Enforcement of Whistleblower Requirements Varies Among State Plan States, OSHA Finds

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Federal reviews of how state agencies investigate workers' claims of retaliation for reporting safety or health violations revealed widespread problems, reports released by the Occupational Safety and Health Administration said.

The problems uncovered by the “federal annual monitoring evaluation” (FAME) reports for each of the 25 states and two territories for fiscal 2011 included failure to interview workers who made the discrimination allegations or their supervisors, state laws that could discourage complaints, incorrect classification of cases, and case files in disarray.

OSHA released its FAME reports in late August (42 OSHR 780, 9/6/12).

While many states improved their enforcement of whistleblower regulations after OSHA issued similar reports for fiscal 2009 and 2010, federal OSHA found problems persisted in other states.

For example, in New York, the federal review found problems in that state's handling of complaints made by public-sector workers.

“[W]histleblower case files were difficult to follow and lacked a final investigative report,” the report said. “The reviewer was unable to determine in six of the nine case files reviewed (66%), what the investigator did and the reasons for the investigative conclusions despite the fact that all [Public Employees Occupational Safety and Health office] investigators had received OSHA Training Institute whistleblower training in 2010.”

New York's Department of Labor did not respond to a request for comment.

California Failures

In California, the OSHA report recommended 23 changes to the whistleblower program, overseen by the California Division of Occupational Safety and Health. Recordkeeping was so haphazard, the report said, that it was unclear to OSHA's review team how many complaints California closed out in fiscal 2011; figures ranged from 68 closed cases to 238. The OSHA team settled on 202 closed cases.

“In general, the case file review revealed a general lack of interviews with complainants, respondent witnesses, and third-party non-management witnesses, including a lack of documentation for such interviews in the case,” the OSHA report said.

The report added, “Of the 21 case files reviewed, the investigators failed to interview the complainant in 57% of the cases (12 of 21) and failed to interview the respondent witness(es) in 81% of the cases (17 of 21).”

Cal/OSHA was also slow to complete investigations, the report said. According to agency records, investigators took an average of 333 days to close out cases. Out of 21 cases reviewed, only one was completed within the federal OSHA goal of completing a case within 90 days.

A spokesman for Cal/OSHA told BNA Sept. 7 the agency could not answer questions about the findings until it responds to federal OSHA.

State Law Problems

The reports for South Carolina and Nevada found that state laws violated the requirement that state-enforced protections be as least as effective as federal regulations.

In South Carolina, a law signed by the governor in June 2011 changed procedures for handling whistleblower complaints made by private-sector employees.

Under the old law, the state's Department of Labor, Licensing, and Regulation handled investigations and in “meritorious cases” could file a civil court action seeking reinstatement, back pay, and other relief, the report said.

With the changed law (Sec. 41-15-520), the state agency referred the complaint to federal OSHA within 15 days.

“This [change] effectively deprives private-sector discrimination complainants of any remedy under the South Carolina State Plan,” the federal OSHA review said. “As a result of this legislative change, SC OSHA no longer meets federal requirements for continued approval of its State Plan.”

The report advised South Carolina to reinstate the state's authority.

A spokesman for the South Carolina agency told BNA Sept. 10 in a written statement that the legislature and governor approved revisions to the questioned statute in the summer of 2012. The revised law still refers cases to federal OSHA, but restores options to take cases to state court.

Nevada's Notification Rule

For Nevada, federal OSHA faulted the state's requirement that workers planning to file a whistleblower complaint, first notify their employers of their intent. Nevada will not start an investigation until the employer is informed by the worker.

Federal procedures do not require employer notification until after OSHA opens an investigation, the report said. In some cases, OSHA “administratively closes” a case before opening an investigation. Also, OSHA may decide to inspect a workplace without telling the employer in order to keep the employer from knowing that a complaint was filed.

The Nevada law (NRS 618.445(2)), reviewers said, “may create a chilling effect” on a worker who wants to file a whistleblower retaliation complaint because the worker must send or hand deliver the complaint directly to his employer before NvOSHA opens an investigation.

Federal OSHA advised Nevada to drop the notification requirement.

Steve Coffield, chief administrative officer for NvOSHA, told BNA Sept. 12 that the agency has recommended the change be made when the legislature meets in February. However, before the proposal goes to lawmakers, it still must be approved by the governor's office and the Nevada Division of Industrial Relations.

Meritorious Case Rates

When OSHA looked at the outcomes of whistleblower complaints handled by states, the agency found wide differences in the percentages of cases in which investigators concluded the complaints had merit and deserved a full inquiry according to the “state activity mandated measures” (SAMM) data with the FAME reports.

The percentage of California cases found to have merit was 5.88 percent (4 of 68 complaints), among the lowest for the 27 agencies. However, OSHA officials questioned the accuracy of the figure because of the state's recordkeeping problems. Other states with low rates were Virginia, 4.55 percent (1 of 22); North Carolina, 6.67 percent (5 of 75); Michigan, 7.4 percent (9 of 126); and Oregon, 8.85 percent (10 of 113).

States at the high end included Utah, 50 percent (3 of 6); Washington, 42.05 percent (37 of 88); Alaska, 41.67 percent (5 of 12); South Carolina, 37.5 percent (3 of 8); and Indiana, 31.11 percent (14 of 45).

At federal OSHA, 23 percent of 6,591 cases from fiscal 2009-2011 were determined to have merit.

OSHA Oversight Continues

Officials from federal OSHA declined to answer questions from BNA about the reports, but did issue a statement on Sept. 10, saying the agency is continually talking with the states.

“Working with the OSHA regions, states have developed corrective action plans to address the problems identified in the FAME [reports] with expected actions and time frames for completion,” the statement said. The completion and success of the corrective actions will be assessed in the fiscal 2012 FAME reports.

By Bruce Rolfsen  

The whistleblower/discrimination reports for the agencies are part of the FAME reports available at http://www.osha.gov/dcsp/osp/efame/index.html.

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