```

[Senate Hearing 113-833]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 113-833

   WORKERS' MEMORIAL DAY: ARE EXISTING PRIVATE SECTOR WHISTLEBLOWER 
            PROTECTIONS ADEQUATE TO ENSURE SAFE WORKPLACES?

=======================================================================

                                HEARING

                               BEFORE THE

            SUBCOMMITTEE ON EMPLOYMENT AND WORKPLACE SAFETY

                                 OF THE

                    COMMITTEE ON HEALTH, EDUCATION,
                          LABOR, AND PENSIONS

                          UNITED STATES SENATE

                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                                   ON

EXAMINING WORKERS' MEMORIAL DAY, FOCUSING ON IF EXISTING PRIVATE SECTOR 
    WHISTLEBLOWER PROTECTIONS ARE ADEQUATE TO ENSURE SAFE WORKPLACES

                               __________

                             APRIL 29, 2014

                               __________

 Printed for the use of the Committee on Health, Education, Labor, and 
                                Pensions

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          COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

                       TOM HARKIN, Iowa, Chairman

BARBARA A. MIKULSKI, Maryland         LAMAR ALEXANDER, Tennessee
PATTY MURRAY, Washington              MICHAEL B. ENZI, Wyoming
BERNARD SANDERS (I), Vermont          RICHARD BURR, North Carolina
ROBERT P. CASEY, JR., Pennsylvania    JOHNNY ISAKSON, Georgia
KAY R. HAGAN, North Carolina          RAND PAUL, Kentucky
AL FRANKEN, Minnesota                 ORRIN G. HATCH, Utah 
MICHAEL F. BENNET, Colorado           PAT ROBERTS, Kansas
SHELDON WHITEHOUSE, Rhode Island      LISA MURKOWSKI, Alaska
TAMMY BALDWIN, Wisconsin              MARK KIRK, Illinois
CHRISTOPHER S. MURPHY, Connecticut    TIM SCOTT, South Carolina
ELIZABETH WARREN, Massachusetts    
                      

                      Derek Miller, Staff Director
        Lauren McFerran, Deputy Staff Director and Chief Counsel
               David P. Cleary, Republican Staff Director

                                 ______

            Subcommittee on Employment and Workplace Safety

                ROBERT P. CASEY, Pennsylvania, Chairman

PATTY MURRAY, Washington             JOHNNY ISAKSON, Georgia
AL FRANKEN, Minnesota                RAND PAUL, Kentucky
MICHAEL F. BENNET, Colorado          ORRIN G. HATCH, Utah
SHELDON WHITEHOUSE, Rhode Island     TIM SCOTT, South Carolina
TAMMY BALDWIN, Wisconsin             LAMAR ALEXANDER, Tennessee (ex 
TOM HARKIN, Iowa (ex officio)        officio)
                                       

                       Larry Smar, Staff Director
                Tommy Nguyen, Republican Staff Director

                                  (ii)

  

                            C O N T E N T S

                               __________

                               STATEMENTS

                        TUESDAY, APRIL 29, 2014

                                                                   Page

                           Committee Members

Casey, Hon. Robert P., Jr., Chairman, Subcommittee on Employment 
  and Workplace Safety, opening statement........................     1
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia...     2
    Prepared statement...........................................     3
Murray, Hon. Patty, a U.S. Senator from the State of Washington..    18

                            Witness--Panel I

Michaels, David, Ph.D., MPH, Assistant Secretary for Occupational 
  Safety and Health, U.S. Department of Labor, Washington, DC....     4
    Prepared statement...........................................     6

                          Witnesses--Panel II

Spieler, Emily, A.B., J.D., Professor of Law, Northeastern 
  University School of Law and Chair, Whistleblower Protection 
  Advisory Committee, Boston, MA.................................    21
    Prepared statement...........................................    23
Devine, Tom, Legal Director for Government Accountability 
  Project, Washington, DC........................................    30
    Prepared statement...........................................    32
Baize, Ross, Safety Committeeman for United Auto Workers, East 
  Peoria, IL.....................................................    42
    Prepared statement...........................................    44
Keating, Gregory, Esq., Co-Chair, Whistleblowing and Retaliation 
  Practice Group, Littler Mendelson P.C., Boston, MA.............    45
    Prepared statement...........................................    47

                          ADDITIONAL MATERIAL

Statements, articles, publications, letters, etc.:
    Senator Harkin...............................................    56
    Keith Wrightson, Worker Safety and Health Advocate, Public 
      Citizen's Congress Watch Division..........................    57
    Impact of Extended 11(c) Discrimination Filing Deadlines.....    58

                                 (iii)

  

 
   WORKERS' MEMORIAL DAY: ARE EXISTING PRIVATE SECTOR WHISTLEBLOWER 
            PROTECTIONS ADEQUATE TO ENSURE SAFE WORKPLACES?

                              ----------                              

                        TUESDAY, APRIL 29, 2014

                                       U.S. Senate,
           Subcommittee on Employment and Workplace Safety,
       Committee on Health, Education, Labor, and Pensions,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 9:58 a.m., in 
room SD-430, Dirksen Senate Office Building, Hon. Robert Casey, 
chairman of the subcommittee, presiding.
    Present: Senators Casey, Isakson, and Murray.

                   Opening Statement of Senator Casey

    Senator Casey. Good morning, everyone. The hearing of the 
Subcommittee on Employment and Workplace Safety will come to 
order. We're grateful that you're here with us this morning. 
We're going to be moving very quickly because of the votes at 
11 o'clock.
    I'm grateful to be with our Ranking Member, Senator 
Isakson. He'll follow me, and I'll be as fast as I can in an 
opening.
    Yesterday marked the 25th anniversary of the Workers' 
Memorial Day, which is observed every year on April the 28th. 
It's a day to honor those workers who have died, been disabled, 
injured, or made sick by their work. It is also a day to 
acknowledge the suffering experienced by families and 
communities and to recommit ourselves to the fight for a safe 
and healthy workplace for all workers. It is the day that the 
Occupational Safety and Health Administration was established 
in 1971.
    Too many people each year mark this day by remembering 
loved ones lost in a workplace tragedy. To them we offer our 
sincere condolences, and we also honor the memory of their 
loved ones, and we take the opportunity to discuss ways to 
reduce future workplace tragedies so that fewer families have 
to face the pain of losing a loved one in an often preventable 
workplace incident.
    In 2012 alone, 4,383 workers were killed on the job, 
including 163 workers in my home State of Pennsylvania. Nearly 
3 million workers were injured, and an estimated 50,000 to 
60,000 workers died from occupational diseases. That's about 
150 worker deaths each day if you do the math on the total of 
those who lost their lives.
    OSHA does not have nearly enough inspectors for the 
approximately 132 million workers nationwide. In fact, OSHA has 
only one inspector for about every 69,000 workers at over 9 
million work sites across the country. Let me just say that 
again--one inspector for every 69,000 workers.
    Workers see firsthand the hazards on the job and in the 
workplace, and because OSHA cannot be everywhere, workers are 
an important resource in addressing the hazards in the 
workplaces. But in order for workers to properly identify and 
report workplace hazards, they must first have confidence that 
they will not lose their job or face other types of retaliation 
for doing so.
    Previous congressional hearings focused on the Upper Big 
Branch mine disaster where 29 workers died, or the Deepwater 
Horizon explosion where 11 perished, both in 2010. In these 
instances, surviving workers and family members who lost loved 
ones recounted known hazards, but workers felt threatened or 
pressured to keep working fearing they might lose their job if 
they spoke up.
    These incidents highlight the importance of whistleblower 
protections. Maybe these tragedies could have been avoided if 
safety violations and concerns that were not reported had been 
brought to light. OSHA has taken action to address 
administrative issues with its whistleblower protection program 
identified in reports by the GAO and the Department of Labor 
Inspector General and made great progress in improving how the 
program functions.
    Despite these efforts, the gaps in OSHA's whistleblower 
protection statutes, specifically Section 11(c) of the OSHA 
Act, which accounts for over half of OSHA's whistleblower 
caseload, still leave me with concerns--and that's an 
understatement--concerns about workers' ability to freely 
identify hazards to their employers and authorities without 
fear of retaliation. With fewer inspectors and many more 
workers to protect today than in past decades, it is imperative 
that those in the best position to identify hazards--workers, I 
mean--have adequate whistleblower protections.
    We called this hearing today so that we can do at least 
three things: No. 1, review the current whistleblower 
protections in the OSHA Act, Section 11(c), and compare them to 
recently updated whistleblower statutes. No. 2, we seek to 
consider whether the current whistleblower protections are 
sufficiently adequate to encourage workers to report safety and 
ethical concerns so as to avoid future workplace disasters like 
those we've seen in 2010, most recently; and, last, to evaluate 
what updates, if any, are needed to make workers more 
comfortable in identifying safety hazards or violations and 
ultimately make the workplace safer for American workers.
    I look forward to the testimony and the ensuing discussion 
from our two panels. And with that, I'll turn the microphone 
over to our Ranking Member, Senator Isakson, for his opening 
remarks.

                  Opening Statement of Senator Isakson

    Senator Isakson. Thank you, Senator Casey, and thank you 
for calling the hearing. And out of respect for time for our 
witnesses and the fact that we have votes at 11, I'll submit my 
full statement for the record and ask unanimous consent to have 
that included.
    I want to make two specific points, however. Every worker 
should leave every morning from their home for every job with 
the anticipation of returning home that night safe and free of 
injury. That is the goal of American business. That is the goal 
of every worker in American business.
    Every owner of every business ought to leave home every 
morning hoping that he can do everything he can to prevent 
worker injury or worker death, because the greatest cost 
increase of doing business is higher workers' compensation or 
the risk you have when you have injuries on the job and workers 
who are hurt. So there's a financial motivation as well as a 
moral and human motivation for every owner.
    I want to point out that when safety and compliance are 
placed as priorities within an organization from top to bottom, 
workers and employers benefit from a safer and more protective 
workplace. It's an attitudinal thing that we need to promote. 
Compliance assistance programs, whether they be voluntary 
protection programs or onsite consultation programs, have 
demonstrated their extreme effectiveness over the years.
    I want to commend Dr. Michaels and Secretary Perez on the 
establishment of the Best Practices Working Group within the 
Whistleblow Advisory Committee, which is the exact place to 
build on better compliance, better programs, and better safety 
for our workers. By doing this, the department is focusing on 
the right thing to do, an attitudinal change within all of 
business and with all employers, an attitude toward a safer 
workplace, safer workers, less cost, and more productivity.
    I commend Dr. Michaels and Secretary Perez on their 
initiative, and I look forward to the testimony today.
    [The prepared statement of Senator Isakson follows:]

                 Prepared Statement of Senator Isakson

    I want to begin today by thanking the Chairman, Senator 
Casey, for calling this hearing so that we can examine ways to 
ensure safe workplaces for all Americans. Every working 
American should be able to leave their home every day confident 
that their workplace is safe so that they can return home to 
their families at the end of the work day. One critical tool to 
help ensure the safety of workers are the existing 
whistleblower protections.
    Since OSHA's own statistics demonstrate that there simply 
cannot be an OSHA inspector at every workplace in the country 
to monitor working conditions, the OSH Act ensures that 
individuals who witness and report unsafe acts are protected. 
In order to ensure that these employees are treated fairly and 
properly, we must work to see that employers are educated and 
aware of their responsibilities in these situations. In order 
to achieve a safer workplace, we should be focusing our efforts 
on proactive steps to prevent workplace injuries and fatalities 
before they occur, rather than focus on punishments in reaction 
to these tragedies after the fact. Creating a culture of 
compliance is paramount to ensuring that workplaces are safe 
and reliable.
    When safety and compliance are placed as priorities within 
and organization from top to bottom, workers and employers 
benefit from a safer and more productive workplace. Compliance 
assistance programs, whether they be Voluntary Protection 
Programs (VPP) or onsite consultation programs, have 
demonstrated their extreme effectiveness over the years. In 
addition to being fiscally efficient, these programs empower 
both employees and employers to take ownership in creating 
cultures and safety and compliance. It remains disappointing 
that this Administration continues to propose reductions in 
funding for compliance assistance programs when these continue 
to prove to be effective means for maintaining safe workplaces.
    I am encouraged that Secretary Perez and Assistance 
Secretary Michaels have established a best practices working 
group within the Whistleblower Advisory Committee in order to 
learn from industry experts about what has been working on the 
frontlines of workplace safety. I hope that the Department can 
expand on some of these best practices and find ways to 
incentivize their implementation by others wanting to achieve 
higher levels of safety and compliance.
    I look forward to hearing the testimonies from our 
witnesses today and I now yield back the balance of my time.

    Senator Casey. Thank you, Senator Isakson.
    Dr. Michaels, I'll do a brief introduction and then get to 
your testimony.
    Dr. David Michaels is the Assistant Secretary of Labor for 
Occupational Safety and Health. He has served in this position 
since his appointment by President Obama in December 2009.
    Prior to becoming head of OSHA, Dr. Michaels was a 
professor of environmental and occupational health at the 
George Washington University School of Public Health, a 
position he is currently on leave from while performing his 
duties with OSHA.
    From 1998 to 2001, Dr. Michaels served as Assistant 
Secretary of Energy for Environment, Safety, and Health. He is 
a graduate of the City College of New York and holds a master's 
degree of public health and a Ph.D. from Columbia University.
    Dr. Michaels, thank you. We'll ask you to encapsulate your 
testimony in 5 minutes. Thank you very much.

 STATEMENT OF DAVID MICHAELS, Ph.D., MPH, ASSISTANT SECRETARY 
              FOR OCCUPATIONAL SAFETY AND HEALTH, 
            U.S. DEPARTMENT OF LABOR, WASHINGTON, DC

    Mr. Michaels. Thank you. Good morning, Chairman Casey and 
Ranking Member Isakson. Thank you for the opportunity to 
testify today on the importance of whistleblower protections 
and how we can improve them.
    As Assistant Secretary of Labor for OSHA, I am proud of the 
work we are doing to protect whistleblowers. I look forward to 
working with the committee to continue to strengthen and 
improve our program.
    Chairman Casey, as you just noted, yesterday was Workers' 
Memorial Day. This is a day when we remember those who have 
been killed, injured, or made sick by their work, and we 
rededicate ourselves to ensuring that these tragedies don't 
happen again.
    April 28 is also the day that OSHA was established in 1971. 
Our mission is to assure the health and safety of every worker. 
Over the past 43 years, we've made dramatic progress in 
reducing work-related deaths and injuries, but there's still a 
great deal more work to do.
    Because OSHA cannot be everywhere at once, we rely on 
America's workers to be this Nation's eyes and ears. 
whistleblowers serve as a check on government and business, 
shining a light on illegal, unethical, or dangerous practices.
    In passing the Occupational Safety and Health Act, Congress 
was keenly aware of the crucial role employees play in ensuring 
that their workplaces are safe. Congress also recognized that 
workers would be unlikely to report a hazardous condition or 
make a safety complaint if they feared their employer would 
retaliate against them.
    For that reason, Section 11(c) of the OSHA Act prohibits 
discrimination against employees for exercising their rights. 
However, in the decades since passage of the Act, Congress has 
enacted other statutes which also contain whistleblower 
provisions. We're a small agency with a big role to fill. Not 
only is OSHA responsible for defending workers' health and 
safety, but we also have the important charge of enforcing the 
whistleblower provisions of the OSHA Act and 21 other statutes.
    Protecting whistleblowers is a responsibility we take very 
seriously. Over the last several years, we have implemented 
significant changes to strengthen the whistleblower program. To 
begin with, OSHA established the Whistleblower Protection 
Directorate with additional resources appropriated by Congress 
significantly increasing staffing.
    We also developed an online form so that employees can file 
complaints electronically, enhanced training, and streamlined 
investigation procedures. In addition, we updated our 
whistleblower investigations manual and established a Federal 
advisory committee on whistleblower protections. As a result, 
we have reduced the backlog of 11(c) appeals, improved 
enforcement, and enhanced the consistency of our 
investigations.
    But these changes are not enough. Section 11(c) is badly in 
need of modernization. The anti-retaliation statutes that 
Congress has enacted since the OSHA Act was passed provide 
greater protections and stronger remedies for workers who have 
been retaliated against. To give 11(c) the teeth it needs to be 
as effective, it must be updated to improve procedures for 
filing, investigating, and resolving complaints.
    These newer statutes should serve as a guide for reforming 
and reinvigorating the protections in 11(c). To this end, OSHA 
has a few recommendations to strengthen 11(c).
    To begin with, OSHA should have the authority to order 
immediate preliminary re-instatement where OSHA has found there 
is reasonable cause to believe that an employee has suffered 
illegal termination. Preliminary re-instatement allows 
employees to return to work and regain a regular income quickly 
and is available under all but one of the whistleblower 
statutes passed since 2000.
    Second, OSHA recommends modifying the adjudication process 
to provide a kick-out provision. This will enable workers to 
take their disputes to a Federal district court if the 
department fails to reach a conclusion in a timely manner. By 
encouraging timely resolution of disputes, this provision 
benefits both employers and employees alike.
    Third, OSHA recommends allowing a full administrative 
review of OSHA determinations from the Office of Administrative 
Law Judges and the Administrative Review Board.
    Fourth, the statute of limitations for filing complaints 
should be extended. Section 11(c) currently requires 
whistleblowers to submit a complaint within 30 days of the 
discriminatory action. This is an extremely short period that 
disqualifies many otherwise eligible whistleblowers, and you'll 
hear testimony from one such whistleblower today. All recently 
passed whistleblower statutes give complainants 180 days from 
the date of the adverse action to file a complaint.
    And, finally, Congress should consider revising the burden 
of proof under 11(c) to conform to the standard utilized in all 
statutes enacted since 2000.
    In conclusion, workers who stand up for what's right should 
be held out as models of civic responsibility. By addressing 
wrongdo-
ings or unsafe conditions, they protect themselves and the 
public at large. They deserve our protection against 
retaliation.
    Thank you again for the opportunity to testify today. I 
would be pleased to answer any questions you may have.
    [The prepared statement of Mr. Michaels follows:]
            Prepared Statement of David Michaels, Ph.D., MPH
    Chairman Casey, Ranking Member Isakson, distinguished Members of 
the subcommittee, thank you for inviting me to testify on current 
whistleblower protections, the importance of these protections, and how 
we can improve them moving forward. As Assistant Secretary of Labor for 
the Occupational Safety and Health Administration (OSHA), I am proud of 
the work we are doing to protect whistleblowers and the great strides 
we have made to strengthen and improve OSHA's whistleblower program.
    This hearing comes one day after Workers Memorial Day, when we 
remember and mourn those workers who have been killed, injured, or made 
sick by their work, and rededicate ourselves to ensuring that these 
tragedies do not happen again. It is also the same day the Occupational 
Safety and Health Administration was established in 1971. OSHA's 
mission is to assure the health, safety, and dignity of every worker.
    Over the past 43 years, working with our State partners, employers, 
workers, unions, professionals, and others, OSHA has made dramatic 
progress in reducing work-related deaths, injuries, and illnesses. But 
over 4,000 workers still die on the job every year, and almost 4 
million workers are seriously injured. Workers Memorial Day is an 
occasion to remind the Nation that most of these workplace injuries, 
illnesses, and fatalities are preventable.
    In passing the Occupational Safety and Health Act of 1970 (OSH 
Act), Congress understood that workers play a crucial role in ensuring 
that their workplaces are safe, but also recognized that employees 
would be unlikely to participate in safety or health activities, or to 
report a hazardous condition to their employer or OSHA, if they feared 
their employer would fire them or otherwise retaliate against them. For 
that reason, section 11(c) of the OSH Act prohibits discrimination of 
employees for exercising their rights under the law. In the decades 
since the passage of the OSH Act, Congress has enacted a number of 
other statutes which also contain whistleblower provisions, 
acknowledging that workers are this Nation's eyes and ears, identifying 
and helping to control not only hazards facing workers at jobsites, but 
also practices that endanger the public's health, safety, or well-being 
and the fair and effective functioning of our government. 
Whistleblowers serve as a check on the Government and business, shining 
a light on illegal, unethical, or dangerous practices that otherwise 
may go uncorrected. Whether the safety of our food, environment, or 
workplaces; the integrity of our financial system; or the security of 
our transportation systems, whistleblowers help to ensure that our laws 
are fairly executed.
    Thus, OSHA is a small agency with a big role to fill. Not only is 
OSHA responsible for defending workers' health and safety rights, we 
also have the important charge of enforcing the whistleblower 
provisions of the OSH Act and 21 other statutes which provide employees 
with similar protections.
              improvements in osha's whistleblower program
    Protecting whistleblowers is a responsibility that we take very 
seriously. As you are aware, there have been reports--prepared by the 
Government Accountability Office (GAO) and the Department of Labor's 
Office of the Inspector General (OIG)--that criticized OSHA's 
whistleblower protection program. We took these criticisms seriously 
and successfully implemented all of the recommendations in the GAO and 
OIG reports, which not only increased the program's effectiveness, but 
also made the program more efficient.
    Over the last several years, we have implemented a number of 
significant structural and programmatic changes to strengthen our 
whistleblower program. For instance, OSHA has established the 
Whistleblower Program as a separate directorate, with its own budget; 
developed an online form so that employees can file complaints 
electronically; enhanced training; streamlined investigation 
procedures; and, with additional resources appropriated by Congress, 
significantly increased staffing. In addition, by updating our 
Whistleblower Investigations Manual and establishing a Federal Advisory 
Committee on Whistleblower Protections, we have been able to improve 
our enforcement efforts, including enhancing the consistency of our 
investigations of complaints filed under the anti-retaliation statutes 
that OSHA administers.
    As a result of the increase in resources and the changes mentioned 
above, in the past 2 years OSHA has been able to eliminate a backlog of 
more than 300 ``over-age'' \1\ discrimination complaints under the 
anti-discrimination protections of section 11(c) of the OSH Act. OSHA 
is continuously finding ways to improve its internal investigative 
processes which has proven beneficial in its management of 
investigative caseloads. In addition, OSHA has significantly reduced 
the number of section 11(c) complaints under ``administrative review'' 
\2\ in the National Office. At the beginning of the fiscal year, OSHA 
had more than 200 section 11(c) cases pending administrative review. As 
of April 2014, OSHA has reduced the number of pending cases in this 
category to approximately 40, all of which were newly filed or are 
actively under review. The changes highlighted above are described in 
much more detail in ``Appendix III: Improvements in OSHA's 
Whistleblower Program.''
---------------------------------------------------------------------------
    \1\ ``Over-age'' means ongoing investigation cases over 90 days 
from complaint filing date. At present, the backlog of such complaints 
stands at 1,726, down from 2,034, as of March 31, 2012.
    \2\ ``Administrative Review'' means a post-determination review of 
the investigative documentation by the National Office, similar to an 
appeal review.
---------------------------------------------------------------------------
    Our efforts are bearing fruit. OSHA's strengthened whistleblower 
program has had many successes. For example, in our work enforcing the 
whistleblower provisions of the Federal Railroad Safety Act (FRSA), 
which protects railroad workers from retaliation for reporting 
suspected violations of railroad safety laws as well as on-the-job 
injuries, we achieved a significant accord with BNSF Railways. OSHA 
engaged BNSF in a conversation regarding a large number of 
whistleblower complaints filed against the railroad. This conversation 
ultimately led to an agreement, pursuant to which BNSF agreed to 
voluntarily revise several personnel policies that OSHA believed 
violated the whistleblower provisions of FRSA and dissuaded workers 
from reporting on-the-job injuries. This accord made significant 
progress toward ensuring that BNSF employees who report injuries do not 
suffer any adverse consequences for doing so and represents an 
important step toward improving the culture of safety in the railroad 
industry.
    OSHA has strengthened the administration of its whistleblower 
program, and has made significant progress since the GAO and OIG 
reports were issued, but these changes alone are not enough. Although 
OSHA now enforces an additional 21 whistleblower statutes, cases filed 
under section 11(c) of the OSH Act make up more than half of OSHA's 
whistleblower program caseload--last year, 60 percent of the new cases 
OSHA received were docketed under section 11(c). This whistleblower 
provision, passed over 40 years ago, is badly in need of modernization.
             needed changes to section 11(c) of the osh act
    In the decades since the OSH Act was passed in 1970, we have 
learned a great deal from newer anti-retaliation statutes, particularly 
those passed by the Congress within the last decade. Indeed, all of the 
recent whistleblower statutes provide a much greater level of 
protection, stronger remedies, and better procedural protections for 
workers who have been retaliated against. These statutes are more 
effective at making whole workers who have been retaliated against, 
enable OSHA to correct dangerous practices, and are leading to 
significant improvements in workplace culture.
    To give section 11(c) the teeth it needs to be as effective as 
newer whistleblower statutes, it must be updated to establish improve 
procedures for filing, investigating, and resolving whistleblower 
complaints--to afford employees the same protections that are found in 
these more recent anti-retaliation statutes. These newer statutes 
should serve as a guide for reforming and reinvigorating the 
protections in section 11(c).
    To this end, OSHA recommends strengthening the procedural 
requirements of section 11(c) to be consistent with more recent 
whistleblower statutes, by: (1) providing OSHA with the authority to 
order immediate preliminary re-instatement of employees that OSHA finds 
to have suffered illegal termination; (2) modifying the adjudication 
process to provide a ``kick-out'' provision which will enable workers 
to take their disputes to a Federal District Court if the Department 
fails to reach a conclusion in a timely manner; (3) allowing for a full 
administrative review to the OALJ and ARB of OSHA determinations; (4) 
extending the statute of limitations for filing complaints; and (5) 
revising the burden of proof under section 11(c) to conform to the 
standard utilized in more recently enacted statutes.
1. Preliminary Reinstatement
    Newer statutes include provisions that authorize OSHA to order 
immediate, preliminary re-instatement of wrongly discharged employees. 
Preliminary re-instatement is available under all but one of the 
statutes passed since 2000. Upon finding reasonable cause to believe 
that the worker was illegally terminated under these statutes, the 
Assistant Secretary may issue findings and a preliminary order 
requiring immediate re-instatement of the employee. These provisions 
provide OSHA with the authority to order that illegally terminated 
employees be put back to work, and thus enable them to quickly regain a 
regular income. Preliminary re-instatement provisions also promote the 
efficient resolution of disputes. When OSHA issues a preliminary re-
instatement order, the onus is on the respondent to make a bona fide 
offer of preliminary re-instatement. Once that offer is made, the 
employee may either accept it or reject it. If the employee rejects the 
offer, the employer's obligation for back pay ceases as of the date the 
offer is rejected.
    Preliminary re-instatement also can provide an important impetus 
for the employer and employee to resolve the whistleblower case. For 
example, in a recent case, an employee who led Countrywide Financial 
Corporation's internal investigations discovered widespread and 
pervasive wire, mail, and bank fraud. The employee alleged that 
colleagues who had attempted to report fraud to Countrywide's Employee 
Relations Department suffered persistent retaliation. The employee was 
fired shortly after Countrywide merged with Bank of America Corp. and 
subsequently filed a complaint under section 806 of the Sarbanes-Oxley 
Act (SOX). Upon review of the claim, OSHA found Bank of America Corp. 
in violation of the whistleblower protection provisions of SOX for 
improperly firing the employee. OSHA ordered the bank to re-instate and 
pay the employee approximately $930,000, which included back wages, 
interest, compensatory damages and attorney fees. The case later 
settled before an ALJ.
    Under 11(c), on the other hand, the complainant can only gain re-
instatement to his or her former position if the District Court orders 
re-instatement or if a settlement is reached. The lack of authority for 
OSHA to order preliminary re-instatement of employees under section 
11(c) delays employees' ability to return to work and receive a regular 
paycheck, even if it is clear that they were terminated for retaliatory 
reasons. Without an equivalent provision in the OSH Act, there is less 
pressure for adequate settlements that include re-instatement.
2. Individual Right of Action Requirements
    Individual right of action provisions are also common in newer 
whistleblower protection statutes. These ``kick-out provisions'' 
provide complainants with an alternate route for resolving their 
disputes when the Secretary of Labor's process has not provided a final 
resolution in a timely fashion. By encouraging timely resolution of 
disputes, these provisions benefit both employers and employees alike. 
Additionally, individual right of action requirements offer a desirable 
alternative course for employees who prefer to adjudicate their claim 
in a Federal court setting. ``Kick-out provisions'' may be particularly 
attractive for complainants that are represented by counsel, who may be 
more comfortable litigating in the Federal district court forum.
    In a recent SOX case, the complainant, who was employed as the 
company's controller, reported to company management ``actual and 
suspected frauds and improprieties'' after refusing to prepare $1 
million in bonuses for top executives without proper approvals. The 
controller was fired. After filing with OSHA and while waiting for a 
resolution by the Department, the complainant kicked out to U.S. 
District Court where, less than 2 years after filing the complaint, he 
received a jury award of $6 million. Not only was this a quicker 
decision when compared to past litigated 11(c) claims, the compensatory 
damages award of $6 million is believed to be the highest award ever 
recovered.
    Employees who file under section 11(c), on the other hand, do not 
have this choice. Their cases remain under investigation by OSHA until 
the Department denies their claim or brings suit in Federal court on 
their behalf. Currently, complainants have no right to full 
administrative hearings or review of OSHA's administrative decisions. 
Moreover, employees who file under section 11(c) cannot litigate their 
claim in Federal district court on their own, and instead must hope 
that the Department of Labor chooses to take their cases to district 
court. Under section 11(c), if OSHA believes retaliation has occurred, 
it must refer the case for litigation by the Department of Labor's 
Office of the Solicitor, which may bring suit after seeking 
authorization from the Department of Justice.
3. Full Administrative Adjudication of Cases
    Unlike newer statutes, section 11(c) does not include a process for 
employees to obtain administrative adjudication when OSHA dismisses a 
complaint. Although OSHA's National Office conducts an administrative 
review of OSHA's regional whistleblower decisions as a matter of 
policy, the National Office's review is still an intra-agency process, 
and there is no extra-agency check on OSHA's decisionmaking in 
individual cases.
    Newer statutes, on the other hand, explicitly provide parties with 
the right to object to OSHA's findings and receive a de novo hearing 
from the Office of Administrative Law Judges. Parties may then petition 
the Administrative Review Board (ARB) to review the ALJ's decision, and 
should the ARB issue a decision or decline to review an ALJ decision, 
the decision may be further appealed to U.S. Courts of Appeals.
4. Statute of Limitation Requirements
    All recently enacted or amended whistleblower statutes, including 
FRSA, the Consumer Product Safety Improvement Act, the Surface 
Transportation and Assistance Act (STAA), the Seaman's Protection Act, 
SOX, the Dodd-Frank Wall Street Reform and Consumer Protection Act, the 
Food Safety Modernization Act, and the Moving Ahead for Progress in the 
21st Century Act, give complainants 180 days from the date of the 
adverse action to file a complaint with OSHA.
    In contrast, section 11(c) of the OSH Act only provides 30 days for 
employees to file a whistleblower complaint. Several OSHA-approved 
State plans, including those in Kentucky, California, Connecticut, 
Hawaii, North Carolina, Oregon, and Virginia, have recognized the 
limitations associated with the 30-day filing period and have adopted 
significantly longer periods than those imposed by the Act.
    Notably, there is no statutory time limit for whistleblower 
complaints filed by Federal employees. The Fair Labor Standards Act, 
which includes an anti-retaliation provision for workers that make wage 
and hour complaints, effectively has a 2-year statute of limitations, 
with a 3-year limitation period if the underlying violation was 
willful. The National Labor Relations Act has a limitation period of 
180 days for complaints.
    Section 11(c)'s 30-day statute of limitations is especially 
problematic because it begins to run when the employee learns about the 
adverse employment action, not when the employee learns that the action 
was motivated by an unlawful retaliatory purpose. Employees may not 
know about the motivation for an adverse action for days or weeks after 
the action occurred, which makes the short 30-day filing period 
particularly difficult for employees to meet.
    We have seen many cases of alleged retaliation in which more than 
30 days passed before an employee learned he/she had the right to file 
a complaint with OSHA, or before he/she learned that an action taken 
against him/her violated section 11(c). OSHA receives over 200 
complaints each year that must be rejected because more than 30 days 
had passed since the date of the alleged retaliatory act. OSHA will 
never know how many of these complaints would have led to a remedy for 
the worker, or how many employees decide not to file a complaint after 
learning that they missed the deadline.
    Only 1 to 3 percent of complaints filed under STAA, SOX, and FRSA 
during the past 3 fiscal years missed the 180-day filing deadline. In 
contrast, during the last 3 years, approximately 7 percent of section 
11(c) complaints were ``administratively closed'' (not docketed) for 
missing the 30-day filing deadline (at least a third of which missed 
the deadline by only 30 days or less). If the deadline for filing under 
section 11(c) was extended to180 days, approximately 600 more 
complaints would have been considered timely and eligible for an 
investigation.
    With so many claims determined to be untimely, there is no shortage 
of examples where employees were unable to avail themselves of OSHA's 
investigatory and adjudication processes because they did not file a 
complaint fast enough. To illustrate the impact the 11(c) statute of 
limitations has on workers, below are three examples in which OSHA was 
unable to investigate a complaint of retaliation because the employee 
filed with OSHA after the 30-day deadline had expired:

     A worker in Georgia filed a complaint in January 2013, 
alleging that she was terminated after she complained to her employer 
that she was suffering from fatigue due to exposure to chemicals at her 
worksite. Because she filed her complaint 41 days after her 
termination, OSHA was unable to investigate the matter.
     On January 30, 2014, an employee working at New York 
City's World Trade Center filed a section 11(c) complaint alleging he 
was terminated for raising concerns about the presence of hazardous 
fumes in the workplace. On October 13, 2013, the employee had reported 
to management that paint fumes were making him and others sick. The 
employee was terminated shortly thereafter on October 22, 2013. Because 
this complaint was not filed within the 30 day window, OSHA was unable 
to investigate the alleged adverse action.
     On December 27, 2013, an employee was given a tanker truck 
loaded with a chemical. The tank's gauge, which was faulty, indicated 
that the tank was empty. The employee alleges that his employer knew 
the gauge was faulty, but that he himself was unaware. When the 
employee went to unhook the tank, a chemical spilled onto the employee. 
After telling his employer what had occurred, he was advised not to 
report the incident. Shortly thereafter, the employee was fired. The 
employee filed a complaint with OSHA on January 27, 2014, 31 days after 
the incident occurred. Because the complaint was filed 1 day too late, 
OSHA was unable to investigate.

    The time has come to rectify the statute of limitations problem 
under section 11(c). The hard evidence shows that allowing 180 days for 
employees to file a complaint would advance the investigation of 
retaliation complaints and help ensure that underlying violations are 
remedied.

5. Burden of Proof
    Under section 11(c), the burden of proof is more rigorous than the 
burden of proof under newer statutes. Since 2000, all anti-retaliation 
statutes passed by Congress and administered by OSHA only require the 
employee to show that the employee's whistleblowing was a 
``contributing'' factor to the employer's decision. Conversely, section 
11(c) requires the employee to show that the adverse action was 
``because'' of the whistleblowing. Therefore, OSHA recommends changing 
the burden of proof to ensure the standard a whistleblower must meet is 
consistent among the whistleblower statutes that OSHA enforces and is 
not overly burdensome for claimants filing under section 11(c).
                               conclusion
    Employees who stand up for what is right, who act with the public 
good in mind, and who are brave enough to come forward when others will 
not, should be held out as models of civil responsibility. We owe it to 
all workers to provide effective recourse against retaliation for those 
who have the courage to address wrongdoing or unsafe conditions to 
protect themselves and the public at large.
    Your continued support and commitment ensures that whistleblowers 
are protected. I look forward to working with you to strengthen our 
program. Thank you again for this opportunity to discuss OSHA's 
whistleblower program and our recommendations for making section 11(c) 
of the OSH Act as protective as the other whistleblower laws enacted 
during the last 20 years.
                                 ______
                                 
            APPENDIX I: PRELIMINARY REINSTATEMENT PROVISIONS
    Below are statistics on the number of preliminary re-instatement 
orders that OSHA has issued over the past 3 fiscal years.

 
------------------------------------------------------------------------
                                                             Preliminary
                                                             reinstate-
                          Statute                            ment orders
                                                             fiscal year
                                                               2011-13
------------------------------------------------------------------------
AIR21.....................................................            4
FRSA......................................................           12
SOX.......................................................            5
STAA......................................................           15
                                                           -------------
  Total...................................................           36
------------------------------------------------------------------------

          APPENDIX II: INDIVIDUAL RIGHT OF ACTION REQUIREMENTS
    Below are statistics on the number of complainants that chose to 
kick-out from an OSHA investigation during fiscal year 2012 and fiscal 
year 2013. Please note that these statistics do not include 
complainants that may have kicked-out to district court while their 
matter was pending before OALJ or the ARB.

 
------------------------------------------------------------------------
                                                Kick-outs     Kick-outs
                                               from OSHA--   from OSHA--
                   Statute                     fiscal year   fiscal year
                                                  2012          2013
------------------------------------------------------------------------
CFPA........................................            1             2
CPSIA.......................................            0             3
ERA.........................................            3             2
FRSA........................................           31            34
FSMA........................................            0             2
SOX.........................................           10            25
SPA.........................................            0             1
STAA........................................            3             5
                                             ---------------------------
  Total.....................................           48            74
------------------------------------------------------------------------

       APPENDIX III: IMPROVEMENTS IN OSHA'S WHISTLEBLOWER PROGRAM
    In January 2009, the U.S. Government Accountability Office (GAO) 
issued a report with eight recommendations for improving OSHA's 
Whistleblower Protection Program, which focused on improving 
whistleblower data integrity, strengthening OSHA's audits of 
whistleblower activities, and ensuring that OSHA's whistleblower 
investigators have all the equipment needed to do their jobs.\3\ A 
second GAO report, issued in 2010, included four additional 
recommendations, which focused on the strength of OSHA's oversight of 
whistleblower investigative activities, and specifically instructed 
OSHA to ensure that all whistleblower investigators and their 
supervisors have completed mandatory training courses.\4\ Also in 2010, 
the Office of the Inspector General (OIG) issued a report that 
concluded that OSHA was not adequately managing the Whistleblower 
Protection Program, and issued recommendations directing OSHA to 
strengthen its supervisory controls, improve its management of 
whistleblower caseloads, and update the Whistleblower Investigations 
Manual to incorporate these recommendations.\5\
---------------------------------------------------------------------------
    \3\ GAO 09-106 ``Better Data and Oversight Would Help Ensure 
Program Quality and Consistency.''
    \4\ GAO-10-722 ``Sustained Management Attention is Needed to 
Address Longstanding Program Weaknesses.''
    \5\ 02-10-202-10-105 ``Complainants Did Not Always Receive 
Appropriate Investigations Under the Whistleblower Protection 
Program.''
---------------------------------------------------------------------------
    OSHA has worked diligently to improve the management and 
accountability of OSHA's Whistleblower Protection Program and has 
implemented all of these recommendations. Key changes to OSHA's 
whistleblower program are discussed below.

     In 2012 OSHA reorganized the Office of the Whistleblower 
Protection Program into a new ``Directorate'' of Whistleblower 
Protection Program at the National Office. Instead of being housed 
within OSHA's Directorate of Enforcement Program, the new whistleblower 
directorate has its own budget and is led by a Senior Executive 
Service-level Director who reports directly to the Assistant Secretary.
     In fiscal year 2012 budget, OSHA developed a separate line 
item for the whistleblower program so it could better track and report 
to Congress the program's expenses.
     More than 35 full-time whistleblower employees have been 
hired since 2009, representing a 48 percent increase in whistleblower 
field staff nationwide. These new personnel include both whistleblower 
investigators to investigate whistleblower cases and whistleblower 
supervisors to oversee those investigations and manage regional 
investigative resources.
     In December 2013, OSHA unveiled its online whistleblower 
complaint form, which makes it easier for employees to file 
complainants electronically via the Agency's Web site.
     OSHA reorganized its whistleblower program so that all 
whistleblower personnel now report to centralized, whistleblower-
dedicated supervisors that are fully trained in whistleblower 
investigations.
     All whistleblower investigators are now required to 
complete two mandatory training courses on Section 11(c) of the OSH Act 
and the other Federal anti-retaliation statutes enforced by OSHA. OSHA 
is actively engaged in establishing a dedicated whistleblower Training 
Track, comparable to the agency's Safety, Health and Construction 
Training Tracks. A workgroup is currently working on the development of 
this training track, which will expand the number of mandatory training 
courses, and will be managed by the Directorate of Training and 
Education at OSHA's Training Institute in Arlington Heights, IL.
     In September 2011, OSHA updated its Whistleblower 
Investigations Manual, the Agency's primary tool for communicating the 
procedures and policies that apply to whistleblower investigations, 
which incorporates the recommendations made in the GAO and OIG Reports, 
and provides detailed procedures and guidance so that investigations 
are thoroughly and consistently completed.
     In 2012, OSHA established a Whistleblower Protection 
Advisory Committee to make recommendations regarding implementation of 
better customer service to workers and employers, improvement in the 
investigative and enforcement processes, improvement of regulations 
governing OSHA investigations, and recommendations for cooperative 
activities with Federal agencies responsible for areas also covered by 
the whistleblower protection statutes enforced by OSHA.
                      APPENDIX IV: SUCCESS STORIES
    A few key examples of workers that have benefited from OSHA's 
successful enforcement of the broader protections afforded by the new 
whistleblower statutes are discussed below.
Section 806 of the Sarbanes-Oxley Act (SOX)
     Bond Laboratories Inc., a manufacturer of nutritional 
supplement beverages and other related products, terminated an officer 
because he repeatedly objected to the manipulation of sales figures, 
which the officer believed misrepresented the company's value to 
potential investors. The officer filed a complaint against Bond 
Laboratories and its former CEO under Section 806 of SOX, and OSHA's 
investigation revealed that the officer's complaint was meritorious. In 
September 2011, OSHA issued an order of preliminary re-instatement to 
put the officer back to work, and also ordered that the company pay the 
officer approximately $500,000 in back wages, interest and compensatory 
damages. Settlement was approved on August 3, 2012.
Federal Railroad Safety Act (FRSA)
     OSHA recently investigated a case filed under the Federal 
Railroad Safety Act (FRSA) against Norfolk Southern Railway by two 
employees who had been terminated by the company. Norfolk Southern 
terminated both workers for reporting injuries to management they 
sustained when another vehicle ran a red light and struck the company 
truck in which they were riding. Prior to the incident in-question, the 
employees had been employed by the railroad for more than 36 years 
without incident. As a result of Norfolk Southern Railway Co.'s 
retaliatory behavior (several other orders were also issued by OSHA 
against Norfolk Southern Railway Co. in the past 2 years), Norfolk 
Southern Railway Co. was ordered to pay more than $1.1 million for the 
wrongful termination of employees, and was ordered by OSHA to 
preliminary re-instate workers who were wrongfully terminated for 
reporting injuries that occurred on the job.
Surface Transportation Assistance Act (STAA)
     Four employees of Gaines Motor Lines filed a claim under 
the Surface Transportation Assistance Act (STAA), alleging they were 
terminated for participating in an inspection audit conducted by the 
Department of Transportation's Federal Motor Carrier Safety 
Administration (FMCSA). Following the audit and subsequent citations 
issued against Gaines Motor by FMCSA, the employees suffered 
retaliation by company officials, including termination, layoffs and 
removal of employee benefits. As a result of OSHA's investigation, 
Gaines Motor Lines was ordered to pay over $1 million in damages, on 
behalf of three former employees and the estate of an employee who died 
during the course of the OSHA investigation. OSHA also ordered 
preliminary re-instatement for the three living employees. The company 
filed a motion to stay the preliminary re-instatement order but the ALJ 
denied said motion and compelled Gaines to make bona fide offers of re-
instatement, which Gaines did. Under STAA, complainants have 180 days 
to file their complaints and OSHA can order both compensatory and 
punitive damages. STAA also has a kick-out provision, which allows the 
complainant to take their case to a U.S. District Court if the 
Secretary of Labor has not issued a final decision within 210 days 
after the filing of the complaint.
                                 ______
                                 
                       Submission for the Record
    At the request of the U.S. Senate Committee on Health, Education, 
Labor, and Pensions, the Occupational Safety and Health Administration 
has collected 3 years of data (fiscal year 2011-13) relating to the 
impact of extended filing periods for whistleblower complaints in eight 
State Plan States that have deadlines that exceed the 30-day period 
required by OSHA. The eight States covered include California, 
Connecticut, Hawaii, Kentucky, North Carolina, New Jersey, Oregon, and 
Virginia. The below summary results are based on data collected about 
the 1,382 cases from these eight States during fiscal year 2011-13 
where both an adverse action date and a filing date can be determined 
and which are closed cases.

     748 cases (54.1 percent) were filed within 30 days of the 
adverse action, while 634 (45.9 percent) were filed after 30 days.
     Of those 634 cases filed 31 or more days after the adverse 
action, 88 (13.9 percent) were determined to be meritorious.
     The percentage of cases filed within 30 days that were 
determined to be meritorious (18.4 percent) was higher than those filed 
31 or more days after adverse action (13.9 percent).

    In summary, 88 workers received meritorious decisions for their 
cases where, if filed under OSHA jurisdiction, they would have seen 
their cases dismissed due to missing the filing deadline. While the 
percentage of meritorious cases is somewhat lower than for cases filed 
within 30 days, it stands as a testimony to the value of longer filing 
windows in these States. Additionally, a total of 634 complainants 
received a decision regarding the disposition of their cases based on 
the merits of the case rather than the technicality of missing the 
filing deadline, which provides a level of resolution that would not 
otherwise be offered.
    OSHA believes that extended filing deadlines are a valuable 
resource in protecting worker rights, and as such would welcome the 
opportunity to extend the filing deadlines throughout OSHA and the 
other State Plans.

                                                  Whistleblower Cases in States With Extended Deadlines
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                           No.                                                      Percent
                                                                          filed                  Percent    Filed 31               filed 31    Percent
                                                                Total    within    No. filed      filed      or more                or more    filed 31
                            State                              no. of    30 days   within 30    within 30     days        No.        days      days or
                                                                cases      of         days         days       after   meritorious    after    more that
                                                                         adverse  meritorious  meritorious   adverse                adverse      are
                                                                         action                              action                 action   meritorious
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fiscal Year 2011............................................      423       211          23         10.9        212          21       50.1         9.9
Fiscal Year 2012............................................      519       296          64         21.6        223          37       43.0        16.6
Fiscal Year 2013............................................      440       241          51         21.2        199          30       45.2        15.1
                                                             -------------------------------------------------------------------------------------------
  Total, fiscal year 2011-13................................     1382       748         138         18.4        634          88       45.9        13.9
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Senator Casey. Doctor, thank you very much. You'll be 
invited back, because you're right on the button. Senator 
Isakson and I have never seen this happen before.
    [Laughter.]
    Senator Isakson. It's a first.
    Senator Casey. It's a first. We'll do 5-minute rounds, and 
we're going to try to move to our next panel at about 10:20.
    But I know that, No. 1, we've both acknowledged--both 
Senator Isakson and I have acknowledged the advancements you 
have made in setting up an important whistleblower program. We 
know that within the existing statute or within the existing 
resources that you have, you might be able to make more 
changes, and we look forward to working with you on that.
    But just tell us--if we're going to help in reforming the 
work that you can do under existing law and also consider 
statutory changes, let's start with what you can do right now. 
What are some of the limitations you have working within the 
existing law, but also working within your current resources?
    Mr. Michaels. The issues in the existing law are some of 
the ones that I addressed in my testimony. Just to enumerate 
them very quickly, the statute of limitations is a very serious 
problem. There are 200 cases a year which we dismiss simply 
because they're untimely. Some of them involve what we think 
are very meritorious cases of workers who file 32, 34, or 35 
days after the event, and that simply isn't fair. Congress has 
passed a dozen pieces of legislation which give workers 180 
days to file a complaint, and we think that would be one that 
makes sense for all of them.
    Senator Casey. Let me just interrupt there. You think just 
that alone--there might be as many as 200 cases a year that are 
meritorious that don't get considered.
    Mr. Michaels. We dismiss 200 cases a year. We believe many 
of them are meritorious. That's correct. And, certainly, there 
are some workers who don't file, knowing full well that they've 
been told, ``Well, you missed your 30 days.'' We think that 
would have a big impact.
    The second thing, though, is to have an administrative 
review outside of OSHA. While I believe OSHA staff do an 
excellent job, the system is set up so we're the final arbiter, 
and I don't think that's fair. I think all Americans should 
have the right to take any decision that we make to an 
administrative law judge or to Federal court if they want to do 
that.
    We can be wrong, and, right now, there's no recourse. If 
we're wrong, that's the end of the case. I think it's fair for 
both employers and for employees to have administrative reviews 
and the same reviews that Congress has put into these dozen 
other laws. As you'll see in my testimony, there are a couple 
of other areas as well--changing the burden of proof issues. 
But those are the key ones.
    Senator Casey. So what you've outlined or what would be 
statutory.
    Mr. Michaels. Exactly.
    Senator Casey. Anything in the process of--we know that 
sometimes the time between introduction of legislation, even 
legislation that has a lot of consensus that undergirds it--
that time can be substantial. So I want to ask you about under 
your existing--just the existing resources and what you can do 
now. Is there anything that we can do through either oversight 
or appropriations or otherwise?
    Mr. Michaels. There is certainly an appropriations 
approach. You know, in the years following the expansion of the 
whistleblower program, where we were given new statutes every 
few years, where we got a dozen new statutes since the year 
2000, for many years, no additional resources came with that. 
We are grateful that Congress in the last several years has 
given us greater resources, and we're using them very 
productively.
    But we certainly could use more, because we do get new 
statutes all the time, and there's no money attached to those. 
There's no additional funding. Again, we're grateful in the 
appropriations process to get that additional help.
    One of the things we're doing with the new money that we're 
getting this year is setting up a national alternative dispute 
resolution process. We piloted that in a couple of regions. We 
saw it was successful in getting cases to settlement very 
quickly to the agreement of both the worker and the employer 
involved. We want to do more of that, and certainly more 
resources will help us do that under current statutes.
    But let me just mention--and I think Senator Isakson talked 
about it--the work we're doing through our advisory committee 
to look for better ways to essentially change the culture of 
ethics and compliance, which is what you'll hear later on from 
Greg Keating, who is a member of our advisory committee. That's 
something that we can do now, and one thing that--we've reached 
out to the employer community and to others to help us get the 
word out that better managed employers who have this culture of 
ethics and compliance will do better. They'll treat their 
employees better. They'll get the concerns and be able to 
address them in a way that's effective.
    You know, we just had the anniversary of the Deepwater 
Horizon incident. There was a survey done weeks before that 
explosion where workers told their employer in an anonymous 
survey--almost half of them reported there was some fear of 
reporting a safety concern. Can you imagine how much better off 
this country would be if those workers had felt comfortable 
raising concerns with their employer, and the employer could 
address those?
    I'm very glad that we're taking this approach, and I hope 
the Senate also will be supportive of those attempts to change 
what goes on in workplaces so employers set up compliance 
management systems very much like they set up safety management 
systems.
    Senator Casey. I'll stop for now. I may come back and wrap 
up.
    Senator Isakson.
    Senator Isakson. Dr. Michaels, I commended you in my 
statement about what you and Secretary Perez have done in terms 
of best practices promotion and trying to work with your group 
to come up with recommendations on best practices. But I've 
read the President's budget request year in and year out. It 
seems like there's been less of an emphasis from the 
administration on compliance programs, training programs, and 
best practices programs, and more of an emphasis on 
enforcement.
    There's got to be a balance somewhere there in between. Are 
there places where you could use additional support in terms of 
bringing about better compliance and positive programs?
    Mr. Michaels. That's a great question. Thank you for 
asking. That's exactly right. There is a balance. And we know 
that some employers are only impacted by fear of inspections, 
and there are lots of other employers who want to do the right 
thing, and we have to help them. So we generally ask for money 
for both, and we certainly continue to do that.
    This area of whistleblower protection is not one, though, 
where we've really focused on compliance assistance, and that's 
why we've asked our advisory committee to help us do that, to 
help us figure out what that tool is. Right now, in the world 
of safety, we're able to tell employers lots of positive 
messages. We have a Web site with lots of information. We have 
a free consultation program in every State to help small 
employers address safety and health concerns, independent of 
OSHA inspections.
    But we don't yet have that for whistleblower protection, 
and we'd like to develop that, and we're going to need help 
doing that, because we don't yet know the message to give. 
Right now, our message is simply don't retaliate against 
whistleblowers, and we have to do better than that. We have to 
say,

          ``Here's the program. Here's the management system 
        that will help you learn what your workers' concerns 
        are and how you can address them best.''

    We're hoping to develop that.
    Senator Isakson. I'm a big supporter of whistleblowers. In 
fact, I passed legislation a couple of years ago within the 
Peace Corps to create a whistleblower standard in the Peace 
Corps that had not existed before. So I am on your side in 
terms of recognizing that we can't hire enough inspectors to 
watch the workplace all over the world. What we need is the 
workers and the employers being the inspectors, bringing 
forward those things that need to be changed. I'm on that team.
    But I'm also on the team--there are two great motivators in 
life. One is fear, and the other is reward. In your testimony, 
you pointed out that the fear of an inspection is one of the 
motivators where people will do better if they know they're 
more often inspected. But a lot of people may hope they don't 
get inspected and they might slip and slide a little bit.
    Have you got any programs within the Department of Labor 
where you illuminate or reward or raise up and elevate someone 
you find doing positive efforts to reduce workplace accidents 
and deaths and injury?
    Mr. Michaels. Absolutely. We have two programs. One is 
called the Voluntary Participation Program, the VPP, and we 
have well over 1,000 employers across the country who are 
members of that program, and those are really the best of the 
best. They tend to be large employers.
    They've committed to doing safety programs far beyond 
anything OSHA requires them to do under the law, and we give 
them a flag, and we say they're doing a great job, and they are 
exempted from certain other requirements. They do it because 
they know it's the right thing to do, and we recognize them.
    Then we have a program like that called SHARP, which is for 
small employers, and that is run through our State consultation 
program. And that's the same thing, where we recognize the 
small employer who has taken steps and made a commitment well 
beyond what OSHA requires. They're true believers. They're 
doing this not because OSHA recognizes them, though. They're 
happy for our recognition, but they know they're a better, more 
productive, and more profitable employer by doing this.
    Senator Isakson. You've just underlined my point, because 
we all know the fear is the inspector. The inspector is coming, 
and everybody says, ``Oh, my God, where am I going to get''--
especially at MSHA and places like that, which I deal with mine 
safety a lot. But reward is also important.
    What exemptions do you give somebody for good practices and 
good behavior?
    Mr. Michaels. We don't put them on the inspection list. 
That's what they get. After the Texas City BP explosion several 
years ago, we did a national program where we did an inspection 
of every single oil refinery. But those oil refineries that 
were already in our VPP program were exempted from that, 
because we know they're doing a good job.
    We're in and out of those plants all the time on compliance 
assistance activities. We're in touch with the management. So 
we don't need to inspect those plants. If they're that good, we 
put our resources somewhere else.
    Senator Isakson. Thank you, Dr. Michaels.
    Thank you, Mr. Chairman.
    Senator Casey. Thanks, Senator Isakson.
    Dr. Michaels, you'll be out the door in about 5 minutes. 
We're almost ready to wrap up.
    But I wanted to ask you about the experience that States 
have had recently. I know that a lot of what--virtually 
everything you've outlined in your testimony in terms of 
statutory change conforms with other Federal statutes. If you 
lengthen the time period within which you bring a complaint, 
that's not some novel idea. It's been embedded into a lot of 
Federal statutes.
    I'm told that 8 of the 27 States that operate some form of 
their own OSHA State plans--that these States, in particular, 
have already identified at least two areas that are important. 
One is the need to have complaint filing times for 11(c) type 
cases longer than the existing Federal OSHA statute or longer 
than Federal OSHA. And another, I guess, five States have 
provisions where they allow claimants a private right of 
action--so time within which to bring a complaint and then a 
private right of action where an individual can bring the 
action.
    Can you tell us, to the extent that you know, some of the 
State data, what this has meant to States that have those kind 
of broader--I might call them broader remedies or more 
effective remedies for a whistleblower case?
    Mr. Michaels. That's a very good question. We don't have 
data on hand, and we can certainly get back to you on the 
impact. North Carolina, for example, allows 180 days for 
whistleblowers to raise concerns, and Kentucky allows 120 days.
    But there are several States across the country that, in 
their wisdom, have looked at this, and they have provided more 
time for whistleblowers to raise concerns under 11(c), because 
they themselves are the ones that enforce the 11(c) provision. 
And their State legislatures have given them private rights of 
action--many of these States as well. I can look a little more 
and get back to you on what the impact has been.
    [The Impact of Extended 11(c) Discrimination Filing 
Deadlines Within OSHA State Plans Chart may be found in 
Additional Material.]
    But when we look at that, we say, ``Well, obviously, these 
programs are working OK.'' And when we see the problems that we 
face, we believe that it would be very useful for the Federal 
Government to adopt this 180-day statute, for example, for 
11(c) across the country.
    Once we do that--because of the way the OSHA Act is 
written, it says every State has to be at least as effective as 
OSHA. If we change it on a national level, then other States 
which haven't gone to 180 days will do that. But a number of 
States already are there, so they wouldn't have to make any 
changes.
    Senator Casey. And I know in your testimony starting, I 
guess, at page 4, you outline the changes you had hoped for. 
I'm assuming that when you--just for purposes of being specific 
on the record, when you rank them--No. 1 being preliminary re-
instatement, No. 2 being individual right of action 
requirements--that you're ranking them in order of priority. Is 
that----
    Mr. Michaels. I think they're all important.
    Senator Casey. They're all important. And you've got a 
total of five, the last one being burden of proof. We will 
certainly take those recommendations into consideration, and we 
hope that we can come together on a bipartisan piece of 
legislation to make these changes. But in the meantime, while 
that process grinds on, we hope that you'll stay in touch with 
us and figure out and help us figure out ways that we can help 
in the near term, even prior to any whistleblower statutory 
changes.
    Mr. Michaels. I'm grateful for that, and I promise to do 
that.
    Senator Casey. Before we wrap up, Doctor, Senator Murray is 
here, and she'd like to ask you a question. I know that we were 
going through a list of statutory changes, and we're grateful 
to have those in front of us. We do want to make sure that as 
we consider those changes that you continue to stay in touch 
with us regarding the near term. And I was promising you'd be 
out the door soon, so my questions are over, but Senator Murray 
might have one or two.

                      Statement of Senator Murray

    Senator Murray. Nice delay. Thank you. Good morning, and 
thank you, Mr. Chairman, for holding this hearing. I just want 
to recognize that yesterday was Worker Memorial Day, and 
today--which we pause to honor and remember the more than 4,000 
workers who die every year on the job and the other 4 million 
workers who suffer serious job-related injuries. It's a tragedy 
that this country, if it was any other thing, would really be 
focused on it. But these kind of rippled out throughout the 
year, and we sometimes forget.
    We know things need to change, and we owe it to those who 
have died or been injured to allow the voices of whistleblowers 
to be heard and protected. I really appreciate you being here, 
Dr. Michaels. Thank you for staying an extra moment.
    I wanted to talk to you because DOL manages the 
whistleblower program under several different laws. Is that 
correct?
    Mr. Michaels. Yes, 21 statutes in addition to OSHA's.
    Senator Murray. Twenty-one. How many whistleblower programs 
do you manage?
    Mr. Michaels. It's one program, but 22 statutes with some 
variation between them, though most of them look very much the 
same.
    Senator Murray. Are there differences between the laws that 
you manage?
    Mr. Michaels. The primary difference is between the 11(c) 
and all of the new statutes, which have some of the 
recommendations that we would make that also are in your bill 
that would require--would give workers more time to file, would 
have administrative review for cases, would have the ability 
for OSHA to have preliminary re-instatements, would change the 
burden of proof that we follow for 11(c) to make them 
consistent with all these other statutes that Congress has 
passed in the last decade and a half.
    Senator Murray. Walk us through some of the practical 
implications of having to manage the differences between these 
laws.
    Mr. Michaels. Right now, we do a tremendous amount of 
training and regularly have to oversee our staff to remind them 
that the burden of proof is different under 11(c), and it's 
actually a higher burden of proof. So in cases that wouldn't be 
dismissed under any of the new statutes--food safety, 
modernization, consumer product safety--get dismissed under 
11(c).
    You'll hear about this later on in testimony from the next 
panel. A worker who looks like he has a meritorious case that 
we haven't fully investigated files 34 days after an event 
occurs where they feel like they've been retaliated against, 
and, you know, we dismiss the case.
    Senator Murray. Just because of that?
    Mr. Michaels. Yes. The law says they have 30 days.
    Senator Murray. Do you think it's patently unfair and 
illogical that whistleblowers in different industries get 
treated differently just because Congress hasn't been able to 
act to raise the protections afforded to everyone?
    Mr. Michaels. Yes, and I think it impacts the health and 
safety and the well-being of not just workers but of all 
Americans. If workers don't feel free to raise their concerns--
and I talked about the Deepwater Horizon right before coming 
out here. It's important for workers to be able to raise those 
concerns for everybody's safety.
    Senator Murray. As I understand it, the Department of 
Labor's solicitor's office has only prosecuted 6.7 percent of 
all merit claims under the OSH Act over the past 14 years, and 
fully 60 percent were abandoned entirely. Is that correct?
    Mr. Michaels. The good news on that is things have changed. 
The solicitor of labor and I signed a memorandum 2 years ago 
instructing the field to work together to make this a high 
priority, and since then, our numbers have gone up 
dramatically.
    Senator Murray. They have.
    Mr. Michaels. Yes.
    Senator Murray. Do you have those numbers?
    Mr. Michaels. I do. Currently, for example, we are 
proceeding in litigation on 38 cases, which was more than the 
entire number for the first 12 years of the program. From 1996 
to 2008, we litigated 32 cases. We settled some. But right now, 
I think the actual percentage--I can get back to you--is about 
67 percent of the cases that we now refer to SOL are taken on 
for litigation. It's totally different.
    Senator Murray. What has improved that, and what can we 
continue to do to improve it?
    Mr. Michaels. That's been one where the solicitor of labor 
and I have said very clearly that this is a priority and has to 
be given resources. And when we say that from the national 
office, that cascades down to every office across the country. 
I think it's been very effective.
    But there are still these great limits. I mean, there are 
only certain things we can do. We still have to go to Federal 
court to proceed on every single case. We know that if we go 
through a different sort of investigation and have 
administrative review, we can resolve these cases much earlier 
and, in fact, not go to the Federal court if not necessary, but 
also get people back to work, if we can, as quickly as possible 
and get everything settled. We don't need to win the case. We 
want to settle the case, so the worker and the employer are 
both happy with the result.
    Senator Murray. Mr. Chairman, this isn't about any one 
piece of legislation. But the OSH Act itself has not been 
updated since 1970, and the vast majority of whistleblowers 
don't have the most up-to-date protections. In fact, as one of 
our witnesses is going to point out, by far, the most 
whistleblower complaints are covered by the OSH Act, which has 
the oldest and weakest protections of any whistleblower law.
    So I have legislation, the Protecting America's Worker Act, 
that deals with this, and I hope that we can really look at 
updating these laws that need to be updated. Thank you very 
much.
    Senator Casey. Senator Murray, thank you very much.
    Dr. Michaels, you're out early because your testimony was 
within the time limit. But thanks for being here. Thanks for 
your public service.
    Mr. Michaels. Thank you so much to all three of you.
    Senator Casey. We'll move to our second panel, and as 
people are getting seated, I'll begin with the introductions in 
the interest of time. I'll start first on my left and your 
right.
    Emily Spieler is the Edwin W. Hadley Professor of Law at 
Northeastern University School of Law in Boston, MA. She also 
serves as chair of the Whistleblower Protection Advisory 
Committee for the U.S. Department of Labor. Ms. Spieler 
previously held senior government positions with the State of 
West Virginia, faculty positions with the West Virginia 
University College of Law and was the dean of the Northeastern 
University School of Law from 2002 to 2012.
    Prior to beginning her academic career, she practiced labor 
and employment law in Boston and West Virginia. She received 
her A.B. degree magna cum laude from Harvard University and her 
J.D. from Yale School of Law.
    Dean, we're grateful you're here. I'm allowed to call you 
dean, I think, still. We talked about that earlier.
    Second, Tom Devine is Legal Director of the Government 
Accountability Project, where he has worked to assist thousands 
of whistleblowers to come forward. He has been involved in all 
of the campaigns to pass or defend major whistleblower laws 
over the last two decades. He is a frequent expert commentator 
on television and radio talk shows. Mr. Devine is the recipient 
of the ``Defender of the Constitution'' Award bestowed by the 
Fund for Constitutional Government.
    Thank you very much.
    Ross Baize is an employee of Caterpillar in Peoria, IL. 
Ross began his career at Caterpillar as a material handling 
specialist in the Morton, IL, world distribution headquarters 
and is now a mill, drill, and bore specialist at Caterpillar's 
east Peoria, IL, location. He is also on the UAW Safety 
Committee. He's a committeeman for that and a member of the UAW 
Local 974.
    He grew up in Peoria. He is married to his wife, Laura, 
with a 3\1/2\-year-old son, and they're expecting a daughter in 
June.
    Good luck. I have four daughters, and I'm sure you'll enjoy 
all of them, if you have more, I should say.
    Gregory Keating is the co-chair of the Whistleblowing and 
Retaliation Practice Group at Littler Mendelson, P.C., in 
Boston, MA. He's a member of Littler's board of directors. In 
June 2012, Senators Enzi and Isakson nominated Mr. Keating to 
serve as a management representative on the Whistleblower 
Protection Advisory Committee, and he was appointed to the 
committee by Secretary of Labor Hilda Solis in December 2012.
    Great to be with you all this morning.
    Emily, will you start us off? Thank you very much.

   STATEMENT OF EMILY SPIELER, A.B., J.D., PROFESSOR OF LAW, 
NORTHEASTERN UNIVERSITY SCHOOL OF LAW AND CHAIR, WHISTLEBLOWER 
           PROTECTION ADVISORY COMMITTEE, BOSTON, MA

    Ms. Spieler. Thank you, Chairman Casey, Ranking Member 
Isakson, and Senator Murray. I really appreciate the 
opportunity to be here today. Please note, however, that my 
testimony reflects only my own views. I'm not yet able to 
present conclusions from the advisory committee nor our working 
subgroups, one of which you've already referenced in the 
discussions, nor, of course, am I representing the Department 
of Labor or OSHA.
    The mandate of the OSHA Act is broad to assure so far as 
possible every working man and woman in the Nation safe and 
healthy working conditions. But as you have noted, the 
resources of OSHA are limited. We therefore have no choice but 
to depend on workers as our first line of defense to identify 
hazards. It's critical to be able to assure all workers that 
the law against retaliation is strong in order to be able to 
encourage them to come forward and in order to remedy any 
retaliation that they may suffer.
    It is also important to remember that our collective well-
being is at risk if workers fear retaliation. Safety problems 
inside workplaces can lead to environmental and community 
disasters. Two notorious examples of this are the BP oil spill 
and the explosion in the west Texas fertilizer plant.
    As you know, 11(c) was an early anti-retaliation statute, 
but it's now part of a growing number of Federal statutes. All 
of the recent statutes provide much stronger protections for 
whistleblowers than 11(c). Section 11(c) has been left behind. 
As a result, workers are afraid to come forward and 
legitimately so. We're giving them an illusory promise.
    The provisions of the statute are weak, and these 
provisions place responsibilities on the Department of Labor 
that it simply cannot meet. I want to briefly explore these two 
related problems. My written testimony provides much more 
detail.
    A comparison of 11(c) and other whistleblower provisions 
tells the story. First, many 11(c) complaints are screened out 
from the beginning because they don't meet the 30-day filing 
requirement. Every whistleblower law passed since 2000 allows 
180 days for filing, a deadline I believe 80 percent of the 
screened out 11(c) filings would meet if the time period were 
extended.
    Second, there is no review process for complaints that are 
screened out, and there's only an informal agency review of a 
dismissal by OSHA at any later stage. Cases that are held non-
meritorious by OSHA can, under other whistleblower statutes, be 
pursued before DOL administrative law judges or through a kick-
out provision in Federal court.
    Third, the monetary settlements in these cases tend to be 
small, and re-instatement for discharged workers is rare. 
Section 11(c) requires proof that the illegal motivation is a 
motivating rather than a contributing factor. It has no 
provision for preliminary re-instatement. There's no guarantee 
to complainants that their cases will be pursued.
    There's little pressure on employers to engage in serious 
settlement discussions. Where, then, is the disincentive for 
employers who are engaging in unlawful retaliation. Other 
whistleblower statutes address all of these issues.
    Fourth, once OSHA completes its work on a case, meritorious 
cases that have not been settled are referred to the solicitor. 
If SOL chooses to reject a case--and this has happened 
frequently over the years--there's no review of this decision. 
The complainant has no recourse.
    Litigation may not always be better, but there are three 
problems with this part of the process. First, SOL lacks the 
resources to litigate all of the cases that need litigation. 
Second, complainants may legitimately feel they've not been 
heard if their cases are never brought forward. And, third, 
without the promise of litigation, in the end, the pressure on 
employers to comply with the law is lessened.
    America's workers who are concerned about safety deserve 
the same level of protection that is extended to those who 
report about financial mismanagement. If the language of 11(c) 
were consistent with other whistleblower statutes, many of 
these problems would be solved.
    What are the key changes? Lengthen the statute of 
limitations; create a right of preliminary re-instatement; 
change the burden of proof to a contributing factor; change the 
process for adjudication of complaints, including a right to 
hearings before administrative law judges; a kick-out provision 
to allow complainants to remove cases to court; and a system 
that provides legal representation.
    All of these changes would be consistent with the more 
recently passed whistleblower laws, including Sarbanes-Oxley, 
the ACA, and Dodd-Frank. None of them are revolutionary. All of 
them would change the landscape for workers who are brave 
enough to come forward to raise concerns about safety and who 
then face retaliation.
    Thank you, and I look forward to your questions.
    [The prepared statement of Ms. Spieler follows:]
           Prepared Statement of Emily A. Spieler, A.B., J.D.
    Chairman Casey, Ranking Member Isakson and members of the 
Subcommittee on Employment and Workplace Safety: Thank you for the 
opportunity to appear before you today.
    My name is Emily Spieler. I am now the Edwin W. Hadley Professor of 
Law at Northeastern University School of Law in Boston, having stepped 
down as dean of the law school in 2012. I currently serve as the Chair 
of the Whistleblower Protection Advisory Committee, the Federal 
Advisory Committee that is charged with providing advice and guidance 
to the Secretary of Labor and OSHA on whistleblower protection 
programs. I have extensive experience in the fields of occupational 
safety and health and legal issues surrounding retaliation at work, and 
I have served on committees relevant to these issues for the National 
Academy of Social Insurance, the National Academies of Science, and the 
American Bar Association. I also served as Chair of the Federal 
Advisory Committee to the Department of Energy on the implementation of 
the Energy Employees Occupational Injury Compensation Program Act.
    I am here today to offer my comments regarding Section 11(c) of the 
Occupational Safety and Health Act,\1\ in response to the question that 
you have posed: Are existing protections adequate to build a safer 
workplace?
---------------------------------------------------------------------------
    \1\ 29 U.S.C. Sec. 660(c)(1), commonly referred to as section 
11(c); see also 29 CFR Part 1977 for the regulations governing this 
section.
---------------------------------------------------------------------------
    Please note that this testimony is drawn from my own research and, 
in part, from what I have learned from my work as Chair of the 
Whistleblower Protection Advisory Committee (WPAC). I am not here, 
however, representing the advisory committee, nor am I representing the 
Department of Labor or Occupational Safety and Health Administration 
(OSHA): the views I express today are entirely my own. The WPAC is 
considering administrative, regulatory and statutory issues relating to 
section 11(c), and we have a workgroup that is actively investigating 
these issues. We also have a subcommittee that is working to evaluate 
and recommend best practices in industry. I hope, in the future, to be 
able to provide you with the official findings on these and other 
issues from the advisory committee. At this point, however, the 
committee has not reached the conclusion of its inquiries.
    The Occupational Safety and Health Act (OSHAct) was designed ``to 
assure so far as possible every working man and woman in the Nation 
safe and healthful working conditions.'' \2\ But OSHA lacks the 
resources to be universally present at workplaces to enforce safety 
standards: there is only about one inspector for every 59,000 workers; 
one inspector per 3,600 covered workplaces.\3\
---------------------------------------------------------------------------
    \2\ 29 U.S.C. Sec. 651(b).
    \3\ According to the FAQs currently posted on OSHA's Web site, the 
Federal and State plan agencies charged with enforcing the OSHAct have 
about 2,200 inspectors who are responsible for the health and safety of 
130 million workers in more than 8 million worksites. See http://
www.osha.gov/OSHA_FAQs.html#q_25.
---------------------------------------------------------------------------
    In view of this, it is critical that workers be able to raise 
safety concerns without fear of reprisal. They are the first line of 
defense against hazards. While many employers are working to create 
cultures that encourage workers to come forward with concerns, this is 
by no means universal. The more we can encourage these voluntary 
practices, the better.
    But it is critical to be able to reassure all workers that the law 
against retaliation is strong--in order to be able to encourage them to 
come forward, and in order to remedy any retaliation that they may 
suffer. In my opinion, section 11(c) is simply inadequate to fulfill 
this purpose and to provide this essential reassurance.
    Not only the safety of workers and the effectiveness of the safety 
laws depend on strong anti-retaliation protection, but our collective 
well-being is at risk if workers fear retaliation. Safe practices 
inside worksites affect not only the workers, but also the surrounding 
communities. Chemical leaks lead to community threats and evacuations. 
Safety problems inside workplaces cause explosions that create 
environmental and community disasters. Examples of community threats 
from workplace safety hazards abound. The 2010 BP oil spill in the Gulf 
was one glaring example.\4\ The ammonium nitrate explosion in the West 
Texas, fertilizer plant in 2013, is another\5\ I lived for many years 
in Charleston, WV, where we depended on the workers in the chemical 
plants to ensure that safety rules were followed to avoid environmental 
disasters--this was brought to light again in 2008 when there was an 
explosion near a tank holding Methyl Isocyanate (MIC) at the Bayer 
CropScience facility located in Institute, WVA.\6\ I'm sure you will 
recall that it was MIC that caused the Bhopal disaster in 1984.\7\
---------------------------------------------------------------------------
    \4\ Eleven workers died and thousands were affected by the oil 
spill.
    \5\ Fifteen people were killed, more than 160 were injured, and 
more than 150 buildings were damaged or destroyed.
    \6\ One worker died, and thousands in the Kanawha Valley of West 
Virginia were at risk.
    \7\ Thousands died in the community, over 500,000 were exposed.
---------------------------------------------------------------------------
    Our communities are at risk when our workers are at risk.
    In recent years, considerable attention has been paid to 
whistleblower protections, and few Federal statutes that impact the 
public good have been passed without whistleblower protection 
provisions--from the Consumer Product Safety Act to Sarbanes-Oxley to 
Dodd-Frank to the Affordable Care Act. The laudable intention of this 
Congress has been to offer protection to people who act on behalf of 
all of us, calling attention to the need for citizens to help in the 
enforcement of laws.
    Many of these statutes have been assigned to OSHA for investigation 
and enforcement. All of the recent statutes provide much stronger 
protections for whistleblowers than the OSHAct. Section 11(c) is also 
far weaker than any of the other whistleblower provisions that address 
safety in specific industries, including the mining industry (under the 
Mine Safety and Health Act of 1977\8\) as well as the commercial motor 
and public transportation, aviation and railroad industries, which are 
covered by more recent statutes.\9\ These other statutes have longer 
statutes of limitation, lower burdens of proof, and extensive 
procedural rights that are not included in 11(c).
---------------------------------------------------------------------------
    \8\ Mine Safety & Health Act, 30 U.S.C. Sec. 815. Even the 1969 
Coal Mine Health and Safety Act provided for a public hearing regarding 
retaliation complaints, a right that is not included in the 1970 
OSHAct.
    \9\ See: Wendell H. Ford Aviation Investment and Reform Act for the 
21st Century (AIR21), 49 U.S.C. Sec. 42121; Surface Transportation 
Assistance Act (STAA), 49 U.S.C. Sec. 31105; National Transit Systems 
Security Act (NTSSA), 6 U.S.C. Sec. 1142, b; Federal Rail Safety Act 
(FRSA), 49 U.S.C. Sec. 20109.
---------------------------------------------------------------------------
    Section 11(c) has been left out and left behind.
    As a result, workers are afraid to come forward, and legitimately 
so. Although it is difficult to find hard data on things that are not 
reported, we do know that many occupational injuries and illnesses are 
not reported,\10\ and we have some windows into the level of fear and 
the problems of retaliation. We know that safety ``incentive'' programs 
that discourage reporting are common, and that both workers and others 
are pressured not to report hazards and injuries.\11\ In discussions in 
WPAC meetings, labor representatives have repeatedly brought to our 
attention the extraordinary problems faced by workers who report 
injuries or hazards. Retaliation is rampant. Relief is inadequate.
---------------------------------------------------------------------------
    \10\ There is a large literature concerning the underreporting of 
injuries and illnesses in workplaces. The majority staff report of the 
Committee on Education and Labor, U.S. House of Representatives, The 
Honorable George Miller, Chairman, Hidden Tragedy: Underrporting of 
Workplace Injuries and Illnesses (June 2008) provides a comprehensive 
review of the problem. Underreporting was also a theme in at least one 
GAO report: Workplace Safety and Health: Enhancing OSHA's Records Audit 
Process Could Improve the Accuracy of Worker Injury and Illness Data, 
GAO-10-10 (Oct 15, 2009).
    \11\ See e.g. GAO, Workplace Safety and Health: Better OSHA 
Guidance Needed on Safety Incentive Programs, GAO-12-329 (April 2012); 
GAO, Workplace Safety and Health: Enhancing OSHA's Records Audit 
Process Could Improve the Accuracy of Worker Injury and Illness Data, 
GAO-10-10 (Oct 15, 2009). See note 25 infra regarding OSHA's current 
response to this particular problem.
---------------------------------------------------------------------------
    Why is this so?
    First, the provisions of the statute are weak. The statute fails to 
protect workers, and therefore fails to send the necessary message to 
those employers who need legal boundaries to discourage reprisals. 
Second, these weaker statutory provisions place responsibilities upon 
the Department of Labor that it simply cannot meet. In this written 
testimony, I first explore these two related problems. I then will 
close with suggestions that would reshape section 11(c) to make it more 
consistent with contemporary whistleblower laws.
            what happens to complaints under section 11(c)?
    Complaints that arise under section 11(c) may involve any of the 
following activities: refusal to perform dangerous work; raising 
complaints to management; participation in safety and health 
activities; reporting injuries and hazardous conditions; and testifying 
in OSHA proceedings.
    Once a complaint is received at an OSHA area office, it is assigned 
to an investigator. First, the investigator reviews the complaint to 
see whether it is timely filed (within 30 days of the retaliatory 
action) and presents a prima facie case. Cases that do not meet these 
standards can be ``screened out'' and are not docketed. Once screened 
out, the complainant has no alternative recourse, and there is no clear 
mechanism for any review (administrative or judicial) of a ``screen 
out'' decision. The data show that many section 11(c) complaints are 
screened out without docketing.\12\
---------------------------------------------------------------------------
    \12\ All data in charts were provided to me by email by the 
Directorate of Whistleblower Protection Programs (DWPP) on April 7, 
2014, or earlier. The decision to screen out can occur without any 
review. See OIG Report No. 02-10-202-10-105, Complainants Did Not 
Always Receive Appropriate Investigations Under the Whistleblower 
Protection Program (Sept. 30, 2010). Note that only the OSHAct, 
Asbestos Hazard Emergency Response Act, and International Safe 
Container Act allow OSHA to close a complaint administratively without 
docketing and a written determination. Although these data include 
AHERA and ISCA cases, only one case in this group was an AHERA case and 
none were ISCA cases; therefore the total that are OSHA 11(c) cases is 
N-1. See also GAO, Whistleblower Protection Program: Better Data and 
Improved Oversight Would Help Ensure Program Quality and Consistency, 
GAO-09-106 (January 27, 2009).

 
------------------------------------------------------------------------
                                          Total no.
                                             of        Total     Percent
                                         complaints   screened  screened
                                          received      out        out
------------------------------------------------------------------------
Fiscal Year 2011.......................       3,561      1,869       52
Fiscal Year 2012.......................       4,348      2,562       59
Fiscal Year 2013.......................       4,589      2,904       63
                                             12,502      7,335       59
------------------------------------------------------------------------

    The deadline for filing a section 11(c) case is 30 days. This is a 
very short statute of limitations--it passes before many workers who 
have been subjected to retaliation have had a full opportunity to 
assess their situations and, when appropriate, consult with an 
attorney. In contrast, every whistleblower law passed since 2000 allows 
180 days for filing with the appropriate administrative agency\13\--a 
deadline most section 11(c) filings would meet if the time period were 
extended.
---------------------------------------------------------------------------
    \13\ A complete compilation of the whistleblower laws enforced by 
OSHA can be found in the OSHA whistleblower Investigations Manual, 
Directive No.: CPL 02-03-003, eff. Sept. 20, 2011. A full chart with 
the statutes and much relevant information can also be found on the Web 
site of the whistleblower directorate in OSHA: http://
www.whistleblowers.gov/whistleblower_acts-desk_reference.pdf (rev. 4/4/
2013). This same information is posted on the ABA Web site: http://
www.americanbar.org/content/dam/aba/events/labor_law/2013/03/
occupational_
safetyhealthlawcommitteemidwintermeeting/
10whistleblower.authcheckdam.pdf. Statutes with 180-day filing 
deadlines include: STAA, ERA, SOX, PSIA, FRSA, NTSSA, CPSIA, ACA, CFPA, 
SPA, FSMA. The relevant provisions of all of these were passed after 
the year 2000. Earlier statutes enforced by OSHA had shorter statutes 
of limitations, but title VII and other statutes enforced by the EEOC 
all have administrative statutes of limitation of 180 days or greater. 
In fact, FLSA retaliation complaints may be filed within 2 years, or 3 
years if the employer's violation is willful.

                                             Cases Screened Out For Late Filing Fiscal Year 2011, 2012, 2013
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
TOTAL screened out.................  31-60 days............  61-90 days............  91-120 days..........  121-180 days.........  181+ days
905................................  399 (44 percent)......  152 (17 percent)......  70 (8 percent).......  95 (10 percent)......  189 (21 percent)

    If not screened out, a case is docketed. Although OSHA is now 
responsible for over 20 whistleblower statutes, section 11(c) cases 
constitute about two-thirds of all cases docketed. As you can see from 
the following chart, the number of newly docketed 11(c) cases, and the 
number pending at the close of the fiscal year, grew consistently until 
fiscal year 2013.\14\
---------------------------------------------------------------------------
    \14\ While the number of complaints filed continued to rise in 
fiscal year 2013, the number docketed and the number pending declined. 
It is difficult to know whether this decline reflects a decline in 
meritorious cases, or a change in the evaluation of claims filed. The 
change is too small to be significant. It is, however, notable that 
OSHA has begun to make inroads on the pending case backlog.

 
----------------------------------------------------------------------------------------------------------------
                                                         11(c) cases
                                                        as percent of
                                                             all
                                              Newly     whistleblower   11(c) cases   Total 11(c) cases  pending
                                            docketed      cases (all   completed in     at end of  fiscal year
                                           11(c) cases    statutes)     fiscal year
                                                          filed with
                                                             OSHA
----------------------------------------------------------------------------------------------------------------
Fiscal Year 2005........................        1,194            62          1,160   N/A
Fiscal Year 2006........................        1,195            65          1,229   N/A
Fiscal Year 2007........................        1,301            66          1,167   N/A
Fiscal Year 2008........................        1,381            62          1,255   N/A
Fiscal Year 2009........................        1,267            59          1,168   663
Fiscal Year 2010........................        1,402            61          1,144   927
Fiscal Year 2011........................        1,668            62          1,234   1,355
Fiscal Year 2012........................        1,745            61          1,653   1,440
Fiscal Year 2013........................        1,711            58          1,826   1,321
----------------------------------------------------------------------------------------------------------------

    Once docketed, cases are investigated. They can be dismissed, 
withdrawn or settled. If they are settled, the settlement may include 
monetary damages or re-instatement. The data look like this:

                                                                            Total Determinations Fiscal Year 2005-13
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                 Dismissed        Withdrawn                                                        Settlements
                                             ---------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                                             Percent of total
                                      Total           Percent                    Total                 Total damages        Average damages per      No. of people re-       settlements with
                                                No.     (of      No.   Percent  settled  Percent         collected          settled case (total          instated         reinstate- ment (total
                                                       total)                                                               excludes N/A years)                             excludes N/A years)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Fiscal Year 2005...................    1,200     760     63       146     12        271     23    N/A...................  N/A...................  N/A...................  N/A
Fiscal Year 2006...................    1,276     787     62       196     15        279     22    N/A...................  N/A...................  N/A...................  N/A
Fiscal Year 2007...................    1,204     766     64       176     15        248     21    N/A...................  N/A...................  N/A...................  N/A
Fiscal Year 2008...................    1,318     830     63       227     17        247     19    N/A...................  N/A...................  N/A...................  N/A
Fiscal Year 2009...................    1,200     726     61       187     16        265     22    $1,839,299............  $6,941................  42....................  16
Fiscal Year 2010...................    1,183     672     57       177     15        310     26    $1,741,863............  $5,619................  49....................  16
Fiscal Year 2011...................    1,282     694     54       177     14        388     30    $2,478,212............  $6,387................  45....................  12
Fiscal Year 2012...................    1,717     977     57       340     20        382     22    $2,435,831............  $6,377................  38....................  10
Fiscal Year 2013...................    1,946     921     47       415     21        570     29    $4,939,444............  $8,666................  60....................  11
                                    ------------------------------------------------------------------------------------------------------------------------------------------------------------
  Total............................   12,326   7,133     58     2,041     17      2,390     19    $13,434,649...........  $7,015................  234...................  12
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

    Several additional issues are worth noting:

     Many of these settlements do not include any admission 
that the Act was violated, and as a result they do not include notice 
to other employees or employers regarding the outcome of the claim.\15\
---------------------------------------------------------------------------
    \15\ Whistleblower Protection Advisory Committee (WPAC) Minutes of 
Tuesday, January 29, 2013.
---------------------------------------------------------------------------
     If OSHA dismisses a complaint, there is an informal agency 
review of the decision, but no formal or evidentiary review. The 
decision by the agency is non-reviewable and non-appealable to a 
separate administrative or judicial process. Under all other 
whistleblower statutes, cases that are held non-meritorious by OSHA can 
be pursued before an Administrative Law Judge or through a ``kick-out'' 
provision in Federal court.
     The number of cases dismissed is affected by the burden of 
proof that is required to find that the claim is meritorious: Section 
11(c) requires proof that the illegal motivation was a ``motivating'' 
rather than a ``contributing'' factor to the employer's decision. 
Again, other whistleblower statutes use the less stringent 
standard.\16\
---------------------------------------------------------------------------
    \16\ Using ``contributing factor'' standard: STAA, ERA, AIR21, SOX, 
PSIA, FRSA, NTSSA, CPSIA, ACA, SPA, CFPA, FSMA, MAP-21. Again, the 
statutes passed more recently use this more liberal standard.
---------------------------------------------------------------------------
     The amount of average monetary damages per settlement in a 
section 11(c) case was less than $7,000 in every fiscal year 2005-12, 
and rose to only $8,700 in fiscal year 2013. These amounts may provide 
welcome relief to individual workers, but they are not large enough to 
create significant disincentives for employers who are engaging in 
unlawful retaliation.
     The percentage of settlements that included re-instatement 
was only 12 percent on average. Unlike many of the other whistleblower 
statutes, there is no provision in the OSHAct for preliminary re-
instatement pending further review and litigation. Under these other 
statutes, preliminary re-instatement is available when the agency finds 
that there is reasonable cause to believe that the claim has merit or, 
under the Mine Safety and Health Act, when the agency concludes that 
the claim is not frivolous.\17\ Without an equivalent provision in the 
OSHAct, there is less pressure for adequate settlements.
---------------------------------------------------------------------------
    \17\ Information about OSHA-enforced statutes can be found in the 
OSHA Whistleblowers Investigations Manual and on the DWPP desk 
reference, supra note 13. Preliminary re-instatement is available under 
all statutes passed since 2000, except for the ERA, according to the 
ABA chart. This includes STAA, AIR21, SOX, PSIA, FRSA, NTSSA, CPSIA, 
ACA, SPA, CFPA, and FSMA. For the provisions under the Mine Safety and 
Health Act, see 30 U.S.C. Sec. 815(c)(2) (``. . . investigation shall 
commence within 15 days of the Secretary's receipt of the complaint, 
and if the Secretary finds that such complaint was not frivolously 
brought, the Commission, on an expedited basis upon application of the 
Secretary, shall order the immediate re-instatement of the miner 
pending final order on the complaint.'')

    If OSHA is unable to settle a meritorious complaint, the case is 
referred to the Solicitor of Labor (SOL) for litigation. At this point, 
OSHA considers its investigation closed, and SOL can pursue settlement 
or litigation in Federal district court. There is no enforceable agency 
order that can be issued, nor is there provision allowing for 
adjudication before an administrative law judge, nor can a complainant 
bring the case on his or her own into court.
    Remarkably few cases are accepted for litigation by SOL.

      11c Cases Referred to SOL by OSHA and Accepted For Litigation
------------------------------------------------------------------------
                                                                Percent
                                                 Percent of        of
                                        No.      total OSHA    ``merit''
                                               determinations    cases
------------------------------------------------------------------------
Fiscal Year 2005....................       23            2            8
Fiscal Year 2006....................       14            1            5
Fiscal Year 2007....................       14            1            5
Fiscal Year 2008....................       14            1            5
Fiscal Year 2009....................       22            2            8
Fiscal Year 2010....................       24            2            7
Fiscal Year 2011....................       23            2            6
Fiscal Year 2012....................       20            1            5
Fiscal Year 2013....................       38            2            7
                                     -----------------------------------
  Total.............................      192            2            7
------------------------------------------------------------------------

    As you can see from these data, only 1 to 2 percent of total OSHA 
determinations result in acceptance for litigation by SOL.
    If SOL decides not to pursue a case, there is no further action 
that can be taken. The decision by SOL not to pursue a case is 
completely non-reviewable.\18\ As you can see from the data below, in 
the years 1996-2008, this occurred in 60 percent of the cases that were 
referred for litigation by OSHA--and these were the cases that OSHA 
considered strongest and worth pursuing!
---------------------------------------------------------------------------
    \18\ See e.g. Wood v. Department of Labor, 275 F.3d 107 (D.C. Cir. 
2001) and Wood v. Herman, 104 F. Supp.2d 43 (D.D.C. 2000), both holding 
that the Secretary of Labor has no statutory obligation to bring an 
enforcement action.
    \19\ I was unable to verify some of these data from SOL. It is my 
understanding, however, that these data give a reasonably accurate 
picture of the treatment of these cases once referred to SOL.

           11c Cases Referred to SOL Fiscal Year 2006-2008\19\
------------------------------------------------------------------------
                                                                 Percent
                                                          No.       of
                                                                  total
------------------------------------------------------------------------
Rejected by SOL, no further action....................      279       56
Settled before litigation.............................      156       31
Total litigated.......................................       32        6
Settled during litigation.............................       21        4
Litigated and lost....................................        3        1
Litigated and won.....................................        8        2
------------------------------------------------------------------------

    At our WPAC meetings, we have been assured that SOL and OSHA 
regional offices are now working much more closely on these 
determinations, and that SOL is committed to pursuing the cases that 
are referred by OSHA. This commitment has resulted in an improvement in 
the litigation rate of cases that are referred, as can be seen by more 
recent data.
---------------------------------------------------------------------------
    \20\ See comment in note 19, supra, regarding data accuracy.

           11c Cases Referred to SOl CY2011, 2012, 2013 Q1\20\
------------------------------------------------------------------------
                                                                 Percent
                                                          No.       of
                                                                  total
------------------------------------------------------------------------
  Total Referred......................................       69
Accepted for legal action or settled..................       52       75
Declined, no further action...........................        8       12
Pending review in SOL.................................        9       13
------------------------------------------------------------------------

    According to more recent correspondence from SOL, a total of 38 
cases were moved forward to litigation in fiscal year 2013.
    The core problem with section 11(c), however, is that it requires 
complete dependence on agency and SOL action. A complainant has no way 
to bring forward a meritorious claim that the employer does not settle 
unless SOL pursues litigation. The design of the statute, which 
requires that every case that is not settled must be filed by SOL in 
Federal district court, makes the process inherently unwieldy. As long 
as responding employers know that the cases will not be litigated, 
there is no incentive for them to abide by the law or to settle cases 
rapidly and fairly.
    OSHA has been criticized by both the GAO and OIG for more than 20 
years for its handling of section 11(c) complaints. Investigators have 
reported that they lack the resources needed to do their jobs.\21\ In 
2009, the OIG found that OSHA was failing to perform adequate 
investigations on 80 percent of docketed complaints.\22\ In April 2010, 
an OSHA whistleblower program review team conducted an internal 
investigation and found deficiencies and challenges facing the 
Whistleblower Protection Program and made extensive recommendations 
regarding procedures, evaluation and performance measures.
---------------------------------------------------------------------------
    \21\ See GAO-09-106 (January 27, 2009) supra n. 12 at 35-40.
    \22\ OIG, Complainants Did Not Always Receive Appropriate 
Investigations Under the Whistleblower Protection Program, OIG Report 
No. 02-10-202-10-105 (September 30, 2010)
---------------------------------------------------------------------------
    I am not here to criticize OSHA. As you know, OSHA's responsibility 
for whistleblower laws has grown dramatically since the OSHAct was 
passed in 1970. The agency is now responsible for more than 20 of these 
laws. Staffing has not kept pace. Currently OSHA's whistleblower 
program has a staff of 131 people nationwide\23\--this is hardly enough 
to investigate the growing number of complaints under the growing 
number of statutes that present a bewildering array of complex legal 
issues.
---------------------------------------------------------------------------
    \23\ OSHA had 115 full-time positions, received authorization for 
an additional 16 after requesting an additional 47. See Fiscal Year 
2014 CONGRESSIONAL BUDGET JUSTIFICATION, OCCUPATIONAL SAFETY AND 
HEALTH, page 7, http://www.dol.gov/dol/budget/2014/PDF/CBJ-2014-V2-
12.pdf (information on current and requested staffing for whistleblower 
program).
---------------------------------------------------------------------------
    What we have learned at the meetings of the WPAC is that OSHA is 
committed to making this as effective a program as possible. In 
particular, with regard to occupational safety issues, the agency has 
focused energy and resources on protecting workers. A March 2012 policy 
memorandum expands protections for workers who report work-related 
injuries (and discourages safety incentive programs that discourage 
reporting of both hazards and injuries), noting that, ``Ensuring that 
employees can report injuries or illnesses without fear of retaliation 
is . . . crucial to protecting worker safety and health.'' \24\ There 
has been significant movement in relation to railroad industry employer 
policies that result in discipline for workers who report injuries. New 
procedures have been put in place in both the regions and in the review 
of non-merit findings. Coordination with regional solicitors has 
improved. Training has been instituted. The new central Directorate is 
overhauling procedures, creating new databases, and working to improve 
consistency among the regions.
---------------------------------------------------------------------------
    \24\ See Memorandum from Richard Fairfax, Deputy Assistant 
Secretary, to Regional Administrators, Re: Employer Safety Incentive 
and Disincentive Policies and Practices (March 12, 2012) https://
www.osha.gov/as/opa/whistleblowermemo.html.
---------------------------------------------------------------------------
    The core problem remains, however: The law is weak and the 
Department of Labor simply lacks the resources to enforce section 11(c) 
as it is currently designed. These problems can only be remedied 
through statutory revision.
    In preparation for this testimony, I conducted a full search of 
Federal court cases that have cited OSHA 11(c) provisions. What I found 
is both remarkable and informative. First, fewer than 200 cases over 
the time period since the Act was passed in 1970 came up in response to 
an initial broad query; many of these cases cited section 11(c) by 
analogy and did not actually involve retaliation for raising safety 
concerns. Second, many of the section 11(c) cases were brought by 
individuals under both State and Federal law, attempting to assert a 
private right of action because OSHA had failed to act on their 
complaints. This should not be a surprise, given the few cases that the 
Department of Labor has filed on behalf of complainants. These cases 
were almost universally dismissed, on the grounds that there is no 
private right of action under the Federal law. Very few jurisdictions 
have been willing to create a separate cause of action under State law, 
given that the OSHAct presumably creates a remedy. In contrast, while 
fewer complaints are filed under, for example, the Sarbanes-Oxley 
whistleblower provisions, there are far more reported cases.
    The reported litigation shows again that the situation is extremely 
problematic. Individuals who are the subject of reprisal for asserting 
their rights under the OSHAct do not have a reasonable, fair, 
accessible system in which to assert these rights.
                 what is needed to correct the problem?
    Section 11(c) cannot meet its objectives without statutory 
revisions. While there is no doubt that there are additional 
administrative improvements that can be made within OSHA and SOL, the 
current statutory provision is too weak, and it is much weaker than the 
whistleblower provisions in analogous and more recent statutes. Section 
11(c) is too weak to provide the essential level of protection needed 
to ensure both that employees will be encouraged to come forward and 
that employers are discouraged from engaging in acts of reprisal. 
America's workers who are concerned about safety deserve the same level 
of protection that is extended to those who report financial 
mismanagement.
    Here are several specific statutory changes that are needed to 
accomplish this:

    1. Lengthen the statute of limitations to 180 days. All of the 
whistleblower statutes that have been passed in the last decade include 
180-day statutes of limitation for the filing of complaints. The 
retaliation provisions in the anti-discrimination statutes enforced by 
the Equal Employment Opportunity Commission allow employees a minimum 
of 180 days (or 300 days when there is a relevant State law) to file a 
charge. The retaliation provisions under the Fair Labor Standards Act 
have an even longer statute of limitations. 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 recourse.
    2. Create a right of preliminary re-instatement, pending final 
adjudication. Given that it is the most analogous statute, it would be 
appropriate to consider adopting the MSHA standard that if the 
complaint was not frivolously brought, the individual should be re-
instated pending further litigation. Right now, workers who have been 
discharged cannot return to their workplace unless the employer settles 
the case and includes re-instatement, or the Solicitor of Labor pursues 
the case in Federal court. As noted above, many other whistleblower 
laws authorize preliminary re-instatement.
    3. Change the process for adjudication of complaints. Currently, 
complainants have no right to full administrative hearings or full 
review of administrative decisions. OSHA and SOL are unable to handle 
the volume of complaints; the process is opaque for many complainants; 
and employers have inadequate incentives to refrain from reprisals. 
Procedural aspects of OSHA 11(c) should be consistent with the 
procedural aspects of the more recently passed whistleblower laws 
(e.g., AIR21, SOX, ACA, Dodd-Frank), including the following:

          a. Create an administrative process for adjudication of 
        complaints. Whether or not the OSHA investigation is complete, 
        complainants should have the right to bring the complaint 
        forward to a de novo adjudicatory hearing. This can be done 
        utilizing the existing Department of Labor administrative law 
        judges and Administrative Review Board. In order to protect the 
        importance of the OSHA investigatory process, the right to 
        bring a case forward should be triggered after a formal finding 
        or after the statutory time for investigation of a complaint 
        has elapsed (currently 90 days).
          b. Create a system that provides legal representation for 
        complainants. I would suggest that this should have two parts. 
        First, SOL should have the discretion to provide representation 
        to complainants in meritorious cases, including ensuring that 
        complainants are re-instated, when appropriate, pending full 
        resolution. Second, amend the statute so that prevailing 
        complainants can recover attorneys' fees in addition to 
        damages; again, most of the other anti-retaliation and 
        whistleblower statutes provide for fees for complainants who 
        prevail.
          c. Consider creating, in addition to the administrative 
        process, a private right to bring a civil action that would 
        allow complainants to remove cases from the agency and pursue 
        them in Federal court. This should not be a substitute for 
        administrative adjudication, however. Federal litigation is 
        costly and lengthy. There are, however, examples of egregious 
        cases that belong in court rather than before administrative 
        agencies.
          d. To ensure that cases involving dual motives can be 
        successfully litigated by complainants, change the evidentiary 
        standard from ``a motivating factor'' to ``a contributing 
        factor''--the standard in all of the more recent whistleblower 
        laws enforced by OSHA.

    I hope that this information is helpful to the committee. I would 
be happy to work with the committee in any future consideration of 
these provisions, and I look forward to providing you with WPAC reports 
when they are available.
    Thank you for the opportunity to address you today.

    Senator Casey. Thank you very much, and you were right on 
the button. We're really moving quickly.
    Mr. Devine.

    STATEMENT OF TOM DEVINE, LEGAL DIRECTOR FOR GOVERNMENT 
             ACCOUNTABILITY PROJECT, WASHINGTON, DC

    Mr. Devine. Mr. Chairman, thank you for inviting my 
testimony, which is largely in consensus with Professor 
Spieler's. My name is Tom Devine. I serve as the Legal Director 
of the Government Accountability Project. We're a nonprofit, 
nonpartisan, public interest organization that assists 
whistleblowers, those employees who use free speech to 
challenge abuses of power that betray the public trust.
    Since 1977, we have assisted over 6,000 whistleblowers 
formally or informally through representation and through 
advocacy to help create America's modern whistleblower laws in 
the corporate sector as well as for government employees. 
Section 11(c) is America's oldest and by far most frequently 
used whistleblower law. But, ironically, it is also America's 
weakest by far.
    At GAP, we view credible whistleblower laws as metal 
shields, because employees who rely on those rights have a 
fighting chance to survive. By contrast, no matter how gaudily 
decorated, cardboard shields guarantee doom for anyone who 
depends on them. Compared to best practices globally, section 
11(c) is a cardboard shield without the paint job.
    When you review section 11(c) versus the 20 global best 
practices, it only meets 25 percent of the criteria for an 
effective whistleblower law. That's ironic, because modern U.S. 
statutes like the Sarbanes-Oxley law and those for government 
contractors reflect a gold standard of whistleblower rights. 
The previously introduced Protecting America's Workers Act 
would upgrade occupational safety rights to those in all modern 
whistleblower laws enacted since 2002.
    My testimony has a detailed analysis of these criteria. But 
overall, a 25 percent pass rate is flatly unacceptable. In 
putting that record in perspective, the five core principles 
for credible protection are loophole-free protection, realistic 
timeframe to act on rights, fair legal burdens of proof on the 
evidence necessary to prevail, meaningful due process to 
enforce the rights, and remedies that make the victims whole 
when they prevail.
    If we look at these, section 11(c) has four cornerstones of 
failure by those criteria. If you look at realistic timeframes, 
the best practices range from 6 months to a year. Most people 
aren't even aware of their rights within 30 to 60 days. Section 
11(c)'s 30-day statute of limitations ties for global worst 
practice.
    Or let's look at realistic standards to prove violation of 
rights. Since 1989, every U.S. whistleblower law has set a 
quantum of evidence for how much it takes to win your case. It 
said that to do that, you have to show that your protected 
activity was a contributing factor, and if you do, the employer 
needs to show by clear and convincing evidence that it would 
have acted for innocent reasons anyway, even if you had 
remained a silent observer. Section 11(c) is the only law on 
the books since 1989 that doesn't have these burdens of proof.
    Or there's the right to a genuine day in court, normal 
judicial due process, the same as available for citizens 
generally aggrieved by illegality. The Secretary has full 
access to court, but the complainant has the access neither to 
judicial nor guaranteed administrative due process, even at the 
informal level. It only provides for a discretionary 
investigation without any administrative or due process fact 
finding.
    The investigations have no teeth because they can only be 
enforced by the solicitor of labor, which declines to prosecute 
up to 70 percent of favorable determinations in any given year. 
There is no appellate judicial review of agency discretion, as 
GAP learned from representing whistleblowers. The bottom line 
is they have no control over their rights.
    And, finally, there's relief for whistleblowers. If you win 
your case, will you still lose? Under Section 11(c), that's 
very likely to happen. The provisions do not include financial 
relief. They do not include interim relief while the case is 
proceeding. They don't include a transfer preference for those 
who may not want to go back to the same supervisor. They don't 
provide for attorney fees or costs or accountability for those 
who engaged in wrongdoing. It's basically a symbolic victory.
    Mr. Chairman, that's our analysis of a very deficient 
statute. It's a primitive statute which is long overdue to 
modernize so that it matches the rest of corporate 
whistleblower law. Our testimony has an analysis of enforcement 
practices, and it shouldn't take an act of Congress for the 
Department of Labor to do a better job.
    [The prepared statement of Mr. Devine follows:]
                  Prepared Statement of Thomas Devine
    Mr. Chairman, thank you for inviting my testimony today on the 
adequacy of occupational safety whistleblower protection rights. My 
name is Tom Devine, and I serve as legal director of the Government 
Accountability Project (``GAP''), a nonprofit, nonpartisan, public 
interest organization that assists whistleblowers, those employees who 
exercise free speech rights to challenge abuses of power that betray 
the public trust. Since 1977 we have assisted over 6,000 whistleblowers 
formally or informally through representation. GAP also has led or been 
on the front lines of campaigns to enact or defend nearly all modern 
whistleblower laws passed by Congress, including corporate rights 
enacted since 1992, AND the Whistleblower Protection Enhancement Act of 
2012.
    Our work for corporate whistleblower protection rights includes 
those in the Sarbanes-Oxley law for some 40 million workers in publicly 
traded corporations, the 9/11 law for ground transportation employees, 
the defense authorization act for government contractors, the Consumer 
Product Safety Improvement Act for some 20 million workers connected 
with retail sales, the Energy Policy Act for the nuclear power and 
weapons industries and AIR 21 for airlines employees, among others.
    We teamed up with professors from American University Law School to 
author a model whistleblower law approved by the Organization of 
American States (OAS) to implement at its Inter American Convention 
against Corruption. In 2004 we led the successful campaign for the 
United Nations to issue a whistleblower policy that protects public 
freedom of expression for the first time at Intergovernmental 
Organizations, and in 2007 analogous campaigns at the World Bank and 
African Development Bank. GAP has published numerous books, such as The 
Whistleblower's Survival Guide: Courage Without Martyrdom, and law 
review articles analyzing and monitoring the track records of 
whistleblower rights legislation. See Devine, The Whistleblower 
Protection Act of 1989: Foundation for the Modern Law of Employment 
Dissent, 51 Administrative Law Review, 531 (1999); Vaughn, Devine and 
Henderson, The Whistleblower Statute Prepared for the Organization of 
American States and the Global Legal Revolution Protecting 
Whistleblowers, 35 Geo. Wash. Intl. L. Rev. 857 (2003); The Art of 
Anonymous Activism (with Public Employees for Environmental 
Responsibility and the Project on Government Oversight)(2002); and 
Running the Gauntlet: The Campaign for Credible Corporate Whistleblower 
Rights. (2008).
    As part of our mission, I authored The Corporate Whistleblower 
Survival Guide: A Handbook for Committing the Truth,'' which won the 
getAbstract International Business Book of the Year Award at the 2011 
Frankfurt Book Fair. Committing the Truth's legal chapter spotlighted 
weaknesses in legal rights for occupational safety whistleblowers, and 
enforcement practices for all whistleblowers by the Department of 
Labor's (DOL)
    Their foundation for occupational safety is section 11(c) of the 
Occupational Safety and Health Act, which shields those who report 
safety violations and is America's first Federal whistleblower 
protection statute. Ironically, while section 11(c) is America's oldest 
and by far most frequently used whistleblower law, it also is America's 
weakest. At GAP we view credible whistleblower laws as ``metal 
shields,'' because employees who rely on those rights have a fighting 
chance to survive. By contrast, no matter how gaudily decorated, lowest 
common denominator rights are ``cardboard shields'' that ensure doom 
for anyone who depends on them. Compared to best practices globally, 
section 11(c) is a cardboard shield without the paint job.
    My testimony also will summarize the gap between rights on the 
books and rights in reality, based on enforcement practices by OSHA's 
new Directorate of Whistleblower Protection. (DWPP) It should not take 
an act of Congress for DOL to far more effectively protect 
whistleblowers. There is widespread consensus that prior policies 
administering section 11(c) severely frustrated the law's purpose. 
Under Assistant Secretary David Michaels, the Occupational Safety and 
Health Administration (OSHA) which administers section 11(c) has 
committed to policies that could reverse that track record. But change 
would disrupt deeply ingrained priorities by OSHA's regional 
leadership, which has a unique role. How much his policies make a 
difference will depend on accountability through independent oversight, 
from audits to hearings such as today's forum.
            section 11(c) compared to global best practices
    The standards below are based on comparisons with all Federal 
whistleblowers laws, those at Intergovernmental Organizations (IGO) 
like the United Nations or World Bank, U.S. funding prerequisites for 
IGO's, and other nations such as Great Britain. While compiled by GAP, 
they are consistent with those of the Council of Europe and the 
Organization for Economic Cooperation and Development. By these 
criteria, section 11(c) only meets 25 percent of the criteria. This is 
ironic, because modern U.S. whistleblower statutes such as those in the 
Sarbanes Oxley law and those for government contractors reflect the 
gold standard level of whistleblower rights. The previously introduced 
Protecting America's Workers Act would upgrade occupational safety 
rights to those in all modern whistleblower laws enacted since 2002. It 
is frustrating for whistleblower rights advocates that Congress has not 
acted on legislation to modernize occupational safety whistleblower 
rights to the standards that govern nearly all other private sector 
contexts. The analysis below explains the criteria for effective 
whistleblower protection, and evaluates section 11(c) with that 
baseline.
I. Scope of Coverage
    The first cornerstone for any reform is that it is available. 
Loopholes that deny coverage when it is needed most, either for the 
public or the harassment victim, compromise whistleblower protection 
rules. Seamless coverage is essential so that accessible free 
expression rights extend to any relevant witness, regardless of 
audience, misconduct or context to protect them against any harassment 
that could have a chilling effect.
    1.  Context for Free Expression Rights with ``No Loopholes''. 
Protected whistleblowing should cover ``any'' disclosure that would be 
accepted in a legal forum as evidence of significant misconduct or 
would assist in carrying out legitimate compliance functions. There can 
be no loopholes for form, context or audience, unless release of the 
information is specifically prohibited by statute or would incur 
organizational liability for breach of legally enforceable 
confidentiality commitments. In that circumstance, disclosures should 
still be protected if made to representatives of organizational 
leadership or to designated law enforcement or legislative offices. It 
is necessary to specify that disclosures in the course of job duties 
are protected, because most retaliation is in response to ``duty 
speech'' by those whose institutional role is blowing the whistle as 
part of organizational checks and balances.
    Best Practices: United Nations Secretariat whistleblower policy 
(ST/SGB/2005/21), section 4; World Bank Staff Rule 8.02, section 4.02; 
Public Interest Disclosure Act of 1998 (``PIDA''), c. 23 (U.K.), 
amending the Employment Rights Act of 1996, c.18), section 43(G); 
Protected Disclosures Act of 2000 (``PDA''); Act No. 26, GG21453 of 7 
Aug. 2000 (S. Afr.), section 7-8; Anti-Corruption Act of 2001 (``ACA'') 
(Korea--statute has no requirement for internal reporting); Ghana 
Whistleblower Act of 2005 (``Ghana WPA), section 4; Japan Whistleblower 
Protection Act, Article 3; Romanian Whistleblower's Law (``Romania 
WPA''), Article 6; Whistleblower Protection Act of 1989 (``WPA'') (U.S. 
Federal Government), 5 USC 2302(b)(8); Consumer Products Safety 
Improvement Act (``CPSIA'') (U.S. corporate retail products), 15 U.S.C. 
2087(a); Federal Rail Safety Act (``FRSA'') (U.S. rail workers) 49 US 
20109(a); National Transportation Security Systems Act (``NTSSA'') 
(U.S. public transportation) 6 US 1142(a); Sarbanes Oxley Reform Act 
(``SOX'') (U.S. publicly traded corporations) 18 US 1514(a); Surface 
Transportation Assistance Act (``STAA'') (U.S. corporate trucking 
industry) 49 US 31105(a); American Recovery and Reinvestment Act of 
2009 (``ARRA''), (U.S. Stimulus Law), P.L.111-5, Section 1553(a)(2)-
(4); Patient Protection and Affordable Care Act (``ACA''), (U.S. health 
care), sec. 1558, in provision creating section 18C of Fair Labor 
Standards Act, sec. 18B(a)(2)(4); Food Safety Modernization Act 
(``FSMA'') (U.S. food industry), 21 U.S.C. 1012(a)(1)-(3); Dodd Frank 
Wall Street Reform and Consumer Protection Act (``Dodd Frank'')(U.S. 
financial services industry), sec. 1057(a)(1)-(3).

    Section 11(c): PASS. Section 11(c) does not contain any context 
loopholes.

    2. Subject Matter for Free Speech Rights with ``No Loopholes''. 
Whistleblower rights should cover disclosures of any illegality, gross 
waste, mismanagement, abuse of authority, substantial and specific 
danger to public health or safety and any other activity which 
undermines the institutional mission to its stakeholders, as well as 
any other information that assists in honoring those duties.
    Best Practices: U.N. ST/SGB/2005/21, section 2.1(a); World Food 
Programme (WFP) Executive Circular ED2008/003, section 5; World Bank 
Staff Rule 8.02, section 1.03; African Development Bank (AfDB) 
``Whistleblowing and Complaints Handling Policy, section 4; The 
Whistleblowers Protection Act, 2010 (``Uganda WPA''), section II.2; 
PIDA, (U.K.); PDA, section 1(i)(S. Afr.); New Zealand Protected 
Disclosures Act (``NZ PDA''), 2000, section 3(1), 6(1); ACA (Korea), 
Article 2; Public Service Act (``PSA''), Antigua and Barbuda Freedom of 
Information Act, section 47; R.S.O., ch. 47, section 28.13 (1990) 
(Can.); Ghana WPA, section 1; WPA (U.S. Federal Government), 5 USC 
2302(b)(8); FRSA (U.S. rail workers) 49 USC 20109(a)(1); NTSSA (U.S. 
public transportation) 6 USC 1142(a); STAA (U.S. corporate trucking 
industry) 49 USC 31105(a)(1); ACCR (U.S. Stimulus Law) P.L.111-5, 
Section 1553(A)(1)-(5); ACA (U.S. health care) id.; FMSA (U.S. food 
industry) id; Dodd Frank (U.S. financial services industry) id..

     Section 11(c): PASS. In addition to protection for specific 
disclosures, protected activity in section 11(c)(1) includes exercise 
of ``any right afforded by this Act.''

    3. Right to Refuse Violating the Law. This provision is fundamental 
to stop faits accomplis and in some cases prevent the need for 
whistleblowing. As a practical reality, however, in many organizations 
an individual who refuses to obey an order on the grounds that it is 
illegal must proceed at his or her own risk, assuming vulnerability to 
discipline if a court or other authority subsequently determines the 
order would not have required illegality. Thus what is needed is a fair 
and expeditious means of reaching such a determination while protecting 
the individual who reasonably believes that she or he is being asked to 
violate the law from having to proceed with the action or from 
suffering retaliation while a determination is sought.
    Best Practices: Asian Development Bank (ADB) Administrative Order 
No. 2.10, section 3.5 (see AO 2.04, section 2.1 (f) for corresponding 
definition of misconduct); World Bank Staff Rule 8.02, section 2.07 
(see Staff Rule 8.01, section 2.01 for definition of misconduct); WPA 
(U.S. Federal Government) 5 USC 2302(b)(9); FRSA (U.S. rail workers) 49 
USC 20109(a)(2); NTSSA (U.S. public transportation) 6 USC 1142(a)(2); 
CPSIA (U.S. corporate retail products) 15 USC 2087(a)(4); STAA (U.S. 
corporate trucking industry) 49 USC 31105(a)(1)(B); ACA (U.S. health 
care) sec. 18C (a)(5); FSMA (U.S. food industry) 21 USC 1012(a)(4); 
Dodd Frank (U.S. financial services industry) sec. 1057(a)(4).

    Section 11(c): FAIL. Although the Act has a general right to refuse 
unsafe working conditions, section 11(c) does not codify protected 
activity that includes the right not to violate the law.

    4. Protection Against Spillover Retaliation. The law should cover 
all common scenarios that could have a chilling effect on responsible 
exercise of free expression rights. Representative scenarios include 
individuals who are perceived as whistleblowers (even if mistaken), or 
as ``assisting whistleblowers,'' (to guard against guilt by 
association), and individuals who are ``about to'' make a disclosure 
(to preclude preemptive strikes to circumvent statutory protection, and 
to cover the essential preliminary steps to have a ``reasonable belief 
'' and qualify for protection as a responsible whistleblowing 
disclosure). These indirect contexts often can have the most 
significant potential for a chilling effect that locks in secrecy by 
keeping people silent and isolating those who do speak out. The most 
fundamental illustration is reprisal for exercise of anti-retaliation 
rights.
    Best Practices: World Bank Staff Rule 8.02, section 2.04; AfDB 
Whistleblowing and Complaints Handling Policy, section 6; Organization 
of American States, ``Draft Model Law to Encourage and Facilitate the 
Reporting of Acts of Corruption and to Protect Whistleblowers and 
Witnesses'' (``OAS Model Law''), Article 28; ACA (Korea), Art. 31; NZ 
PDA, section 4(3); WPA (U.S.), 5 USC sections 2302(b)(8) (case law) and 
2302(b)(9); Energy Policy Act of 2005 (U.S. Nuclear Regular Commission, 
Department of Energy and regulated corporations), 42 USC 5851(a); FRSA 
(U.S. rail workers) 49 USC 20109(a); NTSSA (U.S. public transportation) 
6 USC 1142(a); CPSIA (U.S. corporate retail products) 15 USC 2087(a); 
STAA (U.S. corporate trucking industry) 49 USC 31105(a); ACA (U.S. 
health care) sec. 18C(a); FSMA (U.S. food industry) 21 USC 1012(a); 
Dodd Frank (U.S. financial services industry) Sec. 1057(a).

    Section 11(c): PASS. Section 11(c)(1) protects those ``about to'' 
engage in protected activity,

    5. ``No Loopholes'' Protection for All Citizens With Disclosures 
Relevant to the Public Service Mission. Coverage for employment-related 
discrimination should extend to all relevant applicants or personnel 
who challenge betrayals of the organizational mission or public trust, 
regardless of formal status. In addition to conventional salaried 
employees, whistleblower policies should protect all who carry out 
activities relevant to the organization's mission. It should not matter 
whether they are full-time, part-time, temporary, permanent, expert 
consultants, contractors, employees seconded from another organization, 
or even volunteers. What matters is the contribution they can make by 
bearing witness. If harassment could create a chilling effect that 
undermines an organization's mission, the reprisal victim should have 
rights. This means the mandate also must cover those who apply for 
jobs, contracts or other funding, since blacklisting is a common 
tactic.
    Most significant, whistleblower protection should extend to those 
who participate in or are affected by the organization's activities. 
Overarching U.S. whistleblower laws, particularly criminal statutes, 
protect all witnesses from harassment, because it obstructs government 
proceedings.
    Best Practices: AfDB Whistleblowing and Complaints Handling policy, 
sections 5.1 & 6.2; ADB Administrative Order No. 2.10, section 8; IDB 
Staff Rule No. PE-328, section 2.1 & 2.2; Anti-Corruption Initiative 
for Asia-Pacific (Organization for Economic Cooperation and Development 
[OECD]), Pillar 3; NZPDA, section 19A; PIDA (U.K.), sections 43 
(K)(1)(b-d); ACA (Korea), Art. 25; Whistleblower Protection Act of 2004 
(Japan WPA), section 2; Ghana WPA, sec. 2; Slovenia Integrity and 
Prevention of Corruption Act (Slovenia Anti-Corruption Act), Article 
26; Uganda WPA, section II.3; Foreign Operations Appropriations Act of 
2005 (``Foreign Operations Act'')(U.S. MDB policy) section 
1505(a)(11)(signed November 14, 2005); False Claims Act (U.S. 
Government contractors), 31 USC 3730(h); sections 8-9.; STAA (U.S. 
corporate trucking industry) 49 USC 31105(j); ACCR of 2009 (U.S. 
Stimulus Law) P.L.111-5, Section 1553(g)(2)-(4); Dodd Frank, Sec. 
922(h)(1).

    Section 11(c): FAIL. The law is silent on these relevant contexts.

    6. Reliable Confidentiality Protection. To maximize the flow of 
information necessary for accountability, reliable protected channels 
must be available for those who choose to make confidential 
disclosures. As sponsors of whistleblower rights laws have recognized 
repeatedly, denying this option creates a severe chilling effect.
    Best Practices: ADB Administrative Order No. 2.10, sections 3.2, 
5.1 & 5.4 and Administrative Order No. 2.04, section 4.2; AFDB 
Whistleblowing and Complaints Handling Policy, sections 6.1 & 6.9.4; 
WFP ED2008/003, section 10; U.N. ST/SGB/2005/21, section 5.2; OAS Model 
Law, Articles 10 and 11, 49; PSA (Can.), sections 28.17(1-3), 28.20(4), 
28.24(2), 28.24(4); NZ PDA section 19; ACA (Korea), Articles 15 and 
33(1); Slovenia Anti-Corruption Act, Article 23 (4), (6) and (7); 
Uganda WPA, sections VI.14 and 15; WPA (U.S.) 5 USC sections 1212(g), 
1213(h); FRSA (U.S. rail workers) 49 USC 20109(i); NTSSA (U.S. public 
transportation) 6 USC 1142(h); STAA (U.S. corporate trucking industry) 
49 USC 31105(h); Dodd Frank (U.S. financial services) sec. 748(h)(2) 
and 922(h)(2); Jam PDA, section 24.

    Section 11(c): FAIL. The law is silent on confidential complaints, 
which are protected in other statutes due to the chilling effect on 
preliminary efforts to exercise rights.

    7. Protection Against Unconventional Harassment. The forms of 
harassment are limited only by the imagination. As a result, it is 
necessary to ban any discrimination taken because of protected 
activity, whether active such as termination, or passive such as 
refusal to promote or provide training. Recommended, threatened and 
attempted actions can have the same chilling effect as actual 
retaliation. The prohibition must cover recommendations as well as the 
official act of discrimination, to guard against managers who ``don't 
want to know'' why subordinates have targeted employees for an action. 
In non-employment contexts it could include protection against 
harassment ranging from discipline to litigation.
    Best Practices: ADB Administrative Order No. 2.10, section 2.11; 
IDB Staff Rule No. PE-328, sections 2.41-2.44; U.N. ST/SGB/2005/21, 
section 1.4; WFP ED2008/003, section 4; World Bank Staff Rule 8.02, 
section 2.04; OAS Model Law, Article 28; ACA (Korea), Article 33; 
Uganda WPA, section V.9(2), V.10, and V.11; WPA (U.S. Federal 
Government), 5 USC 2302(b)(8) and associated case law precedents; FRSA 
(U.S. rail workers 49 USC 20109(a); NTSSA (U.S. public transportation 
workers) 6 USC 1142(a); CPSIA (U.S. corporate retail products) 15 USC 
2087(a); SOX (U.S. publicly traded corporations) 18 USC 1514(a); ACCR 
of 2009 (U.S. Stimulus Law) P.L. 111-5, Section 1553(a); ACA (U.S. 
health care) Sec. 18C; FSMA (21 USC 1012(a); Dodd Frank (U.S. financial 
services industry) sec. 1057(a); Jamaican Public Disclosure Act, 2011, 
(``Jam PDA''), section 2.

    Section 11(c): PASS. Section 11(c)(1) bans an employer from 
discriminating in any manner.

    8. Shielding Whistleblower Rights From Gag Orders. Any 
whistleblower law or policy must include a ban on ``gag orders'' 
through an organization's rules, policies, job prerequisites, or 
nondisclosure agreements that would otherwise override free expression 
rights and impose prior restraint on speech, or even waiving access to 
statutory rights.
    Best Practices: WFP ED/2008/003, sections 8 and 11; World Bank 
Staff Rule 8.02, para. 4.03; NZ PDA section 18; PIDA (U.K.), section 
43(J); PDA (South Africa), section 2(3)(a, b); Ghana WPA, sec. 31; 
Uganda WPA, section V.12 and V.13; WPA (U.S.), 5 USC 2302(b)(8); 
Transportation, Treasury, Omnibus Appropriations Act of 2009 (U.S.), 
section 716 (anti-gag statute)(passed annually since 1988); FRSA (U.S. 
rail workers) 49 USC 20109(h); NTSSA (U.S. public transportation) 6 USC 
1142(g); STAA (U.S. corporate trucking industry) 49 USC 31105(g); ACCR 
of 2009 (U.S. Stimulus Law) P.L. 111-5, Section 1553(d)(1); ACA (U.S. 
health care) Sec 18C(b)(2); FSMA (U.S. food industry) 21 USC 
1012(c)(2); Dodd Frank (U.S. financial services industry) sections 
748(h)(3) and (n)(1), 922(h)(3) and 1057(c)(2); Jam PDA, Sections 15, 
20, third schedule, section 4.

    Section 11(c): FAIL. Unlike nearly all modern whistleblower laws, 
section 11(c) does not have an ``anti-gag'' provision.

    9. Providing Essential Support Services for Paper Rights. 
Whistleblowers are not protected by any law if they do not know it 
exists. whistleblower rights, along with the duty to disclose 
illegality, must be posted prominently in any workplace. Similarly, 
legal indigence can leave a whistleblower's rights beyond reach. Access 
to legal assistance or services and legal defense funding can make free 
expression rights meaningful for those who are unemployed and 
blacklisted. An ombudsman with sufficient access to documents and 
institutional officials can neutralize resource handicaps and cut 
through draining conflicts to provide expeditious corrective action. 
The U.S. Whistleblower Protection Act includes an Office of Special 
Counsel, which investigates retaliation complaints and may seek relief 
on their behalf. Informal resources should be risk-free for the 
whistleblower, without any discretion by relevant staff to act against 
the interests of individuals seeking help.
    Best Practices: United Nations Office of Staff Legal Assistance 
(for access to legal services); NZ PDA, sections 6B, 6C; Korean 
Independent Commission Against Corruption (Korea), First Annual Report 
(2002), at 139; WPA (U.S.), 5 USC 1212; Inspector General Act (U.S.) 5 
USC app.; ACCR of 2009 (U.S. Stimulus Law) P.L. 111-5, Section 1553(b); 
U.S. WPA, 5 USC 1212-19; Jam PDA, section 21.

    Section 11(c): FAIL. Section 11(c) does not impose any support or 
remedial responsibilities in connection with process complaints.
II. Forum
    The setting to adjudicate a whistleblower's rights must be free 
from institutionalized conflict of interest and operate under due 
process rules that provide a fair day in court. The histories of 
administrative boards have been so unfavorable that so-called hearings 
in these settings have often been traps, both in perception and 
reality.
    10. Right to Genuine Day in Court. This criterion requires normal 
judicial due process rights, the same rights available for citizens 
generally who are aggrieved by illegality or abuse of power. The 
elements include timely decisions, a day in court with witnesses and 
the right to confront the accusers, objective and balanced rules of 
procedure and reasonable deadlines. At a minimum, internal systems must 
be structured to provide autonomy and freedom from institutional 
conflicts of interest. That is particularly significant for preliminary 
stages of informal or internal review that inherently are compromised 
by conflict of interest, such as Office of Human Resources Management 
reviews of actions. Otherwise, instead of being remedial those 
activities are vulnerable to becoming investigations of the 
whistleblower and the evidentiary base to attack the individual's case 
for any eventual day in a due process forum.
    Best Practices: U.N. ST/SGB/2005/21, section 6.3; OAS Model Law, 
Articles 39, 40; Foreign Operations Act (U.S. policy for MDB's), 
section 1505(11); NZ PDA, section 17; PIDA (U.K.) Articles 3, 5; PDA 
(S. Afr.), section 4(1); ACA (Kor.), Article 33; Romania WPA, Article 
9; Uganda WPA, sections V.9(3) and (4); WPA (U.S.), 5 USC 1221, 7701-
02; Defense Authorization Act (U.S.) (defense contractors) 10 USC 
2409(c)(2); Energy Policy Act (U.S. Government and corporate nuclear 
workers), 42 USC 5851(b)(4) and (c)-(f); FRSA (U.S. rail workers) 49 
USC 20109(c)(2)-(4); NTSSA (U.S. public transportation) 6 USC 
1142(c)(4)-(7); CPSIA (U.S. retail products) 15 USC 2087(b)(4)-(7); SOX 
(U.S. publicly traded corporations) 18 USC 1514(b); STAA (U.S. 
corporate trucking industry) 49 USC 31105 (c)-(e); ACCR of 2009 (U.S. 
Stimulus Law) P.L. 111-5, Section 1553(c)(3)-(5); ACA (U.S. health 
care) sec. 18C(b)(1); FMSA (U.S. food industry) 21 USC 1012(b)(4); Dodd 
Frank (U.S. financial services) sections 748(h)(1)(B)(i), 
922(h)(1)(b)(1) and 1057(c)(4)(D).

    Section 11(c): FAIL. The Secretary has full access to court, but 
the complainant has access neither to any judicial nor guaranteed 
administrative due process, even at the informal level. Section 
11(c)(2) only provides for a discretionary investigation, without any 
administrative or judicial due process fact finding. OSHA 
investigations have no teeth, because they only can be enforced by the 
Solicitor of Labor, which declines to prosecute up to 70 percent of 
favorable OSHA merit determinations in any given year. There is no 
appellate judicial review of agency discretion. See Wood v. Department 
of Labor, 275 F.3d 107, 110 (D.C. Cir. 2001) In other words, the 
whistleblowers have no control of their rights.

    11. Option for Alternative Dispute Resolution with an Independent 
Party of Mutual Consent. Third party dispute resolution can be an 
expedited, less costly forum for whistleblowers. For example, labor-
management arbitrations have been highly effective when the parties 
share costs and select the decisionmaker by mutual consent through a 
``strike'' process. It can provide an independent, fair resolution of 
whistleblower disputes, while circumventing the issue of whether 
Intergovernmental Organizations waive their immunity from national 
legal systems. It is contemplated as a normal option to resolve 
retaliation cases in the U.S. Whistleblower Protection Act.
    Best Practices: Foreign Operations Act (U.S. MDB policy) section 
1505(a)(11); WPA (U.S. Federal Government labor management provisions), 
5 USC 7121.

    Section 11(c): FAIL. There is no such provision.
III. Rules to Prevail
    The rules to prevail control the bottom line. They are the tests a 
whistleblower must pass to prove that illegal retaliation violated his 
or her rights, and win.
    12. Realistic Standards to Prove Violation of Rights. The U.S. 
Whistleblower Protection Act of 1989 overhauled antiquated, 
unreasonable burdens of proof that had made it hopelessly unrealistic 
for whistleblowers to prevail when defending their rights. The test has 
been adopted within international law, within generic professional 
standards for intergovernmental organizations such as the United 
Nations.
    This emerging global standard is that a whistleblower establishes a 
prima facie case of violation by establishing through a preponderance 
of the evidence that protected conduct was a ``contributing factor'' in 
challenged discrimination. The discrimination does not have to involve 
retaliation, but only need occur ``because of '' the whistleblowing. 
Once a prima facie case is made, the burden of proof shifts to the 
organization to demonstrate by clear and convincing evidence that it 
would have taken the same action for independent, legitimate reasons in 
the absence of protected activity.
    Since the U.S. Government changed the burden of proof in its 
whistleblower laws, the rate of success on the merits has increased 
from between 1-5 percent annually to between 25-33 percent, which gives 
whistleblowers a fighting chance to successfully defend themselves. 
Many nations that adjudicate whistleblower disputes under labor laws 
have analogous presumptions and track records. There is no alternative, 
however, to committing to one of these proven formulas to determine the 
tests the whistleblower must pass to win a ruling that their rights 
were violated.
    Best Practices: U.N. ST/SGB/2005/21, sections 5.2 & 2.2; WFP ED 
2008/003, sections 6 and 13; World Bank Staff Rule 8.02, sec. 3.01; 
AfDB Whistleblowing and Complaints Handling Policy, section 6.6.7; 
Foreign Operations Act, Section 1505(11); Whistleblower Protection Act 
(U.S. Federal Government) 5 USC 1214(b)(2)(4) and 1221(e); Energy 
Policy Act of 2005 (U.S. Government and corporate nuclear workers), 42 
USC 5851(b)(3); FRSA (U.S. rail workers) 49 USC 20109(c)(2)(A)(i); 
NTSSA (U.S. public transportation) 6 USC 1142(c)(2)(B); CPSIA (U.S. 
corporate retail products) 15 USC 2087 (b)(2)(B), (b)(4); SOX (U.S. 
publicly traded corporations), 18 USC 1514(b)(2)(c); STAA (U.S. 
corporate trucking industry) 49 USC 31105(b)(1); ACCR of 2009 (U.S. 
Stimulus Law) P.L. 111-5, Section 1553(c)(1); ACA, sec. 1558(b)(2); 
FSMA (U.S. food industry) 21 USC 1012(b)(2)(C) and (b)(4)(A); Dodd 
Frank (U.S. financial services industry) sec. 1057(b)(3).

    Section 11(c): FAIL. Unlike every corporate whistleblower law since 
1992, section 11(c) has no legal burdens of proof.

    13. Realistic Time Frame to Act on Rights. Although some laws 
require employees to act within 30-60 days or waive their rights, most 
whistleblowers are not even aware of their rights within that 
timeframe. Six months is the minimum functional statute of limitations. 
One-year statutes of limitations are consistent with common law rights 
and are preferable.
    Best Practices: ADB Administrative Order No. 2.10, section 6.5; WFP 
ED2008/003, section 7; U.N. ST/SGB/2005/21, section 2.1(a) & 5.1 (no 
statute of limitations); PIDA (U.K.), section 48.3; PDA (S. Afr.), 
section 4(1); NZ PDA, section 17; ACA (Kor.) (no statute of 
limitations); WPA (U.S. Federal employment) 5 USC 1212 (no statute of 
limitations); False Claims Act (U.S. Government contractors), 42 USC 
3730(h) and associated case law precedents; Energy Policy Act of 2005 
(U.S. Government and corporate nuclear workers), 42 USC 5851(b)(1); 
FRSA (U.S. railroad workers) 49 USC 20109(d)(2)(A)(ii); NTSSA (U.S. 
public transportation) 6 USC 1142(c)(1); CPSIA (U.S. corporate retail 
products) 15 USC 2087(b)(1); STAA (U.S. corporate trucking industry) 49 
USC 31105(b)(1); ACCR of 2009 (U.S. Stimulus Law) P.L. 111-5, Section 
1553(b)(1); ACA (U.S. health care industry) sec. 18C(b)(1); FSMA (U.S. 
food industry) 21 USC 1012O(b)(1); Dodd Frank (U.S. financial services 
industry) sec. 748(h)(1)(B)(iii), 922(h)(1)(B)(iii) and sec. 
1057(c)(1)(A).

    Section 11(c): FAIL. The provision's 30-day statute of limitations 
ties for a global worst practice.
IV. Relief for Whistleblowers Who Win
    The twin bottom lines for a remedial statute's effectiveness are 
whether it achieves justice by adequately helping the victim obtain a 
net benefit and by holding the wrongdoer accountable.
    14. Compensation with ``No Loopholes''. If a whistleblower 
prevails, the relief must be comprehensive to cover all the direct, 
indirect and future consequences of the reprisal. In some instances 
this means relocation or payment of medical bills for consequences of 
physical and mental harassment. In non-employment contexts, it could 
require relocation, identity protection, or withdrawal of litigation 
against the individual.
    Best Practices: AfDB Whistleblowing and Complaints Handling Policy, 
sections 6.5 & 6.6 and Statute of the Administrative Tribunal of the 
African Development Bank Art. XIII (1); OAS Model Law, Articles 17 and 
18; Foreign Operations Act (U.S. policy for MDB's), Section 1505(11); 
NZ PDA, section 17; ACA (Korea), Article 33; PIDA (U.K.), section 4; 
WPA (U.S. Federal Government employment), 5 USC 1221(g)(1); False 
Claims Act (U.S. Government contractors), 31 USC 3730(h); Defense 
Authorization Act (U.S.) (defense contractors), 10 USC 2409(c)(2); 
Energy Policy Act of 2005 (U.S. Government and corporate nuclear 
workers), 42 USC 5851(b)(2)(B); FRSA (U.S. railroad workers) 49 USC 
20109(e); NTSSA (U.S. public transportation) 6 USC 1142(c)(3)(B) and 
(d); CPSIA (U.S. corporate retail products) 15 USC 2087(b)(3)(B) and 
(b)(4); STAA (U.S. corporate trucking industry) 49 USC 31105
(b)(3)(B); ACCR of 2009 (U.S. Stimulus Law) P.L. 111-5, Section 
1553(b)(2)(A), (B), and (b)(3); ACA (U.S. health care) sec. 18C(b)(2); 
FSMA (U.S. food industry) 21 USC 1012(b)(3)(B) and (b)(4)(B); Dodd 
Frank (U.S. financial industry) sec. 1057(c)(4)(B)(i) and 4(D)(ii).

    Section 11(c): FAIL. Although section 11(c)(2) permits the 
Secretary to seek ``all appropriate relief,'' courts do not always 
consider that language sufficient to permit consequential, special or 
compensatory damages that must be awarded for an employee to be made 
whole.

    15. Interim Relief. Relief should be awarded during the interim for 
employees who prevail. Anti-reprisal systems that appear streamlined on 
paper commonly drag out for years in practice. Ultimate victory may be 
merely an academic vindication for unemployed, blacklisted 
whistleblowers who go bankrupt while they are waiting to win. 
Injunctive or interim relief must occur after a preliminary 
determination. Even after winning a hearing or trial, an unemployed 
whistleblower could go bankrupt waiting for completion of an appeals 
process that frequently drags out for years.
    Best Practices: U.N. ST/SGB/2005/21, Section 5.6 and Statute of the 
United Nations Dispute Tribunal, Article 10(2); ADB Administrative 
Order No. 2.10, section 7.1; AfDB Whistleblowing and Complaints 
Handling Policy, sections 6.6.1, 6.6.5 & 9.6; World Bank Staff Rule 
8.02, sec. 2.05; OAS Model Law, Articles 17, 32; PIDA (``U.K.''), 
section 9; NZ PDA, section 17; WPA (U.S. Federal Government), 5 USC 
sections 1214(b)(1), 1221(c); CPSIA (U.S. corporate retail products) 15 
USC 2087(b)(1); SOX (U.S. publicly traded corporations), 5 USC 
1214(b)(1); ACA (U.S. health care) sec. 1558(b)(1); FSMA (U.S. food 
industry) 21 USC 1012 (b)(2)(B); Dodd Frank, sec. 748(h)(1)(B)(i), 922 
(h)(1)(B)(i) and sec. 1057(b)(2)(B).

    Section 11(c): FAIL. While the Secretary may litigate for a 
restraining order, the complainant has no right to seek interim relief 
during the OSHA proceeding.

    16. Coverage for Attorney Fees. Attorney fees and associated 
litigation costs should be available for all who substantially prevail. 
Whistleblowers otherwise couldn't afford to assert their rights. The 
fees should be awarded if the whistleblower obtains the relief sought, 
regardless of whether it is directly from the legal order issued in the 
litigation. Otherwise, organizations can and have unilaterally 
surrendered outside the scope of the forum and avoided fees by 
declaring that the whistleblower's lawsuit was irrelevant to the 
result. Affected individuals can be ruined by that type of victory, 
since attorney fees often reach sums more than an annual salary.
    Best Practices: AfDB Whistleblowing and Complaints Handling Policy, 
section 6.5.4; Statute of the Administrative Tribunal of the 
International Monetary Fund, Art. XIV (4); Statute of the 
Administrative Tribunal of the Asian Development Bank, Art. X (2); OAS 
Model Law, Art. 17; NZ PDA section 17; WPA (U.S. Federal Government), 5 
USC 1221(g)(2-3); False Claims Act (U.S. Government contractors), 31 
USC 3730(h); Energy Policy Act (U.S. Government and corporate nuclear 
workers), 42 USC 5851(b)(2)(B)(ii); FRSA (U.S. railroad workers) 49 USC 
20109(e); NTSSA (U.S. public transportation) 6 USC 1142(d)(2)(C); CPSIA 
(U.S. corporate retail products) 15 USC 2087(b)(3)(B) and (b)(4)(C); 
SOX (U.S. publicly traded corporations), 18 USC 1514(c)(2)(C); STAA 
(U.S. corporate trucking industry) 49 USC 31105(b)(3)(A)(iii) and (B); 
ACCR of 2009 (U.S. Stimulus Law), P.L. 111-5, Section 1553(b)(2)(C) and 
(b)(3); ACA (U.S. health care) sec. 1558(b)(1); FSMA (U.S. food 
industry) 21 USC 1012(b)(3)(C) and (4)(D)(iii); Dodd Frank (U.S. 
financial services) sec. 748(h)(1)(C), 922(h)(1)(C) and sections 
1057(C)(4)(B)(ii) and (D)(ii)(III).

    Section 11(c): FAIL. There is no relevant provision, even for 
costs.

    17. Transfer Option. It is unrealistic to expect a whistleblower to 
go back to work for a boss whom he or she has just defeated in a 
lawsuit. Those who prevail must have the ability to transfer for any 
realistic chance at a fresh start. This option prevents repetitive 
reprisals that cancel the impact of newly created institutional rights.
    Best Practices: AfDB Whistleblowing and Complaints Handling Policy, 
section 6.5.5; U.N. SGB/2005/21, Section 6.1; United Nations Population 
Fund (UNFPA) ``Protection against Retaliation for Reporting Misconduct 
or for Cooperating with an Authorized Fact-Finding Activity,'' para. 
26; WFP Executive Circular ED2008/003, para. 22; The United Nations 
Children's Fund (UNICEF) Whistleblower Protection Policy, para. 23; OAS 
Model Law, Article 18; PDA (S. Afr.), section 4(3); ACA (Korea), 
Article 33; WPA (U.S. Federal Government), 5 USC 3352.

    Section 11(c): FAIL. There is no relevant provision.

    18. Personal Accountability for Reprisals. To deter repetitive 
violations, it is indispensable to hold accountable those responsible 
for whistleblower reprisal. Otherwise, managers have nothing to lose by 
doing the dirty work of harassment. The worst that will happen is they 
won't get away with it, and they may well be rewarded for trying. The 
most effective option to prevent retaliation is personal liability for 
punitive damages by those found responsible for violations. The OAS 
Model Law even extends liability to those who fail in bad faith to 
provide whistleblower protection. Another option is to allow 
whistleblowers to counterclaim for disciplinary action, including 
termination. Some nations, such as Hungary or the United States in 
selective scenarios such as obstruction of justice, impose potential 
criminal liability for whistleblower retaliation.
    Best Practices: U.N. SGB/2005/21, section 7; UNFPA ``Protection 
against Retaliation . . .'' para. 29; UNICEF Whistleblower Protection 
Policy, para. 26; AfDB Whistleblowing and Complaints Handling Policy, 
section 6.6.4, 6.9.2; World Bank Staff Rule 8.01, sec. 2.01(a); OAS 
Model Law, Articles 12,13 41-46; NZ PDA, section 17; ACA (Korea), 
Article 32(8); Article 32(8); Hungary, Criminal code Article 257, 
``Persecution of a conveyor of an Announcement of Public Concern''; 
Public Interest Disclosure Act, No. 108, section 32; Uganda WPA, 
sections VI.16 and 18; WPA (U.S. Federal Government) 5 USC 1215; FRSA 
(U.S. railroad workers) 49 USC 20109(e)(3); NTSSA (U.S. public 
transportation) 6 USC 1142(d)(3); CPSIA (U.S. corporate retail 
products) 15 USC 2087(b)(3)(B) and (b)(4)(C); SOX (U.S. publicly traded 
corporations), 18 USC 1513(e); STAA (U.S. corporate trucking industry) 
49 USC 31105(b)(3)(C); Jam PDA, section 23.
    Some Multilateral Development Banks have created hybrid systems of 
accountability that indirectly protect whistleblowers from harassment 
by bank contractors. The banks' policies are to apply sanctions or even 
stop doing business with contractors who engage in whistleblower 
retaliation. AfDB Whistleblowing and Complaints Handling Policy, 
sections 6.2 and 6.3; ADB Administrative Order No. 2.10, section 8.5; 
Inter-American Development Bank Staff Rule No. PE-328, section 10.3 & 
11.1.

    Section 11(c): FAIL. There is no relevant provision.
V. Making a Difference
    whistleblowers will risk retaliation if they think that challenging 
abuse of power or any other misconduct that betrays the public trust 
will make a difference. Numerous studies have confirmed this 
motivation. This is also the bottom line for affected institutions or 
the public--positive results. Otherwise, the point of a reprisal 
dispute is limited to whether injustice occurred on a personal level. 
Legislatures unanimously pass whistleblower laws to make a difference 
for society.
    19. Credible Corrective Action Process. Whether through hotlines, 
ombudsmen, compliance officers or other mechanisms, the point of 
whistleblowing through an internal system is to give managers an 
opportunity to clean house, before matters deteriorate into a public 
scandal or law enforcement action. In addition to a good faith 
investigation, two additional elements are necessary for legitimacy.
    First, the whistleblower who raised the issues should be 
enfranchised to review and comment on the charges that merited an 
investigation and report, to assess whether there has been a good faith 
resolution. While whistleblowers are reporting parties rather than 
investigators or finders of fact, as a rule they are the most 
knowledgeable, concerned witnesses in the process. In the U.S. 
Whistleblower Protection Act, their evaluation comments have led to 
significant improvements and changed conclusions. They should not be 
silenced in the final stage of official resolution for the alleged 
misconduct they risk their careers to challenge.
    Second, transparency should be mandatory. Secret reforms are an 
oxymoron. As a result, unless the whistleblower elects to maintain 
anonymity, both the final report and whistleblower's comments should be 
a matter of public record, posted on the organization's Web site.
    Another tool that is vital in cases where there are continuing 
violations is the power to obtain from a court or objective body an 
order that will halt the violations or require specific corrective 
actions. The obvious analogy for Intergovernmental Organizations is the 
ability to file for proceedings at Independent Review Mechanisms or 
Inspection Panels, the same as an outside citizen personally aggrieved 
by institutional misconduct.
    Best Practices: ACA, (Korea), Articles 30, 36; NZ PDA section 15; 
PSA (Can.), section 28.14(1) (1990); Japan WPA, Section 9 (2004); 
Slovenia Anti-Corruption Act, Articles 23 and 24; WPA (U.S. Federal 
Government), 5 USC 1213; Inspector General Act of 1978 (U.S. Federal 
Government), 5 USC app.; False Claims Act, 31 USC 3729 (government 
contractors); FRSA (U.S. railroad workers) 49 USC 20109(j); NTSSA (U.S. 
public transportation) 6 USC 1142(i); STAA (U.S. corporate trucking 
industry) 49 USC 31105(i); Jam PDA, section 18. Third Schedule.

    Section 11(c): PASS. The underlying Act has well-established, 
actively enforced provisions for underlying safety. While they have 
been the subject of justified criticism, they are far superior to 
practices for enforcement of section 11(c)'s anti-retaliation rights.

    20. Private attorney general option: Citizens Enforcement Act. Even 
more significant is enfranchising whistleblowers and citizens to file 
suit in court against illegality exposed by their disclosures. These 
types of suits are known as private attorney general, or ``qui tam'' 
actions in a reference to the Latin phrase for ``he who sues on behalf 
of himself as well as the king.'' These statutes can provide both 
litigation costs (including attorney and expert witness fees) and a 
portion of money recovered for the government to the citizen 
whistleblowers who file them, a premise that merges ``doing well'' with 
``doing good,'' a rare marriage of the public interest and self 
interest. In the United States, this approach has been tested in the 
False Claims Act for whistleblower suits challenging fraud in 
government contracts. It is the Nation's most effective whistleblower 
law in history for making a difference, increasing civil fraud 
recoveries in government contracts from $27 million annually in 1985, 
to over $30 billion since, including more than $1 billion annually 
since 2000. Another tool that is vital in cases where there are 
continuing violations is the power to obtain from a court or objective 
body an order that will halt the violations or require specific 
corrective actions.
    Best Practices: False Claims Act, 31 USC 3730 (U.S. Government 
contractors) Dodd Frank Act, sections 748 and 922 (Commodities Future 
Trading Commission and Securities and Exchange Commission violations)

    Section 11(c): FAIL. There is no provision for independent 
enforcement.

    On balance, a 25 percent pass rate is unacceptable when the 
baseline is best practice standards for an effective whistleblower law. 
Putting the criteria in perspective, the five core principles for 
credible protection are loophole free protection, realistic timeframes 
to act on rights, fair legal burdens of proof on the evidence necessary 
to prevail, meaningful due process to enforce the rights, and remedies 
that make victims whole if they prevail. While a pioneer statute in 
achieving the first principle of clear rights, section 11(c) fails the 
remaining four that are essential for the rights to be meaningful. It 
is a primitive statute long overdue to modernize so that it matches the 
rest of corporate whistleblower law.
                       section 11(c) enforcement
    It is beyond credible debate that there is an unacceptable gap 
between section 11(c)'s broad mandate for protection, and reality. 
According to the DWPP Web site, from fiscal year 2005-13 there were 
10,380 complaints, some 60 percent of the total volume for 
whistleblower cases. But there were only 138 decisions that a 
whistleblower's rights were violated, or a 1.45 percent success rate. 
While annual settlements ranged from 15-25 percent, even that voluntary 
relief generally is minimal when the chances of losing are so low. 
Employee rights and union colleagues credit OSHA inspectors with using 
section 11(c) to prevent retaliation against witnesses, and even 
getting minimal help in up to 25 percent of cases is better than 
nothing. But the track record indicates little or no realistic chance 
for justice when a decision is rendered. In practice, the law rubber 
stamps almost any retaliation that is challenged if the case results in 
a final ruling. .
    But it also is beyond credible debate that a breakdown in 
enforcement, not weak statutory rights, is the primary reason the track 
record has been so weak. This duty has never had priority in an 
overextended agency specializing in worker safety, not employment 
rights. Resources and training have been meager. Further, unusual 
regional authority and lack of independent oversight have frustrated 
consistent implementation of national standards for what the law means 
in practice. Reviews ranging from the Government Accountability Office, 
to the DOL Office of Inspector General, to GAP's own survey of 
whistleblowers and practitioners consistently found that OSHA's 
whistleblower program due to--excessive, even multi-year delays 
processing complaints; lack of training; inadequate resources for 
staff; inadequate staffing levels that sustained unrealistic workloads; 
failure to interview or functionally communicate with complainants; 
lack of fiscal control over appropriated funds; failure to use 
alternative disputes resolution mediations to resolve cases; lack of 
data to support decisions; widely varying interpretations of law 
between regions; widely varying success rates between regions; lack of 
authority by the national OWPP to reverse regional decisions; and most 
fundamentally--lack of accountability through an independent national 
audit of regional compliance with consistent national standards. In 
short, Dr. Michaels faced an imposing challenge to reach the law's 
available potential.
    He is to be commended for establishing policies and taking actions 
that are first steps in a long road to legitimacy for the new 
Directorate of Whistleblower Programs. The reforms that he has 
initiated include:

     creation of the DWPP, with direct reporting authority to 
him, moving whistleblower rights up from OWPP's subsidiary status in 
the Office of Enforcement;
     a separate line item budget for the DWPP, so that it can 
control its own resources;
     significantly increased staff for DWPP;
     initiation of national training programs in whistleblower 
rights, to promote consistent interpretations of legal rights;
     more user-friendly procedures, such as accepting oral 
complaints;
     a modernized Web site that is an effective resource for 
those seeking to learn their rights;
     institution of a policy to conduct interviews of 
complainants in all cases; and
     institution of tougher standard against indirect 
discrimination, such as workplace bonuses for not reporting safety 
violations, and discipline for getting injured.

    While OSHA is imposing increased auditing oversight, however, this 
function still will be under the functional control of the regions. The 
lack of independent accountability raises concerns about the strength 
and consistency of these reforms in practice. Similarly, while the 
national office now may reverse regional rulings, it has not yet 
exercised this authority.
    It also is difficult not to be concerned that OSHA reassigned the 
DWPP Director, Elizabeth Slavet, shortly after she began implementing 
plans for a more independent audit. Ms. Slavet is a nationally 
recognized whistleblower expert, previously having served as the highly 
respected Chair of the U.S. Merit Systems Protection Board adjudicating 
the Whistleblower Protection Act for Federal workers. Many of the 
reforms credited above occurred under her leadership at DWPP. After her 
abrupt removal, it is essential that OSHA takes steps to: (1) assure 
there is no violation of Ms. Slavet's own whistleblower rights; (2) 
select a successor whose credibility and expertise also are beyond 
dispute; and (3) add independent audit enforcement teeth to his 
announced reforms.
    While Dr. Michaels has created a credible blueprint for an 
effective enforcement program of whistleblower rights, it will take 
ongoing, independent oversight for that blueprint to make a significant 
difference in practice. Toward that goal, GAP is available as a 
resource both to this committee, and for the DWPP.

    Senator Casey. Mr. Devine, thank you very much.
    Mr. Baize.

 STATEMENT OF ROSS BAIZE, SAFETY COMMITTEEMAN FOR UNITED AUTO 
                    WORKERS, EAST PEORIA, IL

    Mr. Baize. Chairman Casey, Ranking Member Isakson, thank 
you for the opportunity to testify before you today. Yesterday, 
as you stated, we paused on Workers' Memorial Day to highlight 
the preventable nature of workplace deaths, injuries, and 
illnesses. Today we continue to fight for improvements in 
workplace safety. I welcome the opportunity to share my own 
personal experience as a worker who attempted to use section 
11(c) to protect myself from employer retaliation.
    As a 7-year employee of Caterpillar, I'm proud of the 
products that we manufacture, and I can say with certainty that 
I personally want the company and workforce to succeed, and the 
International UAW wants the same thing. I am not here to bash 
Caterpillar or its reputation. I am here to simply share my 
experience and describe some of the work that I so proudly do 
every day.
    The work tasks involved in the case I will be describing 
are part of the Full Link Heat Treat process. A link is a part 
of the caterpillar track that weighs anywhere from 15 to 80 
pounds. In order to make the links more durable, they are heat-
treated. The process starts with a large hopper filled with 
links, which shakes down the links onto the orientation track.
    As the links travel down the track, it is controlled by 
pneumatic stops or large air-powered gates. At the stops, 
electric sensors measure the link position and, if needed, the 
link is reoriented. Oftentimes, the links will get jammed on 
the track, as well as debris can buildup in front of the 
sensors. Workers have been injured doing these tasks.
    One of my co-workers was reaching from the steps next to 
the orientation track to unjam the link so the parts could 
continue to the heat-treated oven. When he unjammed the link, 
the electric eye sensor automatically initiated a pneumatic air 
gate that came down and broke his hand. He received 2\1/2\-
months suspension without pay.
    Another co-worker was injured when inspecting the cause of 
an orientation track jam. This worker had 38 years of seniority 
at Caterpillar and had never received any form of disciplinary 
action. He had a nearly perfect attendance record as well.
    He was clearing debris from the front of a sensor to get 
the orientation track running. He pulled out the debris from 
inside the track when a stop came down, striking his left hand. 
He reported his injury to the supervisor on duty and was taken 
to seek medical attention. He was suspended as well for 2\1/2\ 
months without pay on the grounds that he had not shut off the 
air pressure valve before walking up to the platform.
    He had, however, followed the employer's standard work 
practice for dealing with machine jams by turning the control 
switch from auto to manual on the main control panel. He had 
not been issued a lock to prevent the machine from hurting him 
while clearing a jam. He was the second employee in 6 months to 
be injured while trying to clear a jam in this machine.
    In the first week of 2011, an 11(c) whistleblower complaint 
was filed on his behalf as well as a complaint about the lack 
of procedures, training, or equipment for Lockout/Tagout in the 
Full Link Heat Treat area. In our view, the standard operating 
procedure for unjamming was a violation of the Lockout/Tagout 
standard. We brought this before management using the safety 
complaint procedure before going to OSHA.
    On March 30th, I informed management that I wished to move 
the Lockout/Tagout safety complaint to the final step of the 
grievance procedure as per our collective bargaining agreement. 
I had a committeeman present when I made the request. In 
response, management asked my committeeman to leave and return 
to work. Then they informed me that my job was going to be 
eliminated.
    My status was changed from a Labor Grade 4 to a Labor Grade 
1 job, reducing my pay by thousands of dollars. I was at the 
lower pay grade for several weeks, but thankfully, because I am 
a member of the union, and with the seniority and 
qualifications that I have, I was awarded a bid to a different 
job back up to Labor Grade 4 pay.
    The actual move was carried out on April 4, 2011. 
Originally, my job was the only one affected by the reduction 
in force, even though there were junior employees they were 
keeping on the job. Upon filing a grievance regarding RIF 
procedures used, the junior employees were subsequently moved 
back to the appropriate job classification, per RIF procedures. 
I successfully bid out of that particular division and vowed to 
start over.
    An 11(c) whistleblower complaint was filed on my behalf on 
May 3, 2011. It was dismissed on procedural grounds. The stated 
reason for the dismissal was timeliness of the complaint. The 
actual adverse action, being job elimination and a resulting 
reduction in pay, did not take place until April 4, 2011, when 
I was placed on the new job and my pay was reduced.
    Often, job moves are delayed by weeks or months. So I filed 
my complaint on May 3d, 29 days after the adverse action had 
taken effect. And our collective bargaining agreement states 
that we need to try and settle things in-house before bringing 
in a Federal agency, which was what I was trying to do.
    The 30-day filing period for retaliation claims under 11(c) 
is one of the shortest anti-retaliation limitations periods in 
employment law. It is incredibly difficult to do your job, 
perform your family obligations, perform your union obligations 
to your co-workers, and build a retaliation case to OSHA within 
a 30-day period of time. This short timeframe is made even more 
draconian if it is interpreted rigidly, as it was in my case.
    In my case, while I was told my job was being eliminated, I 
knew that I had bumping rights to other jobs. It was impossible 
on March 30th to know how my bumping rights would play out and 
whether I would lose my shift or lose income due to the job 
elimination. If I did not lose my shift or suffer a reduction 
in salary, it could be argued that no adverse action was taken 
under the OSH Act. It was therefore entirely proper to begin 
the running of the 30-day statute of limitations when the 
actual adverse action could be accurately determined.
    Thank you.
    [The prepared statement of Mr. Baize follows:]
                    Prepared Statement of Ross Baize
    Chairman Casey, Ranking Member Isakson, Senators: Thank you for the 
opportunity to testify before you today. I am Ross Baize, an employee 
of Caterpillar in Peoria, IL and a UAW Safety Committeeman. Yesterday 
we paused, on Workers' Memorial Day, to highlight the preventable 
nature of many workplace deaths, injuries and illnesses. Today, we 
continue the fight for improvements in workplace safety. I welcome the 
opportunity to share my own personal experience as a worker who 
attempted to use Section 11(c) of the Occupational Safety and Health 
Act of 1970 to protect myself from employer retaliation.
    As a 7-year-employee of Caterpillar, I am proud of the products we 
manufacture and I can say with certainty that I personally want the 
company and workforce to succeed and the UAW International Union wants 
the same thing. I am not here to bash Caterpillar or its reputation. I 
am here to simply share my experience and describe some of the work 
that I so proudly do every day.
    The work tasks involved in the case I will be describing are part 
of the Full Link Heat Treat process. A link is a part of the 
caterpillar track. This part weighs between 15 and 80 pounds. In order 
to make the links more durable, they are heat treated. The process 
starts with a large hopper filled with links. The hopper vibrates and 
shakes the links on to an orientation track. As the link travels down 
the track it is controlled by pneumatic stops or large air-powered 
gates. At the stops, electric sensors measure the link position and the 
link is reoriented. Often times the links get jammed on the track. 
Also, debris builds up on the sensors and we have to clear the debris. 
Workers have been injured doing these tasks.
    One of my co-workers was reaching from the steps next to the 
orientation track to un-jam the link so the parts could continue to the 
heat treat oven. When he un-jammed the link, the electric eye sensor 
automatically initiated a pneumatic gate that came down and broke his 
hand. He received 2\1/2\ months suspension without pay.
    Another co-worker was injured when inspecting the cause of an 
orientation track jam. This worker had 38 years of seniority at 
Caterpillar and had never received any form of disciplinary action. He 
had a nearly perfect attendance record.
    He was clearing debris from the front of a sensor to get the 
orientation track running. He pulled out the debris from inside the 
track when a stop came down, striking his left hand. He reported his 
injury to the supervisor on duty and was taken to seek medical 
attention. He was suspended for 2\1/2\ months without pay on the 
grounds that he had not shut off the air pressure valve before walking 
up to the platform. He had, however, followed the employer's standard 
work practice for dealing with machine jams by turning the control 
switch from AUTO to MANUAL on the main control panel. He had not been 
issued a lock to prevent the machine from hurting him while clearing a 
jam. He was the second employee in 6 months who was injured trying to 
clear a jam in this machine.
    In the first week of 2011, an OSHA 11(c) Whistleblower Complaint 
was filed on his behalf as well as a complaint about the lack of 
procedures, training, or equipment for Lockout/Tagout in the Full Link 
Heat Treat area. OSHA issued two repeat citations and one serious 
citation to Caterpillar. The company contested the citation and the 
union filed a request for party status. The company eventually agreed 
to accept a serious citation for a violation of OSHA's machine guarding 
rule and paid a fine of $7,000, which is the maximum allowed by the 
OSHA statute for such a serious violation.
    In accordance with the collective bargaining agreement between the 
UAW and Caterpillar, all efforts are made to reach an in-house 
settlement before involving a Federal agency. Unfortunately, in these 
cases, those efforts failed.
    In our view, the standard operating procedure for un-jamming was a 
violation of the Lockout/Tagout Standard; we brought this before 
management using the grievance procedure before going to OSHA. On March 
30, 2011, I informed management that I wished to move the Lockout/
Tagout complaint to the final step of the grievance procedure as per 
part 8.3 of our collective bargaining agreement. I had my committeeman 
present when I made the request. In response, management asked my 
committeeman to leave the room. They then informed me that my job had 
been eliminated.
    My status was changed from Labor Grade 4 to a Labor Grade 1 job, 
reducing my pay by thousands of dollars. I was at the lower pay grade 
for several weeks but thankfully, because I am a member of the union 
with the seniority and qualifications. I was awarded a bid to a 
different job back up at Labor Grade 4 pay.
    The actual move was carried out on April 4, 2011. Originally, my 
job was the only one affected by the reduction in force (RIF), even 
though there were junior employees kept on the job. Upon filing a 
grievance regarding RIF procedures used, the junior employees were 
subsequently moved back to the appropriate job classification, per RIF 
procedures. I successfully bid out of that particular division and 
vowed to start over.
    An OSHA 11(c) Whistleblower Complaint was filed on my behalf on May 
3, 2011. It was dismissed on procedural grounds. The stated reason for 
the dismissal was timeliness of the complaint. I believe that since the 
adverse action in my case did not take place until April 4, 2011, I was 
within the 30-day statutory time limit set forth in the OSH Act. Again, 
I was told on March 30, 2011 that my job would be eliminated 
immediately after I put a safety complaint regarding Lockout/Tagout 
into the final step of the grievance procedure. The actual Adverse 
Action (job elimination and resultant reduction in pay) did not take 
place until April 4, 2011, when I was placed on the new job and my pay 
was reduced. Often job moves are delayed by weeks or months so I filed 
my complaint on May 3, 2011; 29 days after the adverse action took 
place.
    The 30-day filing period for retaliation claims under section 11(c) 
is one of the shortest anti-retaliation limitations periods in 
employment law. It is incredibly difficult to do your job, perform your 
family obligations, perform your union obligations to your co-workers 
and build a retaliation case to present to OSHA within a 30-day period 
of time. This short timeframe is made even more draconian if it is 
interpreted rigidly, as it was in my case.
    In my case, while I was told my job was being eliminated, I knew 
that I had ``bumping rights'' to other jobs. It was impossible on March 
30th to know how my bumping rights would play out and whether I would 
lose my shift or lose income due to the job elimination. If I did not 
lose my shift or suffer a reduction in salary, it could be argued that 
I did not suffer an adverse action under the OSH Act. It was therefore 
entirely proper to begin the running of the 30-day statute of 
limitations when the actual adverse action could be accurately 
determined.
    I would add that during the time I was at the lower pay, I felt the 
need to work as much overtime as I could in order to provide for my 
wife and child who was not even 9 months old at the time. I felt like I 
had to prepare for the worst case scenario that I could be stuck in 
that job for a lengthy period. This incident caused me and my family to 
have to scale back on certain amenities that we were previously able to 
afford. It also took its toll on my wife who was dealing with the 
stress that comes along with being a new mother and this was the last 
thing she needed to worry about.
    At the end of the day, I never attempted private action on this 
case. I learned the day that I called in my complaint that it was 
probably going to be deemed untimely.
    Under the OSHA law, I have no legal right to pursue my case on my 
own if the Department of Labor chooses not to take it up. Other 
whistleblower statutes provide for more time to file a complaint and 
the ability to pursue a case even if the Department chooses not to. The 
OSHA law must be strengthened to protect job safety whistleblowers.
    It took a little time, but I have made myself a home in the 
building that I moved to. I have earned the respect of many management 
and hourly employees in my current job.
    In closing, I would again like to thank you for the opportunity to 
testify before this subcommittee and I look forward to answering any 
questions you may have.

    Senator Casey. Thank you very much for your testimony.
    Mr. Keating.

 STATEMENT OF GREGORY KEATING, ESQ., CO-CHAIR, WHISTLEBLOWING 
AND RETALIATION PRACTICE GROUP, LITTLER MENDELSON P.C., BOSTON, 
                               MA

    Mr. Keating. Good morning, and thank you, Chairman Casey 
and Ranking Member Isakson, for the opportunity to be here and 
to speak with you about whistleblower protections. As noted, 
I'm a shareholder at Littler Mendelson, which is the largest 
labor and employment law firm in the country representing 
employers.
    I also wrote a book that's in its fifth edition on 
whistleblowing, and I have greatly enjoyed the opportunity to 
serve on the Whistleblower Protection Advisory Committee, which 
Senator Isakson nominated me to. And, as noted by Dr. Michaels, 
I am working on the best practices committee, and I have 
really, really enjoyed the opportunity to focus on that.
    I'm here today, however, to encourage this body to consider 
an alternative to the current approach to whistleblower 
protection, one that focuses predominantly on increased 
penalties and deterrents in the whistleblowing context. While 
penalties and deterrents serve a purpose, providing employers 
with clear guidance and incentives to foster compliance is, I 
believe, more effective and more likely to result in better, 
safer, and more ethical workplaces for employees in America.
    In my work with employers, I find that across regions and 
industries, companies of all sizes and stripes are eager to 
adopt concrete measures to help facilitate a culture of ethics 
and compliance. While I recognize the topic of today's hearing 
is whistleblower protections in the context of workplace 
safety, however, as Dr. Michaels has himself noted earlier 
today, in addition to the Occupational Safety and Health Act, 
OSHA enforces 21 other statutes.
    I want to speak even more broadly today about how 
compliance measures can improve and sustain workplaces across 
many areas of corporate culture, including workplace safety. 
The goal, in my view, should be to educate and incentivize 
employers to create a culture of ethics and compliance across 
all layers of the organization.
    By culture of ethics and compliance, I mean a workplace in 
which compliance with the letter and spirit of the law is both 
required and encouraged at every level of the organization. 
Employees feel comfortable and welcome to share concerns about 
possible noncompliance, and individuals who come forward in 
good faith to report possible misconduct or safety concerns can 
do so without fear of retaliation.
    Achieving this kind of culture will result in workplaces 
that are safer, more ethical, more fulfilling, and more 
compliant with the specific laws and regulations which govern 
their industries. This culture can best be achieved, in my 
view, through a private-public partnership with the employer 
community, rather than an adversarial approach focused solely 
on liability, punishment, and deterrence.
    Employers are clamoring for guidance on how to create this 
culture of ethics and compliance. Many are piloting innovative 
new technologies to do so. Perhaps even more exciting, we have 
seen a marked up-tick in revolutionary new products and 
services. These innovative ideas allow employers to foster an 
ethical and compliant culture by integrating compliance 
solutions directly into their business.
    In my role as WPAC member, I have reiterated my view that 
in addition to legislative remedies to protect whistleblowers 
from retaliation, we must have clear guidance on best practices 
for employers to understand how to specifically create that 
culture of ethics and compliance. This focus is consistent with 
OSHA's mandate, and, indeed, as Dr. Michaels has indicated 
today and has repeatedly shared in advisory committee meetings, 
it is his hope that it will be one of the most significant 
accomplishments of the committee.
    Making employers more aware of specific effective measures 
which they can adopt to enhance their workplace cultures will 
benefit not only those employers seeking this guidance, but 
also the individuals they employ. The vast majority of U.S. 
employers have a strong commitment to operating safe, ethical, 
and lawful workplaces, and with better guidance and stronger 
incentives, I believe they can and will continuously improve 
upon their efforts to do so.
    I thank you again for inviting me to testify here today, 
and I look forward to answering any questions you may have.
    [The prepared statement of Mr. Keating follows:]
              Prepared Statement of Gregory Keating, Esq.
    Good morning Chairman Casey, Ranking Member Isakson and 
distinguished members of the subcommittee. Thank you for the invitation 
to be here before you today. My name is Greg Keating, and I am pleased 
to be speaking to you about the issue of whistleblower protections. I 
am a shareholder at Littler Mendelson, P.C. where I co-chair the firm's 
Whistleblowing and Retaliation Practice Group and serve on the firm's 
board of directors. I am also author of the book, Whistleblowing & 
Retaliation, which is now in its fifth edition. In addition to my work 
with clients on whistleblowing and compliance-related matters, the U.S. 
Secretary of Labor appointed me in December 2012 to serve as a 
management representative on the Occupational Safety and Health 
Administration's Whistleblowing Protection Advisory Committee 
(``WPAC'').\1\ I should note at the outset, however, that I am 
testifying not on behalf of the WPAC but rather in my capacity as an 
individual who has invested considerable time on whistleblower matters.
---------------------------------------------------------------------------
    \1\ See Whistleblower Protection Advisory Committee, available at 
http://www.whistleblowers
.gov/wpac.html. The OSHA WPAC ``was established to advise, consult 
with, and make recommendations to the Secretary of Labor and the 
Assistant Secretary of Labor of Occupational Safety and Health on ways 
to improve the fairness, efficiency, effectiveness, and transparency of 
OSHA's administration of whistleblower protections.''
---------------------------------------------------------------------------
    With more than 1,000 attorneys and 60 offices nation and worldwide, 
Littler attorneys provide advice, counsel and litigation defense 
representation in connection with a wide variety of issues affecting 
the employee-employer relationship. Additionally, through its Workplace 
Policy Institute, Littler attorneys remain on the forefront of 
political and legislative developments affecting labor, employment and 
benefits policy and participate in hearings such as this in order to 
give a voice to employer concerns regarding critical workplace issues. 
In my own practice, I often counsel, advise and represent employers in 
whistleblowing matters, including specifically advising employers on 
how to structure and implement concrete mechanisms to ensure a culture 
of compliance. Nevertheless, the comments I provide today are my own, 
and I am not speaking on behalf of Littler Mendelson or the firm's 
clients.
    While I recognize that the topic of today's hearing is 
whistleblower protections in the context of workplace safety 
specifically, I want to speak today even more broadly about compliance 
measures that can improve and sustain workplaces across many aspects of 
the workplace and corporate culture, including workplace safety. 
Specifically, I want to encourage this body to consider alternatives to 
increased penalties and deterrents in the whistleblowing context--
alternatives that are, I believe, more effective and more likely to 
result in better, safer and more ethical workplaces for employees in 
America. In my work with and on behalf of employers, I find that, 
across regions and industries, employers of all sizes and stripes are 
eager to adopt and enhance measures that foster workplace cultures of 
ethics and compliance.
    By ``culture of ethics and compliance,'' I mean a workplace in 
which compliance with the letter and spirit of the law is both required 
and encouraged at every level of the organization; employees feel 
welcomed and encouraged to share concerns about possible non-
compliance; and individuals who come forward in good faith to report 
possible misconduct or safety concerns can do so without fear of 
retaliation of any kind. Achieving this kind of culture would result in 
workplaces that are safer, more ethical, more fulfilling and more 
compliant with the specific laws, regulations and norms that govern 
particular industries. What is more, this culture can be best achieved 
through a private-public partnership with the employer community, 
rather than an adversarial approach focused solely on liability, 
punishment and deterrence.
    Employers are clamoring for guidance on how to create this culture 
of compliance, and many are piloting revolutionary new technologies and 
techniques to do so. What these employers need most from OSHA and the 
DOL is concrete guidance about how to create this kind of culture and 
stronger incentives to invest company resources in doing so. To have 
the greatest impact, this guidance would need to identify specific 
elements of a meaningful, high-quality compliance program, identifying 
expected elements, audience targets and timeframes for particular 
elements. It is my hope that we cannot only provide this guidance, but 
that employers who invest in such measures will have those efforts 
taken into account in the liability and/or penalty phase of an 
administrative or judicial proceeding enforcing whistleblower 
protections. This incentive approach will serve as another important 
vehicle to foster awareness of whistleblower rights and transparency 
within the culture of corporate America.
    In my role as WPAC member, I have expressed the view that, in 
addition to legislative remedies to protect whistleblowers from 
retaliation, we also need clear guidance on best practices for 
employers to understand how specifically to create a culture of 
compliance. This focus is consistent with OSHA's mandate and, indeed, 
Dr. David Michaels, the Assistant Secretary of Labor, OSHA has shared 
his hope that one of the important accomplishments of the WPAC will be 
to identify specific best practices to promote a culture of compliance. 
To that end, the chair of the WPAC has created three working groups 
intended to focus on specific issues of paramount interest to the 
committee, one of which is a ``best practices'' working group that is 
charged with identifying and describing concrete measures employers can 
take in order to foster a culture of compliance and minimize the risk 
of retaliation.
    The working group has had numerous meetings and has made 
significant progress in identifying such measures, and it is my hope 
that, at the next meeting in September, we can provide formal 
recommendations to the U.S. Secretary of Labor. Though I cannot yet 
speak to what those formal recommendations will be, I can provide just 
a few examples of measures that have a real impact on workplace culture 
and corporate compliance:

     Measuring and Improving Workplace Culture: It can be eye-
opening for an organization to measure its workforce's level of 
engagement and trust in its leaders. Employee surveys enable employers 
to measure the ``tone'' of the business and focus on areas that present 
opportunities for improvement. Based on the results of such surveys, 
employers can target specific reminders, policies and training to 
better reflect a strong commitment to ethical and safe practices. When 
employees are aware of and trust their organization's values and 
commitment to ethics, they are much more likely to also trust internal 
reporting systems and, as a result, to come forward with any concerns.
     Training at all Levels: Effective training can enhance 
awareness, commitment to compliance and willingness to come forward 
with concerns at all levels of an organization. There are excellent new 
training products and programs that can be customized for employers of 
various sizes, industries and budgets.
     Integrated Complaint Management System: Employers can 
adopt a new, formalized system of receiving, investigating and 
responding to complaints, or they can examine and enhance existing 
procedures. The best way to foster and ensure trust in the internal 
reporting system is for the company to establish a track record of 
responding promptly, thoroughly and consistently to internal reports 
and to effectively protect employees who make internal complaints from 
any form of retaliation. A strong complaint management system can 
provide multiple avenues for submitting complaints--from hotlines, to 
web portals to frontline supervisors and human resources professionals. 
It is also important to ensure that different departments and 
stakeholders communicate effectively and appropriately, working in 
partnership to investigate and respond to reports of wrongdoing or 
unsafe working conditions. Employers can also provide a dedicated 
resource to whistleblowers in order to ensure that there are no signs 
of retaliation and that any adverse employment actions are thoroughly 
reviewed before making a decision affecting a whistleblower.
     Comprehensive and Effective Policies and Procedures: 
Employers can adopt new or revamp existing internal compliance policies 
and procedures, investigation procedures, safety plans and policies, 
and whistleblower and anti-retaliation policies. Although there is no 
one-size-fits-all policy, there are hallmarks of effective policies and 
programs that could be communicated to employers, as well as guidance 
about how best to implement and enforce those policies.

    It is my hope that OSHA will draft, disseminate and incentivize 
compliance measures such as these. Making employers more aware of 
specific, effective measures which they can adopt to enhance their 
workplace cultures will benefit not only those employers seeking this 
kind of guidance, but also the individuals they employ. The vast 
majority of U.S. employers have a strong commitment to operating safe, 
ethical and lawful workplaces and, with better guidance and stronger 
incentives, I believe they can and will continuously improve upon their 
efforts to do so. I thank you again for inviting me to testify here 
today, and I look forward to answering any questions you may have.

    Senator Casey. Thanks, Mr. Keating.
    And the panel was great about time. We're setting records 
today.
    I want to start on my left and the audience's right with 
Ms. Spieler. I want to first of all note a couple of points in 
your testimony which I think bear repeating. Some of these 
words kind of leaped off the page. Often, we have hearings 
about improvements or changes we hope to bring to a statute 
that was passed years or decades ago, and we don't often go 
back to the original source about the reason for the statute.
    The OSHA Act was designed to--and you say this at the 
bottom of your first page, ``assure as far as possible every 
working man and woman in the Nation safe and healthful working 
conditions,'' which is language we should remind ourselves 
about.
    One more before I ask a question. We've talked already, and 
we're going to explore further the defects or the problems with 
section 11(c). You say at the bottom of page 2, ``All of the 
recent statutes provide much stronger protections for 
whistleblowers than the OSH Act.'' Unfortunately, that seems to 
be the case, and that's, I guess, the reason we're here this 
morning.
    But I wanted to start with you about a question on some 
data. You provide data in your written testimony showing that 
75 percent of docketed 11(c) cases--the provision we just said 
was very weak--for about an 8-year timeframe, fiscal year 2005 
to 2013, that 75 percent of those cases are dismissed or 
withdrawn without achieving resolution. This includes almost 
10,000 cases over that same time period.
    My first question is: These numbers do not include the 
cases that are screened out. Is that correct?
    Ms. Spieler. That's correct.
    Senator Casey. And, second, this means that 75 percent of 
cases that pass the initial screening process are never 
resolved. Is that correct?
    Ms. Spieler. They're resolved in the sense that they don't 
go forward.
    Senator Casey. They don't go forward. You said it better 
than I did. So how do you deal with that in terms of making 
changes here? We're talking about making statutory changes to 
11(c) to help the workers. Tell us how that would work and what 
you would hope would happen.
    Ms. Spieler. Obviously, some of those cases may, indeed, be 
non-meritorious, and it's totally appropriate for them to be 
screened out through an investigative process. And we can't 
really say how many of them should go forward. I think part of 
the problem is that when cases don't go forward, and the 
individual or group that has filed the case has no further 
recourse, then the sense of unfairness is very deep in the 
people who can't pursue their cases.
    So when a case is dismissed by OSHA, it goes into--I 
believe it to be quite informal. I think it's been somewhat 
formalized recently. But it's an informal review, I believe, 
now at the Central Directorate that can be obtained over a 
dismissal of a case. But it's not--it's a review of a file, and 
it doesn't give a complainant a sense that they've really been 
heard.
    I think it's incredibly important for people who are in 
that situation to have some mechanism to bring their case 
forward and actually have it heard. Those other statutes all 
allow the individual to bring their case forward to an 
administrative law judge for a de novo hearing in which their 
cases will be heard.
    I don't have these data, but as I understand it, some of 
the cases in which OSHA has found that there's no reasonable 
cause have, in fact, been heard by ALJs and the complainant has 
won them. So there has to be, I think, a sense that the 
complainant has a place to go, and now, under 11(c), they have 
nowhere to go.
    That, of course, also has an effect on employers' 
reactions, those employers, and I agree with Greg Keating that 
there are employers who very much want to comply with the law. 
But for those employers who don't have that motivation, there's 
very little back pressure on them to comply with the law 
because of the way the current system works on 11(c) 
compliance.
    Senator Casey. And I guess some of the words you used in 
your answer--it almost reminds me of a due process argument. 
Right?
    Ms. Spieler. Yes.
    Senator Casey. That you get notice, and you get to be 
heard, or the opportunity to be heard. But you're saying that 
the second part of that, in essence, the full measure of a 
hearing, is not the current policy.
    Ms. Spieler. That's right. And, actually, I don't know that 
the current statue would allow it to be.
    Senator Casey. I know we're trying to keep within our 
timeframe, but I have a quick question for Mr. Devine before I 
move to Senator Isakson.
    A lot of what you said struck me, but the one part of your 
testimony which was especially significant to me, at least, was 
the statement you made--and I'm paraphrasing--but saying that 
even if you win the case, you still lose. Explain that again 
just in terms of the--how would you itemize your list of how 
you lose?
    Mr. Devine. You may not be made whole in terms of the 
financial impact from losing your job. You could end up being 
reassigned to the same position that you were fired from, and 
it's very difficult to work for a boss you just defeated in a 
lawsuit. You may not be able to afford the victory, because the 
lawyers' fees and the cost of the litigation and expenses may 
outweigh any benefits that you gain.
    And, finally, there's no accountability for the wrongdoers, 
which is the basic premise of our legal system. They have no 
reason not to keep doing--not to keep engaging in retaliation. 
The worst that would happen is they might not get away with it, 
but most likely they will. Almost certainly they will.
    Senator Casey. I know I'm over time, but I'll go to Senator 
Isakson and then I'll come back.
    Senator Isakson. Thanks to all of you for testifying today. 
I want to focus on Mr. Keating for a minute if I can.
    You talked about creating a culture of compliance, and you 
talked about some of the specific hallmarks of a culture of 
compliance which you would have seen in the workplace. How, 
specifically, can employers be incentivized to create a culture 
of compliance? How would it work?
    Mr. Keating. Senator Isakson, I think the starting point 
for that is that we all have to recognize--and this is 
something that I have heard over and over again in surveys 
we've done with employers. Their most important and valuable 
asset, by far, is their employees. When their employees' morale 
is up, when they're safe, when their injuries are down, when 
they trust their employer, productivity soars.
    And the corollary is true. When things aren't working, 
things slow to a crawl, and bad things can happen in the safety 
area as well.
    But, specifically, to answer your question, the way to 
incentivize employers--No. 1, provide the clear guidelines that 
we're talking about and we're working out at the advisory group 
level so that employers know what's out there and what they can 
do, things like an integrated complaint management system, 
using some of the new technology I referred to in my testimony.
    There's some really exciting new technology out there that 
allows employers to no longer be reactive but to be integrated 
and to see what's happening in their workplace in real time 
through technology. And when complaints come in, there's 
transparency and there's communication by and among a lot of 
constituents, so the process goes more smoothly.
    And then, last, training. That's another hallmark of a 
compliant culture. There are some exciting products out there 
in the safety area, in the Sarbanes-Oxley area, and in all 
areas of compliance and ethics that are available online, that 
are cost-effective, and that can allow you to train the person 
who always gets the complaint to begin with, who is the 
frontline supervisor.
    Senator Isakson. You know, I attended a--I didn't attend, 
but I visited a Siemens plant in Alpharetta, GA, that makes the 
drive train systems for some of the largest pieces of equipment 
operating in the mining industry in the world. And I was not 
there for the purpose of looking at their safety compliance at 
all.
    But I happened to notice as I went through the plant--at 
every stage in the production along the way--and this is 
probably similar to Caterpillar, I would hope, and you might 
comment on that, Mr. Baize. They had their safety score record 
and their safety recommendation record, and they had a 
solicitation for safety hints or tips the employees could give 
to the employer to better improve the safety environment. Is 
that the type of thing you're talking about?
    Mr. Keating. That is an example of something I'm talking 
about. And another example of what I'm talking about with 
regard to your question, Senator Isakson, about incentives--and 
you asked Dr. Michaels earlier. I firmly believe that similar 
to the sentencing guidelines under the Foreign Corrupt 
Practices Act, if an employer is given clear guidance about the 
seven, eight, nine concrete steps it should take, and if an 
employer takes those steps, and then say there's a rogue actor 
who lets something fall through the cracks, I think at the time 
when the DOL is considering its punishment, it should take into 
account all of the things the employer did right and perhaps 
consider a lesser penalty as an incentive to implement all 
these measures.
    Senator Isakson. Any comment, Mr. Baize?
    Mr. Baize. We do have something similar to that at 
Caterpillar, where its encouraging employees to put in safety 
ideas to improve the workplace. In my personal opinion, it's 
good on paper, the way I've seen it play out, and the theory is 
good behind it. But the actual execution of it has been fairly 
subpar throughout the years that they've been implementing 
that.
    Senator Isakson. That makes a good point. It needs to be a 
culture within the company. I mean, anybody can paint a wall 
red, white, or blue, or put a new wallpaper on the wall and 
make it look better. But you've got to really have a part of 
the culture of the company where they're promoting that type of 
safety.
    I know in my business before I came to Congress, I ran a 
company that, among other things, developed subdivisions and 
golf courses. I had a lot of maintenance workers and entry 
level workers, and compliance with safety rules was my No. 1 
incentive for them, because every time one of them got hurt, my 
premiums went up or I had to go replace them with something 
else.
    I tried to promote it from a positive aspect, not only for 
their health and safety, but for my cost of doing business. And 
I think that's the way businesses could better create a culture 
or environment that benefits the worker but also benefits the 
company as well.
    Thank you, Mr. Keating and Mr. Baize.
    Mr. Baize. Thank you.
    Mr. Keating. Thank you.
    Senator Casey. Thanks very much. I'm told the vote has not 
started. At least, I'm not aware that it has started. That's 
good news. But we have some--OK. We have less time than we 
thought. But I just have one or two more questions.
    Mr. Baize, the experience you had was aided and assisted by 
the fact that you had a union, which I would argue that in a 
lot of instances--maybe not every instance--does help create 
the right culture that we talked about. A lot of companies I've 
been to--when you visit a manufacturing site, there's a great 
spirit of cooperation in trying to keep injury rates or 
incident rates down, and that's very positive to see that.
    But in terms of your own situation, in terms of the concern 
that you identified in your case, where do you think it stands 
now? Has that work site been made safer or not? Or can you 
assess that?
    Mr. Baize. I'm no longer over in that area anymore. But 
from what I've been told, it's been made safer to a point. 
However, in our opinion, it's still not in compliance with the 
Lockout/Tagout, because they're using controlled circuitry to 
isolate energy, and it's spelled out in the standard that you 
cannot use controlled circuitry. But it has been made safer to 
a point. They have done a better job getting the garbage out of 
the tubs that the links come into the heat treat operation.
    Senator Casey. When you say controlled circuitry, what does 
that mean?
    Mr. Baize. Controlled circuitry would be like electronic 
disconnects, not actually physically isolating the energy with 
a lock. They still have not issued employees locks over in that 
area, so we're still not able to lockout when we have to go 
clear a jam. But, like I said, cleaning the garbage out has 
been a big help. Little things like that will help them out.
    Senator Casey. In your own case--and I'm referring back to 
the question I asked Mr. Devine about when you prevail on 
something, you can still be in a losing position. In your own 
case, how about financial challenges that you experienced 
through this process?
    Mr. Baize. The demotion that they gave me from a Labor 
Grade 4 to a Labor Grade 1 equated out to be about $6 or $7 an 
hour. So me and my wife had to scale back on certain amenities 
that we were previously able to afford. I had to prepare for 
the worst case scenario, that I was going to be stuck in this 
job for a lengthy period of time. So I felt the need to work as 
much overtime as possible, to do what I had to do to provide 
for my family.
    Senator Casey. What would you hope would happen with regard 
to the law? If you could make a list or even itemize one or two 
changes, what would you hope would happen?
    Mr. Baize. What I would hope would happen was something 
like this, that we could change some of the verbiage in the 
standard stating that it's going to be the actual adverse 
action that's going to start your statute of limitations, not 
just a threat, because in my situation, if I would have pulled 
the trigger right away and gone to OSHA instead of trying to 
settle things in-house, then OSHA could have investigated and 
seen that I hadn't been displaced and my pay hadn't been 
dropped down at all. So they could argue that no adverse action 
had been taken. And then once my pay was affected, I couldn't 
file a second time on the same situation.
    I'd also like, as many other people have stated today, to 
see the statute of limitations be extended from 30 days to 
possibly 6 months, like most of the other standards are.
    Senator Casey. I will go back to Ms. Spieler. One of the 
things we try to arrive at in hearings like this is an action 
plan or a set of steps we can take to strengthen the system. 
Your recommendations are on page 10 of your testimony. I guess 
you have three, and then those three have a number of subsets.
    But you have as No. 1 to lengthen the statute of 
limitations to 180 days, which was just referred to a moment 
ago. Create a right of preliminary re-instatement pending final 
adjudication. Third, change the process for adjudication of 
complaints.
    Could you walk through some of those? Obviously, the 180 
days is more self-evident maybe than the others. But for folks 
that may not be familiar with the procedure, could you just 
walk through a little bit on two and three?
    Ms. Spieler. Sure. The preliminary re-instatement issue 
has, I think, really two components as a practical matter in 
the way it plays out, and it's part of the majority of the 
statutes and all of the recent statutes I'm pretty sure that 
OSHA is enforcing. One is that they can, in fact, move in in a 
situation where things are clear cut and insist that the 
individual, if they've been discharged, be re-instated while 
the case is pending.
    That's important in part because the longer someone is away 
from a job, the less likely it is that they will be re-
instated. That's true across the board if you look at the OC 
cases or any of the cases.
    And the second thing is that if there's a right of 
preliminary re-instatement, it brings the employer to the table 
in a very serious way very early on so that if the individual 
doesn't want to go back, it can increase the monetary 
settlement that the individual has. These are always in cases 
in which the investigator believes that the law has been 
violated. So it's not non-meritorious cases in which this 
should be happening.
    As I note, the strongest provision, actually, on 
preliminary re-instatement is not in one of OSHA's statutes, 
but actually is the MSHA statute.
    Senator Casey. For mine safety.
    Ms. Spieler. For mine safety, yes, and is quite 
aggressively used by the Mine Safety and Health Administration 
in reinstating people pending litigation of those complaints.
    I grouped a whole set of things under what I call the 
process for adjudication of complaints, because I think that 
they all revolve around the problem of there not being any way 
for a complainant to pull a case out of the existing process. 
You have the problem of the informal review on the OSHA side, 
but you also have the problem of the fact that the solicitor 
has a very hard time litigating all the cases that come over 
the transom to the solicitor's side, and they are litigating 
many more now. But it's still quite a small number in terms of 
the number of potentially meritorious cases.
    First, the creation of an administrative process, and that 
would take, frankly, a lot more cases into the ALJ system at 
the Department of Labor, which may create a separate issue that 
we're not discussing today. That's the first thing.
    The second would be making sure that complainants have some 
mechanism of having legal representation, and that would be 
either that the solicitor's office would provide it, or that 
attorney's fees would be available for cases in which the 
complainant prevails, because, otherwise, it's actually quite 
difficult to find representation. And, frankly, I think neither 
judges nor ALJs like dealing with pro se complainants in any 
event.
    Third, a private right of action, a right to pull a case 
out from the administrative process and into court. You know, 
those are expensive and complex processes, and, in general, 
lawyers don't want to take cases out of the ALJ process and 
into court unless there's a really good reason. But when 
there's a really good reason, it should be available.
    And, finally--and I included in this the burden of proof 
issue, because I think that the higher the standard of the 
burden of proof in these cases, the more likely they're going 
to get kicked out--no, I shouldn't use that word because it's a 
term of art--but the more likely they're going to die along the 
way, even when a complainant can prove that it was a 
contributing factor in the adverse action that was taken.
    All of those things together would provide what I think--
maybe not technically constitutional due process, but would 
provide a sense of due process for people. And although I 
completely agree with Mr. Keating with regard to the importance 
of being able to educate employers, at the same time I think we 
have to provide a protection to the people for whom that isn't 
working.
    Senator Casey. Thank you very much. I know we have to wrap 
up because of the vote.
    But we're grateful for all of our witnesses. Please know 
that members may submit additional questions to you for written 
response.
    And, without objection, I'd like to include for the record 
the written testimony of Keith Wrightson, Worker Safety and 
Health Advocate for Public Citizen's Congress Watch Division.
    I also submit for the record a statement from Chairman 
Harkin, chairman of the HELP Committee.
    [The prepared statement of Mr. Wrightson and Chairman 
Harkin may be found in additional material.]
    And we are adjourned. Thank you very much.
    [Additional material follows.]

                          ADDITIONAL MATERIAL

                  Prepared Statement of Senator Harkin

    Yesterday marked the 25th year that workers, family 
members, and safety advocates have come together to honor and 
remember those that have been killed on the job and advocate 
for safer workplaces. April 28th was chosen as the date to 
recognize the creation of the Occupational Safety and Health 
Administration (``OSHA'').
    The passage of the Occupational Safety and Health (``OSH'') 
Act and creation of OSHA was a major legislative accomplishment 
and one that has improved the lives of millions of Americans. 
Four decades ago, this landmark legislation finally put into 
law the fundamental American value that workers shouldn't have 
to risk their lives to earn their livelihood, and it required 
workers, employers, and the government to partner together to 
keep people safe and healthy on the job.
    Since that time, workplace safety and health conditions 
have improved dramatically. In the year the OSH Act was 
enacted, our country saw 13,800 on-the-job deaths. In 2012, 
that number was 4,628--down by almost 70 percent--providing 
concrete evidence that the OSH Act has saved the lives of 
hundreds of thousands of American workers.
    We should take a moment today to reflect on the lives of 
all the workers that have been saved because of the OSH Act and 
OSHA, and then recommit ourselves to continue to push for 
stronger worker protections and safer and healthier workplaces. 
It is unacceptable that on average almost 13 workers die in 
this country every day just trying to earn a decent wage and 
provide for their families. Additionally, nearly 3 million more 
will suffer from injuries and illnesses at work. Altogether, 
these fatalities, injuries, and illnesses hurt families and 
take a massive toll on our economy and society--estimated at 
$250 billion to $300 billion a year. Preventing illnesses and 
injuries isn't just the morally right thing to do; it makes 
economic sense as well.
    Although the OSH Act and OSHA have saved the lives of 
countless workers, we must also acknowledge the Act's 
limitations too. In 2014, too many workers remain at serious 
risk of injury, illness, or death on the job, as demonstrated 
by last year's fertilizer explosion in West Texas that killed 
15 and injured over 200.
    This hearing will examine one of the most important aspects 
of the OSH Act that drastically needs reform: ensuring that 
workers have adequate whistleblower protections when they speak 
out about unsafe working conditions. We know that 
whistleblowers are critical to bringing safety problems to 
light, but they won't come forward unless the law contains 
stronger protections against retaliation.
    It is also common knowledge that OSHA doesn't have the 
necessary resources to inspect every workplace in the country 
on a regular basis, so whistleblowers play a vital role in the 
agency's ability to identify dangerous work conditions. 
However, OSHA's whistleblower statute has not been 
significantly amended or improved in over 40 years, and it is 
outdated and weak compared to retaliation protections in other 
worker protection, public health, and environmental laws. Right 
now, we have stronger protections for financial whistleblowers 
under Sarbanes-Oxley than we do for workers trying to save 
lives, and that just isn't right.
    The Department of Labor, under the leadership of Assistant 
Secretary Michaels, has taken many substantive administrative 
actions to improve OSHA's Whistleblower Protection Program. 
However, legislation is necessary to provide a safe environment 
for workers to blow the whistle on unsafe working conditions 
without fear from retaliation from their employers. That's why 
I am a proud cosponsor of the Protecting America's Workers Act 
(``PAWA'')--legislation that greatly expands current 
whistleblower protections to foster workplace environments 
where workers will feel comfortable reporting dangerous 
conditions, thus, improving safety and health for all.
    Among other reforms, PAWA extends the amount of time a 
worker has to file a complaint, provides an administrative 
process that allows workers to go back to work while they 
pursue their cases, and gives them a private right of action 
consistent with other modern anti-retaliation statutes. 
Collectively, these reforms represent a critical step toward 
providing a safer workplace for every worker in our country.
    Today's hearing is important because it allows us to honor 
and remember those that have been unnecessarily lost while 
working on the job, and gives us an opportunity to examine and 
discuss ways to improve workplace safety and health by 
protecting workers who bravely choose to speak up. Although 
tremendous progress has been made over the last 40-plus years, 
much work remains to be done. All Americans have the right to a 
safe workplace, and we should not rest until all of our 
fathers, mothers, sisters, brothers, families, and friends can 
go to work each day knowing they will be able to come home 
safely to their families each night.
    Prepared Statement of Keith Wrightson, Worker Safety and Health 
           Advocate, Public Citizen's Congress Watch Division
    Mr. Chairman and members of the subcommittee: Thank you for the 
opportunity to present written testimony on the government's authority 
over whistleblowers rights and anti-retaliation provisions. I am Keith 
Wrightson, worker safety and health advocate for Public Citizen's 
Congress Watch division. Public Citizen is a national nonprofit 
organization with more than 300,000 members and supporters.
    Public Citizen commends the subcommittee for taking up this 
critical issue. There are a number of statutory and common-law 
provisions aimed at safeguarding private-sector whistleblowers, and the 
Occupational Safety and Health Administration (OSHA) is charged with 
enforcing 22 of these statues. Generally, these provisions provide that 
employers may not discharge or retaliate against an employee if an 
employee has filed a complaint or otherwise exercised any rights 
provided to employees.\1\
---------------------------------------------------------------------------
    \1\ Whistleblower statutes enforced by the Occupational Safety and 
Health Administration. http:// www.whistleblowers.gov/
statutes_page.html, retrieved on (April 23, 2014).
---------------------------------------------------------------------------
    As one part of OSHA's whistleblower responsibilities, the agency is 
responsible for the enforcement of 29 U.S.C.  660, section 11(c) 
(1970), (hereafter 11(c)), an enactment that provides whistleblower and 
anti-retaliation protections to any employee who discloses an 
occupational health or safety violation. Unfortunately, the protections 
allotted to workers under 11(c) are grossly inadequate and not 
conducive to building a safe workplace because the statutory language 
denies workers protection after 30 days, prohibits access to jury 
trials and does not provide reasonable remedies to prevailing 
whistleblowers. As it stands today, 11(c) is in dire need of 
modernizing and its directive should provide workers with the strongest 
language possible.
    Of particular concern under 11(c), is the 30-day statute of 
limitations that has been provided to employees who think they have 
been retaliated against for disclosing a workplace hazard. Thirty days 
is simply not enough time for a worker to gather information and 
present a clear case to OSHA This time restriction provision is 
troubling because it takes immense courage to stand up to an employer 
to identify waste, fraud and or abuse, and a 30-day window could 
inhibit that courage.
    In other, more recent, whistleblower and anti-retaliation 
legislative efforts, Congress agreed that this 30-day statute of 
limitations found in 11(c) was too short. For example, when Congress 
amended 49 U.S.C.  31105, the Surface Transportation Assistance Act in 
2007, it provided a 180-day statute of limitations to employees who 
felt they had been discharged, disciplined or discriminated because 
they filed a complaint or began a proceeding related to a violation of 
a commercial motor vehicle safety regulation. This longer window 
provides the employee with adequate time to gather information for a 
clear case record. Another example can be found in Federal Railroad 
Safety Act 49 U.S.C.  20109 (1970) (as amended by the 9/11Commission 
Act of 2007 and The Rail Safety Improvement Act of 2008), wherein 
Congress provided employees the same 180-day statute of limitations.
    11(c) has other problems beyond the issues with the statute of 
limitations. 11(c) also does not provide due process rights to workers 
and limits the worker to an initial investigation by OSHA and an 
administrative hearing by its Office of Administrative Law Judges. The 
ability to hold companies accountable for wrongdoing is critical to an 
injured person, and at present 11(c) denies the injured party access to 
court for a jury trial.
    Access to the court is a cornerstone philosophy of our democracy. 
When Congress enacted the Sarbanes-Oxley Act they introduced jury 
trials to end the monopoly of administrative hearings, but 
unfortunately this right is only attainable after a 180-day 
administrative exhaustion period. In 2008 Congress also reaffirmed 
access to courts for whistleblowers by enacting 15 U.S.C.  2087, the 
Consumer Product Safety Improvement Act. Under this Act, whistleblowers 
can seek relief via a jury trial after a 210-day administrative 
exhaustion period or within 90 days of a final administrative ruling.
    Another area of concern with 11(c) is the available remedies 
extended to workers who disclose waste, fraud and abuse. As laid out in 
the statute, workers will only be allotted re-instatement and back pay 
if they are successful in their claim. Comparatively, 49 U.S.C.  
42121, the Wendell H. Ford Aviation Investment and Reform Act for the 
21st Century (AIR21) (2001) calls for re-instatement, back pay, 
attorney's fees, and compensatory damages for workers who disclose 
waste, fraud, and abuse. The provisions allotted in the AIR21 are more 
appropriate and do not place the onus on the employee to provide their 
own legal funding if unsuccessful.
    In addition to the limited statute of limitations period the lack 
of meaningful due process, and insufficient remedies, the so-called 
worker protections found in 11(c) are also neither comprehensive nor 
well enforced by government agencies and the courts.\2\ 11(c) is in 
urgent need of reform. Workers who seek relief under this antiquated 
statute are both unlikely to receive it and face unnecessary 
challenges.
---------------------------------------------------------------------------
    \2\ Whistleblower Protection: Sustained Management Attention Needed 
to Address Long-standing Program Weaknesses (August 2010). Government 
Accountability Office (GAO) 10-722).
---------------------------------------------------------------------------
                                 ______
                                 
        Impact of Extended 11(c) Discrimination Filing Deadlines

                                    Impact of Extended 11(c) Discrimination Filing Deadlines Within OSHA State Plans
                                                              [Fiscal Year 2013 Cases] \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                   Percent
                                                                     No. filed                 Percent     Filed 31                filed 31    Percent
                                                          Total No.  within 30   No. filed      filed      or more                 or more     filed 31
                          State                            of Cases   days of    within 30    within  30     days        No.         days      days or
                                                             \2\      adverse       days         days       after    meritorious    after     more that
                                                                       action   meritorious  meritorious   adverse                 adverse       are
                                                                                                            action                  action   meritorious
--------------------------------------------------------------------------------------------------------------------------------------------------------
CA......................................................        114         75          28         37.3          39           6        34.2        15.4
CT \3\..................................................          0          0           0          0.0           0           0         0.0         0.0
HI......................................................         20         17           3         17.6           3           0        15.0         0.0
KY......................................................         51         34           4         11.8          17           2        33.3        11.8
NC......................................................         90         44           8         18.2          46           8        51.1        17.4
NJ \3\..................................................          2          1           1        100.0           1           0        50.0         0.0
OR......................................................        122         40           6         15.0          82          13        67,2        15.9
VA......................................................         41         30           1          3.3          11           1        26.8         9.1
                                                         -----------------------------------------------------------------------------------------------
  Total.................................................        440        241          51         21.2         199          30        45.2        15.1
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Open cases from fiscal year 2013 are not included in the totals.
\2\ Cases where the gap between the adverse action and filing dates cannot be determined are excluded from the totals.
\3\ Indicates the State plan covers State and local government workers only.

 
                                                                [Fiscal Year 2012 Cases]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                   Percent
                                                                     No. filed                 Percent     Filed 31                filed 31    Percent
                                                          Total no.  within 30   No. filed      filed      or more                 or more     filed 31
                          State                            of cases   days of    within 30    within  30     days        No.         days      days or
                                                             \1\      adverse       days         days       after    meritorious    after     more that
                                                                       action   meritorious  meritorious   adverse                 adverse       are
                                                                                                            action                  action   meritorious
--------------------------------------------------------------------------------------------------------------------------------------------------------
CA......................................................        206        127          36         28.3          79          14        38.3        17.7
CT \2\..................................................          2          1           1        100.0           1           1        50.0       100.0
HI......................................................          8          7           1         14.3           1           0        12.5         0.0
KY......................................................         62         42           8         19.0          20           1        32.3         5.0
NC......................................................         84         34           6         17.6          50           9        59.5        18.0
NJ \2\..................................................          8          5           4         80.0           3           1        37.5        33.3
OR......................................................        114         48           6         12.5          66          11        57.9        16.7
VA......................................................         35         32           2          6.3           3           0         8.6         0.0
                                                         -----------------------------------------------------------------------------------------------
  Total.................................................        519        296          64         21.6         223          37        43.0       16.6
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Cases where the gap between the adverse action and filing dates cannot be determined are excluded from the totals.
\2\ Indicates the State plan covers State and local government workers only.

 
                                                                [Fiscal Year 2011 Cases]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                   Percent
                                                                     No. filed                 Percent     Filed 31                filed 31    Percent
                                                          Total no.  within 30   No. filed      filed      or more                 or more     filed 31
                          State                            of cases   days of    within 30    within  30     days        No.         days      days or
                                                             \1\      adverse       days         days       after    meritorious    after     more that
                                                                       action   meritorious  meritorious   adverse                 adverse       are
                                                                                                            action                  action   meritorious
--------------------------------------------------------------------------------------------------------------------------------------------------------
CA......................................................        179        103          12         11.7          76           8        42.5        10.5
CT \2\..................................................          2          0           0          0.0           2           1       100.0        50.0
HI......................................................          6          4           1         25.0           2           1        33.3        50.0
KY......................................................         33         27           4         14.8           6           0        18.2         0.0
NC......................................................         51         27           3         11.1          24           2        47.1         8.3
NJ \2\..................................................          3          1           0          0.0           2           0        66.7         0.0
OR......................................................        133         38           3          7.9          95           9        71.4         9.5
VA......................................................         16         11           0          0.0           5           0        31.3         0.0
                                                         -----------------------------------------------------------------------------------------------
  Total.................................................        423        211          23         10.9         212          21        50.1         9.9
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Cases where the gap between the adverse action and filing dates cannot be determined are excluded from the totals.
\2\ Indicates the State plan covers State and local government workers only.

 
                                                           [Total Cases--Fiscal Year 2011-13]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                   Percent
                                                                     No. filed                 Percent     Filed 31                filed 31    Percent
                                                          Total no.  within 30   No. filed      filed      or more                 or more     filed 31
                          State                            of cases   days of    within 30    within  30     days        No.         days      days or
                                                             \1\      adverse       days         days       after    meritorious    after     more that
                                                                       action   meritorious  meritorious   adverse                 adverse       are
                                                                                                            action                  action   meritorious
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fiscal Year 2011........................................        423        211          23         10.9         212          21        50.1         9.9
Fiscal Year 2012........................................        519        296          64         21.6         223          37        43.0        16.6
Fiscal Year 2013........................................        440        241          51         21.2         199          30        45.2        15.1
                                                         -----------------------------------------------------------------------------------------------
  Total, Fiscal Year 2011-13............................       1382        748         138         18.4         634          88        45.9        13.9
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Cases where the gap between the adverse action and filing dates cannot be determined are excluded from the totals.

    [Whereupon, at 11:16 a.m., the hearing was adjourned.]

                                  [all]
```