHA omitting anything positive
about Mr. Jorgensen.
So I guess my question is, is it correct that OSHA
investigators found that Mr. Jorgensen's case had merit? And,
if so, did Mr. Jorgensen have a strong case? And how do you
feel about the way the law treats Mr. Jorgensen and other
people like him?
Mr. Barab. Thank you, Mr. Payne.
Yes, OSHA did find merit. OSHA found that it was a strong
case. And as Mr. Jorgensen related, the solicitors decided not
to take that, not to litigate that case.
Quite frankly, I am appalled by this. I am appalled that in
the 21st century, 40 years after the Occupational Safety and
Health Act was passed, that workers still have to be afraid to
exercise their rights under this law. I am not going to sit
here--I mean, we did find merit. The solicitors didn't take it.
I am not going to sit here and certainly condemn the
solicitors. They have their own priorities. They have their own
resource decisions. They have to make some very difficult
decision about this, and I am sure it hurts them as much as it
hurts us that this wasn't taken forward.
The fact is, though, that we are both--both us, OSHA, the
solicitors, and certainly workers are operating in what is now
basically a dysfunctional system. It just doesn't work. And
what we are asking you to do, what PAWA is asking you to do,
what PAWA would do is really fix that system so that workers
actually have a chance to exercise their rights under the law
and succeed if they are discriminated against for that.
Mr. Payne. Since you brought up the solicitors, let me ask
you this. And you indicate they have a tough time. But over the
past 14 years the Solicitor's Office has brought suit in only 7
percent of the 467 merit cases it sent to OSHA and declined to
prosecute 60 percent of those cases. Is Mr. Jorgensen's case an
isolated one, or do you believe there are other meritorious
claims which have been left by workers who were left, really,
without any real recourse, sort of left high and dry? Why do
you feel that the Solicitor's Office has such a low rate of
success?
Mr. Barab. Well, I think clearly Mr. Jorgensen's case is
not an isolated case. There are many, many cases on those. I
mean, the figures speak for themselves. And I am not with the
Solicitor's Office. I am not going to really testify for the
solicitors. But I do want to kind of outline the general
environment that we all work in.
I mean, the solicitors have to make--they have got, you
know, X amount of resources. They have to make some difficult
decisions. They may have, for example, class action suits that
may affect thousands of workers. They may have a very difficult
penalty case, settlement case for a worker fatality that they
have to deal with. And then they also may have whistleblower
cases that may only affect one worker for a few thousand
dollars.
I am not saying at all that these aren't important
certainly to that worker who is unfairly fired for exercising
his health and safety rights. But the fact is that there are
some difficult decisions that have to be made here.
But, again, let me reiterate that those difficult decisions
are forced upon them because we are working in this
dysfunctional system, and that is what we need to change. We
need to change the system.
Mr. Payne. Well, let me say that I also feel that we need
to strengthen the system. We should really be protecting
workers. Even worse, back about 10 or 15 years ago, there was a
move afoot by the then-controlled Republican Congress to have
OSHA have inspections done and that the company would pay for
the inspections and that the results would be given to the
company without the public knowing what was in it; and,
therefore, the company then would supposedly use this as a
working tool to go and try to correct problems that the OSHA
inspector found.
Of course, it, fortunately, really did not get off the
ground, because it is difficult enough under the environment
that we currently have for the workers to get justice. If you
had the company paying for the inspection, it would be total
injustice, in my opinion.
So, with that, thank you and I will yield back the balance
of my time.
Chairwoman Woolsey. We are going to have a second round of
questions, and I will yield to Congresswoman McMorris Rodgers.
Mrs. McMorris Rogers. Thank you, Madam Chairwoman.
Much of the work of this subcommittee focuses on how we can
get employers and employees to work more proactively to prevent
accidents and illnesses from occurring and encourage that
participation. And Mr. Morikawa mentioned the results of your
electrical contractors transmission and distribution strategic
partnership for safety and the success of it. I wanted to ask
you how you believe we could translate that experience into
OSHA's everyday practices, especially as the agency has
announced cuts in this area.
Mr. Morikawa. Thank you very much for that question.
The work with the ET&D partnership has been particularly
positive and reinforcing because you took parties who were
traditional adversaries and competitors and you pulled them all
together for a common purpose and that common purpose was to
reduce injuries and fatalities on the job. So it starts with
that philosophy. It is an attitude. It is a desire to make a
cultural change in an industry, which is very significant. As
you can see, when you get everybody together in a cooperative
basis, join hands to try to reduce injuries and fatalities and
to find the causes and to stop them, you can have dramatic
effect.
Now, the issue I am concerned with is the fact that--first
of all, I don't take issue with the fact that OSHA needs to
have a strong and vibrant enforcement program. Neither the
chamber nor I personally have ever taken the view that an
enforcement program should be replaced by cooperative programs.
What I think should be done, however, is that groups of
employers or individual employers that have indicated a
commitment to prevention of accidents and fatalities on the job
should be encouraged by OSHA. They should be incented to do the
right thing.
Now, commonly, there is the notion that companies that go
into partnerships are supposed to gain some sort of strategic
advantage, that they are looking for some type of immunity or
they are looking for some sort of special treatment from OSHA.
ET&D is an excellent example of that. These issues came up at
the time we formed ET&D. The question was asked by OSHA, what
sorts of immunity, what special treatment would you like as a
result of it? Is that what you are really after here?
And, resoundingly, the members of the partnership--again,
remember this, union, non-union companies, together with one of
the largest labor unions in America, along with these trade
associations--got together and said, no, we are not looking for
any special treatment. In fact, we are not looking for
inspection immunity, citation immunity. We are not looking for
special points and privilege, et cetera. We are looking for
your cooperation so that we can get together as a group and
solve these problems as a group and not do it by fighting with
each other.
Again, the partnership never took the position that they
shouldn't be cited if they violated OSHA standards. But what we
did do is we focused on compliance cooperatively, and you can
see the dramatic impact that has had. OSHA should be encouraged
to do that.
Mr. Barab. Just for the record, we fully support that
partnership. We love that partnership. We think it has been
very effective, and we have not cut back funding for these
partnerships.
Mrs. McMorris Rogers. Okay. Great. Great. Thank you.
And, Madam Chairwoman, I have a case I would like to submit
for the record. This is on April 19, 2010, the National Labor
Relations Board found that the International Union of Operating
Engineers, local 513, in violation of the National Labor
Relations Act for fining a union member for reporting another
union member's safety violation to their employer. IUOE had
fined an employee $2,500 for informing his employer that a
fellow employee and union member had violated a safety
protocol, and I would like to submit that for the record.
Chairwoman Woolsey. Without objection.
[The information follows:]
------
Mrs. McMorris Rogers. And I would like to ask, Ms.
Rhinehart, if the AFL is examining any changes to protect
whistleblowers within the union.
Ms. Rhinehart. Thanks for the question. I am not familiar
with the case that you just mentioned, but I will take a look
at it.
The stronger whistleblower protections in PAWA would apply
to unions as employers just as they apply to private sector
employers, and we fully support that.
Mrs. McMorris Rogers. Okay. And I yield back.
Chairwoman Woolsey. I was quite surprised that Mr. Chinn
can sit here this morning and ask what motivates updating PAWA,
why bringing section 11(c) into the 21st century, 11(c) of the
OSH Act, is--what motivates us to do that, after hearing the
Secretary and hearing the witnesses before you and knowing the
stories of the family members sitting behind you. That just--I
find that very hard to believe. So then the idea that--from
that statement to during times of bad economic situations
around the country, 10 percent unemployment--that we can't
upgrade and fix what is so necessary to our workers and for our
workers. So I would like to ask the members--the witnesses if
they think there is a time and place when it is too--we can't
afford to take care of our workers and we can't afford to
update their worksites and our laws that protect them. Starting
with you, Ms. Rhinehart.
Mr. Jorgensen. May I speak for a second?
Chairwoman Woolsey. Oh, sure. Mr. Jorgensen.
Mr. Jorgensen. Two points here. First of all, OSHA should
be a police officer. And, you know, just for the record, I am
on the minority side of the House when it comes to my political
group.
Chairwoman Woolsey. Oh, gosh. Then we are not going to
listen to you. Go ahead.
Mr. Jorgensen. I think, you know, if a person comes forward
and says something and he gets beat up for it, he is going to
tell all his friends and nobody else is going to come forward.
Bottom line.
Like I said, I took my--you know, when I was asked, was
talked about coming here, I went to my employer, my current
employer, which is Sunoco out of South Carolina. I explained
what had happened to me, what was--what I knew of what the law
was for and said, should I go? Because, you know--and
mentioned, you know, I know it will be a good experience. And
my manager said, you should go, not just because it is a good
experience, because it is right.
Chairwoman Woolsey. Oh, thank you to that manager. Thank
you for sharing that, Mr. Jorgensen.
Ms. Rhinehart.
Ms. Rhinehart. Thank you. Just a couple of comments.
One is, there is a desperate need to update and strengthen
this law. And I just want to reinforce a point that has sort of
come out in the course of this discussion but that really needs
to be made clear, and that is what an outlier the whistleblower
protections in the OSH Act are relative to really virtually any
other law and the absence of a private right of action and
ability of workers like Mr. Jorgensen to bring their case
forward if the Secretary of Labor can't act. It is--the OSH Act
is way out of the mainstream, and it is past time to bring it
into the mainstream of other whistleblower laws. So thank you
for your efforts to that end.
Chairwoman Woolsey. Okay. Thank you.
Dr. Monforton.
Ms. Monforton. As a professor of public health and someone
who studies history, I mean, we have heard through the time of
the OSHA law that there is, you know, you never have a perfect
time to reduce injuries and illnesses. If you listen to the
business community and you look at the difficult time that OSHA
has had in regulating many, many hazards, you know, we would
never get anything done if people were looking for the perfect
time.
And I also would like to draw people's attention to the
hearing yesterday in the Senate which focused also on worker
health and safety. And it came through loud and clear that
during the most difficult time, when our economy is in the
tank, that is the exact time that workers are most at risk of
being exploited, and that is when we need very strong
whistleblower protection laws. And people will take risks if
they are afraid of losing their job or they are laid off, and
that is why we really need these strong whistleblower
protections.
Chairman Woolsey. Thank you.
Mr. Morikawa--I am going to take the prerogative of the
chair and let Ms. Ford and Jordan speak, also--would you like
to respond to that?
Mr. Morikawa. Well, first of all, I think that PAWA is an
act which has significant merit. There is no question that
there are issues that have been raised, that have led everybody
here to this meeting today. I think what we are discussing
really are aspects of PAWA which we think just don't
necessarily work in real practice, and what we have tried to
inject into the discussion today is a real-life experience that
places us in a somewhat unique position of actually agreeing
with each other.
I am actually talking to Mr. Barab, who I have known for
many years, and we have had differences in the past, but we
certainly have no disagreement here about the impact that
certain aspects of this legislation can have in terms of taking
an agency which is really faced with a difficult mission of
trying to enforce laws for so many millions of workplaces in
America with a very, very small staff. And, as a consequence of
that, they are faced with a challenge of trying to decide which
cases to pursue, how to pursue them and when to pursue them,
issues of timing, resource deployment, et cetera. And in that
respect we certainly respect and we give deference to the
prosecutorial discretion that agencies such as OSHA and the
Solicitor's Office need to have in order to enforce the laws
that they have been charged to enforce. So, in that respect,
they really are acting and should be acting as the
representative of employees in these types of cases.
Chairman Woolsey. Okay. Thank you.
Ms. Ford.
Ms. Ford. Like Dr. Monforton said, I would have to agree,
there is probably no time, the best time to fix to make safety.
However, in saying that, I hope the employers know that it was
the hard work of people like my uncle and my father who make
these companies what they are today. They have the name, but it
is the people that make it, and if it was not for them, they
wouldn't be where they are.
Chairman Woolsey. Thank you very much.
Secretary Barab.
Mr. Barab. Thank you.
I have been working in this field for close to 30 years,
and one thing that is more and more obvious to me is that OSHA
doesn't work and workplace health and safety doesn't work
unless workers are actively involved, and the only way workers
are going to be actively involved is if they do not fear
retaliation. And that is not the situation now.
Now, I just want to mention one thing. It is true that OSHA
only finds merit in 25 percent of these cases. That does not
mean, however, and I certainly don't agree with the fact that
OSHA thinks that the other 76 percent of these cases are
frivolous. All this means is that these workers--nor does it
mean that these workers didn't actually have a good-faith
belief that there was a health and safety problem or that there
was a health and safety problem. It simply means that, under
the way the law is written now, they could not assemble the
kind of evidence that they needed to prevail in the case. So,
again, I totally reject that that figure means that these cases
were frivolous.
And, secondly, just in terms of responding to Mr. Morikawa,
I do understand, obviously, we all understand, that there are
serious resource problems. And I will take your comments as an
endorsement for increasing our resources. But I also want to
say that just for that reason is why we need Protecting
America's Worker's rights, why we need a private right of
action and the other elements that are in the whistleblower
provisions of this law. So this is--it has been 40 years now
since this law was passed. There are some very clear, very
obvious problems that are keeping workplaces from being as safe
as they can be, and now it is high time to actually make those
changes.
Chairwoman Woolsey. Okay. It appears I am really out of
time.
Ms. Shea-Porter.
Ms. Shea-Porter. Thank you.
I just have a quick question, but, first, I wanted to say
that I do know that most companies are very interested in
keeping their workers safe; and I think that, you know, they do
everything they can. I did work in factories through college,
and I saw some pretty awful things, and I saw some pretty
wonderful employers. I think that really reflects, you know,
what the world is like; and that is why we have to have a
strong agency for the few who would not follow the rules. But,
mostly, I think that we have come a long way since I was in
college, and I am happy to see that.
I do go to factories and I look very closely at so many
markers that maybe other people wouldn't know to look for, and
I appreciate that I had seen a tremendous improvement.
Having said that, Ms. Rhinehart, I felt I needed to give
you an opportunity to respond to Mr. Chinn's comments at the
end of my last 5 minutes. Because I agree with Mr. Barab about
what those numbers really signify, but I wanted to give you a
chance to talk about whether they are frivolous suits and
exactly what is happening out there, in your opinion.
Ms. Rhinehart. Thank you.
Really, very little is known about the reasons why the
cases were dismissed by OSHA, withdrawn by the complainant, not
processed further through the system. In a good number of
cases, I imagine the worker missed the statute of limitations,
which is a problem that is addressed by the pending legislation
to lengthen the exceedingly short statute of limitations that
currently exists in the OSH Act.
If a worker was fired for filing an OSHA complaint and
filed their whistleblower complaint on day 35 as opposed to day
30, that case would have been dismissed. It wouldn't have merit
under the current law, but it doesn't mean that the worker
wasn't wrongfully terminated. They just missed the statute of
limitation. So that is just one example.
There are a lot of things that go into whether or not a
case is withdrawn, dismissed, or doesn't proceed further
through the system. So I think that you can't just assume that
they they all didn't proceed because they were not meritorious
or they were frivolous. There is just no evidence to support
that.
And, as I said earlier on this point, workers don't bring
these cases forward lightly. They know the consequences of
coming forward and filing a claim with the government against
their employer and what that could mean for them in their job
and future jobs and so forth. They don't bring these claims
forward lightly, which is all the more reason why we need a
stronger law to protect them when they do come forward to raise
these concerns. Thank you.
Ms. Shea-Porter. Thank you.
And, also, I would add that sometimes has an impact on them
in their community, in their social life because of the role,
if it is a very prominent role, that the business has in a
community. So I would agree that, for the most part, they don't
step forward lightly. It is a serious issue.
Thank you, and I yield back.
Chairwoman Woolsey. Well, in closing, I would like to thank
this wonderful panel of witnesses. Every one of you
participated absolutely to the degree that we were hoping. We
have learned from you, and your testimony will make a
difference. And thank you, families, again, for being here and
loved ones and friends of those who have died at the workplace.
Today, as we said, is Workers Memorial Day, a day when we
honor fallen workers and recommit ourselves to ensuring the
safety and health of all workers. As our witnesses have
testified, it has been 40 years since the OSH Act was amended
and, well, passed in the first place and fully amended. In
those 40 years, we have learned a lot about working and what
needs to be changed; and PAWA will modernize the OSH Act, give
workers and their families the protections they need to report
unsafe and unhealthy practices and be involved in the process
when an incident causes a fatality or a serious injury.
I am looking forward to our bill, PAWA, proceeding through
the committee and the floor for a vote. It wouldn't have been
possible without your input and without your interest, and I
thank you all very much for that and thank you for coming.
As previously ordered, members have 14 days to submit
additional materials for the hearing records. Any member who
wishes to submit follow-up questions in writing to the
witnesses should coordinate with the majority staff within 14
days.
Then I ask unanimous consent to include the following 14
items into the hearing. So, without objection, I would like to
place the following letters into the record: 1, the discussion
draft for Protecting America's Workers Act of March 9, 2010; 2,
data on the Solicitor of Labor's disposition of 11(c)
retalitaion cases from 1995 through 2009; 3, statistics and
outcomes on whistleblower cases filed with OSHA for 2008; 4,
OSHA's actions on 11(c) cases completed in fiscal year 2009; 5,
DOL's letter to Neal Jorgensen dated April 7, 2005; 6, the ADM
Miling Company informal settlement agreement; 7, an e-mail from
OSHA to Ms. Ford; 8, the Kansas Supreme Court Case, Flenker v.
Willamette Industries, Inc.; 9, the Missouri Court of Appeals
case, Shawcross v. Pyro Products, Inc.; 10, the U.S. Court of
Appeals case, Wood v. Department of Labor; 11, an
Administrative Law Journal article by Eugene Fidell, titled
Federal Protection of Private Sector Health and Safety
Whistleblowers; 12, an Employee Rights and Employment Policy
Journal by Jarrod Gonzalez titled, A Pot of Gold at the End of
the Rainbow: An Economic Incentives Based Approach to OSHA
Whistleblowing; 13, a GAO report titled Better Data and
Improved Oversight Would Help Ensure Program Quality and
Consistency; and, finally, 14, Comparison of Anti-Retaliation
Provisions in Other Laws, prepared by AFL-CIO; and 15, National
Labor Relations Board case dated April 19 of 2010.
[The information follows:]
[DISCUSSION DRAFT]
[as of March 9, 2010]
------
[Modifications to HR 2067, Protecting America's Workers Act]
------
111th CONGRESS
2d Session
H. R. __
To amend the Occupational Safety and Health Act of 1970 to
expand coverage under the Act, to increase protections
for whistleblowers, to increase penalties for certain
violators, and for other purposes.
------
IN THE HOUSE OF REPRESENTATIVES
Ms. Woolsey introduced the following bill; which was referred to the
Committee on _______________
------
A BILL
To amend the Occupational Safety and Health Act of 1970 to
expand coverage under the Act, to increase protections
for whistleblowers, to increase penalties for certain
violators, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Protecting America's Workers Act''.
SEC. 2. REFERENCES.
Except as otherwise expressly provided, wherever in this Act an
amendment or repeal is expressed in terms of an amendment to, or repeal
of, a section or other provision, the reference shall be considered to
be made to a section or other provision of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 651 et seq.).
TITLE I--COVERAGE OF PUBLIC EMPLOYEES AND APPLICATION OF ACT
SEC. 101. COVERAGE OF PUBLIC EMPLOYEES.
(a) In General.--Section 3(5) (29 U.S.C. 652(5)) is amended by
striking ``but does not include'' and all that follows through the
period at the end and inserting ``including the United States, a State,
or a political subdivision of a State.''.
(b) Construction.--Nothing in this Act shall be construed to affect
the application of section 18 of the Occupational Safety and Health Act
of 1970 (29 U.S.C. 667).
SEC. 102. APPLICATION OF ACT.
Section 4(b) (29 U.S.C. 653(b)(1)) is amended--
(1) by redesignating paragraphs (2), (3), and (4) as
paragraphs (5), (6), and (7), respectively; and
(2) by striking paragraph (1) and inserting the following:
``(1) If a Federal agency has promulgated and is enforcing a
standard or regulation affecting occupational safety or health of some
or all of the employees within that agency's regulatory jurisdiction,
and the Secretary determines that such a standard or regulation as
promulgated and the manner in which the standard or regulation is being
enforced provides protection to those employees that is at least as
effective as the protection provided to those employees by this Act and
the Secretary's enforcement of this Act, the Secretary may publish a
certification notice in the Federal Register. The notice shall set
forth that determination and the reasons for the determination and
certify that the Secretary has ceded jurisdiction to that Federal
agency with respect to the specified standard or regulation affecting
occupational safety or health. In determining whether to cede
jurisdiction to a Federal agency, the Secretary shall seek to avoid
duplication of, and conflicts between, health and safety requirements.
Such certification shall remain in effect unless and until rescinded by
the Secretary.
``(2) The Secretary shall, by regulation, establish procedures by
which any person who may be adversely affected by a decision of the
Secretary certifying that the Secretary has ceded jurisdiction to
another Federal agency pursuant to paragraph (1) may petition the
Secretary to rescind a certification notice under paragraph (1). Upon
receipt of such a petition, the Secretary shall investigate the matter
involved and shall, within 90 days after receipt of the petition,
publish a decision with respect to the petition in the Federal
Register.
``(3) Any person who may be adversely affected by--
``(A) a decision of the Secretary certifying that the
Secretary has ceded jurisdiction to another Federal agency
pursuant to paragraph (1); or
``(B) a decision of the Secretary denying a petition to
rescind such a certification notice under paragraph (1),
may, not later than 60 days after such decision is published in the
Federal Register, file a petition challenging such decision with the
United States court of appeals for the circuit in which such person
resides or such person has a principal place of business, for judicial
review of such decision. A copy of the petition shall be forthwith
transmitted by the clerk of the court to the Secretary. The Secretary's
decision shall be set aside if found to be arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.
``(4) Nothing in this Act shall apply to working conditions covered
by the Federal Mine Safety and Health Act of 1977 (30 U.S.C. 801 et
seq.).''.
TITLE II--INCREASING PROTECTIONS FOR WHISTLEBLOWERS
SEC. 201. EMPLOYEE ACTIONS.
Section 11(c)(1) (29 U.S.C. 660(c)(1)) is amended by inserting
before the period at the end the following: ``, including the reporting
of any injury, illness, or unsafe condition to the employer, agent of
the employer, safety and health committee involved, or employee safety
and health representative involved''.
SEC. 202. PROHIBITION OF DISCRIMINATION.
Section 11(c) (29 U.S.C. 660(c)) is amended by striking paragraph
(2) and inserting the following:
``(2) No person shall discharge or in any manner
discriminate against an employee for refusing to perform the
employee's duties if the employee has a reasonable apprehension
that performing such duties would result in serious injury to,
or serious impairment of the health of, the employee or other
employees. The circumstances causing the employee's
apprehension of serious injury or serious impairment of health
shall be of such a nature that a reasonable person, under the
circumstances confronting the employee, would conclude that
there is a bona fide danger of a serious injury, or serious
impairment of health, resulting from the circumstances. In
order to qualify for protection under this paragraph, the
employee, when practicable, shall have sought from the
employee's employer, and have been unable to obtain, a
correction of the circumstances causing the refusal to perform
the employee's duties.''.
SEC. 203. PROCEDURE.
Section 11(c) (29 U.S.C. 660(c)) is amended by striking paragraph
(3) and inserting the following:
``(3) Complaint.--Any employee who believes that the
employee has been discharged, disciplined, or otherwise
discriminated against by any person in violation of paragraph
(1) or (2) may seek relief for such violation by filing a
complaint with the Secretary under paragraph (5).
``(4) Statute of limitations.--
``(A) In general.--An employee may take the action
permitted by paragraph (3)(A) not later than 180 days
after the later of--
``(i) the date on which an alleged
violation of paragraph (1) or (2) occurs; or
``(ii) the date on which the employee knows
or should reasonably have known that such
alleged violation occurred.
``(B) Repeat violation.--Except in cases when the
employee has been discharged, a violation of paragraph
(1) or (2) shall be considered to have occurred on the
last date an alleged repeat violation occurred.
``(5) Investigation.--
``(A) In general.--An employee may, within the time
period required under paragraph (4)(B), file a
complaint with the Secretary alleging a violation of
paragraph (1) or (2). If the complaint alleges a prima
facie case, the Secretary shall conduct an
investigation of the allegations in the complaint,
which--
``(i) shall include--
``(I) interviewing the complainant;
``(II) providing the respondent an
opportunity to--
``(aa) submit to the
Secretary a written response to
the complaint; and
``(bb) meet with the
Secretary to present statements
from witnesses or provide
evidence; and
``(III) providing the complainant
an opportunity to--
``(aa) receive any
statements or evidence provided
to the Secretary;
``(bb) meet with the
Secretary; and
``(cc) rebut any statements
or evidence; and
``(ii) may include issuing subpoenas for
the purposes of such investigation.
``(B) Decision.--Not later than 90 days after the
filing of the complaint, the Secretary shall--
``(i) issue a decision on whether to order
relief; and
``(ii) notify, in writing, the complainant
and the respondent named in the complaint of
such decision.
``(6) Preliminary order following investigation.--If, after
completion of an investigation under paragraph (5)(A), the
Secretary finds reasonable cause to believe that a violation of
paragraph (1) or (2) has occurred, the Secretary shall issue a
preliminary order providing relief authorized under paragraph
(14) at the same time the Secretary issues a decision under
paragraph (5)(B). If a de novo hearing is not requested within
the time period required under paragraph (7)(A)(i), such
preliminary order shall be deemed a final order of the
Secretary and is not subject to judicial review.
``(7) Hearing.--
``(A) Request for hearing.--
``(i) In general.--A de novo hearing on the
record before an administrative law judge may
be requested--
``(I) by the complainant or
respondent within 30 days after
receiving notification of a decision or
preliminary order for relief issued
under paragraph (5)(B) or (6),
respectively;
``(II) by the complainant within 30
days after the date the complaint is
dismissed without investigation by the
Secretary under paragraph (5)(A); or
``(III) by the complainant within
120 days after the date of filing the
complaint, if the Secretary has not
issued a decision under paragraph
(5)(B).
``(ii) Reinstatement order.--The request
for a hearing shall not operate to stay any
preliminary reinstatement order issued under
paragraph (6).
``(B) Procedures.--
``(i) In general.--A hearing requested
under this paragraph shall be conducted
expeditiously and in accordance with rules
established by the Secretary for hearings
conducted by administrative law judges.
``(ii) Subpoenas; production of evidence.--
In conducting any such hearing, the
administrative law judge may issue subpoenas.
The respondent or complainant may request the
issuance of subpoenas that require the
deposition of, or the attendance and testimony
of, witnesses and the production of any
evidence (including any books, papers,
documents, or recordings) relating to the
matter under consideration.
``(iii) Decision.--The administrative law
judge shall issue a decision not later than 90
days after the date on which a hearing was
requested under this paragraph and promptly
notify, in writing, the parties and the
Secretary of such decision, including the
findings of fact and conclusions of law. If the
administrative law judge finds that a violation
of paragraph (1) or (2) has occurred, the judge
shall issue an order for relief under paragraph
(14). If review under paragraph (8) or (11) is
not timely requested, such order shall be
deemed a final order of the Secretary that is
not subject to judicial review.
``(8) Administrative appeal.--
``(A) In general.--Not later than 30 days after the
date of notification of a decision and order issued by
an administrative law judge under paragraph (7), the
complainant or respondent may file, with objections, an
administrative appeal with the Secretary (or an
administrative review body designated by the
Secretary).
``(B) Standard of review.--In reviewing the
decision and order of the administrative law judge, the
Secretary (or designated administrative review body)
shall affirm the decision and order if it is determined
that the factual findings set forth therein are
supported by substantial evidence and the decision and
order are made in accordance with applicable law.
``(C) Decision.--If the Secretary grants the
administrative appeal and finds that a violation of
paragraph (1) or (2) has occurred, the Secretary shall
issue, within 60 days of receipt of the administrative
appeal, a final decision and order providing relief
authorized under paragraph (14), and such decision and
order shall constitute a final agency action.
``(9) Settlement in the administrative process.--
``(A) In general.--At any time before issuance of a
final order, an investigation or proceeding under this
subsection may be terminated on the basis of a
settlement agreement entered into by--
``(i) the Secretary or an administrative
law judge conducting a hearing under this
subsection;
``(ii) the complainant; and
``(iii) the respondent.
``(B) Public policy considerations.--The Secretary
or an administrative law judge conducting a hearing
under this subsection may not accept a settlement that
contains conditions conflicting with the rights
protected under this Act or that are contrary to public
policy, including a restriction on a complainant's
right to future employment with employers other than
the specific employers named in a complaint.
``(10) Inaction by the secretary or administrative law
judge.--
``(A) In general.--The complainant may bring a de
novo action described in subparagraph (B) if--
``(i) an administrative law judge has not
issued a decision and order within the 90-day
time period required under paragraph
(7)(B)(iii); or
``(ii) the Secretary has not issued a
decision and order within the 60-day time
period required under paragraph (8)(C).
``(B) De novo action.--Such de novo action may be
brought at law or equity in the United States district
court for the district where a violation of paragraph
(1) or (2) allegedly occurred or where the complainant
resided on the date of such alleged violation. The
court shall have jurisdiction over such action without
regard to the amount in controversy and to order
appropriate relief under paragraph (14). Such action
shall, at the request of either party to such action,
be tried by the court with a jury.
``(11) Judicial review.--
``(A) Timely appeal to the court of appeals.--Any
party adversely affected or aggrieved by a final
decision and order issued under this subsection may
obtain review of such decision and order in the United
States Court of Appeals for the circuit where the
violation, with respect to which such final decision
and order was issued, allegedly occurred or where the
complainant resided on the date of such alleged
violation. To obtain such review, a party shall file a
petition for review not later than 60 days after the
final decision and order was issued. Such review shall
conform to chapter 7 of title 5, United States Code.
The commencement of proceedings under this subparagraph
shall not, unless ordered by the court, operate as a
stay of the final decision and order.
``(B) Limitation on collateral attack.--An order
and decision with respect to which review may be
obtained under subparagraph (A) shall not be subject to
judicial review in any criminal or other civil
proceeding.
``(12) Enforcement of order.--If a respondent fails to
comply with an order issued under this subsection, the
Secretary or the complainant on whose behalf the order was
issued may file a civil action for enforcement in the United
States district court for the district in which the violation
was found to occur to enforce such order. If both the Secretary
and the complainant file such action, the action of the
Secretary shall take precedence. The district court shall have
jurisdiction to grant all appropriate relief including,
injunctive relief, compensatory or exemplary damages, and
reasonable attorneys' fees and costs.
``(13) Burdens of proof.--
``(A) Criteria for determination.--In adjudicating
a complaint pursuant to this subsection, the Secretary
or a court may determine that a violation of paragraph
(1) or (2) has occurred only if the complainant
demonstrates that any conduct described in paragraph
(1) or (2) with respect to the complainant was a
contributing factor in the adverse action alleged in
the complaint.
``(B) Prohibition.--Notwithstanding subparagraph
(A), a decision or order that is favorable to the
complainant shall not be issued in any administrative
or judicial action pursuant to this subsection if the
respondent demonstrates by clear and convincing
evidence that the respondent would have taken the same
adverse action in the absence of such conduct.
``(14) Relief.--
``(A) Order for relief.--If the Secretary or a
court determines that a violation of paragraph (1) or
(2) has occurred, the Secretary or court, respectively,
shall have jurisdiction to order all appropriate
relief, including injunctive relief, compensatory and
exemplary damages, including--
``(i) affirmative action to abate the
violation;
``(ii) reinstatement without loss of
position or seniority, and restoration of the
terms, rights, conditions, and privileges
associated with the complainant's employment,
including opportunities for promotions to
positions with equivalent or better
compensation for which the complainant is
qualified;
``(iii) compensatory and consequential
damages sufficient to make the complainant
whole, (including back pay, prejudgment
interest, and other damages); and
``(iv) expungement of all warnings,
reprimands, or derogatory references that have
been placed in paper or electronic records or
databases of any type relating to the actions
by the complainant that gave rise to the
unfavorable personnel action, and, at the
complainant's direction, transmission of a copy
of the decision on the complaint to any person
whom the complainant reasonably believes may
have received such unfavorable information.
``(B) Attorneys' fees and costs.--If the Secretary
or a court grants an order for relief under
subparagraph (A), the Secretary or court, respectively,
shall assess, at the request of the employee against
the employer--
``(i) reasonable attorneys' fees; and
``(ii) costs (including expert witness
fees)) reasonably incurred, as determined by
the Secretary or court respectively, in
connection with bringing the complaint upon
which the order was issued.
``(15) Procedural rights.--The rights and remedies
provided for in this subsection may not be waived by any
agreement, policy, form, or condition of employment, including
by any pre-dispute arbitration agreement or collective
bargaining agreement.
``(16) Savings.--Nothing in this section shall be construed
to diminish the rights, privileges, or remedies of any employee
who exercises rights under any Federal or State law or common
law, or under any collective bargaining agreement.
``(17) Election of venue.--
``(A) In general.--An employee of an employer who
is located in a State that has a State plan approved
under section 18 may file a complaint alleging a
violation of paragraph (1) or (2) by such employer
with--
``(i) the Secretary under paragraph (5); or
``(ii) a State plan administrator in such
State.
``(B) Referrals.--If--
``(i) the Secretary receives a complaint
pursuant to subparagraph (A)(i), the Secretary
shall not refer such complaint to a State plan
administrator for resolution; or
``(ii) a State plan administrator receives
a complaint pursuant to subparagraph (A)(ii),
the State plan administrator shall not refer
such complaint to the Secretary for
resolution.''.
SEC. 204. RELATION TO ENFORCEMENT.
Section 17(j) (29 U.S.C. 666(j)) is amended by inserting before the
period the following: ``, including the history of violations under
section 11(c)''.
TITLE III--INCREASING PENALTIES FOR VIOLATORS
SEC. 301. POSTING OF EMPLOYEE RIGHTS.
Section 8(c)(1) (29 U.S.C. 657(c)(1)) is amended by adding at the
end the following new sentence: ``Such regulations shall include
provisions requiring employers to post for employees information on the
protections afforded under section 11(c).''.
SEC. 302. EMPLOYER REPORTING OF WORK-RELATED DEATHS AND
HOSPITALIZATIONS AND PROHIBITION ON DISCOURAGING
EMPLOYEE REPORTS OF INJURY OR ILLNESS.
Section 8(c)(2) (29 U.S.C. 657(c)(2)) is amended by adding at the
end the following new sentences: ``Such regulations shall require
employers to promptly notify the Secretary of any work-related death or
work-related injury or illness that results in the in-patient
hospitalization of an employee for medical treatment. Such regulations
shall also prohibit the employer from adopting or implementing policies
or practices by the employer that have the effect of discouraging
accurate recordkeeping and the reporting of work-related injuries or
illnesses by any employee or in any manner discriminates or provides
for adverse action against any employee for reporting a work-related
injury or illness.''
SEC. 303. NO LOSS OF EMPLOYEE PAY FOR INSPECTIONS.
Section 8(e) (29 U.S.C. 657(e)) is amended by inserting after the
first sentence the following: ``Time spent by an employee participating
in or aiding any such inspection shall be deemed to be hours worked and
no employee shall suffer any loss of wages, benefits, or other terms
and conditions of employment for having participated in or aided any
such inspection.''.
SEC. 304. INVESTIGATIONS OF FATALITIES AND SIGNIFICANT INCIDENTS.
Section 8 (29 U.S.C. 657) is amended by adding at the end the
following new subsection:
``(i) Investigation of Fatalities and Serious Incidents.--
``(1) In General.--The Secretary shall investigate any significant
incident or an incident resulting in death that occurs in a place of
employment.
``(2) Appropriate Measures.--If a significant incident or an
incident resulting in death occurs in a place of employment, the
employer shall promptly notify the Secretary of the incident involved
and shall take appropriate measures to prevent the destruction or
alteration of any evidence that would assist in investigating the
incident. The appropriate measures required by this paragraph do not
prevent an employer from taking action on a worksite to prevent injury
to employees or substantial damage to property or to avoid disruption
of essential services necessary to public safety. If an employer takes
such action, the employer shall notify the Secretary of the action in a
timely fashion.
``(3) Definitions.--In this subsection:
``(A) Incident resulting in death.--The term `incident
resulting in death' means an incident that results in the death
of an employee.
``(B) Significant incident.--The term `significant
incident' means an incident that results in the in-patient
hospitalization of 2 or more employees for medical
treatment.''.
SEC. 305. PROHIBITION ON UNCLASSIFIED CITATIONS.
Section 9 (29 U.S.C. 658) is amended by adding at the end the
following:
``(d) No citation for a violation of this Act may be issued,
modified, or settled under this section without a designation
enumerated in section 17 with respect to such violation.''.
SEC. 306. VICTIMS' RIGHTS.
The Act is amended by inserting after section 9 (29 U.S.C. 658) the
following:
``SEC. 9A. VICTIM'S RIGHTS.
``(a) Rights Before the Secretary.--A victim or the representative
of a victim, shall be afforded the right, with respect to an inspection
or investigation conducted under section 8 to--
``(1) meet with the Secretary regarding the inspection or
investigation conducted under such section before the
Secretary's decision to issue a citation or take no action;
``(2) receive, at no cost, a copy of any citation or
report, issued as a result of such inspection or investigation,
at the same time as the employer receives such citation or
report;
``(3) be informed of any notice of contest or addition of
parties to the proceedings filed under section 10(c); and
``(4) be provided notification of the date and time or any
proceedings, service of pleadings, and other relevant
documents, and an explanation of the rights of the employer,
employee and employee representative, and victim to participate
in proceedings conducted under section 10(c).
``(b) Rights Before the Commission.--Upon request, a victim or
representative of a victim shall be afforded the right with respect to
a work-related bodily injury or death to--
``(1) be notified of the time and date of any proceeding
before the Commission; and
``(2) receive pleadings and any decisions relating to the
proceedings; and
``(3) be provided an opportunity to appear and make a
statement in accordance with the rules prescribed by the
Commission.
``(c) Modification of Citation.--Before entering into an agreement
to withdraw or modify a citation issued as a result of an inspection or
investigation of an incident under section 8, the Secretary shall
notify a victim or representative of a victim and provide the victim or
representative of a victim with an opportunity to appear and make a
statement before the parties conducting settlement negotiations. In
lieu of an appearance, the victim or representative of the victim may
elect to submit a letter to the Secretary and the parties.
``(d) Secretary Procedures.--The Secretary shall establish
procedures--
``(1) to inform victims of their rights under this section;
and
``(2) for the informal review of any claim of a denial of
such a right.
``(e) Commission Procedures.--The Commission shall establish
procedures relating to the rights of victims to be heard in proceedings
before the Commission.
``(f) Definition.--In this section, the term `victim' means--
``(1) an employee, including a former employee, who has
sustained a work-related injury or illness that is the subject
of an inspection or investigation conducted under section 8, or
``(2) a family member (as further defined by the Secretary)
of a victim described in paragraph (1), if--
``(A) the victim dies as a result of a incident
that is the subject of an inspection or investigation
conducted under section 8; or
``(B) the victim sustains a work-related injury or
illness that is the subject of an inspection or
investigation conducted under section 8, and the victim
because of incapacity cannot reasonably exercise the
rights under this section.''.
SEC. 307. RIGHT TO CONTEST CITATIONS AND PENALTIES.
Section 10 (20 U.S.C. 659) is amended--
(1) in the first sentence of subsection (b)--
(A) by inserting ``, with the exception of
violations designated as serious, willful, or
repeated,'' after ``(which period shall not begin to
run'';
(2) in subsection (c)--
(A) in the first sentence--
(i) by inserting after ``that he intends to
contest a citation issued under section (9)''
the following: ``(or a modification of a
citation issued under this section)'';
(ii) by inserting after ``the issuance of a
citation under section 9'' the following:
``(including a modification of a citation
issued under such section)'';
(iii) by inserting after ``files a notice
with the Secretary alleging'' the following:
``that the citation fails properly to designate
the violation as serious, willful, or repeated,
that the proposed penalty is not adequate,
or'';
(B) by inserting after the first sentence, the
following: ``The pendency of a contest before the
Commission shall not bar the Secretary from inspecting
a place of employment or from issuing a citation under
section 9.''; and
(C) by amending the last sentence--
(i) by inserting ``employers and'' after
``Commission shall provide''; and
(ii) by inserting before the period at the
end ``, and notification of any modification of
a citation''.
(3) by adding at the end the following:
``(d) Correction of Serious, Willful, or Repeated Violations;
Abatement Pending Contest and Procedures for a Stay.--
``(1) Period permitted for correction of serious, willful,
or repeated violations.--For each violation which the Secretary
designates as serious, willful, or repeated, the period
permitted for the correction of the violation shall begin to
run upon receipt of the citation.
``(2) Filing of a motion of contest.--The filing of a
notice of contest by an employer--
``(A) shall not operate as a stay of the period for
correction of a violation designated as serious,
willful, or repeated; and
``(B) may operate as a stay of the period for
correction of a violation not designated by the
Secretary as serious, willful, or repeated.
``(3) Criteria and rules of procedure for stays.--
``(A) Motion for a stay.--An employer may file with
the Commission a motion to stay a period for the
correction of a violation designated as serious,
willful, or repeated.
``(B) Criteria.--In determining whether a stay
should be issued on the basis of a motion filed under
subparagraph (A), the Commission shall consider
whether--
``(i) the employer has demonstrated a
substantial likelihood of success on its
contest to the citation;
``(ii) the employer will suffer irreparable
harm absent a stay; and
``(iii) a stay will adversely affect the
health and safety of workers.
``(C) Rules of procedure.--The Commission shall
develop rules of procedure for conducting a hearing on
a motion filed under subparagraph (A) on an expedited
basis. At a minimum, such rules shall provide:
``(i) That a hearing before an
administrative law judge shall occur not later
than 15 days following the filing of the motion
for a stay (unless extended at the request of
the employer), and shall provide for a decision
on the motion not later than 15 days following
the hearing (unless extended at the request of
the employer).
``(ii) That a decision of an administrative
law judge on a motion for stay is rendered on a
timely basis.
``(iii) That if a party is aggrieved by a
decision issued by an administrative law judge
regarding the stay, such party has the right to
file an objection with the Commission not later
than 5 days after receipt of the administrative
law judge's decision. Within 10 days after
receipt of the objection, a Commissioner, if a
quorum is seated pursuant to section 12(f),
shall decide whether to grant review of the
objection. If, within 10 days after receipt of
the objection, no decision is made on whether
to review the decision of the administrative
law judge, the Commission declines to review
such decision, or no quorum is seated, the
decision of the administrative law judge shall
become a final order of the Commission. If the
Commission grants review of the objection, the
Commission shall issue a decision regarding the
stay not later than 30 days after receipt of
the objection. If the Commission fails to issue
such decision within 30 days, the decision of
the administrative law judge shall become a
final order of the Commission.
``(iv) For notification to employees or
representatives of affected employees of
requests for such hearings and shall provide
affected employees or representatives of
affected employees an opportunity to
participate as parties to such hearings.''.
SEC. 308. CONFORMING AMENDMENTS.
(a) Section 17.--Section 17(d) (29 U.S.C. 666(d)) is amended to
read as follows:
``(d) Any employer who fails to correct a violation designated by
the Secretary as serious, willful or repeated and for which a citation
has been issued under section 9(a) within the period permitted for its
correction (and a stay has not been issued by the Commission under
section 10(d)) may be assessed a civil penalty of not more than $7,000
for each day during which such failure or violation continues. Any
employer who fails to correct any other violation for which a citation
has been issued under section 9(a) of this title within the period
permitted for its correction (which period shall not begin to run until
the date of the final order of the Commission in the case of any review
proceeding under section 10 initiated by the employer in good faith and
not solely for delay of avoidance of penalties) may be assessed a civil
penalty of not more than $7,000 for each day during which such failure
or violation continues.''.
(b) Section 11(a).--The first sentence of section 11(a) (29 U.S.C.
660(a)) is amended by--
(1) by inserting ``(or the failure of the Commission,
including an administrative law judge, to make a timely
decision on a request for a stay under section 10(d))'' after
``an order'' ;
(2) by striking ``subsection (c)'' and inserting
``subsections (c) and (d)''; and
(3) by inserting ``(or in the case of a petition from a
final Commission order regarding a stay under section 10(d), 15
days)''after ``sixty days''.
SEC. 309. CIVIL PENALTIES.
(a) In General.--Section 17 (29 U.S.C. 666) is amended--
(1) in subsection (a)--
(A) by striking ``$70,000'' and inserting
``$120,000'';
(B) by striking ``$5,000'' and inserting
``$8,000''; and
(C) by adding at the end the following: ``If such a
violation causes the death of an employee, such civil
penalty amounts shall be increased to not more than
$250,000 for each such violation, but not less than
$50,000 for each such violation, except that for an
employer with 25 or fewer employees such penalty shall
not be less than $25,000 for each such violation.'';
(2) in subsection (b)--
(A) by striking ``$7,000'' and inserting
``$12,000''; and
(B) by adding at the end the following: ``If such a
violation causes the death of an employee, such civil
penalty amounts shall be increased to not more than
$50,000 for each such violation, but not less than
$20,000 for each such violation, except that for an
employer with 25 or fewer employees such penalty shall
not be less than $10,000 for each such violation.'';
(3) in subsection (c), by striking ``$7,000'' and inserting
``$12,000'';
(4) in subsection (d), by striking ``$7,000'' and inserting
``$12,000'';
(5) by redesignating subsections (e) through (l) as
subsections (f) through (m), respectively; and
(6) in subsection (j) (as redesignated by paragraph (5)),
by striking ``$7,000'' and inserting ``$12,000;''.
(b) Inflation Adjustment.--Section 17 (29 U.S.C. 666) (as amended
by subsection (a)) is further amended by inserting after subsection (d)
the following:
``(e) Amounts provided under this section for civil penalties shall
be adjusted by the Secretary at least once during each 4-year period to
account for the percentage increase or decrease in the Consumer Price
Index for all urban consumers during such period.''.
SEC. 310. OSHA CRIMINAL PENALTIES.
(a) In General.--Section 17 (29 U.S.C. 666) (as amended by section
309) is further amended--
(1) by amending subsection (f) to read as follows:
``(f)(1) Any employer who knowingly violates any standard, rule, or
order promulgated under section 6 of this Act, or of any regulation
prescribed under this Act, and that violation caused or contributed to
death to any employee, shall, upon conviction, be punished by a fine in
accordance with section 3571 of title 18, United States Code, or by
imprisonment for not more than 10 years, or both, except that if the
conviction is for a violation committed after a first conviction of
such person under this subsection or subsection (i), punishment shall
be by a fine in accordance with section 3571 of title 18, United States
Code, or by imprisonment for not more than 20 years, or by both.
``(2) For the purpose of this subsection, the term `employer'
means, in addition to the definition contained in section 3 of this
Act, any officer or director.'';
(2) in subsection (g), by striking ``fine of not more than
$1,000 or by imprisonment for not more than six months,'' and
inserting ``fine in accordance with section 3571 of title 18,
United States Code, or by imprisonment for not more than 2
years,'';
(3) in subsection (h), by striking ``fine of not more than
$10,000, or by imprisonment for not more than six months,'' and
inserting ``fine in accordance with section 3571 of title 18,
United States Code, or by imprisonment for not more than 5
years,'';
(4) by redesignating subsections (j) through (m) as
subsections (k) through (n), respectively; and
(5) by inserting after subsection (i) the following:
``(j)(1) Any employer who knowingly violates any standard, rule, or
order promulgated under section 6, or any regulation prescribed under
this Act, and that violation causes or contributes to serious bodily
harm to any employee but does not cause death to any employee, shall,
upon conviction, be punished by a fine in accordance with section 3571
of title 18, United States Code, or by imprisonment for not more than 5
years, or by both, except that if the conviction is for a violation
committed after a first conviction of such person under this subsection
or subsection (e), punishment shall be by a fine in accordance with
section 3571 of title 18, United States Code, or by imprisonment for
not more than 10 years, or by both.
``(2) For the purpose of this subsection, the term `employer'
means, in addition to the definition contained in section 3 of this
Act, any officer or director.
``(3) For purposes of this subsection, the term `serious bodily
harm' means any circumstance, deficiency, or shortfall that could
result in an injury or illness including, risk of death,
unconsciousness, physical disfigurement, or loss or impairment (whether
permanent or temporary) of the function of a bodily member, organ, or
mental facility.''.
(b) Jurisdiction for Prosecution Under State and Local Criminal
Laws.--Section 17 (29 U.S.C. 666) (as amended by subsection (a)) is
further amended by adding at the end the following:
``(o) Nothing in this Act shall preclude a State or local law
enforcement agency from conducting criminal prosecutions in accordance
with the laws of such State or locality.''.
TITLE IV--EFFECTIVE DATE
SEC. 401. EFFECTIVE DATE.
(a) General Rule.--Except as provided for in subsection (b), this
Act and the amendments made by this Act shall take effect not later
than 90 days after the date of the enactment of this Act.
(b) Exception for States and Political Subdivisions.--The following
are exceptions to the effective date described in subsection (a):
(1) A State that has a State plan approved under section 18
(29 U.S.C. 667) shall amend its State plan to conform with the
requirements of this Act and the amendments made by this Act
not later than 12 months after the date of the enactment of
this Act. The Secretary of Labor may extend the period for a
State to make such amendments to its State plan by not more
than 12 months, if the State's legislature is not in session
during the 12-month period beginning with the date of the
enactment of this Act. Such amendments to the State plan shall
take effect not later than 90 days after the adoption of such
amendments by such State.
(2) This Act and the amendments made by this Act shall take
effect not later than 36 months after the date of the enactment
of this Act in a State, or a political subdivision of a State,
that does not have a State plan approved under section 18 (29
U.S.C. 667).
______
Solicitors' Dispositions of OSHA 11(c) Merit Cases
From 10/1/1995 to 10/1/2009
Between 10/1/1995 to 10/1/2009 (14 years) 6.9% of the cases
referred to SOL were litigated. Out of 467 cases OSHA referred to SOL
in this period, only 32 lawsuits in 11(c) cases have been filed. Two
hundred and seventy-nine merit cases have been rejected.
CASES REFERRED TO SOL 10/1/1995 TO 3/24/2009
--------------------------------------------------------------------------------------------------------------------------------------------------------
Region Region Region Region Region Region Region Region Region Region
1 2 3 4 5 6 7 8 9 10 Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Litigated and lost................................... 1 1 0 0 1 0 0 0 0 0 3
Litigated and won.................................... 1 5 1 0 0 1 0 0 0 0 8
Rejected by SOL...................................... 20 16 42 29 70 67 9 18 6 2 279
Settled before litigation............................ 14 12 5 15 42 26 9 20 1 12 156
Settled during litigation............................ 0 9 0 1 2 1 1 0 0 7 21
--------------------------------------------------------------------------------------------------
Total Referred..................................... 36 43 48 45 115 95 19 38 7 21 467
Percent Litigated.................................. 5.6% 34.9% 2.1% 2.2% 2.6% 2.1% 5.3% 0.0% 0.0% 30.3% 6.9%
--------------------------------------------------------------------------------------------------------------------------------------------------------
(Data from IMS Activity Measures Report)
______
STATISTICS AND OUTCOMES ON WHISTLEBLOWER CASES FILED WITH OSHA
[Break-out of meritorious]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Litigation Settled
FY 2008 Cases Cases Withdrawn Dismissed Total or Settled by
Received Completed Meritorious Findings by OSHA Parties
--------------------------------------------------------------------------------------------------------------------------------------------------------
AHERA/ISCA......................................... 2 0.09% 1 0 1 0 0 0 0
AIR21.............................................. 82 3.72% 65 5 50 12 3 7 2
CPSIA.............................................. 0 0.00% 0 0 0 0 0 0 0
Environmental...................................... 52 2.36% 50 6 37 10 1 6 3
ERA................................................ 39 1.77% 30 2 23 5 0 1 4
FRSA............................................... 42 1.90% 16 2 12 2 1 1 0
11(c).............................................. 1,388 62.95% 1,259 227 834 261 15 203 43
NTSSA.............................................. 18 0.82% 6 0 7 0 0 0 0
PSIA............................................... 3 0.14% 1 0 1 0 0 0 0
SOX................................................ 232 10.52% 189 24 128 42 0 15 27
STAA............................................... 347 15.74% 322 30 183 116 8 94 14
----------------------------------------------------------------------------------------------------
Totals........................................... 2,205 ......... 1,939 296 1,276 448 28 327 93
Total Determinations*............................ ........ ......... ........... ......... ......... 2,020 .......... ........ ........
--------------------------------------------------------------------------------------------------------------------------------------------------------
*This number doesn't equal Cases Completed because each complainant recieves his or her own findings, so where a case has mutiple complainants, it has
mutiple outcomes.
Source: DOL.
______
OSHA's Actions on 11(c) Cases Completed in FY 2009
In FY 2009, federal OSHA completed 1,205 11(c) cases and
recommended that the Department of Labor's Office of the Solicitor
(SOL) litigate 24 of the cases (2%); state-plans states completed 999
11(c) cases and recommended that 50 of the cases (5%) be litigated.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total cases Withdrawn by Dismissed by Settled by Settled the Litigation
FY 2009 completed OSHA\a\ OSHA\a\ OSHA\a\ parties recommended \b\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fed OSHA....................................................... 1,205 (100%) 188 (16%) 729 (60%) 210 (17%) 54 (4%) 24 (2%)
States......................................................... 999 (100%) 151 (15%) 662 (66%) 106 (11%) 30 (3%) 50 (5%)
----------------------------------------------------------------------------------------
Total.................................................... 2,204 (100%) 339 (15%) 1,391 (63%) 316 (14%) 84 (4%) 74 (3%)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Cases shown as withdrawn, dismissed, and settled by OSHA include cases withdrawn, dismissed, and settled by the state safety and health enforcement
agencies in state-plan states.
\b\ Cases sent to the SOL for litigation may later be settled by the SOL or the courts.
______
------
------
----Original Message----
From: Bare, Ben--OSHA [mailto:[email protected]]
Sent: Monday, February 01, 2010 11:35 AM
To: [email protected]
Subject: RE: Emailing: Establishment Search Results Page.htm
Dear Ms. Ford,
Thank you for the note of sympathy for Mr. Wilson's family. We will let
his family know.
To follow-up on the information for the manlift fatalities and the
number of inspections for ADM, we found 21 manlift fatalities and 9
injuries for the period 1972 to present.
For the ADM inspection history, we could only run a query back to 1999.
For this period, there are 87 inspections. Running a report from 1972
to present causes an error due to the great number of hits using
several name variations for ADM. Please let me know if the inspection
history from 1999 to present meets your needs. If not, I can have the
reports run in 10-year periods. It will require a couple more days to
get the information.
I hope the manlift fatality information meets your needs.
Please let me about the inspection history.
Thank you
Ben
______
----Original Message----
From: [email protected] [mailto:[email protected]]
Sent: Sunday, January 31, 2010 9:18 AM
To: Bare, Ben--OSHA
Subject: RE: Emailing: Establishment Search Results Page.htm
Dear Mr. Bare,
I know you are probably very busy with the death of Mr. Tim Wilson, and
I know the death was caused by a lift accident as well, however I know
they are very different lifts. I am sure that you are someone else will
speak with the family. I would greatly appreciate if you could give
them our condolences.
Thank you
Tonya Ford
Bare wrote:
Thank you
Talk with you next week
______
From: [email protected] [mailto:[email protected]]
Sent: Sat 1/30/2010 9:56 AM
To: Bare, Ben--OSHA
Subject: RE: Emailing: Establishment Search Results Page.htm
Dear Mr. Bare,
No I am sorry for the confusion I received the accident report and
investigations that you guys were doing regarding my Uncles accident on
January 29, 2009.
Please let me know if you have any more questions.
Thanks
Tonya Ford
Bare wrote:
Dear Ms. Ford,
Just so I clearly understand your message below, you have received the
paperwork needed for the number of ADM inspections? If so, do you still
want me to get the information?
I just want to make sure I'm getting what you need.
Sincerely,
Ben
______
From: [email protected] [mailto:[email protected]]
Sent: Fri 1/29/2010 11:45 PM
To: Bare, Ben--OSHA
Subject: RE: Emailing: Establishment Search Results Page.htm
Dear Mr. Bare,
I want to thank you for all your time and effort in researching this, I
did receive the inspection paperwork today and I thank you for that as
well.
Thank you and I look forward to receiving this information
Tonya Ford
Bare wrote:
Dear Ms. Ford,
I'm still collecting and verifying the information. I apologize this is
taking longer than expected.
The data shows 21 manlift fatalities inspections and 9 accident
inspections that involved injuries. That is for all industries not just
grain. The ADM inspection data is more sensitive due the possible
spelling of the name and volume of establishments with ADM etc as part
of the company name. I want to provide the best possible information
and I need another day or two next week to finalize the information.
Thanks for your understanding,
Ben
______
----Original Message----
From: Bare, Ben--OSHA
Sent: Thursday, January 28, 2010 5:13 PM
To: `[email protected]'
Subject: RE: Emailing: Establishment Search Results Page.htm
Dear Ms. Ford,
Just wanted to touch base and let know I haven't the information for
the ADM inspection numbers and manlift fatalities. Should have the
information tomorrow afternoon.
Sorry for the delay,
Ben
______
----Original Message----
From: [email protected] [mailto:[email protected]]
Sent: Wednesday, January 27, 2010 12:21 PM
To: Bare, Ben--OSHA
Subject: Re: Emailing: Establishment Search Results Page.htm
Thank you so much for explaining how this lovely site works....I have
to admit my background is Web design and this baffled me. Thank you and
I look forward to getting the other information
Tonya Ford
Bare wrote:
Dear Ms. Ford
Below is the inspection information involving your Uncle.
To run this report go to establishmnet search, enter the A D M Milling.
Use spaces between the letters. Select open case option. The prefilled
date range should be correct. Below is the result I got I have asked
for additional assistance to help identify the number of manlift
fatalities and the total number of ADM inspections. I should the
aditional information for you in a day or two.
Hope this helps.
Sincerely,
Ben
______
SUPREME COURT OF KANSAS
DAVID FLENKER, Appellant, v. WILLAMETTE INDUSTRIES, INC., Appellee.
No. 80,408; 266 Kan. 198; 967 P.2d 295; 1998 Kan.
case summary
PROCEDURAL POSTURE: The United States Court of Appeals for the
Tenth Circuit certified the action initiated by appellant employee to
the court to determine whether the remedy provided by OSHA, 29 U.S.C.S.
Sec. 660(c), precluded the filing of a state common law discharge
claim against appellee employer. Appellant contended that he was
discharged in retaliation for filing OSHA complaints.
OVERVIEW: Appellant employee filed OSHA complaints against appellee
employer. Appellant was subsequently terminated by appellee. The
federal court certified the action to the court to determine whether
the remedy provided by OSHA, 29 U.S.C.S. Sec. 660(c), precluded the
filing of a state common law wrongful discharge, pursuant to the Kansas
Act Against Discrimination, Kan. Stat. Ann. Sec. 44-1001, et seq.,
claim against appellee. The court held that OSHA did not occupy state
common-law retaliation claims and did not conflict or preempt such
state law. Pursuant to the alternative remedies doctrine, OSHA would be
substituted for the state retaliation claim if the substituted statute
provided an adequate alternative remedy. The court held that OSHA's
alternative remedies were not adequate and that OSHA did not preempt
appellant's state wrongful discharge claim. The court answered the
federal court's determination and held that OSHA did not provide an
adequate alternative remedy under the circumstances.
OUTCOME: The court answered the federal court's determination and
held that OSHA did not provide an adequate alternative remedy to
appellant employee's state common law wrongful discharge claim filed
against appellee employer pursuant to the Kansas Act Against
Discrimination. The court held that OSHA did not occupy state common-
law retaliation claims and that the federal statute did not conflict or
preempt the state law.
CORE TERMS: retaliatory discharge, alternative remedy, collective
bargaining agreement, public policy, common-law, public policy
exception, retaliation, discharged, at-will, certified question, cause
of action, certification, state law, common law, statutory scheme,
statutory remedy, deems appropriate, appropriate relief, arbitration,
preemption, aggrieved, corrugated, plant, remedy provided, employee's
right, wrongful discharge, violation of state, adequately protected,
civil action, termination
At-will employment is the general rule in Kansas. In the absence of
a contract, expressed or implied, between an employee and his employer
covering the duration of employment, the employment is terminable at
the will of either party.
There public policy exceptions to the at-will employment doctrine,
including the whistle-blower's exception. Termination, in retaliation
for the good faith reporting of a co-worker's or employer's serious
infraction of rules, regulations, or law pertaining to public health,
safety, and the general welfare, is an actionable tort. However,
exceptions to the at-will employment doctrine should be limited to
situations where there is no adequate alternative remedy.
The availability of remedies for wrongful discharge under Kansas
Act Against Discrimination, Kan. Stat. Ann. Sec. 44-1001, et seq.,
precludes expanding the remedies available at common law.
The trial court must investigate the adequacy of an alternative
remedy before classifying a situation as being under the public policy
exception to the employment-at-will doctrine. Kansas Act Against
Discrimination, Kan. Stat. Ann. Sec. 44-1001, et seq., provides an
adequate and exclusive state remedy for violations of the public policy
against wrongful termination of whistleblowers.
A retaliatory discharge action for filing a workers compensation
claim is based on a violation of state public policy independent of a
collective bargaining agreement. An arbitration procedures provided for
in the collective bargaining agreement are a ``limited remedy,'' and
might not result in the employee's right being ``adequately
protected.''
Preemption is an application of law concept in which federal law
must be applied to the exclusion of state law for uniformity of
interpretation.
The alternative remedies doctrine, referenced sometimes as
preclusion, is a substitution of law concept. Under the alternative
remedies doctrine, a state or federal statute would be substituted for
a state retaliation claim if the substituted statute provides an
adequate alternative remedy. The question to ask in resolving
recognition of a state tort claim for retaliatory discharge is whether
the statutory remedy is adequate and thus precludes the common-law
remedy.
See 29 U.S.C.S. Sec. 660(c)(1) and (2).
In Ohio, an at-will employee who is discharged or disciplined for
filing a complaint with OSHA, 29 U.S.C.S. Sec. 660, et seq.,
concerning matters of health and safety in the workplace is entitled to
maintain a common-law tort action against the employer for wrongful
discharge/discipline in violation of public policy.
OSHA, 29 U.S.C.S. Sec. 660, et seq., only allows an employee to
file a complaint with the Secretary of Labor who then decides whether
to bring an action on the employee's behalf. 29 U.S.C.S. Sec.
660(c)(2). The employee's right to relief is even further restricted in
that the complaint must be filed within 30 days of the discrimination
or discharge. The decision to assert a cause of action is in the sole
discretion of the Secretary of Labor and the statute affords the
employee no appeal if the secretary declines to file suit. Although an
employee may obtain any type of relief possible under the Fair Labor
Standards Act through the employee's own actions, the relief available
under OSHA is limited to what the Secretary of Labor deems appropriate.
Unless an employee acts immediately and files a complaint with the
Secretary of Labor, there is no remedy available without the public
policy exception.
All appropriate relief in OSHA, 29 U.S.C.S. Sec. 660, et seq.,
includes punitive damages, and the federal courts have the power to
award any appropriate relief in a cognizable cause of action brought
pursuant to a federal statute.
OSHA, 29 U.S.C.S. Sec. 660, et seq., says that the secretary shall
cause such investigation to be made as he deems appropriate, and if
upon such investigation, the secretary determines that the provisions
of the section have been violated, he shall bring an action. No
guidance is given as to what factors the secretary must or may consider
to constitute an investigation. The Secretary's discretion is a
significant limitation on the employee's right of redress. In addition,
the limitation period for filing an OSHA, 29 U.S.C.S. Sec. 600, et
seq., complaint is 30 days from discharge.
OSHA, 29 U.S.C.S. Sec. 660, Sec. 11(c) (1) declares discharge in
retaliation for filing a complaint to be a violation of OSHA.
The factfinding process in arbitration does not equate with
judicial factfinding. Rules of evidence do not usually apply; the
rights and procedures common to civil trials such as discovery,
compulsory process, cross-examination, and testimony under oath are
often severely limited or unavailable. The same observation can be made
about the investigation that the Secretary of Labor is directed to make
under OSHA, 29 U.S.C.S. Sec. 660, Sec. 11(c).
Under OSHA, 29 U.S.C.S. Sec. 660, Sec. 11(c), the decision to
pursue an employee's claim of retaliatory discharge is made by an
administrative agency. Unless there is some kind of administrative
appeal of OSHA's decision not to pursue the complaint, an employee is
limited to voting against an incumbent legislator or against the
current administration. A ballot box exercise provides less recourse
than a suit against one's labor union in federal or state trial court.
Under the Energy Reorganization Act (ERA), 42 U.S.C.S. Sec. 5851,
et seq., if the complainant has made a prima facie showing, 42 U.S.C.S.
Sec. 5851(b)(3)(A), upon receipt of a complaint the secretary shall
conduct an investigation without OSHA's ``as he deems appropriate''
language of the violation alleged. 42 U.S.C.S. Sec. 5851(b)(2)(A). If
the ERA investigation reveals the complaint has merit and after a
public hearing, the secretary shall order preliminary relief and may
order compensatory relief after a final order is entered. 42 U.S.C.S.
Sec. 5851(b)(2)(A) and (B). Further, an employee is given the right to
file suit in federal court to require compliance with such an order. 42
U.S.C.S. Sec. 5851(e).
Under the adequate alternative remedy test, the administrative
remedy provided by OSHA, 29 U.S.C.S. Sec. 660, Sec. 11(c), is less
adequate than the remedy under the Energy Reorganization Act, 42
U.S.C.S. Sec. 5851, et seq. Although OSHA entitles an employee to file
a complaint under 29 U.S.C.S. Sec. 600, Sec. 11(c), there is no
provision for an employee to bring a private action in federal court.
See 42 U.S.C.S. Sec. 2000e-5(b).
See U.S.C.S. Sec. 2000e-5(f)(1).
Under Title VII of the Civil Rights Act, 42 U.S.C.S. Sec. 2000a,
et seq., an aggrieved person is not left without a remedy if the
administrative agency does not pursue the complaint; the complainant is
given permission to sue. Also, there is no agency discretion language
in the Title VII provision providing for agency investigation. The
employee's remedy is more effective under Title VII than it is under
OSHA, 29 U.S.C.S. Sec. 660, et seq.
An employee is adequately protected contractually from retaliatory
discharge. Employees who are fully covered and protected by a
collective bargaining agreement are barred from bringing an action in
tort for a retaliatory discharge.
Syllabus by the Court
The remedy provided by the Occupational Safety and Health
Administration Sec. 11(c) (29 U.S.C. Sec. 660[c] [1994]) for
employees who allege that they have been discharged in retaliation for
filing complaints under that statute does not preclude the filing of a
Kansas common-law wrongful discharge claim under Kansas's public policy
exception to at-will employment.
On a certification of a question of law from the United States
Court of Appeals for the Tenth Circuit, ROBERT H. HENRY, judge.
COUNSEL: Stephen J. Dennis, of Overland Park, argued the cause and
was on the brief for appellant.
Rody P. Biggert, of Seyfarth, Shaw, Fairweather & Geraldson, of
Chicago, Illinois, argued the cause, andJohn L. Vratil, of Lathrop &
Gage, L.L.C., of Overland Park, was with him on the brief for appellee.
JUDGES: The opinion of the court was delivered by SIX, J.
OPINION BY: SIX
opinion
[*198] [**297] The opinion of the court was delivered by
SIX, J.: The United States Court of Appeals for the Tenth Circuit
has certified the following question to this court under K.S.A. 60-
3201:
``Does the remedy provided by OSHA Sec. 11(c) [***2] [29 U.S.C.
Sec. 660(c) (1994)] for employees who allege that they have been
discharged in retaliation for filing complaints under that statute
preclude the filing of a Kansas common law wrongful discharge claim
under Kansas's public policy exception to at-will employment?''
The answer is, ``no.''
This case arises out of the March 11, 1994, firing of David
Flenker, a worker at Willamette Industries, Inc.'s (Willamette)
corrugated paper manufacturing plant. Willamette's basis for firing
Flenker was that he failed to comply with the terms of the
rehabilitation agreement he had signed under Willamette's alcohol and
drug use policy. Flenker contends that he was fired because he [*199]
reported unsafe working conditions to Willamette and the Occupational
Safety and Health Administration (OSHA).
Our analysis of the certified question is advanced by posing and
answering two secondary questions.
1. Does the rule in Coleman v. Safeway Stores, Inc., 242 Kan. 804,
812-13, 752 P.2d 645 (1988), extend to situations other than the
collective bargaining agreement context? The answer is ``yes.''
2. If Coleman extends beyond the collective bargaining context, is
the remedy in OSHA Sec. 11(c) ``adequate''? [***3] The answer is
``no.''
facts
The Tenth Circuit Certification Order informs us that:
``Mr. Flenker worked as a Class C mechanic for Willamette, a
corrugated paper manufacturer. After a dispute with his temporary
supervisor concerning the safety of a piece of machinery known as a
corrugated downstacker device, Mr. Flenker made it known at the plant
that he intended to file a complaint with OSHA regarding the machinery.
``Mr. Flenker received a disciplinary warning as a result of the
dispute with his temporary supervisor. The next day, Mr. Flenker
received a three-day suspension from his supervisor for his improper
installation of gauges and for the improper repair of sprockets on the
bandler line.
``Mr. Flenker later filed his OSHA complaint, alleging violations
concerning the safety of the corrugated downstacker and other matters.
OSHA subsequently made a surprise investigation of the Willamette
plant. Although the downstacker met OSHA safety standards, OSHA found
that several of Mr. Flenker's other complaints were valid.
``About a month later, plant manager Dale McGinnis terminated Mr.
Flenker's employment, contending Mr. Flenker failed to obey the terms
of a Rehabilitation Agreement [***4] he had signed under Willamette's
Alcohol and Drug Use Policy. Mr. Flenker claims he was fired because he
reported unsafe working conditions to Willamette and to OSHA.
[**298] ``Shortly after his termination, Mr. Flenker filed a
section 11(c) retaliatory discharge complaint with OSHA, which he later
withdrew. Mr. Flenker was informed, presumably by an OSHA employee,
that because he had fixed the machine in question, which had been a
part of his section 11(c) claim, he no longer had a claim under OSHA.
In September 1995, he filed this action in state court. Willamette
removed the action to federal court pursuant to 28 U.S.C. Sec.
1446(b).
``Mr. Flenker claims that he was discharged because he exercised
his statutory right to report unsafe working conditions to his
employer. He seeks compensatory damages for lost wages and benefits and
emotional pain and suffering.''
[*200] Flenker chose to litigate his claims in state court;
however, Willamette removed the lawsuit to federal court.
discussion
We restate the certified question:
Does the remedy provided by OSHA Sec. 11(c) for employees who
allege that they have been discharged in retaliation for filing
complaints under that statute preclude the filing [***5] of a Kansas
common law wrongful discharge claim under Kansas' public policy
exception to at-will employment?
At-Will Employment and Exceptions
At-will employment is the general rule in Kansas. We said in
Johnston v. Farmers Alliance Mutual Ins. Co., 218 Kan. 543, 546, 545
P.2d 312 (1976): ``In the absence of a contract, expressed or implied,
between an employee and his employer covering the duration of
employment, the employment is terminable at the will of either party.''
We have recognized public policy exceptions to the at-will
employment doctrine. For a review of the Kansas case law, see Worth and
Landis, Fire at Will? The Status of Judicially Created Exceptions to
Employment-at-Will in Kansas, 64 J.K.B.A. 22 (1995). The so-called
whistle-blower's exception was first announced in Palmer v. Brown, 242
Kan. 893, 752 P.2d 685 (1988). Termination, in retaliation for the good
faith reporting of a co-worker's or employer's serious infraction of
rules, regulations, or law pertaining to public health, safety, and the
general welfare, is an actionable tort. 242 Kan. at 900. Palmer
involved an employee's reporting of allegedly improper medicaid billing
practices [***6] to ``unspecified authorities.'' 242 Kan. at 894.
Willamette argues that Flenker has no independent state law tort
claim, relying on Polson v. Davis, 895 F.2d 705 (10th Cir. 1990).
Federal courts in Kansas have followed Polson's interpretation of
Kansas law (exceptions to the at-will employment doctrine should be
limited to situations where there is no adequate alternative remedy),
e.g., Conner v. Schnuck Markets, Inc., 906 F. Supp. 606, 614 (D. Kan.
1995).
[*201] Polson observed that Kansas federal district courts were
split on whether the public policy exception should be extended to
cover conduct protected under a statutory scheme, specifically the
Kansas Act Against Discrimination (KAAD), K.S.A. 44-1001 et seq. 895
F.2d at 709. Wynn v. Boeing Military Airplane Co., 595 F. Supp. 727 (D.
Kan. 1984) held that the public policy exception permitting an
independent cause of action should apply in cases in which a worker's
termination is alleged to stem from conduct proscribed by KAAD. Judge
Theis in Wynn reasoned that the fact that the various remedies might
differ is sufficient to require recognition of a state common law
remedy. 895 F.2d at 709. [***7]
In contrast, Judge Rogers in Tarr v. Riberglass, Inc., 1984 U.S.
Dist. LEXIS 19784, No. 83-4234, 1984 WL 1481 (D. Kan. February 3,
1984), and Judge O'Connor in the lower Polson decision, 635 F. Supp.
1130 (D. Kan. 1986), and Robinson v. Colt Indus. Operating Corp., No.
84-2471 (unpublished D. Kan. March 5, 1986), held that the availability
of remedies under KAAD precludes expanding the remedies available at
common law. 895 F.2d at 709.
Polson chose to follow the preclusive approach, discerning in
Coleman v. Safeway Stores, Inc., 242 Kan. at 813-14, a reliance on
``inadequacy of arbitration to compensate employees for torts committed
by employers.'' 895 F.2d at 709. Polson [**299] concluded: ``It appears
that we must investigate the adequacy of the alternative remedy before
classifying a situation as being under the public policy exception to
the employment-at-will doctrine.'' 895 F.2d at 709. Polson reasoned
that this court would adopt the view that KAAD provides an adequate and
exclusive state remedy for violations of the public policy at issue.
895 F.2d at 709. We note, however, that Polson seems to employ a strict
view of ``adequate,'' finding there is no evidence that the [***8]
remedies provided for in KAAD were ``constitutionally inadequate to
compensate plaintiff,'' or ``so inadequate to enforce the stated public
policy as to require bolstering by a common law cause of action.'' 895
F.2d at 709-10.
Coleman v. Safeway Stores
Our discussion of Polson necessarily leads to a review ofColeman.
Coleman is important here because our answer to the certified [*202]
question is based on our precedent, not on federal rulings interpreting
Kansas law.
Coleman overruled Cox v. United Technologies, 240 Kan. 95, 727 P.2d
456 (1986), Smith v. United Technologies, 240 Kan. 562, 731 P.2d 871
(1987), and Armstrong v. Goldblatt Tool Co., 242 Kan. 164, 747 P.2d 119
(1987). The overruled cases involved the interrelationship of Kansas
tort law and the law of labor union contracts. In each of the three
overruled cases: (1) a discharged employee was covered by a collective
bargaining agreement, (2) the agreement prohibited the employee's
discharge except for just cause, and (3) the employee was held not to
have a cause of action in tort for wrongful discharge. Colemanreasoned
that a retaliatory discharge action for filing a workers compensation
[***9] claim is based on a violation of state public policy independent
of a collective bargaining agreement. 242 Kan. 804, Syl. P1, 752 P.2d
645. Coleman also concluded that the arbitration procedures provided
for in the collective bargaining agreement were a ``limited remedy,''
and might not result in the employee's right being ``adequately
protected.'' 242 Kan. at 813-14.
Preemption and Alternate Remedies Preclusion
Preemption is not an issue here. Willamette does not contend that
OSHA preempts state common-law retaliation claims. The Tenth Circuit in
a footnote to its certification order says ``Congress did not intend
for OSHA Sec. 11(c) to occupy this field of law, nor does OSHA
conflict with state law, thereby preempting it. See, Schweiss v.
Chrysler Motors Corp., 922 F.2d 473, 475-76 (8th Cir. 1990).''
Preemption is an application of law concept in which federal law must
be applied to the exclusion of state law for uniformity of
interpretation. English v. General Electric Co., 496 U.S. 72, 110 L.
Ed. 2d 65, 110 S. Ct. 2270 (1990); see also, Annot., Federal Pre-
Emption of Whistleblower's State-Law Action For Wrongful Retaliation,
99 A.L.R. Fed. 775, 810.
The alternative remedies [***10] doctrine at issue here, referenced
sometimes as preclusion, is a substitution of law concept. Under the
alternative remedies doctrine, a state or federal statute would be
substituted for a state retaliation claim if the substituted statute
[*203] provides an adequate alternative remedy. Bair v. Peck, 248 Kan.
824, 838, 811 P.2d 1176 (1991). Masters v. Daniel, Intern. Corp., 917
F.2d 455, 457 (10th Cir. 1990), relied on Polson.The question to ask in
resolving recognition of a state tort claim for retaliatory discharge
is whether the statutory remedy is adequate and thus precludes the
common-law remedy. 917 F.2d at 457 (held the Energy Reorganization Act,
42 U.S.C. Sec. 5851 et seq. [1994], provided an adequate alternative
remedy).
Willamette argues that ``the majority of other jurisdictions that
have addressed the issue preclude common law retaliatory discharge
claims when there is an adequate alternative state or federal remedy.''
The large number of cases Willamette cites is misleading. Most of them
simply state the court's conclusion without an analysis of why the
alternative remedy is adequate. See Walsh v. Consolidated Freightways,
Inc., 278 Ore. 347, 563 P.2d 1205, 1208 [***11] (``We feel that
existing remedies are adequate.'') Furthermore, two of Willamette's
cases, List v. Anchor Paint Mfg. Co., 910 P.2d 1011, 1014 (Okla. 1996)
(finding that the Age Discrimination in Employment Act, 29 U.S.C. Sec.
621 et [**300] seq. [1994], precludes retaliatory discharge claim), and
Wehr v. Burroughs Corp., 438 F. Supp. 1052 (E.D. Pa. 1977) (``The
legislature would have provided additional relief in the [Human Rights]
statute if it thought it necessary.'') evaluate the adequacy of
statutory schemes other than OSHA. Listand Wehr are not controlling of
the ultimate question here, whether OSHA, in particular, provides an
adequate alternative remedy. Because of the Coleman rule that an
alternative remedy must be adequate, whether a statute other than OSHA
is adequate is irrelevant here. The question is whether OSHA's remedy
is adequate.
The Sub-issues
We now examine whether Coleman extends to situations other than
collective bargaining agreements. The parties have skirted this inquiry
by focusing on Polsonand other federal cases, in which the
interrelation of state law and usually federal statutory schemes was
directly presented. [***12] Coleman's reasoning is a dominant influence
in answering the certified question. Although Coleman arose in the
collective bargaining context, we extend its ruling to employees [*204]
protected by statutory schemes such as OSHA. In Coleman, we said: ``Our
recognition of such causes of action is limited to wrongful discharge
in violation of state public policy clearly declared by the legislature
or by the courts.'' 242 Kan. 804, Syl. P4, 752 P.2d 645. Applicability
of the Coleman rule here, therefore, depends on whether whistle-blowing
is protected by a clearly declared public policy. It is. Palmerheld:
``It is declared the public policy of the State of Kansas to encourage
citizens to report infractions of the law pertaining to public health,
safety, and the general welfare.'' 242 Kan. 893, Syl. P1, 752 P.2d 685.
Having extended Coleman's shadow beyond the facts of collective
bargaining, we next ask: Is the remedy in OSHA Sec. 11(c) [29 U.S.C.
Sec. 660(c)] ``adequate''? We conclude it is not.
OSHA Sec. 11(c) states:
``(1) No person shall discharge or in any manner discriminate
against any employee because such employee has filed any complaint or
instituted or caused to be instituted any proceeding [***13] under or
related to this chapter or has testified or is about to testify in any
such proceeding or because of the exercise by such employee on behalf
of himself or others of any right afforded by this chapter.
``(2) Any employee who believes that he has been discharged or
otherwise discriminated against by any person in violation of this
subsection may, within thirty days after such violation occurs, file a
complaint with the Secretary alleging such discrimination. Upon receipt
of such complaint, the Secretary shall cause such investigation to be
made as he deems appropriate. If upon such investigation, the Secretary
determines that the provisions of this subsection have been violated,
he shall bring an action in any appropriate United States district
court against such person. In any such action the United States
district court shall have jurisdiction, for cause shown to restrain
violations of paragraph (1) of this subsection and order all
appropriate relief including rehiring or reinstatement of the employee
to his former position with back pay.'' 29 U.S.C. Sec. 660(c)(1) and
(2) (1994).
Willamette cites six cases in which the statutory remedies in OSHA
were held to be adequate: [***14] Miles v. Martin Marietta Corp., 861
F. Supp. 73 (D. Colo. 1994); King v. Fox Grocery Co., 642 F. Supp. 288,
290 (W.D. Pa. 1986); Grant v. Butler, 590 So. 2d 254 (Ala. 1991);
Corbin v. Sinclair Marketing, Inc., 684 P.2d 265 (Colo. App. 1984);
Burnham v. Karl & Gelb, P.C., 1997 Conn. Super. LEXIS 645, *11-15, 1997
WL 133399 *5-6 (Conn. Super. Ct. 1997); Walsh v. Consolidated
Freightways, [*205] 278 Ore. 347, 563 P.2d 1205 (1977). None of the six
cases focuses on a Coleman-style search for an adequate alternative
remedy.
Willamette acknowledges four cases from New Jersey and California
support Flenker's position that OSHA's remedies should not preclude a
state common-law claim for retaliatory discharge: Jenkins v. Family
Health Program, 214 Cal. App. 3d 440, 262 Cal. Rptr. 798 (1989);
Hentzel v. Singer Co., 138 Cal. App. 3d 290, 188 Cal. Rptr. 159 (1982);
Cerracchio v. Alden Leeds, Inc., 223 N.J. Super. 435, [**301] 538 A.2d
1292 (1988); and Lepore v. National Tool and Mfg. Co., 224 N.J. Super.
463, 540 A.2d 1296 (1988).
The Ohio Supreme Court has also permitted a common-law tort
retaliatory discharge claim in an OSHA setting. Kulch v. Structural
Fibers, Inc., 78 Ohio St. 3d 134, [***15] 677 N.E.2d 308 (1997). Kulch
held that ``an at-will employee who is discharged or disciplined for
filing a complaint with OSHA concerning matters of health and safety in
the workplace is entitled to maintain a common-law tort action against
the employer for wrongful discharge/discipline in violation of public
policy.'' 78 Ohio St. 3d at 162.
The Missouri Court of Appeals in Shawcross v. Pyro Products, Inc.,
916 S.W.2d 342 (1995), a retaliatory discharge preemption case, has
analyzed the inadequacy of OSHA's remedy:
``OSHA only allows an employee to file a complaint with the
Secretary of Labor who then decides whether to bring an action on the
employee's behalf. 29 U.S.C. Sec. 660(c)(2) (1985). The employee's
right to relief is even further restricted in that the complaint must
be filed within thirty days of the discrimination or discharge. Id. The
decision to assert a cause of action is in the sole discretion of the
Secretary of Labor and the statute affords the employee no appeal if
the Secretary declines to file suit. Id. It is obvious from the
language of the two statutes that although an employee may obtain any
type of relief possible under FLSA [Fair Labor [***16] Standards Act]
through the employee's own actions, the relief available under OSHA is
limited to what the Secretary of Labor deems appropriate. It should
also be noted that unless an employee acts immediately and files a
complaint with the Secretary of Labor, there is no remedy available
without the public policy exception.'' 916 S.W.2d at 345.
Because of Coleman's specific requirement that an alternative
remedy be ``adequate,'' we examine OSHA Sec. 11 (c) in detail. The
remedy under Sec. 11(c), as Shawcross observes, is the right to file a
complaint with the Secretary of Labor. Willamette overstates what
[*206] happens next. Willamette suggests that upon receiving the
complaint, ``the Secretary is directed to investigate the complaint,''
and if the Secretary finds a violation, the Secretary ``shall bring an
action in any appropriate district court'' to recover ``all appropriate
relief.'' Willamette cites cases that hold that ``all appropriate
relief'' in the statute includes punitive damages,e.g., Reich v.
Skyline Terrace, Inc., 977 F. Supp. 1141 (N.D. Okla. 1997), and that
the ``federal courts have the power to award any appropriate relief in
a cognizable cause of action brought pursuant [***17] to a federal
statute.'' Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 71,
117 L. Ed. 2d 208, 112 S. Ct. 1028 (1992).
Willamette neglects to point out clearly that OSHA Sec. 11(c) says
that the Secretary ``shall cause such investigation to be made as he
deems appropriate,'' and ``if upon such investigation, the Secretary
determines that the provisions of this subsection have been violated,
he shall bring an action.'' (Emphasis added.) As the certification
order notes no guidance is given ``as to what factors the Secretary
must or may consider to constitute an investigation.'' Flenker
correctly comments that the Secretary's discretion is a significant
limitation on the employee's right of redress. What would, in a common-
law tort action, be the decision of the plaintiff and plaintiff's
counsel is, under Sec. 11(c), the decision of a government employee.
The concerns of the government employee could range from budget
constraints to political pressure. In addition the limitation period
for filing an OSHA Sec. 11(c) complaint is 30 days from discharge.
The Tenth Circuit in its certification order remarked: ``This
remedy [section 11(c)] has been recognized as a `limited' [***18] one,
providing only for administrative proceedings and suit in federal court
which may be brought by the Secretary if the Secretary so elects.
Holmes v. Schneider Power Corp., 628 F. Supp. 937, 939 (W.D. Pa.),
aff'd 806 F.2d 252 (3d. Cir. 1986).'' We agree.
The facts here illustrate the type of agency ruling for which the
employee cannot receive redress. The certification order says that
after Flenker filed his complaint with OSHA, ``Mr. Flenker was
informed, presumably by [**302] an OSHA employee, that because he had
fixed the machine in question, which had been a part of his section
[*207] 11(c) claim, he no longer had a claim under OSHA.'' Section
11(c) (1) declares discharge in retaliation for filing a complaint to
be a violation of OSHA. Fixing the defective equipment in question does
not cancel the wrong of retaliatory discharge. The OSHA statute,
however, does not appear to provide a second chance for Flenker to try
to convince the agency to see things his way.
The inadequacy of the OSHA remedy is not outweighed by the factors
cited by Willamette. Willamette suggests that under OSHA (1) there is a
lower burden of proof, (2) the Secretary of Labor has considerable
resources and expertise [***19] in investigating the complaint, (3) the
available federal discovery process is for gathering evidence for use
at trial, and (4) the employee has the Secretary's experienced
representation at trial without cost to the employee. If the complaint
is only half-heartedly investigated, or a suit is not filed by the
Secretary of Labor, the OSHA factors do not benefit the discharged
employee at all.
In evaluating the collective bargaining remedy we held to be
inadequate in Coleman, we noted: ``The factfinding process in
arbitration does not equate with judicial factfinding. Rules of
evidence do not usually apply; the rights and procedures common to
civil trials such as discovery, compulsory process, cross-examination,
and testimony under oath are often severely limited or unavailable.''
242 Kan. at 814 (citing Alexander v. Gardner-Denver Co., 415 U.S. 36,
56-57, 39 L. Ed. 2d 147, 94 S. Ct. 1011 [1974]). The same observation
can be made about the investigation that the Secretary of Labor is
directed to make under OSHA Sec. 11(c).
We noted in Coleman that the decision to enter a collective
bargaining agreement is made by majority vote. Such agreements are not
designed to protect [***20] individual workers, but to balance the
individual against the collective interest. We said:
``The potential result of a union's emphasis on the collective good
is that, in some cases, the employee may be left without a remedy for
an employer's violation of state public policy. Here, Coleman's union
has decided for the good of the union not to support Coleman's claim by
arbitration. If there is no independent state action for retaliatory
discharge, and no avenue for Coleman to pursue her state public policy
right against her employer, Coleman is limited to proceeding against
her representative, the union, in federal or state court under * * *
the [*208] [Labor Management Relations Act] for her union's breach of
its duty of fair representation.'' 242 Kan. at 814-15.
Similarly, under OSHA Sec. 11(c), the decision to pursue an
employee's claim of retaliatory discharge is made by an administrative
agency. Unless there is some kind of administrative appeal of OSHA's
decision not to pursue the complaint, which neither party has suggested
exists, an employee is limited to voting against an incumbent
legislator or against the current administration. A ballot box exercise
provides less recourse than [***21] a suit against one's labor union in
federal or state court, which we found inadequate in Coleman. 242 Kan.
at 814-15.
Other Federal Statutory Remedies
It is instructive to compare OSHA Sec. 11(c) to other federal
statutory remedies. Under the Energy Reorganization Act (ERA), if ``the
complainant has made a prima facie showing,'' 42 U.S.C. Sec.
5851(b)(3)(A), ``upon receipt of a complaint * * * the Secretary shall
conduct an investigation [without OSHA's `as he deems appropriate'
language] of the violation alleged.'' (Emphasis added.) Sec.
5851(b)(2)(A). If the ERA investigation reveals the complaint has merit
and after a public hearing, the Secretary shall order preliminary
relief and may order compensatory relief after a final order is
entered. 42 U.S.C. Sec. 5851(b)(2)(A) and (B). Further, an employee is
given the right to file suit in federal court to require compliance
with such an order. 42 U.S.C. Sec. 5851(e).
Under the adequate alternative remedy test, the administrative
remedy provided by OSHA Sec. 11(c) is less adequate than the remedy
under the ERA. Although OSHA entitles an employee to file a complaint
under [**303] Sec. 11(c), there is no provision for an employee to
bring a private [***22] action in federal court.
We next turn to examine the employment discrimination provisions of
the Civil Rights Act. 42 U.S.C. Sec. 2000a et seq. (1994). Title VII
provides in part:
``Whenever a charge is filed * * * alleging that an employer * * *
has engaged in an unlawful employment practice, the [Equal Employment
Opportunity] Commission shall serve a notice of the charge * * * and
shall make an investigation thereof.'' 42 U.S.C. Sec. 2000e-5(b)
(1994).
[*209] ``The person * * * aggrieved shall have the right to
intervene in a civil action brought by the Commission. * * * If a
charge filed with the Commission * * * is dismissed by the Commission,
or if within one hundred and eighty days from the filing of such charge
* * * the Commission has not filed a civil action under this section *
* * the Commission * * * shall so notify the person aggrieved and
within 90 days * * * a civil action may be brought against the
respondent named in the charge * * * by the person claiming to be
aggrieved.'' 42 U.S.C. Sec. 2000e-5(f)(1).
Under Title VII, the aggrieved person is not left without a remedy
if the administrative agency does not pursue the complaint; the
complainant is given permission to sue. [***23] Also, there is no
agency discretion language in the Title VII provision providing for
agency investigation. The employee's remedy is more effective under
Title VII than it is under OSHA.
Polson was correct in surmising the Kansas rule to be that an
adequate alternative remedy precludes a common-law retaliatory
discharge action. However, neither the Polson facts nor KAAD is before
us here. This is an OSHA case. We are not reviewing Polson's conclusion
that we would find that KAAD provided an ``adequate and exclusive state
remedy for violations of the public policy enunciated therein.'' 895
F.2d at 706.
Coleman, while never specifically saying so, assumes that an
adequate alternative remedy would preclude a common-law cause of action
for retaliatory discharge. The cases overruled by Coleman (Cox,
Smith,and Armstrong) make the same assumption.
In Cox, we said: ``An employee is adequately protected
contractually from retaliatory discharge.'' (Emphasis added.) 240 Kan.
at 99. In Smith we said, ``In Cox, we declined to extend the tort of
retaliatory discharge * * * [citation omitted] to include an employee
adequately protected [***24] contractually from such discharge by a
collective bargaining agreement.'' (Emphasis added.) 240 Kan. at 572.
In Armstrong, we held that the decision in Cox controlled, and
plaintiffs who are ``fully covered and protected by a collective
bargaining agreement'' are barred from bringing an action in tort for a
retaliatory discharge. (Emphasis added.) 242 Kan. at 168.
The Colemanmajority found the arguments in the Cox and Armstrong
dissents persuasive, and, applying the adequate alternative [*210]
remedy test, held that Cox ``did not fully recognize the limited remedy
afforded the injured employee through collective bargaining.'' 242 Kan.
at 813. Thus, Coleman overruled Cox, Smith, and Armstrong on the ground
that the overruled cases wrongly found the remedy under the collective
bargaining agreements to be adequate, not on the ground that
``adequacy'' was not the test. Coleman, Cox, Smith, and Armstrong apply
the same ``adequate remedy'' test.
We answer the certified question in the negative, on the ground
that OSHA Sec. 11(c) (29 U.S.C. Sec. 660[c]) does not provide an
adequate alternative remedy under the facts certified [***25] here.
______
SANDRA SHAWCROSS, and GAYE BAILEY, Plaintiffs/Appellants,
vs. PYRO PRODUCTS, INC., Defendant/Respondent.
no. 67859
COURT OF APPEALS OF MISSOURI, EASTERN DISTRICT, DIVISION FOUR
916 S.W.2d 342; 1995 Mo. App. LEXIS 2126
December 26, 1995, OPINION FILED
PRIOR HISTORY: [**1] Appeal from the Circuit Court of Jefferson
County. Hon. John L. Anderson.
DISPOSITION: We reverse and remand for further proceedings.
CASE SUMMARY:
PROCEDURAL POSTURE: Plaintiff former employees sought review of a
decision of the Circuit Court of Jefferson County (Missouri), which
dismissed, for failure to state a claim upon which relief could be
granted, their petition against defendant former employer for wrongful
discharge under Missouri's public policy exception to the employment
at-will doctrine, based on their allegation that they were fired in
retaliation for complaints about safety problems.
OVERVIEW: The employees alleged that the employer's fireworks
production factory was unsafe. When their employer learned that they
had contacted the United States Department of Labor to determine if any
of the conditions at the factory plant violated the Occupational Safety
and Health Act (OSHA), they were fired. The employer argued that OSHA
provided their exclusive remedy. The court reversed the trial court's
dismissal of their petition against the employer for wrongful
discharge. The court held that the employees' allegations were
sufficient to state a claim for wrongful discharge under Missouri's
public policy exception to the employment at will doctrine for a
discharge precipitated by an employee's report of violations of law or
public policy. Under OSHA, 29 U.S.C.S. Sec. 660(c)(2), an employee
could file a complaint for wrongful discharge within 30 days after the
discharge, but the Secretary of Labor had sole discretion to determine
whether to bring a wrongful discharge action in federal court. Because
OSHA did not provide a complete remedy, it did not displace the common
law remedy under Missouri's public policy exception to the employment
at will doctrine.
OUTCOME: The court reversed the circuit court's dismissal of the
employees' petition.
CORE TERMS: public policy exception, at-will, wrongful discharge,
statutory remedy, state law, pre-emption, wrongful discharge,
occupational safety, cause of action, retaliatory discharge, reporting,
working conditions, plant, Health Act OSHA, Energy Reorganization Act,
federal law, common law, state remedies, employee's rights, remedy
provided, remedy available, sole discretion, remedial measures,
reinstatement, discharging, discharged, pre-empted, pre-empts,
contacted, factory
In reviewing a trial court's dismissal of an action, the appellate
court accepts as true the facts properly pleaded, giving the averments
a liberal construction and making those reasonable inferences fairly
deducible from the facts stated. Viewing the pleadings in this light,
the court determines if the pleader has demonstrated any basis for
relief.
An employer may discharge an at-will employee, with or without
cause, and not be subject to wrongful discharge liability. However,
while employers may terminate employees at-will for no reason, or for
an arbitrary or irrational reason, there is no right to discharge an
employee for an unlawful reason or purpose which goes against public
policy.
When the discharge of an at-will employee violates a clear mandate
of public policy, the employee has a wrongful discharge claim. Missouri
courts have recognized four categories of cases under the public policy
exception: (1) discharge of an employee because of his or her refusal
to perform an illegal act; (2) discharge because an employee reported
violations of law or public policy to superiors or public authorities;
(3) discharge because an employee participated in acts that public
policy would encourage, such as jury duty, seeking public office,
asserting a right to collective bargaining, or joining a union; and (4)
discharge because an employee filed a worker's compensation claim.
Missouri courts have limited the public policy exception to apply only
to those cases when the discharge of an employee violates a
constitutional provision, a statute, or a regulation based on a
statute.
The Occupational Safety and Health Act (OSHA) prohibits employers
from discharging or discriminating in any way against an employee
because that employee has filed a complaint, instituted an action, or
otherwise exercised any right available under OSHA. 29 U.S.C.S. Sec.
660(c)(1).
The Occupational Safety and Health Act permits an employee to file
a complaint with the Secretary of Labor within 30 days after the
discrimination or discharge has occurred. 29 U.S.C.S. Sec. 660(c)(2).
The Secretary has sole discretion in deciding whether to bring an
action in federal court regarding the employee's rights. 29 U.S.C.S.
Sec. 660(c)(2). Should the Secretary choose to do so, the statute
allows for reinstatement of the employee to the employee's former
position with back pay. 29 U.S.C.S. Sec. 660(c)(2). The statute
provides no means of appeal for an employee whose complaint is not
acted upon by the Secretary. 29 U.S.C.S. Sec. 660(c)(2).
The Occupational Safety and Health Act does not bar a state
wrongful discharge claim.
The remedial measures provided for in the Occupational Safety and
Health Act do not preempt a state law wrongful discharge claim.
Preemption can occur when (1) federal law expressly preempts state
law; (2) federal law occupies the field so completely that preemption
may be inferred; or (3) there is a conflict between federal and state
law.
The Occupational Safety and Health Act only allows an employee to
file a complaint with the Secretary of Labor who then decides whether
to bring an action on the employee's behalf. 29 U.S.C.S. Sec.
660(c)(2). The employee's right to relief is even further restricted in
that the complaint must be filed within 30 days of the discrimination
or discharge. 29 U.S.C.S. Sec. 660(c)(2). The decision to assert a
cause of action is in the sole discretion of the Secretary of Labor and
the statute affords the employee no appeal if the Secretary declines to
file suit.
A statutory remedy shall not be deemed to supersede and displace
remedies otherwise available at common law in the absence of language
to that effect unless the statutory remedy fully comprehends and
envelopes the remedies provided by common law.
JUDGES: CLIFFORD H. AHRENS, Presiding Judge. James A. Pudlowski and
Stanley A. Grimm, JJ., concur.
OPINION BY: CLIFFORD H. AHRENS
opinion
[*343] Plaintiffs appeal the circuit court's dismissal of their
petition for wrongful discharge against their employer under Missouri's
public policy exception to the employment at-will doctrine for failure
to state a claim upon which relief can be granted. Plaintiffs alleged
defendant violated public policy by firing them in retaliation for
filing complaints regarding the safety problems in defendant's factory.
We reverse and remand.
In reviewing a trial court's dismissal of an action, ``we accept as
true the facts properly pleaded, giving the averments a liberal
construction and making those reasonable inferences fairly deducible
from the facts stated.'' Petersimes v. Crane Co., 835 S.W.2d 514, 515
(Mo. App. 1992). Viewing the pleadings in this light, we determine if
the pleader has demonstrated any basis for relief. Luethans v.
Washington University, 838 S.W.2d 117, 119 (Mo. App. 1992).
Plaintiffs, in [**2] their petition, alleged the following facts:
Plaintiffs, Sandra Shawcross and Gaye Bailey were employed by defendant
Pyro Products, Inc., in its fireworks production factory in Jefferson
County, Missouri. Plaintiffs concede they were employees at-will. On
numerous occasions prior to March 23, 1994, they complained to
defendant that working conditions in defendant's plant were unsafe.
Plaintiffs also contacted the United States Department of Labor to
determine if any of the conditions at defendant's plant violated the
Occupational Safety and Health Act (``OSHA''). On March 23, 1994,
plaintiffs met with Ronald Walker, an officer of defendant, discussed
their concerns regarding safety in the plant, and informed Mr. Walker
that they had contacted the Department of Labor. On March 24, 1994,
defendant discharged plaintiffs as a direct result of their contacting
the Department of Labor.
Generally, an employer may discharge an at-will employee, with or
without cause, and not be subject to wrongful discharge liability. Dake
v. Tuell, 687 S.W.2d 191, 193 (Mo. 1985). However, this court, while
recognizing that employers may terminate employees at-will ``for no
reason, or for an arbitrary or [**3] irrational reason,'' has
specifically determined that there is no right to discharge an employee
for an unlawful reason or purpose which goes against public policy, and
has recognized the public policy exception to employment at-will.
Petersimes, 835 S.W.2d at 516.
When the discharge of an at-will employee violates a clear mandate
of public policy, this court has determined that the employee has a
wrongful discharge claim. Id. The courts of this state have recognized
four categories of cases under the public policy exception: (1)
discharge of an employee because of his or her refusal to perform an
illegal act; (2) discharge because an employee reported violations of
law or public policy to superiors or public authorities; (3) discharge
because an employee participated in acts that public policy would
encourage, such as jury duty, seeking public office, asserting a right
to collective bargaining, or joining a union; and (4) discharge because
an employee filed a worker's compensation claim. Lynch v. Blanke Baer
and Bowey Krimko, Inc., 901 S.W.2d 147, 150 (Mo. App. 1995).
The courts of this state have limited the public policy exception
to apply only to those cases when [**4] the discharge of an employee
violates a constitutional provision, a statute, or a regulation based
on a statute. See Luethans, 838 S.W.2d at 120.
Plaintiffs' petition asserts a wrongful discharge action under
Missouri's public policy exception to the employment at-will doctrine.
[*344] Plaintiffs alleged in their petition that their discharge by
defendant violated OSHA because that section protects employees
reporting to the Department of Labor from retaliatory discharge. 29
U.S.C. Sec. 660(c)(1) (1985). OSHA prohibits employers from
discharging or discriminating in any way against an employee because
that employee has filed a complaint, instituted an action, or otherwise
exercised any right available under OSHA. Id.
Plaintiffs further alleged that because the purpose of OSHA is to
assure workers ``safe and healthy working conditions'' and because OSHA
prohibits employers from discharging employees for exercising their
rights under OSHA, defendant's discharge of plaintiffs was a violation
of public policy. Plaintiffs alleged they were employed by defendant
at-will. They alleged that OSHA promotes public policy by ensuring safe
working conditions. Finally, they alleged defendant [**5] violated
public policy when it fired plaintiffs for reporting to the Department
of Labor. We believe plaintiffs have alleged facts sufficient to state
a claim for wrongful discharge under Missouri's public policy
exception.
Defendant argues that the public policy exception does not apply to
cases such as this one where the statute, which is the basis for the
public policy exception, provides its own remedy. OSHA permits an
employee to file a complaint with the Secretary of Labor within thirty
days after the discrimination or discharge has occurred. 29 U.S.C.
Sec. 660(c)(2) (1985). The Secretary has sole discretion in deciding
whether to bring an action in federal court regarding the employee's
rights. Id. Should the Secretary choose to do so, the statute allows
for reinstatement of the employee to the employee's former position
with back pay. Id. The statute provides no means of appeal for an
employee whose complaint is not acted upon by the Secretary. Id.
Defendant contends the remedy provided by the statute is the exclusive
remedy available to employees in those situations.
Defendant bases its argument on this court's decision in Hendrix v.
Wainwright Industries, [**6] 755 S.W.2d 411 (Mo. App. 1988). The
employee in Hendrix did not allege the employer's actions violated
Missouri's public policy, as plaintiffs have in the instant case. 755
S.W.2d at 412-413. The petition in Hendrix asserted only a conspiracy
to violate OSHA. However, defendant points to the general statement of
law in Hendrix:
Any remedy for retaliatory discharge must come from within the
agency. There is no private cause of action for violation of the
Occupational Safety and Health Act.
Id. at 413. This pronouncement of the law was taken from Taylor v.
Brighton Corp., 616 F.2d 256, 264 (6th Cir. 1980). Since Taylor, the
Eighth Circuit has examined the same issue and determined that OSHA
does not bar a state wrongful discharge claim. Schweiss v. Chrysler
Motors Corp., 922 F.2d 473, 475 (8th Cir. 1990). In Schweiss, as in the
instant case, the plaintiff alleged she was discharged for reporting
violations of OSHA at her workplace. Schweiss, 922 F.2d at 474. The
Eighth Circuit determined that those allegations were sufficient to
state a cognizable claim under Missouri law. Id. The only issue which
remained for the court's decision [**7] was whether OSHA pre-empted
plaintiff's state law claim. Id.
The Eighth Circuit found no language in the statute expressly pre-
empting state law. Schweiss, 922 F.2d at 474. It also found no reason
to infer pre-emption from the language of the statute, noting that
``[OSHA] expressly allows for state regulation in the occupational
safety field of law.'' Id. The court specifically held that the
remedial measures provided for in OSHA did not preempt a state law
wrongful discharge claim. Id. at 475.
In reaching its decision in Schweiss, the Eighth Circuit relied on
a recently decided U.S. Supreme Court case, English v. General Electric
Co., 496 U.S. 72, 78-79, 110 S. Ct. 2270, 110 L. Ed. 2d 65, 74 (1990).
In English, the Supreme Court examined whether the Energy
Reorganization Act of 1974 pre-empted a state law tort claim. That
statute provides remedial measures to retaliatory discharge similar to
those provided for in OSHA. 42 U.S.C. Sec. 5851 (1995). Although
defendant disagrees, we believe the issue in this case is also whether
[*345] OSHA pre-empts plaintiff's wrongful discharge claim. Pre-emption
can occur when: (1) federal law expressly pre-empts [**8] state law;
(2) federal law occupies the field so completely that pre-emption may
be inferred; or (3) there is a conflict between federal and state law.
English, 496 U.S. at 78-79. The Supreme Court found no pre-emption of
the state tort claim by the federal statute, noting, ``ordinarily the
mere existence of a federal regulatory or enforcement scheme, even one
as detailed as [the Energy Reorganization Act], does not by itself
imply pre-emption of state remedies.'' Id. at 80. The court found no
actual conflict between the federal and state remedies, and thus no
pre-emption. Id. at 81. The Eighth Circuit applied English to the facts
of Schweiss and held that OSHA allows a state wrongful discharge claim
under Missouri's public policy exception. Schweiss, 922 F.2d at 475.
We believe Schweiss and English promote the more just policy of
allowing plaintiffs remedies in addition to the single narrow remedy
provided by OSHA. For these reasons, we follow Schweiss and English.
Defendant further contends that state law simply does not apply
where a federal statutory remedy exists, regardless of preemption.
Defendant relies on Clark v. Beverly Enterprises-Missouri, [**9] 872
S.W.2d 522, 525 (Mo. App. 1994) for this rule. However, the rule is
merely dicta in Clark. The statute in Clark did not provide a remedy
and plaintiff was allowed to assert a private cause of action.
Defendant also relies on Prewitt v. Factory Motor Parts, Inc., 747 F.
Supp. 560, 565 (W.D. Mo. 1990), which was cited by the Western District
in Clark as authority for this rule. Prewitt is distinguishable.
The employee in Prewitt brought suit for wrongful discharge under
the Fair Labor Standards Act (``FLSA''). 29 U.S.C. Sec. 215(a)(3)
(1965). In Count I of the employee's complaint, she alleged wrongful
discharge under FLSA. Id. at 561. Count II was a claim for wrongful
discharge under Missouri's public policy exception to the employment
at-will doctrine. Id. The federal district court concluded the employee
had not stated a claim upon which relief could be granted as to Count
II. 747 F. Supp. at 565. The court reasoned that FLSA provided a
complete range of remedies for the employee and thus the public policy
exception did not apply in that instance. Id.
The distinction between Prewitt and the instant case lies in the
statutory remedies. [**10] FLSA allows an employee to bring a claim in
either federal or state court to recover ``employment, reinstatement,
promotion, and the payment of lost wages and an additional equal amount
as liquidated damages.'' 29 U.S.C. Sec. 216(b) (1995 Supp.). In
contrast, OSHA only allows an employee to file a complaint with the
Secretary of Labor who then decides whether to bring an action on the
employee's behalf. 29 U.S.C. Sec. 660(c)(2) (1985). The employee's
right to relief is even further restricted in that the complaint must
be filed within thirty days of the discrimination or discharge. Id. The
decision to assert a cause of action is in the sole discretion of the
Secretary of Labor and the statute affords the employee no appeal if
the Secretary declines to file suit. Id. It is obvious from the
language of the two statutes that although an employee may obtain any
type of relief possible under FLSA through the employee's own actions,
the relief available under OSHA is limited to what the Secretary of
Labor deems appropriate. It should also be noted that unless an
employee acts immediately and files a complaint with the Secretary of
Labor, there is no remedy available without the public [**11] policy
exception. We agree that, in instances such as Prewitt, a complete
statutory remedy should replace the common law remedy, but such a
result should not occur, in cases such as this, where the statutory
remedy is incomplete.
A statutory remedy shall not be deemed to supersede and displace
remedies otherwise available at common law in the absence of language
to that effect unless the statutory remedy fully comprehends and
envelopes the remedies provided by common law.
Prewitt, 747 F. Supp. at 565, citing Detling v. Edelbrock, 671
S.W.2d 265, 271-272 (Mo. banc 1984).
We find OSHA does not provide a complete remedy and therefore we
conclude that Missouri's public policy exception is applicable [*346]
notwithstanding the existence of the federal statutory remedy under
OSHA. Plaintiffs have stated a claim of wrongful discharge under the
public policy exception to Missouri's employment at-will doctrine.\1\
We reverse and remand for further proceedings.
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\1\ We express no opinion on the merits of plaintiffs' claims.
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______
ROGER WOOD, APPELLANT v. DEPARTMENT OF LABOR AND
ELAINE CHAO, SECRETARY OF LABOR, APPELLEES
no. 00-5297
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
275 F.3d 107; 2001 U.S. App. LEXIS 27258
September 7, 2001, Argued
December 28, 2001, Decided
PRIOR HISTORY: [**1] Appeal from the United States District Court
for the District of Columbia. (No. 98cv02364).
Wood v. Herman, 104 F. Supp. 2d 43, 2000 U.S. Dist. LEXIS 9867, 16
I.E.R. Cas. (BNA) 905, 2000 O.S.H. Dec. (CCH) P 32167 (D.D.C. 2000)
DISPOSITION: Affirmed.
COUNSEL: Joanne Royce argued the cause for the appellant. James R.
Klimaski was on brief.
Beverly M. Russell, Assistant United States Attorney, argued the
cause for the appellees. Kenneth L. Wainstein, Acting United States
Attorney at the time the brief was filed, R. Craig Lawrence, Assistant
United States Attorney, and Ann Rosenthal and John Shortall, Attorneys,
United States Department of Labor, were on brief for the appellees.
JUDGES: Before: HENDERSON, RANDOLPH and ROGERS, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
OPINION BY: KAREN LECRAFT HENDERSON
opinion
[*108] KAREN LECRAFT HENDERSON, Circuit Judge: Appellant Roger Wood
seeks review of the district court's dismissal of his appeal from the
decision of the Department of Labor (DOL) declining to file suit on his
behalf for retaliatory discharge under section 11(c) of the
Occupational Safety and Health Act (Act), 29 U.S.C. Sec. 660(c). The
district court held that the DOL's decision not to sue was committed to
the agency's discretion by law and thus not subject to judicial review
pursuant to the United [**2] States Supreme Court's decision in Heckler
v. Chaney, 470 U.S. 821, 84 L. Ed. 2d 714, 105 S. Ct. 1649 (1985). In
light of the limited issue Wood raises on appeal, we affirm the
district court's dismissal of his complaint but on a different ground.
I. Wood was employed as a senior electrician by United Engineers
and Constructors (UE&C)\1\ at the Johnston Atoll Chemical Agent
Disposal System (JACADS).\2\ JACADS is a facility consisting of several
chemical weapons incinerators located on the Johnston Atoll in the
Pacific Ocean. The facility is operated by UE&C pursuant to a U.S. Army
contract to dismantle and destroy the lethal chemical weapons stockpile
stored on the island. Due to the type of weapon handled at JACADS, the
working conditions at the facility are probably as dangerous as any
undertaken in the world.
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\1\ UE&C is a subsidiary of Raytheon Industries.
\2\ On a motion to dismiss, the facts as alleged in the complaint
are taken as true and all reasonable inferences therefrom are drawn in
the plaintiff's favor. See Sugar D. Co. v. Niagara Frontier Tariff
Bureau, Inc., 476 U.S. 409, 411, 90 L. Ed. 2d 413, 106 S. Ct. 1922
(1986).
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[**3] According to his complaint, before working at JACADS, Wood
was employed at the Pine Bluff Arsenal in Arkansas, where he gained
extensive experience in the field of chemical weapons destruction,
making over 1000 ``toxic entries''\3\ with various levels of protective
clothing and respirators. Upon his arrival at JACADS in 1990, Wood
discovered that management and many of his co-employees failed to
appreciate the dangers associated with the destruction of chemical
weapons. In particular, he found basic safety equipment and training,
the norm at Pine Bluff, inadequate at JACADS. As a result, Wood began
making a number of safety complaints about conditions at the facility.
In November 1990, Wood's concerns were confirmed when an investigation
conducted [*109] by the Occupational Safety and Health Administration
(OSHA) resulted in the issuance of a ``serious'' \4\ citation for two
violations. The violations included the provision of unapproved
respirators, 29 C.F.R. Sec. 1910.134(c), and the standby team's use of
improper protective equipment, 29 C.F.R. Sec. 1910.134(e)(3)(iii).
Coincident with the citation, OSHA mandated that all toxic entries be
[**4] discontinued until JACADS complied with a schedule of specific
safety precautions.
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\3\ A toxic entry is an entry into an environment where toxic
contamination exists. See Compl. P 15.
\4\ ``Serious'' means a ``hazard, violation or condition such that
there is a substantial probability that death or serious physical harm
could result.'' See 29 C.F.R. Sec. 1960.2(v).
---------------------------------------------------------------------------
Subsequently, Wood and his supervisors had a number of clashes
regarding safety issues at JACADS. The supervisors saw many of Wood's
allegations as scare tactics, intended to frighten his co-workers. The
disputes culminated in Wood's refusal to work in a toxic area because
UE&C had not provided him with new corrective lenses for the facepiece
of his protective mask. Because he had already received a final
reprimand for refusal to work,\5\ Wood was discharged for
insubordination on February 4, 1991.
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\5\ On February 2, 1991 Wood had received and signed a ``FINAL
REPRIMAND'' letter detailing his refusal to work as directed. The
reprimand stated that ``any further incidents, in which your actions
are interpreted as insubordination * * * will result in the immediate
termination of your employment at JACADS.'' JA 123.
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[**5] On February 15, 1991 Wood filed a complaint with OSHA
alleging that his discharge violated section 11(c)(2) of the Act, which
prohibits reprisals against employees who raise health and safety
concerns. See 29 U.S.C. Sec. 660(c).\6\ OSHA regional investigator
John Braeutigam was initially assigned to investigate Wood's
allegations and, based on his investigation, the San Francisco Regional
OSHA Office concluded that UE&C had violated section 11(c)(2) of the
Act by terminating Wood for making safety complaints about the
conditions at JACADS. When attempts at settlement proved unsuccessful,
the Regional Office forwarded the complaint to the DOL Regional
Solicitor with the recommendation that ``a case be filed on Wood's
behalf.'' After further research, the Regional Solicitor concluded that
the case was inappropriate for litigation due to a possible
jurisdictional conflict with the Department of the Army (Army), which,
he concluded, was responsible for setting the safety standards at
JACADS. As a result, DOL's Office of the Solicitor (DOL Solicitor)
referred Wood's claim to the Army. The Army conducted its own
investigation and, in February 1996, finally returned [**6] the case to
DOL without taking any action.
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\6\ Section 660(c) has three subsections. Defining ``protected
activity'' under the Act, section 660(c)(1) provides: ``No person shall
discharge or in any manner discriminate against any employee because *
* * of the exercise by such employee * * * of any right afforded by
this chapter.'' 29 U.S.C. Sec. 660(c)(1). Section 660(c)(2) provides
the complaint procedure and describes the prohibited action, see infra
p. 6, and section 660(c)(3) sets forth the Secretary's notice deadline
once a complaint is filed.
---------------------------------------------------------------------------
In April 1996 OSHA and the DOL Solicitor reviewed Wood's case
again. In a letter dated May 3, 1996 the OSHA Assistant Secretary
notified Wood that OSHA would take no further action. Explaining that
the right to refuse to work is very limited, the Assistant Secretary
concluded that Wood's refusal to participate in toxic entries did not
meet the applicable legal test and thus his termination did not violate
section 11(c). The Assistant Secretary also [**7] suggested that UE&C's
probable jurisdictional defense based on the Army's [*110] authority
over JACADS would ``further complicate the litigation.''
On October 2, 1998 Wood filed the instant action seeking judicial
review of the DOL Secretary's decision declining to bring a civil
action on his behalf pursuant to section 11(c)(2) of the Act. Count I
of his complaint alleged that the Secretary ``determined that Raytheon,
[Wood's] employer, had violated 29 U.S.C. Sec. 660(c)'' and then
``unlawfully declined to file suit in an appropriate U.S. district
court against Raytheon.'' Compl. P P 57-58. Counts II and III
alternatively charged that the statement of reasons regarding the
decision not to sue contained in the Assistant Secretary's May 3, 1996
letter violated the Administrative Procedure Act (APA), 5 U.S.C. Sec.
706(2)(a).\7\ Defendants DOL and the DOL Secretary moved to dismiss.
---------------------------------------------------------------------------
\7\ Count II also challenged the Assistant Secretary's additional
rationale included in his May 3, 1996 letter that the jurisdictional
issue would likely complicate the litigation of Wood's claim. Counts
IV, V and VI laid out additional grounds for relief which are not
before us on appeal.
---------------------------------------------------------------------------
[**8] On June 23, 2000 the district court dismissed Wood's
complaint, concluding that the Secretary's decision declining to bring
a section 11(c) suit was not judicially reviewable. Wood v. Herman, 104
F. Supp. 2d 43, 48 (D.D.C. 2000). The district court relied on the
holding in Heckler v. Chaney, 470 U.S. 821, 84 L. Ed. 2d 714, 105 S.
Ct. 1649 (1985), in which the Supreme Court declared that an agency
decision declining to initiate an enforcement action is generally
``presumed immune from judicial review'' unless the statute ``has
provided guidelines for the agency to follow in exercising enforcement
powers.'' Wood v. Herman, 104 F. Supp. 2d at 45-46 (D.D.C. 2000)
(quoting Chaney, 470 U.S. at 832-33).\8\ ``Unable to discern any
meaningful guidelines for the Secretary to follow in deciding whether
to bring an enforcement action,'' the district court held that ``the
Chaney presumption of nonreviewability must govern.'' 104 F. Supp. 2d
at 46. Without separately discussing the APA claims, the district court
dismissed the entire action. This appeal followed.
---------------------------------------------------------------------------
\8\ Chaney noted that an agency's decision to decline enforcement
is ``generally committed to an agency's absolute discretion'' and
``involves a complicated balancing of a number of factors which are
peculiarly within [agency] expertise.'' 470 U.S. at 831 (citations
omitted). In addition, ``the agency is far better equipped than the
courts to deal with the many variables involved in the proper order of
its priorities.'' Id. at 831-32.
---------------------------------------------------------------------------
[**9] II.
On appeal, as he did in the district court, Wood frames the issue
as ``whether the Secretary of Labor's decision not to bring an
enforcement action, despite having found a violation under 29 U.S.C.
Sec. 660(c), is reviewable.'' Appellant's Br. at 2. We review the
dismissal of Wood's complaint de novo. Gilvin v. Fire, 259 F.3d 749,
756 (D.C. Cir. 2001). In deciding a purely legal question, we need not
adopt the reasoning relied upon below. See Eldred v. Reno, 345 U.S.
App. D.C. 89, 239 F.3d 372, 374-75 (D.C. Cir. 2001). While we affirm
the district court's dismissal of Count I, we do so on a different
basis from the one used below. We conclude that Count I fails to state
a claim on which relief can be granted, Fed. R. Civ. P. 12(b)(6),
because the Secretary did not determine that Wood's discharge violated
section 11(c) of the Act.
In challenging the Secretary's non-enforcement decision, Wood
relies principally upon the language of section 11(c)(2). We allow Wood
to fall on his statutory ``sword.'' The pertinent language of section
11(c)(2) of the Act provides:
[*111]
Any employee who believes that he has been discharged or otherwise
discriminated [**10] against by any person in violation of this
subsection may * * * file a complaint with the Secretary alleging such
discrimination. Upon receipt of such complaint, the Secretary shall
cause such investigation to be made as he deems appropriate. If upon
such investigation, the Secretary determines that the provisions of
this subsection have been violated, he shall bring an action in any
appropriate United States district court against such person * * *
29 U.S.C. Sec. 660(c)(2) (emphasis added). Count I mirrors the
statutory language, alleging that the Secretary determined that Wood's
employer had violated section 11(c)(2) and then ``unlawfully failed to
bring an action.'' In light of the congressional mandate reflected by
the ``shall'' language, Wood argues, the Chaney presumption of non-
reviewability is inapplicable.
Wood's contention is based on the premise that the Secretary's
statutory duty to bring suit under section 11(c)(2) arises only if the
Secretary first finds a violation. As discussed below, the Secretary
made no such determination here and concluded instead that Wood's
refusal to work was not protected activity under the Act. Wood appears
to view [**11] the Secretary's determination that the subsection was
not violated and the Secretary's decision not to bring suit as two
sides of the same coin so that he may challenge the latter without
regard to the former. As the complaint itself appears to recognize,
however, the Secretary's determination that section 11(c)(2) has been
violated at all is a requisite precondition to her enforcement
decision. Count I alleges ``the Secretary conducted an investigation
into plaintiff's claim of retaliation; confirmed its merits; and
determined that Raytheon, plaintiff's employer, had violated 29 U.S.C.
Sec. 660(c) by terminating plaintiff in retaliation for protected
activity.'' Compl. P 57 (emphasis added). In his Reply Brief, Wood
further argues that because the ``Secretary of Labor unquestionably
found a violation of Sec. 11(c),'' the DOL ``was obligated to file
suit on his behalf.'' Reply Br. at 1 (emphasis added). Although Count I
(paragraph 57) of the complaint alleges that the first step of the
statutory directive detailed above was met, Wood's complaint also
recites the contents of the Assistant Secretary's May 3rd letter, which
states in part that ``we conclude [**12] that your refusal to work does
not meet the test set forth in [section 11(c)].'' Compl. P 50 (emphasis
added). See generally 5A Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure Sec. 1357, at 319-20 (2d ed. 1990). On
its face, then, the complaint foretells its own demise. Wood's
challenge to the Secretary's decision not to bring suit on his behalf,
which forms the basis of Count I, cannot be heard if the Secretary did
not first determine that UE&C violated section 11(c)(2).
Section 11(c)(2) designates the Secretary as the official who
decides whether and to what extent an investigation is ``appropriate''
and, based on that investigation, whether the complainant has made out
a claim that his employer discriminated against him, by discharge or
otherwise, for his protected activity. 29 U.S.C. Sec. 660(c). To
demonstrate that the Secretary ``unquestionably'' found a violation,
Wood sweepingly contends that ``every single Department of Labor
official and attorney who investigated the facts found a strong merit
case.'' Reply Br. at 1. His contention, even if true, is irrelevant.
Only the Secretary of Labor is authorized to ``determine'' whether
[**13] the ``subsection has been violated.'' The Secretary has
delegated to the Assistant Secretary for Occupational Safety and Health
``the authority and assigned [*112] responsibility for administering
the safety and health programs and activities of the Department of
Labor * * * under * * * the Occupational Safety and Health Act of
1970.'' See Secretary's Order 3-2000, 65 Fed. Reg. 50017 (August 16,
2000). Using this authority, the Assistant Secretary for Occupational
Safety and Health John Deer determined on May 3, 1996 that Wood's
refusal to work was not protected activity under section 11(c)(2) and
therefore UE&C did not violate the Act by discharging him. The first
step of section 11(c)(2) not having been taken, then, Wood cannot as a
matter of law make out a retaliatory discharge claim as set forth in
Count I.\9\
---------------------------------------------------------------------------
\9\ In holding that the Secretary's decision not to sue was
unreviewable, the district court did not reach Counts II and III, Wood
v. Herman, 104 F. Supp. 2d at 45; on appeal Wood did not raise, in the
alternative, an issue on either, and accordingly, Wood has waived any
objection to their dismissal. Moreover, the court does not reach the
questions whether either the Secretary's determination of a violation
vel non or her determination upon finding a violation not to file a
complaint are subject to judicial review.
---------------------------------------------------------------------------
[**14] For the foregoing reasons, the district court's dismissal of
Count I of Wood's complaint is
Affirmed.
CASE SUMMARY:
PROCEDURAL POSTURE: Appellant employee sought review of the United
States District Court for the District of Columbia's dismissal of his
appeal from the decision of defendant Department of Labor, which
declined to file suit on his behalf for retaliatory discharge under
Sec. 11(c) of the Occupational Safety and Health Act, 29 U.S.C.S.
Sec. 660(c).
OVERVIEW: The employee had filed a complaint with the Occupational
Safety and Health Administration (OSHA) alleging that he had been
discharged for raising health and safety concerns. The employee alleged
that the Secretary of the Department of Labor (DOL) had determined that
the employer had violated 29 U.S.C.S. Sec. 660(c) and then unlawfully
declined to file suit against the employer. The district court held
that the DOL's decision not to sue was committed to the agency's
discretion by law and was not subject to judicial review. The court
affirmed the district court's decision, but on a different basis. The
court found that as a matter of law, the employee could not make out
the retaliatory discharge claim because the Assistant Secretary for
Occupational Safety and Health, who had been delegated the authority to
decide whether a complainant had made out a claim that his employer
discriminated against him, had determined that the employee's refusal
to work was not protected activity under 29 U.S.C.S. Sec. 660(c) and
that, therefore, the employer did not violate the Occupational Safety
and Health Act by discharging him.
OUTCOME: The court affirmed the dismissal of the count alleging
that the secretary had unlawfully declined to file suit against the
employer.
CORE TERMS: protected activity, regional, judicial review, chemical
weapons, declining, file suit, bring suit, enforcement action,
jurisdictional, protective, reprimand, retaliatory discharge, agency
decision, unquestionably, discriminated, destruction, terminating,
retaliation, respirators, discharged, unlawfully, reviewable,
confirmed, guidelines, assigned, insubordination, termination,
supervisors, complicate
______
------
[The article, ``A Pot of Gold at the End of the Rainbow: An
Economic Incentives-Based Approach to OSHA Whistleblowing,'' by
Jarod S. Gonzalez, may be accessed at the following Internet
address:]
http://papers.ssrn.com/sol3/papers.cfm?abstract--id=1538336
------
[The GAO report, ``Whistleblower Protection Program: Better
Data and Improved Oversight Would Help Ensure Program Quality
and Consistency,'' January 2009, may be accessed at the
following Internet address:]
http://www.gao.gov/new.items/d09106.pdf
------
COMPARISON OF ANTI-RETALIATION PROVISIONS IN OTHER LAWS
------------------------------------------------------------------------
Right to get
Statute of Preliminary hearing
Statute limitations reinstatement before ALJ
or court
------------------------------------------------------------------------
Federal Railroad Safety Act 180 days Yes Yes
(amended 2007)..............
Consumer Product Safety 180 days Yes Yes
Improvement Act (2008)......
Surface Transportation 180 days Yes Yes
Assistance Act (1982,
amended 2007)...............
Aviation Investment And 90 days Yes Yes
Reform Act (2000)...........
Sarbanes-Oxley (2002)........ 90 days Yes Yes
Patient Protection and 180 days Yes Yes
Affordable Care Act (2010)..
Clean Air Act (1977)......... 30 days Yes Yes
Mine Safety and Health Act 60 days Yes Yes
(1977)......................
OSH Act (1970)............... 30 days No No
------------------------------------------------------------------------
The AFL-CIO urges prompt action on the Protecting America's Workers
Act. It is past time to update and strengthen the Occupational Safety
and Health Act so that workers in this country will be better protected
from job hazards and better protected when they speak out about them.
Again, thank you for the opportunity to testify today. I would be
happy to respond to any questions.
______
[Additional submissions of Mr. Miller follow:]
Jason M. Zuckerman,
The Employment Law Group,
May 11, 2010.
Hon. George Miller, Chairman,
Committee on Education and Labor, 2181 Rayburn House Office Building,
Washington, DC 20515.
RE: Statute of Limitations in Whistleblowers Provisions of PAWA.
Dear Representative Miller: I am a principle at the Employment Law
Group and my practice focuses on representing employees in
whistleblower retaliation actions. I commend the leadership of the
Workforce Protections Subcommittee of the House Education and Labor
Committee for focusing on the critical need to amend the whistleblower
protection provision of the Occupational Safety and Health Act. The
lack of a private right of action and the 30-day statute of limitations
render the whistleblower provision wholly ineffective. Workers should
not be forced to jeopardize their safety and health in order to keep
their jobs. I have represented individuals who made the difficult
choice to complain to management about the unsafe work conditions and
as a result thereof, suffered swift and severe retaliation. As written,
the whistleblower provision in the Protecting America's Workers Act
(H.R. 2067) takes a balanced approach to providing long overdue
whistleblower protections to workers. In light of the recent oil rig
explosion off the coast of Louisiana, the tragic deaths of 29 miners at
the Upper Big Branch mine, and other workplace fatalities, ensuring the
right of workers to report unsafe work conditions should be a no-
brainer.
During the hearing held on April 28, 2010 a witness criticized the
statue of limitations provision in Section 203, asserting that the
``'discovery rule' is a foreign concept in employment law'' and that a
discovery rule is ``not expressly adopted in any other federal
employment statute including the staples of employment discrimination
law: Title VII of the Civil Rights Act of 1964, the Americans with
Disabilities Act, or the Age Discrimination in Employment Act.'' In
fact, the ``discovery rule'' has been applied to employment
discrimination statutes. See, e.g., Eber v. Harris County Hosp. Dist.,
130 F. Supp. 2d 847, 864 (S.D. Tex. 2001) (``The Fifth Circuit has
adopted a discovery rule for determining when a party's claim under the
ADA accrues. An ADA cause of action accrues when the employee receives
unequivocal notice of facts giving rise to his claim or a reasonable
person would know of the facts giving rise to the claim.'' [internal
cites and quotes omitted]); Deily v. Waste Management of Allentown, 118
F. Supp. 2d 539, 542-543 (E.D. Pa. 2000) (fact issue on when Plaintiff
discovered his termination); Brickings v. Bethlehem Lukens Plate, 82 F.
Supp. 2d 402, 409 (E.D. Pa. 2000; Conners v. Maine Medical Center, 42
F. Supp. 2d 34, 51-52 (D. Me 1999), on reconsideration, 70 F. Supp. 2d
40 (D. Me. 1999); Silk v. City of Chicago, 1996 WL 312074, at *7 (N.D.
Ill. 1996); Washburn v. Sauer-Sundstrand, Inc., 909 F. Supp. 554, 558
(N.D. Ill. 1995). For example, the Seventh Circuit held Cada v. Baxter
Healthcare Corp., 920 F.2d 446 (7th Cir. 1990) that ``the rule that
postpones the beginning of the limitations period from the date when
the plaintiff is wronged to the date when he discovers he has been
injured is the ``discovery rule'' of federal common law, which is read
into statutes od limitations in federal-question cases (even when those
statutes of limitations are barrowed from state law) in the absence of
a contrary directive from Congress.'' Id. At 450.
Significantly, the Supreme Court held in Ledbetter v. Goodyear Tire
& Rubber Co., Inc., 550 U.S. 618 (2007) that the discovery rule may
apply to claims under the Title VII of the Civil Rights Act of 1964 and
the Equal Pay Act. Ledbetter, 550 U.S. 618, 642 n. 10 (``We have
previously declined to address whether Title VII suits are amenable to
a discovery rule. National Railroad Passenger Corporation v. Morgan,
536 U.S. 101, 114, n. 7, 122 S. Ct. 2061, 153 L.Ed.2d 106 (2002).
Because Ledbetter does not argue that such a rule would change the
outcome in her case, we have no occasion to address this issue.'').
Other recent decisions acknowledge that the statute of limitations
should begin to run when the plaintiff has actual knowledge of a
discriminatory injury. See, e.g., Foster v. Gonzales, 516 F. Supp. 2d
17, 23 n.5 (D.D.C. 2007) citing Del. State Coll. v. Ricks, 449 U.S.
250, 261 (1980)) (180-day period begins running on date on which
``plaintiff had notice of final (as opposed to a tentative) termination
decision''); see also James v. England, 332 F. Supp. 2d 239, 245
(D.D.C. 2004) (holding that Ricks controls start of limitations period
for Title VII claims by private sector employees).
The Third Circuit discussed Ricks in Colgan v. Fisher Scientific
Co. 935 F. 2d 1407 (3d Cir. 1991). By noting that Prof. Ricks has
received ``explicit notice that his employment would end'' upon
expiration of his terminal contract after his denial of tenure, the
Court implicitly provided a notice requirement to trigger the
limitations period; i.e., when the employer has established its
official position and made that position apparent to the employee by
explicit notice. See Colgan, 935 F. 2d at 1416-17. In Oshiver v. Levin,
Fishbein, Sedran & Berman, 38 F. 3d 1380 (3d Cir. 1994), the Third
Circuit said that the discovery rule (so famous in tort cases) is
implicit in the Ricks holding that the limitations period begins to run
at the time the allegedly discriminatory decision is made and
communicated to the employee. See id. At 1386 n.5 (citing Ricks, 449
U.S. at 258); see also Merrill v. Southern Methodist Univ., 806 F.2d
600.604-05 (5th Cir. 1986) (stating that limitations period in Title
VII cases starts to run on date when plaintiff knows or reasonably
should know that discriminatory act has occurred, not on date victim
first perceived that discriminatory motive caused act).
In sum, there is substantial precedent in employment law for
applying a discovery rule to the statute of limitations. Please feel
free to contact me at 202-261-2810 if you would like additional
information.
Very truly yours,
Jason M. Zuckerman,
The Employment Law Group, PC.
______
Office of the Solicitor
Strategic Goals and Performance Measures
1. Maintain an Effective Litigation Strategy That Advances Departmental
Goals.
1.1 Percent of favorable outcomes in cases submitted for litigation.
[Repeat annual targets of 95%].
1.2 Close an increasing percentage of all cases annually. [Ascending
Target.]
1.3 The ratio of total resources expended for litigation to program
recoveries demonstrates that the cost of litigation is a
decreasing percentage of the total amount of restitution,
recoveries and penalties awarded. [Descending Target.]
1.4 Percent of favorable outcomes, in whole or in part, in appellate
matters. [Repeat annual target of 98%.]
1.5 Successfully establish/defend and important legal principle in 75%
of all cases submitted for litigation and 75% of appellate
matters.
2. DOL Regulations Achieve Agency Policy Objectives and Comply with All
Legal Requirements.
2.1 The major provisions of final DOL rules and regulations are not
successfully challenged an increasing percentage of the time.
[Ascending Target.]
2.2 Increase the rate of completion of major task regarding legal
review and drafting by the SOL Divisions of regulation within
deadlines established in advance with the responsible DOL
agency. [Ascending Target.]
3. DOL Actions Are Based on Sound Legal Advice.
3.1 Increase in average legal opinions/advice per FTE devoted to that
function. [Ascending Target.]
4/21/10
______
[Questions submitted to witnesses and their responses
follow:]
[VIA Email],
U.S. Congress,
Washington, DC, May 3, 2010.
Hon. Jordan Barab, Deputy Assistant Secretary,
U.S. Department of Labor, Occupational Safety & Health Administration,
200 Constitution Avenue, Washington, DC 20210.
Dear Mr. Barab: Thank you for testifying at the Workforce
Protections Subcommittee's hearing on ``Whistleblower and Victim's
Rights Provisions of H.R. 2067, the Protecting America's Workers Act,''
held on Wednesday, April 28, 2010.
Committee Members have additional questions for which they would
like written responses from you for the hearing record.
Representative Lynn Woolsey (D-CA) asks the following questions:
1. Under Section 18 of the OSH Act, OSHA and ``state-plan'' states
share joint jurisdiction over section 11(c) anti-retaliation cases, and
workers are free to file in either venue. However, in practice OSHA has
a policy, which sends claims from workers employed in state-plan states
back to the states to investigate. PAWA makes clear that it is the
option of workers in state-plan states to file with federal OSHA or the
state, and OSHA cannot remove a case back to the state once a worker
makes a selection. Your testimony questions whether this provision is
necessary, implying that since state plans are presumed to be ``at
least as effective as'' federal OSHA, there is no need to give workers
in state-plan states the right to select a venue.
A) Has OSHA completed its audit of all 22 state plans under the
enhanced review launched by the Administration?
B) Do you have evidence based on case file reviews that all 22
state plans are currently ``at least as effective as'' federal OSHA in
implementing anti-retaliation provisions? If not, when will you have
this information?
C) If PAWA is enacted, it will take at least two years before all
states enact changes to their whistleblower laws under Section 11(c).
Does the Administration believe workers who lose their jobs during this
transition period should be required to file 11(c) complaints in states
with state plans that provide inadequate whistleblower relief, while
workers in federal OSHA states enjoy better protections?
D) Your testimony raised a concern about giving workers the freedom
to choose the venue in which they want to bring a whistleblower claim,
based on a concern about agency resource demands. Could you please
explain why Congress should enact legislation which deprives workers of
their current statutory right to select what they believe is the best
venue for their anti-retaliation claims?
2. If PAWA's whistleblower provisions are enacted, the Office of
Whistleblower Programs at OSHA would be responsible for administering
these claims. Will it be relatively easy to get this reformed 11(c)
process up and running?
3. Since PAWA provides 11(c) whistleblowers with access to an
administrative hearing process plus a private right of action if DOL
fails to act on a timely basis, isn't it the case that the Solicitor's
office would be relieved of having to use its scarce resources to
evaluate and prosecute a large percentage of these 11(c) anti-
retaliation cases?
4. Mr. Chinn's testimony contends that none of the 17 whistleblower
statutes administered by OSHA use the ``discovery rule'' for
determining whether the statute of limitation should be extended in
cases where workers did not know they were the subject of retaliatory
action until later on.
A) Isn't it the case that OSHA regulations at 29 CFR 1977.15(d)(3)
extend statutes of limitations in ways that are similar to the
discovery rule?
B) Are there other whistleblower statutes administered by OSHA,
which also allow for extending the statute of limitations in instances
where the complainant learned of the discriminatory conduct outside the
time period set forth in the statute of limitations?
5. The U.S. Chamber of Commerce testified at a recent hearing that
small businesses should have the right to recover attorney's fees from
employees who file whistleblower claims and fail to prevail at a
hearing.
A) Does the Administration support a loser pay provision where
workers would have to pay an employer's legal costs in a retaliation
case?
6. Tonya Ford testified about the January 29, 2009 incident at an
Archer Daniels Midland plant in Lincoln, Nebraska that killed her
uncle, Robert Fitch and questioned the sufficiency of the citations for
which the Company was cited.
(A) Does OSHA have any policy directives relating to use of the
OSHAct's general duty clause in cases where portions of that standard
deal with the design requirements of grandfathered man lifts installed
prior to 1971?
(B) In addition to the specific standards for which ADM was cited
in regard to the man lift, was OSHA prohibited from using the OSHAct's
general duty clause to cite ADM for failure to maintain a workplace
free from recognized hazards that led to the death of Mr. Fitch? If
there was no prohibition, why wasn't ADM also cited under the general
duty clause?
(C) As part of its informal settlement agreement with ADM, why
didn't OSHA require the Company to replace all 5 of the man lifts at
this plant instead of just one manlift?
(D) Does OSHA plan to issue a new directive with regard to the man
lift standard (Part 1910.68) and the applicability of the general duty
clause?
Please send an electronic version of your written response to the
questions in Microsoft Word format to Lynn Dondis at
[email protected] and Richard Miller at
[email protected] by close of business Wednesday, May 12,
2010, the date on which the hearing record will close. If you have any
questions, please do not hesitate to contact Ms. Dondis or Mr. Miller
at 202-226-1881.
Sincerely,
George Miller,
Chairman.
______
OSHA Responses to Additional Questions for the Hearing Record
representative lynn woolsey (d-ca)
Question 1: Under Section 18 of the OSH Act, OSHA and ``state-
plan'' states share joint jurisdiction over section 11(c) anti-
retaliation cases, and workers are free to file in either venue.
However, in practice OSHA has a policy, which sends claims from workers
employed in state-plan states back to the states to investigate. PAWA
makes clear that it is the option of workers in state-plan states to
file with federal OSHA or the state, and OSHA cannot remove a case back
to the state once a worker makes a selection. Your testimony questions
whether this provision is necessary, implying that since state plans
are presumed to be ``at least as effective as'' federal OSHA, there is
no need to give workers in state-plan states the right to select a
venue.
A. Has OSHA completed its audit of all 22 state plans under the
enhanced review launched by the Administration?
B. Do you have evidence based on case file reviews that all 22
state plans are currently ``at least as effective as'' federal OSHA in
implementing anti-retaliation provisions? If not, when will you have
the information?
C. If PAWA is enacted, it will take at least two years before all
states enact changes to their whistleblower laws under Section 11(c).
Does the Administration believe workers who lose their jobs during this
transition period should be required to file 11(c) complaints in states
with state plans that provide inadequate whistleblower relief, while
workers in federal OSHA states enjoy better protections?
D. Your testimony raised a concern about giving workers the freedom
to choose the venue in which they want to bring a whistleblower claim,
based on a concern about agency resource demands. Could you please
explain why Congress should enact legislation which deprives workers of
their current statutory right to select what they believe is the best
venue for the anti-retaliation claims?
Answer:
A. OSHA's Regional Offices are in the process of completing their
baseline enhanced evaluations of 21 of the 22 comprehensive State
Plans, covering both the private and public sectors, and 4 of the 5
Public Employee Only State Plans. (Evaluation of the Nevada Plan was
completed previously in 2009, and the Illinois public employee plan was
only recently approved and is not yet operational.) The reports will be
submitted to the Assistant Secretary for review prior to public
issuance. We anticipate that the reports should all be issued by the
end of August.
B. The evaluations will be focused primarily on enforcement, but if
deficiencies are identified in a State Plan's anti-retaliation program,
the report will include recommendations for improvement. As indicated
above, OSHA anticipates that the reports should all be issued by the
end of August. At that time OSHA will be better able to assess the
overall effectiveness of State Plan discrimination programs.
It should be noted that the State Plans operate under authority of
State law and have statutory nondiscrimination provisions parallel to
those of Section 11(c) of the OSH Act. The States also extend these
protections to State and local government employees. Should a State's
occupational safety and health anti-retaliation program be found to be
seriously flawed, OSHA would temporarily discontinue its referral of
complaints to the State for investigation and would concurrently accept
complaints filed directly with the State for dual Federal filing, thus
assuring the protection of the workers' rights.
C. No. If PAWA is enacted, the States will be expected to enact
parallel amendments to their State laws within 12 months, as specified
in the current bill. Until such time as State law is amended, OSHA
would expect most complainants to take advantage of their right to file
their complaints with Federal OSHA under PAWA. Federal OSHA would
investigate those complaints. Until such time as each State's statutory
authority is upgraded, OSHA would require the States to advise
complainants of the expanded rights available to them under the Federal
program and of their right to file their complaint with Federal OSHA
instead of the State.
D. Under current law, Federal OSHA retains authority to accept and
investigate complaints of discrimination filed by private sector
workers in State Plan States even when the State has achieved final
approval status and the authority for concurrent Federal enforcement
jurisdiction has been relinquished under Section 18(e). Complainants
may file either with Federal or State OSHA or they may timely file with
both in order to retain their rights. Dual investigation by both
authorities is an inappropriate use of scarce resources. Thus OSHA
routinely defers its investigation of such dually filed complaints to
the State, but retains the authority to act later on the complaint
should the State investigation be found lacking. OSHA similarly refers
Federally filed complaints from workers in State Plan States to the
State for investigation. When a complainant files his/her
discrimination complaint only with the State Plan, Federal OSHA's
authority is limited to monitoring the State's performance through
investigation of Complaints About State Program Administration
(CASPAs). OSHA is providing Federal funding to allow the States to run
effective State Plans, including a required anti-retaliation program.
Where the State anti-retaliation program, after any revisions mandated
by PAWA have been accomplished, is determined to be at least as
effective as the Federal, resources can be most effectively utilized by
allowing the State to conduct the investigation.
Once the states have made the statutory changes needed to comply
with PAWA, their whistleblower programs will be as effective as OSHA's.
Providing workers a choice between equivalent protections would not
necessarily strengthen whistleblower protection. States with approved
plans contribute valuable expertise, staffing and funding to the
nation's overall safety and health effort, and their assistance is also
much needed in enforcing workplace anti-retaliation laws. We feel that,
from a resource allocation standpoint, it is better to leave the choice
of state or federal remedies to OSHA rather than individual
complainants. One alternative might be a provision that filing a
complaint with either OSHA or a state constitutes a valid filing with
the other authority; OSHA would have the discretion to proceed in a
case where OSHA believes its involvement would add value.
Question 2: If PAWA's whistleblower provisions are enacted, the
Office of the Whistleblower Protection Programs at OSHA would be
responsible for administering these claims. Will it be relatively easy
to get this reformed 11(c) up and running?
Answer:
The reforms entailed by the enactment of PAWA would necessitate
revision of 29 CFR Part 1977. OSHA's whistleblower investigation
procedure regulations are not subject to the notice and comment
procedures of the APA; nevertheless, we initially promulgate such
regulations as interim final rules and provide the public with the
opportunity to submit comments. A final rule will be published after
the agency receives and reviews the public's comments.
Changes to the law enacted by PAWA would, of course, become
effective on the date specified by Congress. Therefore, until Part 1977
is revised, OSHA would have to take several immediate steps to make the
regulated community aware of the changes. We would reach out to
employers and employees through our Web site, updated fact sheets and
OSHA posters, and possibly other means. In addition, when a section
11(c) complaint is filed, we would explain in the notification letters
to the employee and employer that recent amendments to the Occupational
Safety and Health Act resulted in new procedures and we would enclose a
copy of the revised statute. Finally, OSHA would quickly revise the
chapter on section 11(c) in the Whistleblower Investigations Manual.
Question 3: Since PAWA provides 11(c) whistleblowers with access to
an administrative hearing process plus a private right of action if DOL
fails to act on a timely basis, isn't it the case that the Solicitor's
office would be relieved of having to use its scarce resources to
evaluate and prosecute a large percentage of these 11(c) anti-
retaliation cases?
Answer:
Under the existing Section 11(c), complainants have no private
right of action, a key element of whistleblower protections that is
available under all but two other whistleblower statutes enforced by
OSHA. The private rights of action under PAWA would ensure a hearing
for complainants, and could also reduce the demand on SOL's litigation
resources.
Question 4: Mr. Chinn's testimony contends that none of the 17
whistleblower statutes administered by OSHA use the ``discovery rule''
for determining whether the statute of limitation should be extended in
cases where workers did not know they were the subject of retaliatory
action until later on.
A. Isn't it the case that OSHA's regulation at 29 CFR 1977.15(d)(3)
extends the statutes of limitations in ways that are similar to the
discovery rule?
B. Are there other whistleblower statutes administered by OSHA,
which also allow for extending the statute of limitations in instances
where the complainant learned of the discriminatory conduct outside of
the time period set forth in the statute of limitations?
Answer:
A. 29 CFR 1977.15(d)(3) narrowly addresses one application of the
principle of equitable tolling, by which a filing deadline may be
delayed or suspended if the employer has concealed or misled the
employee regarding the grounds for discharge or other adverse action.
PAWA addresses a somewhat different principle, which comes into play
when a complainant only discovers he has been retaliated against after
the normal filing period has elapsed. This ``discovery rule'' would
come into play in situations where, even though an employer has not
affirmatively misled the complainant, the complainant only discovers
after the end of the filing period that he did not receive a pay
increase afforded to others, or discovers that instead of being
temporarily laid off, his employer had decided not to call him back.
PAWA would clarify that in such cases the filing period does not begin
to run until the complainant knows or should reasonably have known that
he has been retaliated against.
B. The Supreme Court held in Delaware State College v. Ricks, 449
U.S. 250, that the date of an adverse action is when the decision is
made and communicated to the employee. Therefore, if an employer has
not yet communicated the adverse decision to the employee until much
later, then for purposed of evaluating timeliness, the adverse action
has not occurred until the date on which it was communicated. In
addition, OSHA accepts untimely complaints in certain circumstances
under the doctrine of equitable tolling. The principle of equitable
tolling, which applies in some situations, including where an employer
has concealed or misled an employee about the grounds for adverse
action, is well established in case law under the various anti-
retaliation statutes, although it is not expressly set forth in the
statutes themselves. OSHA's Whistleblower Investigation Manual has
adopted that principle for all anti-retaliation laws administered by
OSHA. I am not aware that such a discovery rule exists under any of
these statutes.
Question 5: The U.S. Chamber of Commerce testified at a recent
hearing that small businesses should have the right to recover
attorney's fees from employees who file whistleblower claims and fail
to prevail at a hearing.
A. Does the administration support a loser pay provision where
workers would have to pay employer's legal costs in a retaliation case?
Answer:
The possibility that an employee--in many cases, an out-of-work
former employee--might become responsible for paying an employer's
attorney fees would be a powerful disincentive to any worker who
considers filing a retaliation complaint, and would have a chilling
effect on the exercise of employee rights in the workplace. Moreover,
the Chamber assumes that any complaint that isn't found to have merit
was brought frivolously. OSHA does not believe that a complainant's
motive for bringing reasonably believed occupational safety or health
concerns to the attention of their employers or the government should
be called into question. We strongly oppose such a provision.
Question 6: Tonya Ford testified about the January 29, 2009
incident at Archer Daniels Midland plant in Lincoln, Nebraska that
killed her uncle, Robert Fitch and questioned the sufficiency of the
citations for which the Company was cited.
A. Does OSHA have any policy directives relating to the use of the
OSH Act's general duty clause in cases where portions of that standard
deal with the design requirements of grandfathered man lifts installed
prior to 1971?
B. In addition to the specific standards for which ADM was cited in
regard to the man lift, was OSHA prohibited from using the OSH Act's
general duty clause to cite ADM for failure to maintain a workplace
free from recognized hazards that led to the death of Mr. Fitch? If
there was no prohibition, why wasn't ADM also cited under the general
duty clause?
C. As part of its informal settlement agreement with ADM, why
didn't OSHA require the company to replace all 5 of the manlifts in the
in the plant instead of just one manlift?
D. Does OSHA plan to issue a new directive with regard to the
manlift standard (Part 1910.68) and the applicability of the general
duty clause?
Answer:
A. Yes. OSHA issued a directive on October 30, 1978 regarding
inspections of man lifts. That directive is still in effect, however,
OSHA will be updating the directive to clarify the intent.
B. OSHA is not prohibited from using the general duty clause to
cite design requirements of manlifts. OSHA did not identify ``design''
deficiencies on the manlift in question at ADM. Rather, the citations
addressed maintenance and inspection. Where existing standards apply to
particular hazards, citing the general duty clause is not permitted
under Occupational Safety and Health Review Commission case law.
C. The accident involved only one manlift, therefore the
investigation was limited in scope and did not include the other
manlifts. The investigation was not expanded to the other manlifts,
primarily for two reasons: 1) OSHA did not observe numerous significant
deficiencies with the manlift associated with the accident, and 2)
during employee interviews, no concerns were identified with other
manlifts. When a violation is found on one manlift the employer is then
put on notice to review others and make appropriate corrections where
needed. Manlifts are permitted under 29 CFR 1910, therefore OSHA cannot
require employers to replace manlifts with other forms of personnel
transport. During the informal conference the employer proposed
removing the manlift completely and installing an elevator. The
proposed abatement was more extensive and more costly than compliance
with the OSHA manlift standard. Other manlifts were not discussed, as
they were not a point of concern during the informal conference, and
the employer had already volunteered to abate beyond what OSHA could
require.
During a follow-up inspection, OSHA found that two manlifts, the
Feed Mill and Elevator ``A'' manlifts, had not been in service for over
5 years. One had been de-energized, with all electrical connection
removed completely, and the other had the belt removed completely.
Two other manlifts, Elevator ``D'' and the Mill Area manlift, were
operational and used by employees. OSHA inspected both manlifts. The
follow-up inspection is still open.
D. Yes.
______
[VIA Email],
U.S. Congress,
Washington, DC, May 3, 2010.
Ms. Tonya Ford,
333 W. Chadderton Drive, Lincoln, NE 68521.
Dear Ms. Ford: Thank you for testifying at the Workforce
Protections Subcommittee's hearing on ``Whistleblower and Victim's
Rights Provisions of H.R. 2067, the Protecting America's Workers Act,''
held on Wednesday, April 28, 2010.
Committee Members have additional questions for which they would
like written responses from you for the hearing record.
Representative Lynn Woolsey (D-CA) asks the following questions:
1. If you had been permitted to participate in the OSHA settlement
discussions with ADM, would you have raised the fact that abatement
should have required replacement of the other four man lifts at the
plant and not just the one that was replaced under the settlement
agreement?
2. I understand that you had been trying for quite a while to make
meaningful contact with OSHA, and at this point, you have had
conversations with the local and the national office. Have they told
you everything you need to know, and if not, why not? How would you
recommend Congress remedy this problem?
Please send an electronic version of your written response to the
questions in Microsoft Word format to Lynn Dondis of the Subcommittee
staff at [email protected] by close of business Wednesday, May
12, 2010, the date on which the hearing record will close. If you have
any questions, please do not hesitate to contact Ms. Dondis at 202-226-
1881.
Sincerely,
George Miller,
Chairman.
______
Ms. Ford's Response to Written Follow-up Questions
Dear Chairwoman Woolsey, Ranking Member McMorris-Rodgers and
Members of the Committee: I want to thank you again for the opportunity
to testify to you about my family, and how we want to make sure no
families go through what we have in the last 18 months. I hope we can
work together to make a difference and my Uncles life will not be in
vein.
1. If you had been permitted to participate in the OSHA settlement
discussion with ADM, would you have raised the fact that abatement
should have required replacement of the other four man lifts at the
plant and not just the one that was replaced under the settlement
agreement?
I want to start off by saying many families that I have met in the
last 18 months have the same feelings, we are here to make sure that
other families do not go through what we are going through today. There
is no price on my Uncle's life, nothing can bring him back and the
completion of our family will never return. We stand up and speak in
honor of our loved ones that we have lost. I promised my Uncle that his
death would not be in vein. I stand by those words today and will until
I can honestly say to my Uncle; I tried with all my heart and soul for
your horrible, preventable death to save a life and to protect a family
from the hurt we feel.
I truly believe that if my family would have had the chance to
participate in the OSHA informal settlement discussion with ADM, we
would have raised the fact that the abatement should definitely have
required that all 5 of the belt operated man lifts in the Archer Daniel
Midland plant be replaced. As stated in my testimony, I have done so
much research on these devices and they are inherently unsafe. It is a
device that causes many injuries and even deaths. My Uncle, Father and
even my Grandfather worked for ADM. My Uncle worked 32 years at this
plant, going up down these devices. He knew the rules, the regulations
and he followed them. So do all the other men and women that work at
this and many other grain milling plants in Nebraska and in the United
States. No matter how safe a worker is, these device are a hazardous
device and should not have been in this plant. The average age of the
employees at the Archer Daniel Midland plant, located in Lincoln, NE,
are employees that have been employed with ADM for 30+ years putting
them at an average age of 50-55 years old. The chance of a man or women
having heart attack increases each year after age of 45. Could you
image having a heart attack on a device with no walls near you, nothing
to hold to, nothing to jump too, the nearest landing 40 ft below?
If we would have had the chance to participate in the settlement
discussion with ADM, we would have made sure that OSHA knew that this
was not the only belt-operated man lift in the plant. OSHA's decision
to allow ADM to replace just one of the five man lifts was not
sufficient to protect the lives of the other workers at that plant.
Again, nothing is going to bring my Uncle back, however the men and
women that work not only at this Grain Milling plant, but others around
the Nation deserve to be safe. Going to work should not be a grave
mistake, and my Uncle, Father and Grandpa were just three of the men
that helped make Archer Daniel Midland Plant what it is today and that
is a company that has the stock market value of $18.31 billion dollars.
2. I understand that you had been trying for quite a while to make
meaningful contact with OSHA, and at this point you have had
conversations with the local and the national office. Have they told
you everything you need to know, and if not, why not? How would you
recommend Congress remedy this problem?
I have to admit the past 18 months have been frustrating. Hearing
from the local news the fines and penalties against ADM were deleted by
OSHA was really disrespectful to both my Uncle and our entire family.
I've heard from OSHA that they wants to receive our family's input on
how they can communicate better with us and other families that have
lost loved ones. I have openly given them suggestions and honestly can
say that the local OSHA representative has tried to be responsive to
us. We still don't have all our questions answered and it seems as
though the answers need to come from OSHA headquarters in Washington,
DC, but I feel they have not been eager to speak with us. I will be
honest many families will listen and respect what OSHA has concluded in
their loved ones investigation. Many families do not understand all of
OSHA rules and regulations, I chose to listen and learn and educate
myself on the investigation process. Maybe that was my fault but, today
I need closure, I believe my family deserves the right to know why ADM,
a company that makes so much money was not ordered to remove all of
those belt operated man lifts. Why a company found all around the world
was able to delete the citations from their records. We can't delete my
Uncle from our memory and yet they deleted an accident that took a
man's life that worked for them for 32 years.
Family members want open lines of communication throughout the
investigation process. We deserve that. We realize that through this
communication we may find out things that are painful, such as what our
loved ones went through in their last moments. We may find out the
horrible way our loved ones died. We need to know each detail of their
last breath. The fact is we want to know this. We need to know this to
get some measure of closure. We want to know someone cares. We need to
know what went wrong that day and how OSHA is working to ensure it does
not happen again to another family.We know that OSHA will not
necessarily know all facts, but we want to know what they know.
I truly believe that it is very beneficial for Congress to pass
PAWA (Protecting America's Workers Act). It is time for families to
honor their loved ones and for all of us to work as a team, to make a
difference and make work a safer place to be.
I have one question to all employers, why don't you want to protect
and honor the men and women that make your company what it is today and
what it will become tomorrow?
______
[VIA Email],
U.S. Congress,
Washington, DC, May 3, 2010.
Dr. Celeste Monforton, Assistant Research Professor,
U.S. Department of Labor, Occupational Safety & Health Administration,
200 Constitution Avenue, Washington, DC 20210.Dept. of Environ
& Occup Health, School of Public Health & Health Services,
George Washington University, 2100 M Street NW, Ste 203,
Washington, DC 20037.
Dear Dr. Monforton: Thank you for testifying at the Workforce
Protections Subcommittee's hearing on ``Whistleblower and Victim's
Rights Provisions of H.R. 2067, the Protecting America's Workers Act,''
held on Wednesday, April 28, 2010.
Committee Members have additional questions for which they would
like written responses from you for the hearing record.
Representative Lynn Woolsey (D-CA) asks the following questions:
1. Your testimony raised a question about the views of the U.S.
Chamber of Commerce regarding victims' rights. In particular, their
witness, Mr. Snare testified on March 16 that:
``Given the legal nature of these proceedings, there does not
appear to be much value to this presentation [by families of victims]
other than to sensationalize, presumably, already emotional and
sensitive matters.''
A) Is it not the case that the OSHA's regulations and procedures
already allow workers or their representatives to meet with OSHA Area
Directors prior to settlements?
B) What value could family members provide to OSHA's process of
informal or formal settlements?
C) Some employer representatives have suggested that having
families in the room at the same time as employers could
inappropriately influence the settlement process, and urged that
meetings with families take place separately from meetings with
employers. Is it imperative that meetings with the Area Directors and
families include the employers or their attorneys at the same time?
2. Mr. Morikawa, who was testifying on behalf of the US Chamber of
Commerce at the April 28 hearing, noted that PAWA does not define the
term ``representative'' in Section 306 of the discussion draft
pertaining to victim's families.
A) How would you recommend that the term ``representative'' in the
PAWA Section 306 be defined? Or should it be left undefined?
B) Should the law prohibit any attorney from representing victim's
families in these meetings between families and OSHA?
3. How does inclusion of family members in an investigation improve
the investigation?
4. Your testimony supports the idea of requiring abatement of
serious hazards pending employer contest of citations. Do you think
that this provision in PAWA, if enacted, would have had an impact of
the outcome of OSHA's informal settlement involving ADM?
5. Should the right of families to be involved with the
modification of or settlement of citations include formal settlements
or informal settlements, or both? Is the text of Section 306 of the
March 9 discussion draft sufficiently clear on the types of settlement
proceedings which should include families?
Please send an electronic version of your written response to the
questions in Microsoft Word format to Lynn Dondis of the Subcommittee
staff at [email protected] by close of business Wednesday, May
12, 2010, the date on which the hearing record will close. If you have
any questions, please do not hesitate to contact Ms. Dondis at 202-226-
1881.
Sincerely,
George Miller,
Chairman.
______
Dr. Monforton's Written Responses to Questions for the Record
1. Your testimony raised a question about the views of the U.S.
Chamber of Commerce regarding victims' rights. In particular, their
witness, Mr. Snare testified on March 16 that:
``Given the legal nature of these proceedings, there does not
appear to be much value to this presentation [by families of victims]
other than to sensationalize, presumably, already emotional and
sensitive matters.''
A) Is it not the case that the OSHA's regulations and procedures
already allow workers or their representatives to meet with OSHA Area
Directors prior to settlements?
RESPONSE: In OSHA's current Field Operations Manual (FOM), the
agency provides guidance to its field offices on allowing workers or
their representatives to participate in its settlement processes. For
an informal conference, which must be held within 15 working days of
the date the citations were issued, the FOM states:
``If an informal conference is requested by the employer, an
affected employee or his representative shall be afforded the
opportunity to participate.'' (FOM 7-3)
To the extent that an affected worker or an employee representative
is aware of the employer's request for an informal conference, h/she
may request to participate. I understand, however, that some employee
representatives do not learn of the employer's request for an informal
conference with OSHA until after the fact, making null this
``opportunity to participate.'' Setting aside this deficiency in OSHA's
application of this policy, the OSH Act explicitly states that affected
workers or their representative have a right to participate in these
proceedings.
B) What value could family members provide to OSHA's process of
informal or formal settlements?
RESPONSE: I disagree strongly with the U.S. Chamber of Commerce's
assertion that family member participation in OSHA's informal or formal
settlement process adds no value ``other than to sensationalize''
matters. I believe that the victim's rights provisions in the
Protecting America's Workers Act (H.R. 2067), which are quite modest,
have the potential to advance worker health and safety in a positive
way. First, family members often have information or physical evidence
that can be useful to the OSHA investigators. Allowing family members
to participate in the informal contest discussions would be a final
opportunity for OSHA to receive this potentially vital information.
Second, allowing a family member representative to participate in
discussions between OSHA and the company will make the settlement
process more transparent and accountable to the public. Currently,
these negotiations are held behind closed doors, and family members are
not privy to the evidence and arguments offered by each side. Family
members should have the right to know more than just the final terms of
the settlement. The why and who benefits from the terms of the
settlement will help the families and the public at large understand
how our worker health and safety enforcement system operates (or fails
to operate as intended.) Finally, many family member victims of
workplace fatalities want steps to be taken by employers and OSHA so
that other families are spared from suffering a similar loss. Family
members may turn out to be our nation's best allies for securing
improvements in worker health and safety.
C) Some employer representatives have suggested that having
families in the room at the same time as employers could
inappropriately influence the settlement process, and urged that
meetings with families take place separately from meetings with
employers. Is it imperative that meetings with the Area Directors and
families include the employers or their attorneys at the same time?
RESPONSE: I expect that having family members in the room at the
same time as employers and OSHA will influence the settlement process.
That's the point and why I strongly support these provisions of H.R.
2067.
I believe that family members should have the opportunity to
witness the negotiations between OSHA and the employer during an
informal or formal settlement process. It is imperative that if the
family requests to participate that the employer or his attorney be
present to face the victim's family.
2. Mr. Morikawa, who was testifying on behalf of the US Chamber of
Commerce at the April 28 hearing, noted that PAWA does not define the
term ``representative'' in Section 306 of the discussion draft
pertaining to victim's families.
A) How would you recommend that the term ``representative'' in the
PAWA Section 306 be defined? Or should it be left undefined?
RESPONSE: The term ``representative'' should be defined as any
individual designated by the victim's next of kin, including herself or
himself, as well as a substitute representative when necessary. (E.g.,
if a victim's mother wants to represent herself, but on a particular
occasion wants her sister to participate on her behalf, the designation
process should be flexible to accommodate this mother's wishes.)
B) Should the law prohibit any attorney from representing victim's
families in these meetings between families and OSHA?
RESPONSE: No. The law should not prohibit any class, occupation, or
personal or professional distinction of an individual from representing
the victim's family in the meetings between the company and OSHA. The
family of a worker killed on the job should have the right to select
whomever they wish to serve as their representative. Some may want to
represent themselves, others may want their pastor, their counselor, or
an attorney.
There are some who suggest that family members should be barred
from designating a private attorney as their representative because
somehow it will ``lawyer-up'' the process. This argument is
unconvincing. Federal OSHA relies on the Solicitor's Office for legal
advice, and many employers retain attorneys, especially in fatality
cases. Lawyers are already part of the informal and formal settlement
process. A family member victim of a workplace fatality should have the
option of choosing an attorney as their family representative. One
witness at the Subcommittee's April 28, 2010 hearing suggested:
``involving a private attorney in settlement meetings at any level
could have a ``chilling effect'' * * * by discouraging the parties from
engaging in candid discussions which are necessary in order to
accomplish the settlement of OSHA cases.'' (Dennis J. Morikawa, April
28, 2010)
I disagree. There are some employers who are eager to blame a
deceased worker for his/her own death. I believe these employers will
be less likely to do so with the victim's family present and may be
forced to examine their firm's own practices and violations of health
and safety standards. Moreover, some employers may be compelled to
abate the identified hazards and improve their safety performance if
they know that the victim's family will be present in the settlement
negotiations. Finally, the objective of the negotiation should not be
to merely ``accomplish the settlement of OSHA cases.'' Rather, the
objective should be to compel a change in the employer's and the
respective industry's behavior about eliminating hazards and preventing
injuries, disease and deaths among the workforce. I don't foresee a
``chilling effect,'' but rather, sunshine on a process that demands
more openness.
3. How does inclusion of family members in an investigation improve
the investigation?
RESPONSE: Family members potentially have information or physical
evidence that can be useful to the OSHA investigators. The information
may relate to hazards or worksite practices the deceased worker
communicated to his family, may lead investigators to former or current
employees with whom OSHA investigators should speak, or examples of
hazardous conditions that exist at other worksites under the control of
the same employer.
4. Your testimony supports the idea of requiring abatement of
serious hazards pending employer contest of citations. Do you think
that this provision in PAWA, if enacted, would have had an impact of
the outcome of OSHA's informal settlement involving ADM?
RESPONSE: Yes, I support PAWA's provision requiring abatement of
serious hazards pending employer contest. My experience working at the
Mine Safety and Health Administration informs my view and makes me a
firm proponent of this provision. Employers should not be allowed to
disregard known serious hazards and hold hostage the correction of
hazards in order to strike a deal with OSHA to reduce a monetary
penalty or the severity classification of the violation.
In the case that resulted following the fatal fall in January 2009
of Mr. Robert Fitch at the Archer Daniels Midland plant, OSHA made
several errors. The outcome of the case might have been quite different
in several respects, including had the PAWA provision requiring
abatement of serious hazards been adopted. We can't make advances in
preventing harm to workers when our system forces local OSHA staff to
bargain with employers for worker protections that they are already
required to implement. The informal settlement process should not only
expedite abatement of the hazard, but also give OSHA leverage to
require employers to implement measures that go above and beyond simply
compliance with OSHA's minimum standards.
5. Should the right of families to be involved with the
modification of or settlement of citations include formal settlements
or informal settlements, or both? Is the text of Section 306 of the
March 9 discussion draft sufficiently clear on the types of settlement
proceedings which should include families?
RESPONSE: Yes, family members should have the right to participate
in the modification of or settlement of citations whether in the formal
or informal setting. The text contained in Section 9A and Section 306
make it clear that family members will be granted the following rights:
1. Meet with the Secretary's representative (e.g., OSHA official)
before a decision is made to issue a citation or take no action.
2. Receive any citations or other documents at the same time as the
employer receives them.
3. Be granted the opportunity to appear and make a statement before
OSHA and the employer during informal and formal settlement
negotiations.
4. Be afforded the right to appear and make a victim's impact
statement before the Occupational Safety and Health Review Commission
(OSHRC) in those instances when a case proceeds to it for adjudication.
______
[VIA Email],
U.S. Congress,
Washington, DC, May 3, 2010.
Dennis J. Morikawa, Partner,
Morgan, Lewis & Bockius LLP, 1701 Market Street, Philadelphia, PA
19103-2921.
Dear Mr. Morikawa: Thank you for testifying at the Workforce
Protections Subcommittee's hearing on ``Whistleblower and Victim's
Rights Provisions of H.R. 2067, the Protecting America's Workers Act,''
held on Wednesday, April 28, 2010.
Committee Members have additional questions for which they would
like written responses from you for the hearing record.
Representative Lynn Woolsey (D-CA) asks the following questions:
1. Dr. Montforton has testified that Congress should strengthen the
Act by assigning designated family liaisons in each area office. Do you
agree with that approach?
2. Your testimony suggests that PAWA should define at what point in
time and how often families should have an opportunity to make a
statement before the OSHA Review Commission on cases which are
contested. The discussion draft of PAWA leaves it up to the OSHA Review
Commission to determine the proper role of a family member in its
proceedings. Isn't the Commission is in the best position to spell out
that process in its regulations?
Please send an electronic version of your written response to the
questions in Microsoft Word format to Lynn Dondis of the Subcommittee
staff at [email protected] by close of business Wednesday, May
12, 2010, the date on which the hearing record will close. If you have
any questions, please do not hesitate to contact Ms. Dondis at 202-226-
1881.
Sincerely,
George Miller,
Chairman.
______
------
[VIA Email],
U.S. Congress,
Washington, DC, May 3, 2010.
Ms. Lynn Rhinehart, General Counsel,
AFL-CIO, 815 16th Street, NW, Washington, DC 20006.
Dear Ms. Rhinehart: Thank you for testifying at the Workforce
Protections Subcommittee's hearing on ``Whistleblower and Victim's
Rights Provisions of H.R. 2067, the Protecting America's Workers Act,''
held on Wednesday, April 28, 2010.
Committee Members have additional questions for which they would
like written responses from you for the hearing record.
Representative Lynn Woolsey (D-CA) asks the following questions:
1. PAWA extends the statute of limitations for filing a complaint
to 180 days after the date the alleged violation occurred, or the date
the employee knew or should have known that it occurred. This construct
is known as the discovery rule. Mr Chinn's testimony contends that
PAWA's use of the discovery rule is ``unprecedented'' and that the
discovery rule is a ``foreign concept'' in employment law, and is not
used ``expressly'' in any employment laws. Isn't it the case that the
discovery rule is widely applied by courts in employment law, and a
similar construct is used by OSHA in determining whether the statute of
limitations should be tolled? Could you please provide specific
examples?
A) Mr. Chinn's testimony states that PAWA will lead to ``excessive
litigation and false claims,'' if Congress adopts a provision which
prohibits discrimination against workers who refuse unsafe work where
they have ``a reasonable apprehension that performing such duties would
result in serious injury?'' Is there any evidence to support his
statement?
Please send an electronic version of your written response to the
questions in Microsoft Word format to Lynn Dondis of the Subcommittee
staff at [email protected] by close of business Wednesday, May
12, 2010, the date on which the hearing record will close. If you have
any questions, please do not hesitate to contact Ms. Dondis at 202-226-
1881.
Sincerely,
George Miller,
Chairman.
______
Ms. Rhinehart's Responses to Questions for the Record
From Chairwoman Woolsey
1. PAWA extends the statute of limitations for filing a complaint
to 180 days after the date the alleged violation occurred, or the date
the employee knew or should have known that it occurred. This construct
is known as the discovery rule. Mr. Chinn's testimony contends that
PAWA's use of the discovery rule is ``unprecedented'' and that the
discovery rule is a ``foreign concept'' in employment law, and is not
used ``expressly'' in any employment laws. Isn't it the case that the
discovery rule is widely applied by courts in employment law, and a
similar construct is used by OSHA in determining whether the statute of
limitations should be tolled? Could you please provide specific
examples?
Use of the discovery rule and/or the related concept of equitable
tolling are commonplace under various employment laws.
OSHA currently tolls (i.e. extends) the 30 day statute of
limitations for equitable reasons or where the employer has misled the
employee as to the reasons for the adverse action taken against him/
her. See 29 CFR 1977.15(d)(3). Similarly, courts reviewing OSHA 11(c)
cases have applied equitable tolling principles to allow consideration
of complaints filed outside the 30 day statute of limitations. See,
e.g., Donovan v. Hahner, 736 F.2d 1421 (10th Cir. 1984) (employer lied
to employee about the reason for which he was fired, which justified
tolling the statute of limitations); Donovan v. Peter Zimmer America,
Inc., 557 F. Supp. 642 (DSC 1982) (applying equitable tolling).
Relatedly, courts have applied the discovery rule in cases brought
under other employment statutes. For example, in Cada v. Baxter
Healthcare Corp., 920 F.2d 446, 448 (7th Cir. 1990), the Seventh
Circuit, in a case brought under the Age Discrimination in Employment
Act, held that the discovery rule applies in discrimination cases. In
his opinion, Judge Posner explained that ``the `discovery rule' of
federal common law * * * is read into statutes of limitations in
federal-question cases * * * in the absence of a contrary directive
from Congress.'' Several other circuits have followed Cada in applying
the discovery rule in employment-related cases. See, e.g., Podobnik v.
United States Postal Serv., 409 F.3d 584, 590 (3rd Cir. 2005) (ADEA
case); Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380 (3rd
Cir. 1994) (Title VII case); Union Pac. R.R. v. Beckham, 138 F.3d 325,
330 (8th Cir. 1998) (ERISA case); Connors v. Hallmark & Son Coal Co.,
935 F.2d 336, 343 (D.C. Cir. 1991) (ERISA case). See also J. Geils Band
Employee Benefit Plan v. Smith Barney Shearson, Inc., 76 F.3d 1245,
1253 (1st Cir. 1996) (noting that Section 1113 of ERISA explicitly
incorporates the federal common law `discovery rule.')
2. Mr. Chinn's testimony states that PAWA will lead to ``excessive
litigation and false claims,'' if Congress adopts a provision which
prohibits discrimination against workers who refuse unsafe work where
they have ``a reasonable apprehension that performing such duties would
result in serious injury?'' Is there any evidence to support his
statement?
No. In fact, the provision Mr. Chinn criticizes is simply a
codification of OSHA regulations that have existed for decades. Under
longstanding OSHA regulations that have been upheld by the U.S. Supreme
Court, see Whirlpool v. Marshall, 445 U.S. 1 (1980), employees are
protected against discrimination when they refuse in good faith to
perform work that exposes the employee to a hazardous condition that a
reasonable person would conclude presents a real danger of death or
serious injury. See 29 CFR 1977.12(b)(2). I am not aware of any
evidence suggesting that employees have excessively utilized this right
or filed false claims concerning the exercise of this right. To the
contrary, the evidence strongly suggests that many employees are
reluctant to exercise their rights under the OSH Act because of fear of
retaliation by their employers and the absence of meaningful recourse
under the OSH Act--a problem that the Protecting America's Workers Act
seeks to correct.
______
Chairwoman Woolsey. With that, this hearing is adjourned.
Thank you very much again.
[Whereupon, at 11:55 a.m., the subcommittee was adjourned.]