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56–055 PDF 2010

WHISTLEBLOWER AND VICTIM’S RIGHTS

PROVISIONS OF H.R. 2067, THE

PROTECTING AMERICA’S WORKERS ACT

HEARING

BEFORE THE

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

COMMITTEE ON 

EDUCATION AND LABOR

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED ELEVENTH CONGRESS

SECOND SESSION

HEARING HELD IN WASHINGTON, DC, APRIL 28, 2010

Serial No. 111–58

Printed for the use of the Committee on Education and Labor

(

Available on the Internet: 

http://www.gpoaccess.gov/congress/house/education/index.html 

(II)

COMMITTEE ON EDUCATION AND LABOR 

GEORGE MILLER, California, Chairman

Dale E. Kildee, Michigan, Vice Chairman 

Donald M. Payne, New Jersey 

Robert E. Andrews, New Jersey 

Robert C. ‘‘Bobby’’ Scott, Virginia 

Lynn C. Woolsey, California 

Rube ́n Hinojosa, Texas 

Carolyn McCarthy, New York 

John F. Tierney, Massachusetts 

Dennis J. Kucinich, Ohio 

David Wu, Oregon 

Rush D. Holt, New Jersey 

Susan A. Davis, California 

Rau ́l M. Grijalva, Arizona 

Timothy H. Bishop, New York 

Joe Sestak, Pennsylvania 

David Loebsack, Iowa 

Mazie Hirono, Hawaii 

Jason Altmire, Pennsylvania 

Phil Hare, Illinois 

Yvette D. Clarke, New York 

Joe Courtney, Connecticut 

Carol Shea-Porter, New Hampshire 

Marcia L. Fudge, Ohio 

Jared Polis, Colorado 

Paul Tonko, New York 

Pedro R. Pierluisi, Puerto Rico 

Gregorio Kilili Camacho Sablan,

Northern Mariana Islands 

Dina Titus, Nevada 

Judy Chu, California 

John Kline, Minnesota, 

Senior Republican Member 

Thomas E. Petri, Wisconsin 

Howard P. ‘‘Buck’’ McKeon, California 

Peter Hoekstra, Michigan 

Michael N. Castle, Delaware 

Mark E. Souder, Indiana 

Vernon J. Ehlers, Michigan 

Judy Biggert, Illinois 

Todd Russell Platts, Pennsylvania 

Joe Wilson, South Carolina 

Cathy McMorris Rodgers, Washington 

Tom Price, Georgia 

Rob Bishop, Utah 

Brett Guthrie, Kentucky 

Bill Cassidy, Louisiana 

Tom McClintock, California 

Duncan Hunter, California 

David P. Roe, Tennessee 

Glenn Thompson, Pennsylvania

Mark Zuckerman, Staff Director 

Barrett Karr, Minority Staff Director 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

LYNN C. WOOLSEY, California, Chairwoman

Carol Shea-Porter, New Hampshire 

Donald M. Payne, New Jersey 

Rau ́l M. Grijalva, Arizona 

Timothy H. Bishop, New York 

Phil Hare, Illinois 

Gregorio Kilili Camacho Sablan, 

Northern Mariana Islands 

Cathy McMorris Rodgers, Washington, 

Ranking Minority Member 

Peter Hoekstra, Michigan 

Joe Wilson, South Carolina 

Tom Price, Georgia 

(III)

C O N T E N T S 

Page

Hearing held on April 28, 2010 .............................................................................. 1

Statement of Members: 

McMorris Rodgers, Hon. Cathy, Ranking Minority Member, Subcommittee on Workforce Protections ........................................................... 6

Prepared statement of ............................................................................... 7

Additional submission: National Labor Relations Board case, April 

19, 2010 .................................................................................................. 58

Miller, Hon. George, Chairman, Committee on Education and Labor, 

submissions for the record: 

Letter, dated May 11, 2010, from Jason M. Zuckerman, the Employment Law Group .................................................................................... 120

‘‘Strategic Goals and Performance Measures,’’ Office of the Solicitor ... 121

Questions for the record sent to witnesses .............................................. 122

Woolsey, Hon. Lynn C., Chairwoman, Subcommittee on Workforce Protections ................................................................................................................ 1

Prepared statement of ............................................................................... 4

Additional submissions: 

Discussion draft for Protecting America’s Workers Act (H.R. 

2067), March 9, 2010 ...................................................................... 71

Data on the Solicitor of Labor’s disposition of 11(c) retalitaion 

cases, 1995–2009 ............................................................................ 80

Statistics and outcomes on whistleblower cases filed with OSHA 

for 2008 ............................................................................................ 81

OSHA’s actions on 11(c) cases completed in fiscal year 2009 ........ 81

DOL’s letter to Neal Jorgensen dated April 7, 2005 ....................... 82

A D M Milling Company informal settlement agreement .............. 84

E-mail from OSHA to Ms. Ford ........................................................ 85

Kansas supreme court case, Flenker v. Willamette Industries, 

Inc. ................................................................................................... 87

Missouri court of appeals case, Shawcross v. Pyro Products, Inc. . 95

U.S. Court of Appeals case, Wood v. Department of Labor ............. 99

Article: ‘‘Federal Protection of Private Sector Health and Safety 

Whistleblowers,’’ by Eugene Fidell, Administrative Law Journal .................................................................................................... 103

Article: ‘‘A Pot of Gold at the End of the Rainbow: An EconomicIncentives Based Approach to OSHA Whistleblowing,’’ by 

Jarrod Gonzalez, Employee Rights and Employment Policy 

Journal, Internet address to .......................................................... 119

GAO report: ‘‘Better Data and Improved Oversight Would Help 

Ensure Program Quality and Consistency,’’ Internet address 

to ...................................................................................................... 120

‘‘Comparison of Anti-Retaliation Provisions in Other Laws,’’ prepared by AFL–CIO ......................................................................... 120

Statement of Witnesses: 

Barab, Hon. Jordan, Deputy Assistant Secretary for Occupational Safety 

and Health, U.S. Department of Labor ....................................................... 8

Prepared statement of ............................................................................... 10

Responses to questions submitted ........................................................... 123

Chinn, Lloyd B., partner, Proskauer Rose LLP ............................................. 36

Prepared statement of ............................................................................... 38

Ford, Tonya, niece of Robert Fitch .................................................................. 14

Prepared statement of ............................................................................... 16

Responses to questions submitted ........................................................... 127

Page

IV

Statement of Witnesses—Continued

Jorgensen, Neal, whistleblower and former employee, Plastic Industries .. 33

Prepared statement of ............................................................................... 34

Monforton, Celeste, DrPH, MPH, department of environmental & occupational health, School of Public Health and Health Services, George 

Washington University ................................................................................. 25

Prepared statement of ............................................................................... 27

Responses to questions submitted ........................................................... 129

Morikawa, Dennis J., partner, Morgan, Lewis & Bockius LLP, on behalf 

of the U.S. Chamber of Commerce .............................................................. 19

Prepared statement of ............................................................................... 22

Responses to questions submitted ........................................................... 132

Rhinehart, Lynn, general counsel, AFL–CIO ................................................. 42

Prepared statement of ............................................................................... 44

Responses to questions submitted ........................................................... 135

(1)

WHISTLEBLOWER AND VICTIM’S

RIGHTS PROVISIONS OF H.R. 2067, 

THE PROTECTING AMERICA’S WORKERS ACT 

Wednesday, April 28, 2010

U.S. House of Representatives 

Subcommittee on Workforce Protections 

Committee on Education and Labor 

Washington, DC

The subcommittee met, pursuant to call, at 10:07 a.m., in room 

2175, Rayburn House Office Building, Hon. Lynn C. Woolsey 

[chairwoman of the subcommittee] presiding. 

Present: Representatives Woolsey, Shea-Porter, Payne, Bishop, 

Hare, Sablan, and McMorris Rodgers. 

Staff Present: Aaron Albright, Press Secretary; Andra Belknap, 

Press Assistant; Jody Calemine, General Counsel; Lynn Dondis, 

Labor Counsel, Subcommittee on Workforce Protections; David 

Hartzler, Systems Administrator; Sadie Marshall, Chief Clerk; 

Richard Miller, Senior Labor Policy Advisor; Revae Moran, 

Detailee, Labor; Alex Nock, Deputy Staff Director; James Schroll, 

Junior Legislative Associate, Labor; Michele Varnhagen, Labor Policy Director; Kirk Boyle, Minority General Counsel; Ed Gilroy, Minority Director of Workforce Policy; Rob Gregg, Minority Senior 

Legislative Assistant; Alexa Marrero, Minority Communications Director; Brian Newell, Minority Press Secretary; Jim Paretti, Minority Workforce Policy Counsel; Molly McLaughlin Salmi, Minority 

Deputy Director of Workforce Policy; Linda Stevens, Minority Chief 

Clerk/Assistant to the General Counsel; and Loren Sweatt, Minority Professional Staff Member. 

Chairwoman WOOLSEY. A quorum is present. The hearing of the 

Subcommittee on Workforce Protections will come to order. 

I will open the hearing with my own remarks and then yield to 

my ranking member, who is on her way, but she probably doesn’t 

care if she doesn’t hear my opening remarks. She will read them, 

read them in the record. 

So, welcome, everybody. Today is Workers Memorial Day, a day 

when Americans from all walks of life remember and honor workers who have been killed or seriously injured in the workplace. We 

have in our audience today many, many family members and loved 

ones of workers who have been killed in the workplace. I thank you 

for coming. This is an honor for us, the very idea that you would 

take your time and come here, knowing how important PAWA is 

2

but also how emotional this must be for you, so thank you very 

much for being here. 

Workers Memorial Day started on April 28, 1989, a day which 

is also the anniversary of the Occupational Safety and Health Act, 

OSHA. This is the 40th anniversary. Well, this is the 40th year. 

It is the 39th anniversary. 

Unfortunately, over 20 years later, it is the 21st century, and 

workers continue to die on the job. This past month has been a 

particularly tragic one for American workers. 

Last week, on April 20, 11 workers were lost and 17 injured following an explosion on the Transocean Deepwater Horizon drilling 

ship leased by British Petroleum, BP, in the Gulf of Mexico 50 

miles off the coast of Louisiana. 

On April 5, 29 miners were killed and two injured in a massive 

explosion which ripped through Massey Energy’s Upper Big Branch 

mine in Montcoal, West Virginia. 

Three days earlier, on April 2, a blast at the Tesoro Oil Refinery 

in Anacortes, Washington, caused the deaths of seven workers who 

were engulfed in a fire wall. 

There are thousands of equally tragic deaths that occur in ones 

and twos away from the limelight. 

Last Friday, another West Virginia miner was killed at ICG 

Beckley Pocahontas mine after he was crushed between a continuous miner and a rib vault. 

Last month, the committee held a hearing on the civil and criminal penalties of H.R. 2067, the Protecting America’s Workers Act, 

which we call PAWA, and I will refer to it as that for the rest of 

the day. It is shorter. These changes are long overdue, and they are 

changes and reforms to the OSH Act. 

Today’s legislative hearing will examine the victims’ rights and 

whistleblowers’ rights as they are contained in the March 9 discussion draft of the same bill that further improves PAWA. When 

workers are killed on the job, family members need to be included 

in the investigations, as they may be a rich source of knowledge. 

Victims want investigations to get to the whole truth and to ensure 

that the death of their loved one was not in vain, and they want 

meaningful changes so that other workers do not meet the same 

fate. 

One of our witnesses today is Tonya Ford. Hi, Tonya. Her uncle 

fell 90 feet to his death from a continuous-belt-operated man lift at 

an Archer Daniels Midland plant in Nebraska. The company replaced this one man lift as part of its agreement with OSHA but 

not the others located throughout the plant and other plants that 

they own. Tonya’s father, who still works at the plant, rides up and 

down on this inherently dangerous equipment on a daily basis. 

Unfortunately, families have been marginalized by the Occupational Safety and Health Administration during the investigations. 

Families oftentimes get investigation results, and when they do it 

too often arrives after OSHA has met privately with the employers 

and reached a closed-door settlement. Some employers will insist 

the deceased worker is responsible for the tragedy in closed-door 

meetings with OSHA, yet OSHA informally settles these cases 

without the benefit of input from the families, those nearest to the 

3

victim, those who could have inside information shared with them 

by their loved ones. 

OSHA’s current policy assumes communication with the next of 

kin. This policy, however, is not consistently implemented and certainly does not meet the needs of families. 

The discussion draft of PAWA strengthens existing policy by 

bringing family members into the process. 

The OSH Act recognizes that providing healthy and safe workplaces depends on the willingness of workers to raise concerns with 

their employers or to blow the whistle by reporting unsafe practices 

to government agencies if or when the concern is not addressed. 

Too often, however, workers are fired, demoted or punished for 

raising concerns with OSHA; and OSHA fails to protect them 

enough by recovering their back pay or getting them their jobs 

back. One of the main reasons for this is that section 11(c) in the 

OSH Act, as the oldest whistleblower statute, lacks due process 

and other essential protections and really is stuck back in the 20th 

century, as a matter of fact. As a result, few cases that are filed 

are found to have merit, but when they are considered merit cases 

and OSHA cannot settle the case between the parties, its only option, OSHA’s only option is to refer it to a solicitor of Labor. The 

solicitor then has the sole discretion whether or not to pursue the 

case in court. 

Between October 21, 1995, and October 1, 2009, fewer than 7 

percent of the merit cases sent to the solicitor were ever litigated, 

because it appears that, first, the solicitor’s office only takes those 

cases that have a very high chance of winning and, second, demands on that office far exceed its scarce resources. And, further, 

agency policies tend to discourage litigation where the amount that 

can be recovered for the worker or the worker’s family is small 

compared to the resources needed to litigate the claim. 

One of our witnesses, Neal Jorgensen from Preston, Idaho, will 

testify how he lost his job after filing a safety complaint with 

OSHA. He filed a whistleblower claim; and while OSHA found his 

case had merit, the solicitor declined to prosecute because it did not 

think either of the two Federal judges in Idaho, who would be the 

ones to hear the case, would be receptive to it. 

Under current law, Mr. Jorgensen had no right to file a case in 

court. PAWA modernizes the OSH Act to bring it in line with modern whistleblower laws such as the Consumer Product Safety Improvement Act. 

A safe workplace depends on workers reporting unsafe conditions 

to their employers or the government without fear of retaliation 

and with the knowledge that the government will be there to back 

them up if the employer does retaliate. The legislation before us 

today will achieve that goal. 

I am pleased the administration supports the victims’ rights and 

whistleblower provisions and look forward to the testimony from 

our wonderful panel of witnesses. 

With this, I would defer to our ranking member, Cathy McMorris 

Rodgers, who isn’t here yet. She will give her opening statement 

before we hear from all of our witnesses and before the questioning 

begins. 

[The statement of Ms. Woolsey follows:]

4

Prepared Statement of Hon. Lynn Woolsey, Chairwoman,

Subcommittee on Workforce Protections 

Today is Workers Memorial Day, a day when Americans from all walks of life remember and honor workers who have been killed or seriously injured in the workplace. 

Workers Memorial Day started on April 28, 1989, a day which is also the anniversary of the Occupational Safety and Health Act (OSH Act). 

Unfortunately, over 20 years later, in the 21st century, workers continue to die 

on the job. 

This past month has been a tragic one for the American worker. 

Last week, on April 20, eleven workers were lost and seventeen injured following 

an explosion on the trans-ocean deepwater horizon drilling ship leased by British 

Petroleum in the Gulf of Mexico, fifty miles off the coast of Louisiana. 

On April 5, twenty-nine miners were killed and two injured in a massive explosion which ripped through Massey energy’s Upper Big Branch mine in Montcoal, 

West Virginia. 

Three days earlier on April 2, a blast at the Tesoro oil refinery in Anacortes, 

Washington caused the deaths of seven workers who were engulfed in a ‘‘firewall.’’

There are thousands of equally tragic deaths that occur in ones and twos, away 

from the limelight. 

Last Friday another West Virginia miner was killed at the ICG Beckley Pocahontas mine after he was crushed between a continuous miner and the rib wall. 

Last month the subcommittee held a hearing on the civil and criminal penalties 

in H.R. 2067, the Protecting America’s Workers Act (PAWA), which makes long 

overdue reforms to the OSH Act. 

Today’s legislative hearing will examine the victims’ rights and whistleblower provisions as they are contained in the March 9 discussion draft of the same bill that 

further improves PAWA. 

When workers are killed on the job, family members need to be included in investigations, as they may be a rich source of knowledge. 

Victims want investigations to get to the whole truth and ensure that the death 

of their loved one was not in vain. 

And they want meaningful changes so that other workers do not meet the same 

fate. 

One of our witnesses today is Tonya Ford. 

Her uncle fell 90 feet to his death from a continuous belt-operated manlift at an 

Archer Daniels Midland plant in Nebraska. 

The company replaced this one manlift as part of its agreement with OSHA, but 

not the others located in the plant. 

And Tonya’s father, who still works at that plant, rides up and down on this inherently dangerous equipment on a daily basis. 

Unfortunately, families have been marginalized by the Occupational Safety and 

Health Administration (OSHA) during investigations. 

Families oftentimes don’t get investigation results, and when they do, it too often 

arrives after OSHA has met privately with the employers and reached a closed door 

settlement. 

Some employers will insist the deceased worker is responsible for the tragedy in 

closed door meeting with OSHA. 

Yet, OSHA informally settles these cases without the benefit of input from families * * * those nearest the victim * * * who could have inside information shared 

by their loved one. 

OSHA’s current policy assumes communication with the next of kin. 

This policy, however, is not consistently implemented and certainly does not meet 

the needs of families. 

The discussion draft of PAWA strengthens existing policy by bringing family 

members into the process. 

The OSH Act recognizes that providing healthy and safe workplaces depends on 

the willingness of workers to raise concerns with their employers, or, to ‘blow the 

whistle’ by reporting unsafe practices to government agencies, if or when, the concern is not addressed. 

Too often, however, workers are fired, demoted or punished for raising concerns 

with OSHA, and OSHA fails to protect them by recovering their back pay or getting 

them their job back. 

One of the main reasons for this is that section 11(c) in the OSH Act, as the oldest 

whistleblower statute, lacks due process and other essential protections. 

5

As a result, few cases that are filed are found to have ‘‘merit,’’ but when they are 

considered ‘‘merit’’ cases and OSHA cannot settle the case between the parties, its 

only option is to refer it to the Solicitor of Labor (SOL). 

The Solicitor then has the sole discretion whether or not to pursue the case in 

court. 

Between October 1, 1995 and October 1, 2009, fewer than 7% of the merit cases 

sent to the Solicitor were ever litigated, because it appears that first, the Solicitor’s 

office only takes those cases that have a very high chance of winning, and second, 

demands on that office far exceed its scarce resources. 

And further, agency policies tend to discourage litigation where the amount to be 

recovered [for the worker] is small compared to the resources needed to litigate the 

claim 

One of our witnesses, Neal Jorgensen from Preston, Idaho, will testify how he lost 

his job after filing a safety complaint with OSHA. 

He filed a whistleblower claim, and while OSHA found his case had merit, the 

Solicitor declined to prosecute because it did not think either of the two federal 

judges in Idaho who would hear the case would be receptive to it. 

Under current law, Mr. Jorgensen had no right to file a case in court. 

PAWA modernizes the OSH Act to bring it in line with modern whistleblower 

laws, such as the consumer product safety improvement act. 

A safe workplace depends on workers reporting unsafe conditions to their employers or the government without fear of retaliation, and with the knowledge that the 

government will be there to back them up, if the employer does retaliate. 

The legislation before us today will achieve that goal. 

I am pleased the administration supports the victims’ rights and whistleblower 

provisions and look forward to the testimony from our witnesses. 

I defer to ranking member, Cathy McMorris-Rodgers for her opening statement. 

Chairwoman WOOLSEY. Without objection, all Members will have 

14 days to submit additional materials for the hearing record. 

Now I would like to introduce our panel of witnesses. They are 

a very distinguished panel, and we are very pleased to have you 

here this morning. We will start at my left, and that will be the 

order of the testimony. I will introduce you all, and then we will 

go from one to the other to the other as we progress through the 

hearing. 

First we have Mr. Jordan Barab, who is the Deputy Assistant 

Secretary of Labor of the Occupational Safety and Health Administration. He formerly served as a senior labor policy advisor on this 

committee, so we are really out front with you that we love Jordan 

very, very much, and we respect his words. 

He also worked as a health and safety specialist at the U.S. 

Chemical Safety Board and served as a special assistant to the 

OSHA administrator. Prior to his government service, Jordan was 

the director of Health and Safety at the American Federation of 

State, County, and Municipal Employees, called AFSCME. He 

holds a master’s degree from Johns Hopkins University and an undergraduate degree from Claremont McKenna College. 

Thank you for being here, Jordan. 

Ms. Tonya Ford is a resident of Lincoln, Nebraska, and the niece 

of Robert Fitch, who died, as I told you earlier, in a preventable 

accident at the Archer Daniels Midland plant in Lincoln. As the 

family member of a worker killed on the job, she has worked to 

raise awareness of the need for better workplace safety. 

Mr. Dennis Morikawa is a partner in the Morgan, Lewis & 

Bockius law firm, where he heads the Occupational Safety and 

Health practice. He represents management regarding labor and 

employment law issues, focusing on matters arising under the Occupational Safety and Healthy Act and Mine Safety and Health 

6

Act. Mr. Morikawa received his JD from Syracuse University and 

a BA from Denison University. 

Dr. Celeste Monforton is an assistant research professor in the 

Department of Environmental and Occupational Health at the 

George Washington University School of Public Health and Health 

Services. She worked as a policy analyst at OSHA from 1991 to 

1995 and at MSHA from 1996 to 2001 as special assistant to the 

assistant secretary. Dr. Monforton earned a bachelor’s degree from 

the University of Michigan and earned a master’s degree and a 

doctorate of public health from George Washington University. 

Mr. Neal Jorgensen. Neal is a whistleblower who lives in Preston, Idaho. He filed a complaint with OSHA under section 11(c) of 

the Occupational Safety and Health Act in 2004 after being fired 

from his job at Plastic Industries, and he has a real story to tell 

us. 

Mr. Lloyd Chinn. Mr. Chinn is a partner at the Labor and Employment Law Department at Proskauer Rose law firm. He litigates employment disputes before Federal and State courts, arbitration tribunals, and before administrative agencies. Mr. Chinn 

received his JD from New York University and a BS from Georgetown University. 

Ms. Lynn Rhinehart. Lynn is the general counsel at the AFL–

CIO, and her focus is on safety and health law policy. She is a 

former staffer to Senator Howard Metzenbaum on the Senate 

Labor Committee and is a member of the Obama Transition Team 

for the National Labor Relations Board. She has also served as cochair of the ABA Committee on Occupational Safety and Health 

Law. Ms. Rhinehart received her BA from the University of Michigan and her JD from Georgetown University. 

We are going to stop at this moment, and I am going to introduce 

our ranking member, Congresswoman McMorris Rodgers, for her 

opening remarks. 

Mrs. MCMORRIS RODGERS. Thank you, Madam Chairwoman. I 

sincerely apologize for being late. We are going to do a better job, 

because I have a terrible record here, and I am sorry. I was over 

on the Senate side, and it just takes a while. 

Since today is recognized around the world as Workers Memorial 

Day, I would like to begin my comments by acknowledging the family members who have come to Washington, D.C., to share their 

stories about loved ones injured or killed on the job. Yesterday, the 

House passed House Resolution 375 honoring those who lost their 

lives in the workplace, and I would like to extend my deepest sympathies and condolences to them. 

Turning to the focus of today’s hearing, I would like to thank the 

chairwoman for providing another opportunity to further examine 

H.R. 2067, the Protecting America’s Workers Act. We have before 

us a large panel of distinguished witnesses; and I look forward to 

hearing their expertise on two specific issues, whistleblowers and 

victims’ rights. 

As I mentioned during our hearing last month, providing a safe 

workplace should be an employer’s number one responsibility; and 

it should be a shared responsibility, one that reflects partnerships 

between the Federal, State, local governments, the private sector, 

employers, and other interested stakeholders. 

7

Notwithstanding these shared efforts, there is no doubt in my 

mind that workers should be able to report illegal or unsafe practices without fear. I don’t think anyone here would have sympathy 

for an employer who did not take safety seriously. 

The provisions in the current OSH Act that protect employees 

who report these illegal and unsafe practices from retaliation are 

the subject of today’s hearings hearing. I look forward to hearing 

from our witnesses as to how these protections are implemented, 

what changes are needed, why they are needed, and why the 

changes proposed by H.R. 2067 are the most appropriate. I say this 

because with any legislative proposal, particularly one that changes 

long-standing policies, we have to be certain that we are not doing 

more harm than good. 

In addition, today’s hearing will examine what is known as victims’ rights, the information and cooperation afforded to those employees who are injured and families who have lost a loved one in 

the workplace. We will hear from one family about OSHA’s failure 

to inform them of conclusions reached in fatality investigations, 

which is unacceptable. Current OSHA policy should have precluded 

this oversight, and I am interested to learn why these policies were 

not implemented appropriately. 

Finally, I would just like to thank the chairwoman for interest 

in this topic, for giving us the opportunity to look more closely at 

workplace safety. This hearing is the latest in a series of hearings 

looking at the aspects of H.R. 2067, the Protecting America’s Workers Act, and the broader issue as how to keep Americans safe and 

healthy on the job. 

I look forward to a productive, lively debate this morning and 

yield back. 

[The statement of Mrs. McMorris Rodgers follows:]

Prepared Statement of Hon. Cathy McMorris Rodgers,

Ranking Minority Member, Subcommittee on Workforce Protections 

Thank you Madam Chair and good morning everyone. 

Since today is recognized around the world as Worker Memorial Day, I would like 

to begin my comments by acknowledging the family members who have come to 

Washington, DC to share their stories about loved ones injured or killed on the job. 

Yesterday, the House passed H. Res. 375 honoring those who lost their lives in the 

workplace. I would like to extend my deepest sympathies and condolences to them. 

Turning to the focus of today’s hearing, I would like to thank the Chairwoman 

for providing another opportunity to further examine H.R. 2067, the Protecting 

America’s Workers Act. We have before us a large panel of distinguished witnesses 

and I look forward to hearing their expertise on two specific issues: whistleblowers 

and victim’s rights. 

As I mentioned during our hearing last month, providing a safe workplace should 

be an employer’s number one responsibility. 

And, it should be a shared responsibility—one that reflects partnerships between 

the federal, state, and local governments, the private sector, employers, and other 

interested stakeholders. 

Notwithstanding these shared efforts, there is no doubt in my mind that workers 

should be able to report illegal or unsafe practices without fear. I don’t think anyone 

here would have sympathy for an employer who did not take safety seriously. 

The provisions in the current OSH Act that protect employees who report these 

illegal and unsafe practices from retaliation are the subject of today’s hearing. I look 

forward to hearing from our witnesses as to how these protections are implemented, 

what changes are needed, why they are needed, and whether the changes proposed 

by H.R. 2067 are the most appropriate. 

I say this because with any legislative proposal, particularly one that changes 

longstanding policies, we must be certain that we are not doing more harm than 

good. 

8

In addition, today’s hearing will examine what’s known as ‘‘victim’s rights’’—the 

information and cooperation afforded to those employees who are injured and families who have lost a loved one in the workplace. We will hear from one family about 

OSHA’s failure to inform them of conclusions reached in fatality investigations, 

which is unacceptable. Current OSHA policy should have precluded this oversight. 

I am interested to learn why these policies were not implemented appropriately. 

Finally, I would just like to thank the Chairwoman for her interest in this topic 

and for giving us the opportunity to look more closely at workplace safety. This 

hearing is the latest in a series of hearings looking at aspects of H.R. 2067, the Protecting America’s Workers Act, and the broader issue about how to keep Americans 

safe and healthy on the job. 

I look forward to a productive, lively debate this morning and yield back. 

Chairwoman WOOLSEY. Thank you very much. 

Now just for those of you who have not been witnesses in the 

past, I would like to explain our lighting system. 

We will turn on a green light when you begin your testimony, 

which means you have 5 minutes. When the light turns orange, 

you know you have 1 minute left, and we would hope you would 

be wrapping up your testimony at that point. I assure you, the floor 

does not open up, you do not fall into outer space if you get beyond 

the 5 minutes, but in order to keep the hearing going and have everybody have time. If you miss some point, then when the members 

are asking their questions, you can probably get to your point at 

that time. 

So now we are going to hear from our witnesses, starting with 

Deputy Assistant Secretary Barab. 

STATEMENT OF JORDAN BARAB, DEPUTY ASSISTANT SECRETARY OF LABOR, OCCUPATIONAL SAFETY AND HEALTH 

ADMINISTRATION, U.S. DEPARTMENT OF LABOR 

Mr. BARAB. Thank you, Madam Chair, Ranking Member McMorris Rodgers, and members of the subcommittee. 

I recognize the significance of today’s hearing being held on the 

39th anniversary of the creation of the Occupational Safety and 

Health Administration, OSHA, and Workers Memorial Day. Today 

is the day set aside to recognize workers killed, disabled, injured, 

or sickened by their work; and today we meet under the shadow 

of three recent tragedies, the loss of 29 miners in West Virginia, 

7 refinery workers in Washington State, and the 11 workers still 

missing from the Deepwater Horizon. 

Now more than ever is the time to think seriously and act courageously to ensure that OSHA has the tools it needs to enforce safe 

working conditions and that this government provides workers and 

the victims the tools they need to help ensure those safe working 

conditions. 

Secretary Solis’ vision for the Department of Labor is good jobs 

for everyone. Good jobs are safe jobs, but American workers still 

face unacceptable hazards. 

The administration supports the Protecting America’s Workers 

Act, which would make meaningful, substantial, and long-overdue 

statutory changes in the Occupational Safety and Health Act, providing OSHA with important tools to strengthen and expand its enforcement programs. Two of the critical tools included in PAWA are 

the enhanced whistleblower protections and increased victims’ 

rights. 

9

OSHA’s inspectors are not able to visit more than a small fraction of this Nation’s workplaces. The OSH Act therefore relies 

heavily on workers to help identify hazards at their workplaces. 

The authors of the OSH Act realize that employees are not likely 

to participate in safety and health activities if they fear they will 

lose their jobs. That is why Congress wrote 11(c) to protect employees from discrimination and retaliation when they report safety 

and health hazards or exercise other rights under the OSH Act. 

Without robust whistleblower protection, these voices may be silenced. 

PAWA would strengthen 11(c) by providing workers with basic 

rights like other, more recent whistleblower laws passed with 

broad bipartisan support have provided workers. PAWA would better protect the workers’ rights to participate in making those working conditions safer by providing workers with a private right of action, an important element that is lacking in OSHA’s current 11(c) 

provision. We believe it is critically important that if an employer 

fails to comply with an order providing relief, both OSHA and the 

workers should be able to file a civil action. 

PAWA will also grant workers the right to further pursue their 

case if OSHA does not proceed in a timely fashion, codify a workers’ right to refuse to perform unsafe work, protect employees who 

refuse work because they fear harm to other workers, prohibit employer policies to discourage workers from reporting illnesses or injuries and prohibit employer retaliation against employees for reporting injuries or illnesses. 

PAWA would also increase the existing 30-day deadline for filing 

an 11(c) complaint to 180 days. Over the years many complainants, 

who might otherwise have had a strong case of retaliation, have 

been denied protection simply because they did not file within the 

30-day deadline. 

Finally, PAWA would codify a number of OSHA’s high standards 

for professionalism and transparency and conducting whistleblower 

investigations that are of critical importance to this administration. 

For example, PAWA requires OSHA to interview complainants and 

to provide them with a response and the evidence supporting the 

respondent’s position. PAWA affords complainants the opportunity 

to meet with OSHA and to rebut the employers statements or evidence. 

Turning to victims’ rights, OSHA has long known that workers 

and often their family can serve as OSHA’s eyes and ears, identifying workplace hazards. Injured workers and their family often 

provide useful information to investigators because employees frequently discuss work activities and coworkers with family members. 

I want to thank Tonya Ford, whose uncle, Robert Fitch, was 

killed at Archer Daniels Midland on January 29, 2009, for coming 

to Washington today to testify and describe the tragic circumstances of Mr. Fitch’s death and the unnecessary problems that 

she and her family faced getting information about what happened. 

We appreciate her suggestions on how to enforce or how to improve 

our enforcement proceedings to better involve victims and their 

families. 

10

It is OSHA’s policy to talk to families during the investigation 

process and inform them about our citation procedures and settlements. Families are normally provided a copy of the citations when 

issued. 

We found, however, that some of OSHA’s policies on victims’ 

rights have not always been implemented consistently and in a 

timely manner. It is also clear that a letter is not adequate. Therefore, we will be strengthening those policies by putting them into 

a directive and adding them to the field operations manual. 

We will also be instructing our area directors to call the family 

to express condolences, advise that a letter is coming, and assure 

families that we will be staying in contact. In addition, we will be 

appointing family liaisons in every one of OSHA’s 70 area offices. 

In general, OSHA supports the changes in PAWA for victims and 

their families. Our only concern is that we find a way to both fully 

ensure family and victim participation without unduly burdening 

or lengthening the process. 

Madam Chair, I appreciate the opportunity today to have discuss 

PAWA and how it would improve whistleblower protections and 

victims’ rights. I believe stronger whistleblower protections and 

more substantial rights for victims and their families can lead to 

safer job sites and, ultimately, more men and women who go home 

safely to their families at the end of the day. 

I would be happy to answer your questions. 

[The statement of Mr. Barab follows:]

Prepared Statement of Hon. Jordan Barab, Deputy Assistant Secretary for 

Occupational Safety and Health, U.S. Department of Labor 

Chair Woolsey, Ranking Member McMorris Rodgers and Members of the Subcommittee, thank you for the opportunity to testify today on the Protecting America’s Workers Act (PAWA) particularly on the issues of whistleblower protections 

and victim’s rights in OSHA’s enforcement process. 

I recognize the significance of today’s hearing being held on both the 39th anniversary of the creation of the Occupational Safety and Health Administration and 

Workers Memorial Day. Today is the day set aside to recognize workers killed, disabled, injured or sickened by their work—to honor the men and women who have 

died on the job and to rededicate ourselves to improving safety and health in every 

American workplace. 

This commitment is especially needed now, as we commemorate this Workers Memorial Day not only to remember the 29 brave miners who lost their lives at the 

Upper Big Branch mine, the 7 refinery workers who were killed the week before 

at the Tesoro refinery in Washington, but also the 14 workers who die on the job 

every day in this country. 

This hearing focuses on two areas that are crucial to reaching the goal set by the 

Occupational Safety and Health Act (OSH Act) to assure safe and healthful working 

conditions for all working men and women in the United States: 1) ensuring that 

workers are safe from retaliation for exercising their health and safety rights; and 

2) ensuring victims of workplace incidents and their family members have information and a meaningful role in OSHA enforcement activities. 

Whistleblower protections 

Congress realized that OSHA inspectors would never be able to visit more than 

a small fraction of the nation’s workplaces. The OSH Act therefore relies heavily on 

workers to help identify hazards at their workplaces. The authors of the OSH Act 

also realized that employees are not likely to participate in safety and health activities if they fear that they will lose their jobs or otherwise be retaliated against. That 

is why Congress wrote Section 11(c)—to protect employees from discrimination and 

retaliation when they report safety and health hazards or exercise other rights 

under the OSH Act. The OSH Act was one of the first safety and health laws to 

contain a provision for protecting whistleblowers. 

11

Section 11(c) was innovative and forward looking in 1970, but 40 years later it 

is clearly antiquated and in dire need of substantial improvement. Achieving Secretary Solis’ goal of Good Jobs for Everyone includes strengthening workers’ voices 

in their workplaces. Without robust whistleblower protections, these voices may be 

silenced. 

This Administration strongly supports the whistleblower provisions of the Protecting America’s Workers Act (PAWA), which expands the OSH Act’s anti-retaliation provisions, codifies a worker’s right to refuse to perform unsafe work, prohibits 

employer policies that discourage workers from reporting illnesses or injuries, prohibits employer retaliation against employees for reporting injuries or illnesses, and 

grants workers the right to further pursue their case if OSHA does not proceed in 

a timely fashion. 

OSHA currently administers the whistleblower provisions of sixteen other statutes, protecting employees who report violations of various trucking, airline, nuclear 

power, pipeline, environmental, rail, consumer product, and securities laws. In the 

four decades since the OSH Act became law, Congress has enacted increasingly expansive whistleblower protections in these other laws, leaving section 11(c) of the 

OSH Act in significant ways the least protective of the 17 whistleblower statutes. 

It is time to bring OSHA’s protections up to the same level of these other laws. 

Notable weaknesses in section 11(c) include: inadequate time for employees to file 

complaints; lack of an administrative forum for the adjudication of cases; lack of a 

statutory right of appeal; lack of a private right of action; and OSHA’s lack of authority to issue findings and preliminary orders, so that a complainant’s only chance 

to prevail is through the Department of Labor filing an action in U.S. District Court. 

PAWA would strengthen section 11(c) by including the full range of procedures 

and remedies available under the more modern statutes and by codifying certain 

provisions, such as exemplary damages and the right to refuse work that could result in serious injury or illness, which have been available but not expressly authorized by current statute. There is no reason that workers speaking up about threats 

to their safety and health should enjoy less protection than workers speaking up 

about securities fraud or transportation hazards. PAWA would also make explicit 

that a worker may not be retaliated against for reporting injuries, illnesses or unsafe conditions to employers or to a safety and health committee. This protection 

is already implicit in the OSH Act, but PAWA would leave no doubt in employers’ 

or employees’ minds about this right. 

PAWA is an improvement on OSHA’s current law in significant ways. It would 

increase the existing 30-day deadline for filing an 11(c) complaint to 180 days, 

bringing 11(c) more in line with some of the other whistleblower statutes. Over the 

years many complainants who might otherwise have had a strong case of retaliation 

have been denied protection simply because they did not file within the 30-day deadline. For example, we received an 11(c) complaint from a former textile employee 

who claimed to have been fired for reporting to management that he had become 

ill due to smoke exposure during the production process. The worker contacted 

OSHA to file an 11(c) complaint 62 days after he was fired, compelling OSHA to 

dismiss the case as untimely under existing law. Under PAWA, however, OSHA 

would be able to investigate the merits of cases such as this one. Increasing the filing deadline to 180 days would greatly increase the protections afforded by section 

11(c). 

PAWA’s adoption of the ‘‘contributing factor’’ test for determining when illegal retaliation has occurred would be another significant improvement in 11(c). This test, 

which examines the employer’s decision to take adverse action against the employee 

following whistleblower activity, is less stringent than the current ‘‘motivating factor’’ test to which OSHA is currently restricted. Adoption of the ‘‘contributing factor’’ 

test would make 11(c) consistent with other more recently enacted whistleblower 

statutes and would strengthen the whistleblower protections afforded to America’s 

workers. 

The private right of action is another key element of whistleblower protections 

that is lacking in OSHA’s current 11(c) provision and is contained in PAWA. It is 

critically important that, if an employer fails to comply with an order providing relief, both DOL and the complainant should be able to file a civil action for enforcement of that order in a U.S. District Court. We strongly support this provision. 

PAWA also allows complainants to move their case to another prescribed venue 

if the Department does not make prompt decisions or rulings. For example, PAWA 

would allow complainants to ‘‘kick out’’ from an OSHA investigation to a de novo 

Administrative Law Judge (ALJ) hearing if the Secretary has not issued a decision 

within 120 days from the case filing; ‘‘kick out’’ from an ALJ hearing to district 

court if an ALJ has not issued a decision within 90 days of the request for a hearing; or ‘‘kick out’’ from an Administrative Review Board (ARB) hearing to district 

12

court if the ARB has not issued a final order within 60 days of the request for an 

administrative appeal. ‘‘Kick-out’’ provisions have become a standard feature of 

whistleblower protection statutes, and OSHA believes it is appropriate for 11(c) complainants to have the same right. 

The provision in PAWA allowing employees in states administering OSHA-approved plans to choose between Federal and State whistleblower investigations 

would likely result in a significant increase in the number of Federal complaints. 

All 22 states and territories that administer private sector plans are required to provide protections at least as effective as Federal OSHA’s. We have some reservations 

about this provision because we are not convinced it would add much protection to 

workers in those states and it would be a significant drain on OSHA and Solicitor 

resources. We would welcome further discussions on how to best ensure whistleblower protections in these states. 

Finally, PAWA would codify a number of OSHA’s high standards for professionalism and transparency in conducting whistleblower investigations that are of 

critical importance to this Administration. For example, PAWA requires OSHA to 

interview complainants and to provide them with the respondent’s response and the 

evidence supporting the respondent’s position. PAWA affords complainants the opportunity to meet with OSHA and to rebut the employer’s statements or evidence. 

While we train our investigators on the critical importance of conducting thorough 

interviews with complainants and involving complainants in the rigorous testing of 

proffered employer defenses, we believe that requiring these investigative steps by 

statute would assist OSHA in its mission of providing robust protection to occupational safety and health whistleblowers. 

These legislative changes in the whistleblower provisions are a long-overdue response to weaknesses that have become apparent over the past four decades. This 

legislation makes good on the promise to stand by those workers who have the courage to come forward when they know their employer is cutting corners on safety 

and health and guarantees that they do not have to sacrifice their jobs in order to 

do the right thing. 

Not only do we support the provisions of PAWA intended to improve whistleblower protections, we would like to explore areas where we might want to go further. 

I would propose amending the OSH Act to provide for assessment of civil penalties against employers who violate the whistleblower provisions. Currently, while 

an employer found to be discriminating against an employee must make the employee whole again, there is no provision for civil penalties against employers. The 

provisions are not in the current version of PAWA but similar provisions were included in the S-MINER Act that was passed by this Committee and the full House 

of Representatives in 2008. Under such a provision, any employer found to be in 

violation of Section 11(c) of the Act would be subject to civil penalties of not less 

than $10,000 and not more than $100,000 for each occurrence of a violation. 

Additionally, as conclusion of these cases can often take many months, a provision 

should be made to reinstate the complainant pending outcome of the case. The Mine 

Safety and Health Act provides that in cases when the Mine Safety and Health Administration (MSHA) determines that an employee’s complaint was not frivolously 

brought, the Review Commission can order immediate reinstatement of the miner 

pending final order on the complaint. OSHA’s 11(c) complainants should have the 

same reinstatement rights. 

Victims’ rights 

OSHA has long known that workers, and often their families, can serve as 

OSHA’s ‘‘eyes and ears,’’ identifying workplace hazards. Workers injured in workplace incidents and their friends and family often provide useful information to investigators, because employees frequently discuss work activities and co-workers 

with family members during non-work hours. 

We are dedicated to findings ways to involve workers and their families in 

OSHA’s enforcement investigations. Both Assistant Secretary Michaels and I make 

it a priority to set time aside to talk with victims’ families whenever we have the 

opportunity. 

Last month, as part of an effort to reach out and hear from stakeholders on a 

variety of safety and health issues, we hosted ‘‘OSHA Listens.’’ As part of the event, 

we heard recommendations from the family members of workers killed on the job 

on how to enhance victims’ and families’ participation in the enforcement process. 

I want to thank Tonya Ford whose uncle, Robert Fitch, was killed at Archer Daniels Midland on January 29, 2009, for coming to Washington today to testify and 

describe to us the tragic circumstances of Mr. Fitch’s death and the unnecessary 

problems she and her family faced getting information about what happened and 

13

what OSHA was doing. We appreciate the suggestions she has on how to improve 

our enforcement process and better involve victims and their families. 

Katherine Rodriguez, whose father was killed at the BP Texas City Refinery on 

September 2, 2004, also spoke at OSHA Listens and made several recommendations 

to OSHA officials on how to enhance the rights of victims’ families. She said that 

before her father died in the hospital her family received information about the incident that might have been useful to OSHA investigators, noting that ‘‘fellow coworkers are more willing to talk to the family members than any investigator.’’

Family members and co-workers are sincerely and understandably interested in 

learning how an incident occurred, finding out if anything could have been done to 

prevent it, and knowing what steps employers and employees will take in the future 

to ensure that someone else is not injured or killed in a similar situation. 

It is OSHA’s policy to talk to families during the investigation process and inform 

them about our citation procedures and settlements. OSHA first contacts the family 

at the beginning of the inspection. All families get a letter from the Area Director 

discussing the process and advising that they will be kept informed. In some cases 

the families initially get a phone call. Families are then normally provided a copy 

of the citations when issued. 

However, we have found that some of these policies have not always been implemented consistently and in a timely manner. It is also clear that a letter is not adequate. Therefore, we will be putting these policies into a directive and adding them 

to our Field Operations Manual. We will also be instructing the Area Directors to 

call the family to express condolences, advise that a letter is coming, and assure 

families we will be staying in contact. 

In addition, we need to work on interacting with families following a tragedy. As 

might be expected, many OSHA inspectors understandably have trouble knowing 

how to interact with a person who has just lost a loved one in tragic circumstances. 

While brief training on this issue is provided to Compliance Officers at the Initial 

Compliance Course at the OSHA Training Institute, clearly more training is needed 

and will be developed. We will also develop webinars and webcasts for training of 

all compliance officers, team leaders, and Area Directors. 

In general, OSHA is supportive of expanding interactions with families and victims. Therefore, the Agency is examining the issue of victims’ rights from the administrative level to seek ways to better ensure the rights of victims and their families to participate in OSHA’s enforcement efforts. OSHA supports many of the 

changes to the OSH Act embodied in PAWA for victims and their families. 

PAWA would place into law, for the first time, the right of a victim (injured employee or family member) to meet with OSHA regarding the investigation and to 

receive copies of the citation or resulting report at the same time as the employer 

at no cost. PAWA would also enable victims to be informed of any notice of contest 

and to make a statement before an agreement is made to withdraw or modify a citation. 

However, we also want to ensure—and I think the families would also want to 

ensure—that the provisions of PAWA do not unduly slow down the inspection, enforcement and adjudication process, which only hurt victims and their families in 

the long run. We believe therefore that clarification is needed of the provisions allowing victims or their representatives to meet in person with OSHA before the 

agency decides whether to issue a citation, or the right to appear before parties conducting settlement negotiations. This could be logistically difficult for victims and 

OSHA’s regional and area offices, resulting in significant delays in the negotiations 

and ultimate citation. OSHA would be happy to work with the Committee to address this issue. 

Madam Chair, I appreciate the opportunity to appear today to discuss PAWA and 

how it would improve whistleblower protections and victim’s rights. I believe stronger whistleblower protections and more substantial rights for victims and their families can lead to safer jobsites and ultimately, more men and women who go safely 

home to their families at the end of the day. I would be happy to answer your questions. 

Chairwoman WOOLSEY. Thank you. 

Ms. Ford. 

14

STATEMENT OF TONYA FORD, NIECE OF ROBERT FITCH,

A WORKER KILLED AT ARCHER DANIELS MIDLAND PLANT 

Ms. FORD. Dear Chairman Woolsey, Ranking Member McMorris 

Rodgers and members of the committee, my name is Tonya Ford; 

and I live in Lincoln, Nebraska. 

I would like to start off by saying thank you so much for this opportunity. It is a great honor to sit here and represent my family 

and other families who have lost their loved ones due to preventable work-related accidents. 

I support the Protect America’s Workers Act because of what 

happened on January 29, 2009, when I lost my Uncle, Robert Fitch, 

or as I called him, Uncle Bobby, to a horrible, preventable workrelated accident at the Archer Daniels Midland plant in Lincoln, 

Nebraska. My Uncle Bobby was 51 years old. 

Our lives changed forever that day when my uncle stepped into 

a belt-operated man lift in order to go to his work break, fell approximately 40 feet. As he fell, he impacted each wall in the cement elevator shaft and landed on the air duct, hitting it so hard 

it slid 19 feet from the connection point. At that point, my uncle 

slid off and fell through a manhole and then fell another 40 feet 

to the cement ground below. My dad, Uncle Bobby’s brother-in-law, 

found him that day. My dad still works at this ADM plant. 

Since that moment, my life has become filled with gathering 

dates, statistics, evidence, and information. I started our research 

to answer our family’s simple rules or—sorry—questions: What 

happened? Did he suffer? Did the device malfunction? Was the device too old and unsafe for my uncle and other employees that work 

at ADM? 

Something went terribly wrong that day; and my cousins, Jessica 

and Jeremy Fitch, my mom, and the rest of our family deserve to 

know what happened and why. 

I have come to the conclusion that if PAWA had been passed 

when it was first introduced, my uncle might have been alive 3 

weeks ago to place a rose on his mother’s casket. Instead, when my 

grandmother passed away last month, we placed a single rose on 

an empty chair where he should have sat. 

PAWA is important not only because it included tougher penalties to discourage companies letting safety problems continue, because it extended additional rights to family members. If PAWA 

had been in place when my uncle died, my family would not have 

learned about the findings against ADM from a local news reporter. With the television camera rolling, the reporter asked me, 

what do you think about the penalties assessed by ADM? I could 

only respond we are not aware what the penalty is and that the 

investigation was even closed. 

This is how our family learned that ADM was fined $0 for having 

an old and dangerous belt-operating man lift in their plants. This 

piece of equipment caused my uncle’s death, and that I have since 

been informed is inherently unsafe and very scary to use, a device 

that you should require specialized training for anyone to use it 

and a device that causes many injuries and even deaths. Yet ADM 

received no monetary penalties for having this deadly equipment in 

their plants. 

15

We asked why was ADM not fined from OSHA for the device 

that took my uncle from us? Nine months after hearing about zero 

penalties assessed to ADM, my family still did not have the answers. I reached out to OSHA for answers in January, 2010, and 

OSHA agreed to meet with us. I was ready to ask them all the 

questions that resulted in my months of research in belt-operating 

man lifts. To my amazement, I learned that OSHA issued two citations to ADM that were classified as serious and specifically related 

to the dangerous belt-operating man lift. However, as part of the 

informal settlement between OSHA and ADM, the two citations related to the man lift and the monetary penalties were deleted. 

When we asked why OSHA told us that these dangerous man 

lifts were not covered by an OSHA standard under an OSHA 

standard issued in 1971, man lifts installed prior to August 1971 

are grandfathered in, meaning that OSHA standards did not apply 

to them. OSHA explained that because of this grandfather clause 

they could not have pulled the citation if ADM contested it, but 

through their settlement with the company ADM agreed to replace 

the belt-operating man lift that killed my uncle with an elevator. 

OSHA thought this was a good compromise, getting ADM to get 

rid of a highly dangerous piece of equipment and install something 

safer in its place. That is not good enough and here is why. This 

ADM facility where my uncle was killed and my dad still works 

had a total of five of these belt-operating man lifts. Stating they 

only had to replace just one of them did not get rid of the problem. 

These man lifts are operating in other ADM facilities across the 

country. This equipment kills workers. A company like ADM with 

a stock market value of $18.31 billion should be compelled to replace all of these dangerous lifts immediately. 

I urge Congress to pass the Protect America’s Workers Act because it would improve OSHA’s ability to ensure workers are protected from dangers on jobs. I support the provision to increase 

OSHA’s penalties and have them routinely adjusted for inflation, 

but penalties are only effective if OSHA has the ability to compel 

abatement, even if the employers contests the citation and penalties. 

The Federal mine safety agency has this authority for the 

300,000 workers it covers, and OSHA needs it for the 111 million 

workers who rely on its protection. As a family, we believe if we 

are going to prevent more deaths and hurt, OSHA must be able to 

force abatement during the contest period. 

We strongly support all the provision of PAWA, including the 

new rights that would be given to family members. We believe it 

is very important for OSHA to meet with a family or their representatives before the agency finishes its investigation and for the 

families to have the opportunity to make a victims’ impact statement if the case proceeds to the Occupational Safety and Health 

Review Commission. 

My Uncle Bobby gave 32 years to ADM, often working 7 days a 

week. My dad still works there, as do many other men and women. 

This month alone we have seen too much deaths and grief because 

of preventable workplace hazards. If the companies do not set the 

bar high enough for workers’ health and safety, then OSHA must 

be empowered to do so. Thank you. 

16

[The statement of Ms. Ford follows:]

Prepared Statement of Tonya Ford, Niece of Robert Fitch

DEAR CHAIRWOMAN WOOLSEY, RANKING MEMBER MCMORRIS-RODGERS AND MEMBERS OF THE COMMITTEE: My name is Tonya Ford and I live in Lincoln, Nebraska. 

I would like to start off by saying thank you so much for this opportunity. It is a 

great honor to sit here and represent my family and other families who have lost 

their loved ones due to preventable work-related accidents. 

I support the ‘‘Protecting America’s Workers Act’’ (PAWA) because of what happened on January 29, 2009 when I lost my Uncle Robert Fitch or as I called him 

Uncle Bobby to a horrible preventable work-related incident at the Archer Daniel 

Midland plant in Lincoln, NE. My Uncle Bobby was 51 years old. 

Our lives changed forever that day when my uncle stepped onto a belt-operated 

manlift in order to go on his work break and fell approximately 40 feet. As he fell, 

he impacted each wall in the cement elevator shaft, and landed on the airduct, hitting it so hard it slid 19 feet from the connection point. At that point, my uncle slid 

off and fell through a manhole, and then fell another 40 feet to the cement ground 

below. My dad, uncle’s Bobby’s brother-in-law found him that day. My dad still 

works at this ADM plant. 

Since that moment, my life has become filled with gathering dates, statistics, evidence, and information. I started my research to answer our family’s simple questions: 

What Happened? 

Did he suffer? 

Did the device malfunction? 

Was the device too old and unsafe for my uncle and the other employees working 

at ADM? 

I have come to the conclusion that if PAWA had been passed when it was first 

introduced, my uncle might have been alive three weeks ago to place a rose on his 

mother’s casket. Instead, when my grandmother passed away last month, we placed 

a single rose on the empty chair where Uncle Bobby should have been seated. 

PAWA is important not only because it includes tougher penalties to discourage 

companies letting safety problems continue, but because it extends additional rights 

to family members. If PAWA had been in place when my uncle died, my family 

would not have learned about the fines assessed against ADM from a local news 

reporter. 


ford-1.eps
17

With the television camera rolling, the reporter asked me ‘‘What do you think 

about the penalty assessed to ADM?’’

I could only respond: ‘‘We are unaware what the penalty is and that the investigation was closed.’’

This is how our family learned that ADM was fined $0.00 for having the old and 

dangerous belt-operated man-lift in their plant. This piece of equipment caused my 

uncle’s death, and that have since been informed it was inherently unsafe and very 

scary to use. A device that should require specialized training before anyone should 

use it a device that causes many injuries and even deaths. Yet, ADM received no 

monetary penalty for having this deadly equipment in their plant. 

We asked: Why was ADM not fined by OSHA for the device that took my uncle 

from us? 

Nine months after hearing about zero penalty assessed to ADM, my family still 

did not have answers. I reached out to OSHA for answers in January 2010, and 

OSHA agreed to meet with us. I was ready to ask all of the questions that resulted 

from my months of research on belt-operated manlifts. 

To my amazement, I learned that OSHA issued two citations to ADM that were 

classified as serious and specifically related to their dangerous belt-operated 

manlift. However, as part of an informal settlement between OSHA and ADM, the 

two citations related to the manlift and the monetary penalties were DELETED. 

When we asked why, OSHA told us that these dangerous manlifts were not covered by an OSHA’s standard. Under an OSHA standard issued in 1971 (29 CFR 

1910.68.), manlifts installed prior to August 1971 were ‘‘grandfathered in,’’ meaning 

the OSHA standard did not apply to them. OSHA explained that because of this 

‘‘grandfather clause’’ they could not uphold the citation if ADM contested it, but 

through their settlement with the company, ADM agreed to replace the belt-operated manlift that killed my uncle, with an elevator. OSHA thought this was a good 

compromise: getting ADM to get rid of a highly dangerous piece of equipment and 

install something safer in its place. That’s not good enough. Here’s why: This ADM 

facility where my uncle was killed and where my dad still works had a total of 5 

of these belt-operated manlifts. Stating that they only had to replace just one of 

them does not get to the root of the problem. These manlifts are operating in other 

ADM facilities across the country. This equipment kills workers. A company like 

ADM, with a stock market value of $18.31 billion, should be compelled to replace 

all of these dangerous lifts immediately. 

I urge Congress to pass the Protecting America’s Workers Act (H.R. 2067 and 

S.1580) because it would improve OSHA’s ability to ensure workers are protected 

from dangers on the job. I support the provisions to increase OSHA penalties and 

have them routinely adjusted for inflation. But, penalties are only effective if OSHA 

has the ability to compel abatement even if the employer contests the citation and 

penalty. The federal mine safety agency (MSHA) has this authority for the 300,000 

workers it covers, and OSHA needs it for the 111 million workers who rely on its 

protections. As a family, we believe that if we are going to prevent more deaths and 

hurt, OSHA must be able to force abatement during the contest period. 

We strongly support all the provisions of PAWA, including the new rights that 

would be given to family mem≥bers. We believe it is very important for OSHA to 

meet with a family or their representative before the agency finishes its investigation and for a family to have the opportunity to make a victims’ impact statement 

if the case proceeds to the Occupational Safety and Health Review Commission. 

My Uncle Bobby gave 32 years to ADM, often working seven days a week. My 

dad still works there, as do many other men and women. This month alone we have 

seen too much death and grief because of preventable workplace hazards. If companies do not set the bar high for worker health and safety, then OSHA must be empowered to do so. 

Thank you.

18


ford-2.eps
19

Chairwoman WOOLSEY. Thank you. 

Mr. Morikawa. 

STATEMENT OF DENNIS MORIKAWA,

MORGAN, LEWIS & BOCKIUS LLP 

Mr. MORIKAWA. Thank you very much, Chairwoman Woolsey, 

Ranking Member McMorris Rodgers, members of the subcommittee, and fellow members of this panel. 

My name is Dennis Morikawa, and I am a partner at the Philadelphia law firm of Morgan, Lewis & Bockius. I appreciate the opportunity to appear before you at this hearing to address the victims’ rights provisions of the latest draft of the Protecting America’s Workers Act legislation. I am testifying today on behalf of the 

U.S. Chamber of Commerce and my testimony, and comments are 


ford-3.eps
20

not intended to represent the views of Morgan, Lewis & Bockius 

or its clients. 

On this very special Workers Memorial Day, I want to assure 

that our thoughts and prayers are with the families and victims 

who have lost their lives on the job. I think it should be a common 

goal of all of us to prevent accidents and to end fatalities in the 

American workplace, and I share Ms. Ford’s sentiment with respect 

to that issue. 

As I mentioned, I am a partner with Morgan, Lewis, having been 

with them since 1974; and during that time I have practiced in the 

area of Occupational Safety and Health law. As a consequence of 

that, I have had a good opportunity to see the inner workings of 

how OSHA works both in the inspection, in the citation, the settlement, and the litigation process of OSHA cases. I have literally 

represented clients in hundreds of OSHA cases. 

However, the aspect of my practice in which I am most proud has 

been in providing the basis for the creation of coalitions of employers dedicated to cooperating for the purpose of ending accidents 

and fatalities on the job. 

I refer specifically to the work that I did with the Electrical Contractors Transmission and Distribution Strategic Partnership for 

Safety, better known as the ET&D partnership, which represents 

a coalition of six of the largest union and nonunion electrical transmission contractors in the United States who, in 2004, banded together to create a unique partnership which matched these contractors with the International Brotherhood of Electrical Workers, 

the National Electrical Contractors Association, and the Edison 

Electric Institute. 

The express purpose of that partnership was to bring about a 

substantial reduction in injuries and fatalities in the electrical construction industry and to create rigorous standards for best practices to be utilized by companies in that industry to bring about a 

real change in the industry safety culture, in other words, to really 

make a difference. 

I am very proud to tell you that the statistics that have been 

done with respect to the success of this partnership indicate that 

between 2003 and 2009 fatality rates for ET&D partners declined 

by almost 80 percent; and the lost workday injury and illness rate 

for partners was reduced to a remarkable. 89, which represents 

less than one injury per 100 workers in an industry which has long 

been characterized by OSHA as a high hazard industry. 

It demonstrates that when a coalition of employers and labor and 

employees and associations get together for the common purpose of 

ending accidents, stopping injuries, and stopping fatalities on the 

job, it can, in fact, be effective and be a 21st century model for new 

safety and health approaches. 

Let me make it clear today that my brief comments are intended 

to focus solely on the issue of victims’ rights in section 306 of 

PAWA. As you are aware, the Chamber has made previous comments earlier on March 16 with respect to broad aspects of this legislation. It is important to point out that the basic substance of victims’ rights as set forth in section 306 of PAWA is in many respects 

a codification of existing procedures already set forth in OSHA’s 

Field Operations Manual, or the FOM, or FOM, as it is referred to. 

21

I think Deputy Assistant Secretary Jordan Barab did an excellent job in talking about and summarizing the OSHA procedures 

that have been in effect for over 15 years, which address communications with and the provision of information to victims and their 

family members. We commend Mr. Barab for his recognition that 

some of the FOM policies have not always been followed by OSHA 

consistently and in a timely manner, and Mr. Barab has pledged 

to place new policies into a directive and to make new amendments 

to the FOM to address these issues. 

Mr. Barab also states that OSHA will be revising their training 

and compliance office to address interactions with victims’ families. 

We applaud OSHA’s initiatives in that regard. 

But in contrast to the FOM procedure, section 306 now provides 

that victims and their family members are to be given the right to 

meet with OSHA prior to OSHA’s decision to issue or not issue a 

citation and requires that, prior to OSHA entering into any agreement to settle a citation, OSHA must notify the victims or the representatives of the victims about the settlement meeting in order 

to give the victim or their representative an opportunity to appear 

and make a statement in front of the parties conducting those settlement negotiations. 

We agree with Assistant Secretary David Michaels’ view expressed on March 16 that victims and their families desire to be 

more fully involved in the remedial process, but we also agree with 

Dr. Michaels’ comments given to the subcommittee in which he 

urged that clarification was needed with respect to section 306, 

particularly as to the provisions allowing victims and their representatives to meet in person with OSHA before the agency decides to issue a citation and also to make statements at contested 

hearings that follow. Dr. Michaels has pointed out that this could 

create logistical difficulties for victims as well as OSHA’s regional 

and area offices, which could result in significant delays in the negotiations and ultimate resolution of cases which, according to Dr. 

Michaels, could hurt the victims and their families in the long run. 

Deputy Assistant Secretary Barab’s comments today strongly support that point. 

In addition to the issues identified by Dr. Michaels, we would 

add that section 306 is made potentially more problematic by the 

provision for the involvement of representatives of the victim, as 

that term has not been defined specifically in the section. While 

section 306 does define victim and family member, the section does 

not make clear what representatives are contemplated within 306. 

Now, Tonya Ford’s moving and eloquent tribute to her uncle this 

morning is an excellent example of where a family member represents the deceased loved one in conveying the thoughts and emotions of her family; and we thank her for those comments. However, we would submit that further clarification needs to be made 

with respect to whether the ‘‘representatives’’ of the victim contemplated by this section is intended to be somebody other than a 

family member, such an attorney, for example, the involvement of 

which may, in the concept of Assistant Secretary Michaels, create 

delays that could hamper the process. 

In conclusion, we urge this committee to more clearly clarify the 

rights, duties, and responsibilities of the entities covered under disVerDate 0ct 09 2002 15:58 Dec 15, 2010 Jkt 000000 PO 00000 Frm 00025 Fmt 6633 Sfmt 6602 G:\DOCS\111TH\WP\111-58\56055.TXT HBUD PsN: DICK
22

cussion in draft section 306, which purports to address victims’ 

rights, and to determine if section 306 truly advances the interests 

of safety and health through a fair, efficient, and prompt resolution 

of matters before OSHA and the Commission. 

We would point out that OSHA needs the opportunity to exercise 

prosecutorial discretion with respect to the matters that they handle. They are an understaffed agency with a very, very big mission. 

We support their efforts, and we hope that they will continue those 

efforts towards ending accidents and fatalities on the job. 

Thank you. 

[The statement of Mr. Morikawa follows:]

Prepared Statement of Dennis J. Morikawa, Partner, Morgan, Lewis & 

Bockius LLP, on Behalf of the U.S. Chamber of Commerce 

Good morning, Chairwoman Woolsey, Ranking Member McMorris Rodgers and 

members of the Subcommittee. My name is Dennis J. Morikawa and I am a Partner 

with the Philadelphia office of Morgan, Lewis & Bockius LLP. I appreciate the opportunity to appear before you at this hearing to address the victim’s rights provisions in Section 306 of the latest draft of the Protecting America’s Workers Act legislation (HR 2067; S 1580). My testimony will largely focus on these provisions but 

I would be happy to answer questions on any of the important issues raised by this 

proposed legislation. 

I am testifying today on behalf of the U.S. Chamber of Commerce, the world’s 

largest business federation with over three million businesses of all sizes, sectors 

and regions, as well as state and local chambers and industry associations. Critical 

to the issues that I will be discussing this morning, approximately 96% of the 

Chamber’s members are small businesses employing 100 or fewer employees. I have 

been a participant in activities of the Chamber’s Labor Relations Committee and 

have appeared before and participated in meetings of the OSHA Subcommittee. My 

testimony and comments are not intended to represent the views of Morgan, Lewis 

& Bockius LLP or any of our clients. 

Background and experience in occupational safety and health law 

I have been with Morgan, Lewis & Bockius LLP since 1974. In the 36 years that 

I have practiced law, I have devoted a significant part of my practice to labor and 

employment matters, specifically focused on workplace safety and health, including 

matters arising under the Occupational Safety and Health Act (‘‘OSH Act’’) and 

OSHA state plans. I am past Management Co-Chair of the American Bar Association Committee on Occupational Safety and Health Law and have participated in 

numerous panels and symposiums on OSHA Law with representatives from OSHA, 

the Occupational Safety and Health Review Commission, leading trade associations 

and labor unions as well as leading practitioners in this field. 

Morgan Lewis’s OSHA Practice Group, which I lead, has a combined total of more 

than 100 years of experience and includes among others, the former Acting Assistant Secretary of Labor and Deputy Assistant Secretary for OSHA, Jonathan L. 

Snare, as well as the past Solicitor of Labor, Howard M. Radzely. Throughout my 

years of practice, I have represented numerous clients in a wide variety of industries, such as oil refineries, construction, manufacturing, electrical utilities, retail, 

shipping, shipbuilding, meat packing and poultry processing, supermarkets, 

healthcare, chemical manufacturing, steelmaking and auto making. 

Over the course of my career, I have represented clients in every conceivable type 

of OSHA-related activity including rulemaking, advice and counseling, strategic 

planning and handling OSHA inspections and citations. On the enforcement side of 

my practice, I have participated in all stages of the contested case process before 

the Occupational Safety and Health Review Commission (‘‘Commission’’ or 

‘‘OSHRC’’), as well as with OSHA’s state plan partners, from the initial contest decision, through discovery and trial, as well as appeals, and including numerous settlement negotiations and mediations. On the compliance side of my practice, I have 

assisted clients in developing methods and strategies to comply with all applicable 

OSHA workplace safety and health rules and requirements. 

In fact, the area of my OSHA practice in which I have been involved that has 

given me the greatest sense of achievement has been my work with OSHA compliance and cooperative programs and, in particular, the Electrical Contractors Transmission and Distribution (‘‘ET&D’’) Strategic Partnership for Safety, a coalition of 

six of the largest union and non-union electrical transmission construction contracVerDate 0ct 09 2002 15:58 Dec 15, 2010 Jkt 000000 PO 00000 Frm 00026 Fmt 6633 Sfmt 6621 G:\DOCS\111TH\WP\111-58\56055.TXT HBUD PsN: DICK
23

tors in the United States representing over 70% of the employees in that industry. 

In August of 2004, these contractors, along with OSHA, the International Brotherhood of Electrical Workers (IBEW), the National Electrical Contractors Association 

(NECA) and the Edison Electric Institute (EEI) created the ET&D Strategic Partnership whose principal purpose was to change the safety culture of their industry 

in order to reduce injuries and fatalities involving industry workers. 

In the six years since the ET&D Partnership was created, there have been dramatic reductions in injuries and fatalities with fatality rates of the Partners being 

reduced by almost 80% and the Lost Workday Injury Rates of Partners reduced to 

a remarkable .89 (less than one injury per 100 workers) in an industry which has 

long been regarded by OSHA as a ‘‘high hazard industry.’’ In our view, the ET&D 

Partnership represents a prototype 21st century model for effective management of 

workplace safety and health which places the greatest emphasis on the prevention 

of injuries and fatalities rather than focusing only on OSHA violations. In my view 

and based on my experience during my 36 years of legal practice, the vast majority 

of employers do take safety seriously and many employers have made extraordinary 

efforts to bring about positive changes in their industries as evidenced by the ET&D 

Partnership. 

Comments on the Protecting America’s Workers Act victim’s rights provisions 

At the outset, let me be clear that the brief comments I am offering this morning 

are not intended to focus on the broad issues set forth in the PAWA discussion 

draft, but are limited to the issue of Victim’s Rights as set forth in draft Section 

306. As you may be aware, on March 16, 2010, my Partner, Jonathan Snare, testified with respect to the broad scope of PAWA and its subparts and I do not intend 

to reiterate the points that he made at that time. Rather, I have been asked today 

to speak to the issue of what rights should be accorded to a victim or the representative of a victim, either in matters before OSHA or in contested matters pending 

before the Commission. 

While we have some questions, we understand the discussion draft as saying that 

an employee who has sustained a work-related injury, or a family member on behalf 

of that employee (because the employee dies on the job or is physically incapacitated 

and unable to exercise his or her rights under this Section), would be able to meet 

with the Secretary regarding the inspection or investigation prior to the time that 

the Secretary has made a decision to issue a citation or to take no action. Thereafter, the victim or his/her representative is entitled to receive copies of any citation 

or reports issued as a result of the inspection or investigation, to be informed of any 

Notice of Contest or addition of parties to the proceedings and finally to be provided 

notification of the date and time of any proceedings, service of pleadings or other 

relevant documents, as well as to be informed of his/her rights in a proceeding 

under Section 10(c). 

With respect to matters pending before the Commission, it is our understanding 

that the victim or representative of the victim will, in addition to being notified of 

the time and dates of any proceedings before the Commission, receive pleadings and 

any decisions related to the proceedings and will be provided an opportunity to appear and make a statement in accordance with the rules prescribed by the Commission. In addition to the above, Section (c) ‘‘Modification of Citation’’ provides that, 

before entering into any agreement to withdraw or modify a citation, the Secretary 

must notify the victim or the victim’s representative and provide such person the 

opportunity to appear and make a statement before the parties conducting settlement negotiations. 

The provisions of Section 306 basically codify provisions of OSHA’s Field Operations Manual (‘‘FOM’’) which provides in Chapter 11-12(G) that OSHA must contact the family members of employees who have been involved in fatal or catastrophic occupational accidents or illnesses and provide them with information regarding OSHA’s activities with respect to any inspection and citation which may result from the fatal or catastrophic occupational accident or illness. Indeed, Chapter 

11-12(G)(4) of the FOM provides that contact persons on behalf of the family should 

be kept up-to-date on the status of the investigation and OSHA will provide family 

members or their representatives with a copy of all citations, subsequent settlement 

agreements or Commission decisions that are issued as a result of the investigations 

and citations. In compliance with the Freedom of Information Act (‘‘FOIA’’), case 

files and other confidential investigative information assembled by OSHA as part 

of its investigation and citation are not made available to the family or their representatives until after the litigation has been completed. 

As evidenced by the FOM provisions, OSHA has for many years provided to victims or the families of victims’ information that is very similar to that which is provided for in Section 306. However, as set forth in the FOM, the procedures for notiVerDate 0ct 09 2002 15:58 Dec 15, 2010 Jkt 000000 PO 00000 Frm 00027 Fmt 6633 Sfmt 6621 G:\DOCS\111TH\WP\111-58\56055.TXT HBUD PsN: DICK
24

fying family members with respect to the status of investigations have never required face-to-face meetings with OSHA to discuss possible citations or settlements 

or opportunities to appear and make statements to the parties prior to any settlement of the citations. Nor have the Commission’s rules included the rights of victims to appear at proceedings before the Commission. To that end, we fully concur 

with the comments of Assistant Secretary of Labor for OSHA, Dr. David Michaels, 

at this Subcommittee’s March 16, 2010 hearing on PAWA, that further clarification 

needs to be made because provisions for face-to-face meetings and the making of 

public statements could present logistical challenges which could delay resolution of 

the citations and, in Dr. Michaels’ words, ‘‘hurt the victim in the long run.’’ (Michaels Statement at p. 14) 

Another issue which needs further clarification is what is intended by the use of 

the term ‘‘representative of the victim.’’ (Section 306, of the discussion draft adding 

Section 9A(a) to the OSH Act.) The term ‘‘victim’’ is defined in Section 9A(f) to include a ‘‘family member’’ ‘‘if’’ (and thus only if) the victim is deceased or incapacitated and thus cannot appear. The term ‘‘representative’’ is not defined and could 

be read to include yet another person in the proceedings. Because the structure of 

Section 9A(f) provides that a representative in the form of a family member may 

only appear when the victim is deceased or incapacitated, the term ‘‘representative 

of the victim’’ should be clarified to include only family members. Any broader reading of the term ‘‘representative’’ would fundamentally change the impact of the provision. 

For example, a ‘‘representative of the victim’’ could be interpreted to include a private attorney who is involved in third-party litigation related to the matter. The involvement of an attorney could create the potential for further delays as envisioned 

by Dr. Michaels in his March 16, 2010 testimony (Michaels Statement at p. 14) and 

exacerbate the settlement process. Further, involving a private attorney in settlement meetings at any level could have a ‘‘chilling effect’’ on those settlement meetings by discouraging the parties from engaging in the candid discussions which are 

necessary in order to accomplish the settlement of OSHA cases. Because OSHA is 

committed in the first instance to enforcing OSHA laws and standards on behalf of 

employees, it stands to reason that OSHA must have the prosecutorial discretion 

with respect to its investigation to determine what actions it needs to take to enforce OSHA standards, consistent with its resources and priorities, without interference and/or delays related to meetings with outside parties. (Michaels Statement 

at p. 14) In our view, providing information directly to victims or the victims’ families is fully consistent with past practice as set forth in the FOM and has been proven to be a manageable and non-disruptive method for involving victims or victims’ 

families in the OSHA enforcement process. 

This discussion of representation at settlement meetings raises another issue in 

the draft version of PAWA requiring clarification. In my many years of experience 

I have found that settlements, particularly in the types of complex cases that arise 

following a fatality, require several meetings to reach settlement. Often the first 

meeting is an Informal Conference with OSHA. Thereafter, for any contested case 

before the Commission with penalties over $100,000, such case is assigned to Mandatory Settlement Proceedings including a meeting with an assigned Settlement 

Judge. Section 9A(c) of the discussion draft provides in the singular that a victim 

may make ‘‘a statement.’’ However, the discussion draft version of PAWA does not 

address when that statement will be made except that the opportunity must be provided prior to entering into an actual agreement. Thus that version of PAWA is unclear on whether the victim must be provided an opportunity to appear at a particular proceeding or, when there are multiple meetings, whether the victim must 

be provided the opportunity to appear at multiple proceedings. Consistent with the 

structure of the discussion draft version of PAWA, the opportunity to appear at a 

single meeting to make a statement would be consistent with the goals of the legislation and would not be disruptive. On the other hand, requiring that victims, or 

their representatives, be included in all settlement proceedings would create scheduling difficulties and likely delay proceedings. 

By these comments we do not mean to diminish in any way the tragedy of employee injuries and fatalities which have occurred, particularly those in recent 

weeks. Our thoughts and prayers are with the victims and their families. We are 

fully supportive of the right of victims or their families to be kept fully informed 

as to OSHA’s inspections, citations and subsequent enforcement actions with respect 

to any accident or other catastrophe that may have caused serious injuries or death 

to these employees. However, we are also mindful of the need for OSHA to have 

the ability to make reasoned and independent prosecutorial decisions with respect 

to the nature and manner of their investigations and whether, and to what extent, 

citations should be issued with respect to these investigations. Similarly, decisions 

25

related to settlements or litigation of matters must continue to be within the exclusive province of those entities which are statutorily mandated to enforce the Occupational Safety and Health Act and to act as the ‘‘representative’’ of the employee in 

terms of assuring that employees are provided with a safe and healthy workplace. 

Conclusion 

Accordingly, for all of the reasons I have outlined above, I believe further clarification of the rights, duties and responsibilities of the entities covered under discussion 

draft Section 306, which purports to address Victim’s Rights, is necessary to truly 

advance the interests of safety and health in the workplace. Indeed, as I previously 

mentioned, we all agree that employees who are injured on the job and families who 

have lost a loved one due to workplace accidents should be an important part of this 

process, and we all deeply sympathize with all such employees and their families. 

In fact the most important goal of any OSHA legislation that this Subcommittee 

considers, including the Section 306 that we have discussed here today, is whether 

it will result in the prevention of workplace injuries and fatalities. Preventing injuries and fatalities would reduce the number of injured employees, as well as families 

of employees who lost their lives, who need to rely upon the victim’s rights provisions in Section 306 of PAWA. This should be our ultimate objective. 

Thank you for providing this opportunity for me to discuss these important issues 

with you today, and I would be happy to answer any questions that you may have. 

Chairwoman WOOLSEY. Thank you very much. 

Dr. Monforton. 

STATEMENT OF CELESTE MONFORTON, ASSISTANT RESEARCH PROFESSOR, DEPARTMENT OF ENVIRONMENTAL 

AND OCCUPATIONAL HEALTH, THE GEORGE WASHINGTON 

UNIVERSITY 

Ms. MONFORTON. Chairwoman Woolsey and members of the subcommittee, I am Celeste Monforton, an assistant research professor 

at the George Washington University School of Public Health. I appreciate the opportunity to be here today and ask that my written 

statement be made part of the hearing record. 

One of the most rewarding and enlightening experiences of my 

public health career was my involvement in 2006 in the Sago Mine 

disaster investigation, and some of those family members are here 

today. I came to understand and appreciate that family member 

victims can make a meaningful contribution to the accident investigation process. 

I heard then and I still hear today that family members will impede the investigation, that family members have a conflict of interest, or that family members are just too emotional to be useful 

in fact finding. My experience tells me that nothing is further from 

the truth. 

With Sago, no one paid closer attention to the details, pressed 

the investigators harder for answers, and raised the bar higher for 

mine safety reforms. I relish the opportunity in the question and 

answer period to respond to Mr. Morikawa’s comments about having attorneys representing family members. 

It is my experience, working with the Sago families and other 

family member victims that inform my views today. OSHA does 

have a long-standing policy related to victims’ families. From my 

experience, however, the objective of that policy is vague, leading 

to vastly different experiences among family members, depending 

on the OSHA area office or the State plan. 

A condolence letter sent to the wife of Ray Gonzalez, for example, 

was mailed to her in September, 2004, after he suffered burns at 

26

the BP Texas City facility. Mr. Gonzales, however did not die until 

November, 2004. 

In addition, in the second and third paragraphs of the letter, it 

does not mention her husband but a different deceased worker. 

Gross and insensitive errors such as this do not give families much 

confidence in the quality of OSHA’s accident investigations. 

In my testimony, I describe the experience of Maureen Ravetta, 

whose husband was killed in September, 2009. No widow should 

feel incompetent for not understanding or comprehending OSHA’s 

procedures. It should be OSHA’s duty to make sure that family 

members understand their procedures, taking into account how 

shock and grief can affect one’s ability to process information. 

I also heard at last month’s hearing the witness representing the 

Chamber of Commerce asserting that involving family members 

does not appear to add much value other than to sensationalize. 

That comment is terribly uninformed, particularly with the reality 

of what families can offer to investigators. Speak to any of the family members present here today. They will impress you with their 

knowledge of the factors that contributed or caused their loved 

one’s death and their suggestions for ways a worker injury and illness prevention system can be improved. 

PAWA could go further and build on provisions for a family liaison, as contained in the Miner Act of 2006. Family liaison requirements must be strengthened and elevated to statutory duties of the 

agency. Rights for family members and injured workers are too important to be contained in policy. 

I fully support PAWA’s provisions to reform the whistleblower 

protections in section 11(c) of the OSH Act. When I worked at 

OSHA in the early 1990s, it was apparent to me, a newcomer to 

the Labor Department, that the 11(c) program was a stepchild of 

the agency. The whistleblower witness here today, Mr. Neal 

Jorgensen, is an excellent example of why individuals should not 

be held captive because of Labor Department’s failures. 

Whether the problems at the DOL are resource constraints, lack 

of interest, litigation anxiety, or their client is a secretary, not the 

claimant, health and safety whistleblowers must be afforded a private right of action to pursue their case. 

At one time, I thought that the whistleblower protection functions delegated to OSHA could be at the heart of a health and safety protection system, but I no longer believe that to be the case. 

The subcommittee should consider a bolder reform to improve protection for whistleblowers. I applaud your efforts, Chairwoman 

Woolsey, and your leadership on this crucial issue; and I support 

your proposal from the 110th Congress to create a separate, independent agency to administer all Federal whistleblower statutes. 

Vigilant defense of workers who exercise their whistleblower 

rights, especially issues related to health and safety, is fundamental to an effective occupational injury and illness prevention 

system. I am pleased to answer your questions. 

[The statement of Ms. Monforton follows:]

27

Prepared Statement of Celeste Monforton, DrPH, MPH, Department of Environmental & Occupational Health, School of Public Health and Health 

Services, George Washington University 

CHAIRWOMAN WOOLSEY, RANKING MEMBER RANKING MEMBER MCMORRIS-RODGERS AND MEMBERS OF THE COMMITTEE: I am Celeste Monforton, an assistant research professor in the Department of Environmental and Occupational Health at 

the George Washington University School of Public Health & Health Services, and 

immediate past chair of the Occupational Health & Safety Section of the American 

Public Health Association. 

Today, people around the globe are marking Worker Memorial Day, the day set 

aside to remember workers killed, disabled, injured or made unwell by their work, 

and to act to improve protections for the world’s workers. In the U.S, if we compare 

our occupational fatality injury rate to those, for example, in Germany or Norway, 

their rates are 82% and 150% better than ours. [See Appendix A] We can do much 

better. Let’s honor the men, women and young workers whose lives were cut short 

or irreparably harmed by on-the-job conditions by making needed changes to our nation’s worker health and safety system. The Protecting America’s Workers Act (H.R. 

2067) is a step in the right direction. I appreciate the opportunity to appear before 

you today to discuss provisions of the bill, in particular those related to whistleblowers’ and victims’ rights. 

Section 306: Victims’ rights 

One of the most rewarding and enlightening experiences in my public health career was my involvement in the 2006 Sago mine disaster investigation. I came to 

understand and appreciate that family-member victims can make a meaningful contribution to the accident investigation process. There is no one more interested in 

finding the truth about the cause of an on-the-job death than a worker’s loved one. 

I heard then (and still hear today) that family members will impede the investigation, that family members have a conflict of interest, and that family members are 

too emotional to be useful in the fact-finding. My experience tells me that nothing 

is further from the truth. With Sago, no one paid closer attention to details, pressed 

the investigators harder for answers, or raised the bar higher for mine safety reforms than those daughters, wives and brothers. 

Putting oneself in the family members’ shoes, you realize that dozens of people 

(people you don’t know and have never met) are learning the circumstances that led 

to your loved one’s death, but you—his parent, his wife, his child—are left in the 

dark. As I talked with family members in the early days of the Sago investigation, 

as these interviews were first taking place, I realized that we needed to balance the 

families’ right to know with the needs and the legal responsibilities of technical investigators. Although not ideal for the families because they were forced to wait 

until all interviews were completed, we gave each family a complete set of the transcripts. Despite the unease and anxiety expressed by some, including the historically based assertion that such disclosures would impede the investigation, no calamity ensued. In fact, some of the family members devoted long days and nights 

to studying the transcripts and were able to alert us to inconsistencies in witnesses’ 

testimony and identify topics deserving closer scrutiny. 

It is my experiences working with the Sago miners’ families and since that time 

providing advice and encouragement to other family-member victims that inform my 

views. 

At the subcommittee’s hearing on March 16, 2010, OSHA assistant secretary 

David Michaels indicated that OSHA: 

‘‘* * * for the past 15 years has informed victims and their families about our 

citation procedures and about settlements, and talked to families during the investigation process.’’ 1

It’s true that OSHA has a policy about sending a condolence letter and giving 

family members an opportunity to discuss the circumstances of their loved one’s 

work-related death.2 From my experience, however, the objective of that policy is 

vague, leading to vastly different experiences among family members depending on 

the OSHA area office or State Plan. Some of policy’s failures are illustrated by the 

errors contained in the condolence letters sent by OSHA. For example, a letter sent 

to the wife of Ray C. Gonzalez, 54, by the OSHA area office expressing sympathy 

for her loss was sent to her in September 2004 shortly after he suffered severe 

burns at the BP Texas City facility. Mr. Gonzalez did not die, however, until November 12, 2004. In addition, the letter mentioned her husband, Ray Gonzalez, in 

the first paragraph, but in the second and third paragraphs, it listed Mr. Maurice 

Moore, Jr., another worker who was fatally injured in the deadly incident. Gross 

28

and insensitive errors such as this do not give families much confidence in the quality of OSHA’s work, let alone its accident investigation. 

Other failures involve the appropriateness or usefulness of the information provided to a family. For example, Ms. Maureen Ravetta’s husband Nicholas, 32, was 

killed on September 3, 2009 in an explosion at a U.S. Steel plant in Clairton, PA. 

Maureen recalls receiving a condolence letter from OSHA and knew that they were 

investigating the circumstances surrounding his death. In mid-March, she had been 

corresponding on the social networking site Facebook with other family members 

and wanted advice on how to find out the status of OSHA’s investigation. Before 

contacting her, I did a little research and discovered that OSHA finished their investigation and closed the case on February 2nd (exactly six months after their investigation began.) 

Tammy Miser of United Support and Memorial for Workplace Fatalities 

(USMWF) and I immediately called Maureen Ravetta to tell her what I’d learned 

about her husband’s case. She was shocked to learn the case was closed and hurt 

that she didn’t know it. She said something like: 

‘‘I feel like a fool. I’ve been sitting around waiting for OSHA to call or let me 

know, and now I find out they closed the case 5 weeks ago.’’

I dreaded hearing, but anticipated her next question: ‘‘What did OSHA find?’’

Regretfully, I explained that information I found on OSHA’s website indicated 

that U.S. Steel was not cited for any violations related to her husband’s death and 

no monetary penalties were assessed. I tried to explain both OSHA’s investigation 

process and their focus on identifying violations of specific safety standards. I could 

tell that none of that was making any sense to her; she was numb from the news. 

I asked if she had received a letter from OSHA following her husband’s death and 

if it explained the agency’s procedures. She recalled the letter, but said it didn’t 

mention anything about a six-month deadline for issuing citations. Ms. Ravetta said: 

‘‘Had I known about the six-month deadline, I would have picked up the phone 

on that exact date and called OSHA to hear what they found. Instead, I’ve been 

waiting for them to contact me.’’

She repeated again, ‘‘I feel like a fool.’’

No widow should feel incompetent for not comprehending OSHA’s procedures. It 

should be OSHA’s duty to make sure that family members understand their procedures, taking into account how shock and grief can affect our ability to process information. For some individuals, a simple letter may suffice, but for others, perhaps 

most, OSHA may need to follow up with a phone call, or to check in from time to 

time during the investigation and contest period to see if the family has questions 

or concerns. I hear about the luncheons and speeches that OSHA officials attend 

across the country throughout the year to keep trade associations and business 

groups apprized of OSHA activities. Surely, frequent and open communication with 

victims’ families should take a higher priority. 

At the subcommittee’s hearing last month, the witness representing the U.S 

Chamber of Commerce asserted that involving family members ‘‘does not appear to 

be much value * * * other than to sensationalize presumably already emotional and 

sensitive matters.’’ That comment is terribly uninformed, particularly to the reality 

of what family members can offer to investigators. I would invite Members of this 

Subcommittee to speak to any of the family members present here today. They will 

impress you with their knowledge of factors that contributed to or caused their loved 

ones’ deaths, and their suggestions for ways our worker injury and illness system 

can be improved. 

I’ve reviewed the victims’ rights provisions of the discussion draft of H.R. 2067. 

It will offer family members the following opportunities to be involved in the investigation process: 

1. Meet with the Secretary’s representative (e.g., OSHA official) before a decision 

is made to issue a citation or take no action. This is particularly important for those 

family members who may have information or physical evidence that may be germane to OSHA’s investigation. 

2. Receive any citations or other documents at the same time as the employer receives them. This should eliminate the situation experienced by numerous victims’ 

families who learn through a news report that their loved one’s employer received 

a citation and penalty (or none at all), rather than being informed directly by 

OSHA. 

3. Be granted the opportunity to appear and make a statement before OSHA and 

the employer during informal and formal settlement negotiations. This will shine a 

light on the process, allowing victim’s families the chance to observe how OSHA, 

DOL Solicitor’s Office lawyers and company attorneys bargain over classification of 

violations and penalty amounts. 

29

4. Be afforded the right to appear and make a victim’s impact statement before 

the Occupational Safety and Health Review Commission (OSHRC) in those instances when a case proceeds to it for adjudication. 

At the subcommittee’s hearing on March 16, 2010, the OSHA assistant secretary’s 

testimony noted that the provision requiring OSHA to meet with family members 

before a citation is issued or to appear before parties in settlement negotiations 

‘‘could be logistically difficult for victims and OSHA’s regional and area offices.’’ 

Under the current statute, OSHA has six months to conduct inspections, including 

fatality investigations. I find it hard to believe that during this six-month period, 

OSHA field staff would not be able to coordinate a time to meet or speak on the 

phone with the victim’s family. In fact, some OSHA area offices already do this, and 

the affected families sincerely appreciate it.3

It’s true that OSHA is under certain time constraints. There is a 15 working day 

time period in which the employer and OSHA may negotiate an informal settlement 

in lieu of a formal contest before the OSHRC. We know that many cases are handled through this informal conference process, with OSHA and the employer motivated to have the hazards abated and resolve the citations and penalties. This motivation compels the parties to identify a date and time to meet during this threeweek window, whether in person or by phone. 

It’s only fair that family members who’ve lost so much because of workplace hazards have a chance to witness negotiations to reduce penalties and/or the severity 

classification of violations. PAWA would give the victim’s family the right to be notified about these meetings and be given an opportunity to attend and make a statement during them. 

Just as many employers will juggle their schedules in order to meet with OSHA 

during this pre-contest period, I believe family members would do the same. Ms. 

Deb Koehler-Fergen, whose son Travis was asphyxiated in a confined space incident 

in February 2007, told me: 

‘‘I would have done anything to be at a meeting between NV-OSHA and Boyd 

Gaming when they discussed Travis’ case. If my boss told me I couldn’t have the 

day off of work, I would have quit my job to be at that meeting.’’

I do not believe that the rights extended to family members under PAWA would 

be as ‘‘logistically difficult’’ as OSHA officials claim.1

Furthermore, OSHA may find that participating family members turn out to be 

their best allies for securing health and safety improvements. Family members may 

endorse the terms of the informal settlement if they believe that the employer’s proposed corrective actions will substantially improve safety for their loved one’s coworkers. In fact, the mantra I hear from family members more often than any other 

is this: 

‘‘We don’t want this to happen to any other family; we don’t want them to go 

through what we’ve been through.’’

I believe that involving family members in finding solutions to workplace hazards 

has the potential to substantially advance occupational injury and illness prevention 

in the U.S. 

I support PAWA’s provisions to provide family members copies of citations or reports at no costs. I would go further and recommend that family members be given 

access to all documents gathered and produced as part of the accident investigation, 

including records prepared by first responders and state and federal officials. In addition, all fees related to the production of documents should be waived for family 

members. The release of this information should be prompt, and no later than the 

day that any citations are issued to the employer. Exceptions should be permitted 

when bona fide evidence demonstrates that a criminal investigation could be hampered by such release. 

PAWA could go further and build on the provision for a family liaison contained 

in the MINER Act of 2006.4 Congress should consider directing the Secretary to appoint a Department of Labor official to serve as a family liaison in cases of worker 

fatalities or serious injuries. Some OSHA area offices already make sincere efforts 

to provide information and timely updates to family members, but the agency’s and 

the State Plan States’ performance in this regard is inconsistent and needs to be 

improved. Family liaison requirements must be strengthened and must be elevated 

to statutory duties of the agencies. Rights for family member and injured worker 

are too important to be contained only in policy. 

Title II: Whistleblower protections 

I fully support PAWA’s provisions to reform and improve the whistleblower protections in Section 11(c) of the OSH Act. I applaud Chairwoman Woolsey for her 

leadership on whistleblower protection legislation, and for this Subcommittee’s focus 

on this critically important topic. 

30

I agree that whistleblowing is a vital safeguard for our democracy and ensuring 

justice, and that individuals who stand up for what is right often suffer devastating 

personal consequences.5 As we read the recent newspaper accounts of deaths and 

injuries in U.S. workplaces, and we hear President Obama emphasize that workers 

need to be empowered to report safety problems,6 it’s vital that we have the laws 

in place to protect whistleblowers. 

When I worked at OSHA in the early 1990’s, it was apparent to me, a newcomer 

to the Labor Department, that the 11(c) program was a step-step child of the agency. At that time, OSHA only had a few statutes to administer; now it’s responsible 

for 17 whistleblower laws. Still, about 60% of all the complaints filed are related 

specifically to workers exercising their health and safety rights, rights allegedly protected under Section 11(c) of the OSH Act. Defending workers in these situations 

is essential to OSHA’s core mission, yet this program continues to be treated worse 

than a second-class citizen. My characterization is based on investigations conducted 

by the Government Accountability Office (GAO), Congressional teams, independent 

researchers and individuals who have attempted to use the system on behalf of aggrieved workers. 

PAWA’s whistleblower provisions will substantially improve the protections and 

procedures for workers who raise concerns about safety and health problems. They 

will revise the law to make it comparable to other more modern whistleblower statutes. Most importantly, it will allow workers to pursue their discrimination case 

independently, if the Solicitor of Labor (acting on behalf of the Secretary) declines 

to take the case or fails to act in a timely manner. This private right of action is 

already granted to workers employed in the nation’s mining industry,7 and simple 

fairness warrants its extension to workers covered by the OSH Act. The whistleblower witness here today, Mr. Neal Jorgensen, is an excellent example of why individuals should not be held captive because of the Labor Department’s failures. 

Whether the problems at the Labor Department are resource constraints, lack of interest, litigation anxiety or that their client is the Secretary, not the claimant, 

health and safety whistleblowers must be afforded a private right of action to pursue their case. PAWA would do just that, and this improvement is sorely needed. 

The Subcommittee should consider a bolder reform to improve protections for 

whistleblowers. I support Chairwoman Woolsey’s proposal from the 110th Congress, 

the Private Sector Whistleblower Protection Streamlining Act (H.R. 4047) to create 

a separate independent agency or bureau to administer all federal whistleblower 

statutes. From my 20 years of observing the administration of the whistleblower 

program at OSHA, it is subordinate to the agency’s core mission, thus individuals 

with valid whistleblower complaints are relegated to a system without independent 

leadership and commitment. The small staff of investigators and program managers 

is responsible for 17 different statutes,8 [and will soon (if not already) be adding the 

whistleblower provisions contained in ‘‘The Patient Protection and Affordable Care 

Act’’ 9] yet it is constrained within a deep administrative hierarchy and a system riddled with ‘‘inadequate internal controls.’’ 8

At one time, I thought that the whistleblower protection functions delegated to 

OSHA could be at the heart of our worker health and safety protection system, but 

I no longer believe that is possible. Vigilant defense of workers who exercise their 

whistleblower rights—especially on issues related to health and safety——is fundamental to an effective enforcement system. As Jason Zuckerman of the Employment 

Law Project warned that failing to aggressively investigate and pursue allegations 

of discrimination will embolden these lawbreaking employers.10 I believe Congress 

should consider creating an independent bureau or agency to administer all the federal whistleblower statutes. With dedicated leadership, specialized investigators and 

skilled attorneys it could operate efficiently by focusing exclusively on the investigation and defense of valid whistleblower complaints. 

Investigations of worker fatalities and serious injuries 

PAWA would direct OSHA to investigate worker fatalities and serious injury 

events, and require employers to notify OSHA promptly of these incidents. This is 

a needed improvement to the OSH Act; however, I recommend an important modification. Under the MINER Act of 2006, the law was changed to require miner operators to notify MSHA within 15 minutes of the time that the employer realizes that 

the death of an individual has occurred, or an injury or entrapment has occurred 

which has a reasonable potential to cause death.’’ 11 Under OSHA’s current regulations, employers are given 8 hours to report such events, potentially delaying the 

commencement of their investigation by a day or more. Worker deaths and lifethreatening injuries would receive the public attention can spur much-needed regulatory reforms, if immediate notification were required of all employers, not just 

those in the mining industry. 

31

Injury and illness prevention requires abatement of hazards 

Under the OSH Act, employers are not required to correct a hazardous condition(s) until the citation(s) assessed by an OSHA inspector become(s) a final order 

of the OSHRC.12 PAWA would change this situation and require abatement of hazards—hazards that can kill or injure workers—while the employer contests them. 

If a person gets pulled over for violating a traffic law, such as driving without a 

license, that person isn’t allowed to get right behind the wheel and proceed to break 

the law just because s/he plans to challenge the ticket. Likewise, if a health inspector finds evidence of live rodents and roaches, or cross-contamination of raw and 

prepared meats, the restaurant owner has to fix the problem immediately if it wants 

to open its doors for business. The same should hold true when OSHA inspectors 

identify violations of health and safety standards. 

OSHA inspectors should have comparable authority to that extended to their 

counterparts at the Mine Safety and Health Administration (MSHA). Under the 

Mine Act, when a federal mine inspector identifies a violation of an MSHA standard 

or regulation, mining companies are required to begin fixing the problem immediately. Employers in the mining industry have the right to challenge citations and 

penalties before the Mine Safety and Health Review Commission (MSHRC), but an 

employer’s decision to litigate an inspector’s finding and/or the proposed penalty 

does not give that employer permission to let workplace hazards persist. OSHA 

needs comparable authority, and PAWA would provide it. I strongly support this 

provision of PAWA. 

Currently, an employer cited by OSHA has the right to contest four aspects of the 

citation: (1) the classification of the violation (e.g., serious, willful); (2) the OSHA 

rule, standard or statutory clause affixed to the violation; (3) the abatement date; 

and/or (4) the proposed penalty. Briefly, when an employer receives an OSHA citation and penalty, s/he has 15 working days to (1) accept the citation, abate the hazards and pay the penalties; (2) schedule an informal conference with the local OSHA 

area director to negotiate an informal settlement agreement; or (3) formally contest 

the citation and/or penalty before the OSHRC. 

Instead of formally contesting one of these aspects, an employer may request to 

meet with the director of the local OSHA office for an informal conference before 

the 15-day period to file a notice of contest expires. The majority of employers who 

receive OSHA citations participate in informal conferences, and the majority of 

OSHA inspection cases are resolved this way. The adverse consequence, however, 

is that OSHA’s managers in its local offices across the country often have to choose 

between levying a tough penalty or getting a hazard corrected quickly. 

OSHA’s area directors have the authority to reclassify violations (e.g., downgrade 

from willful to serious, serious to other-than serious); withdraw or modify a citation, 

an item on a citation or a penalty; and negotiate the proposed penalty. If both parties agree to the negotiated terms, the employer must then abate the hazard in the 

agreed-upon time period; if no agreement is reached, the employer will likely choose 

to formally contest it through the OSHRC system and can refrain from correcting 

the safety problem in the meantime. 

When cases move through the OSHRC system, the administrative law judges and 

Commissioners typically reduce the penalty amount proposed by OSHA. (OSHA proposes a penalty amount, but the OSHRC determines the final penalty.) In practical 

terms, when a citation is contested, years can pass before an employer can be compelled to abate the workplace safety or health problem. Even if the employer doesn’t 

succeed in its OSHRC appeal, they have bought substantial time (and saved money) 

by not correcting the hazard during the appeal process. Furthermore, by holding in 

abeyance the correction of hazardous conditions, these employers have gained an 

economic advantage over their competitors: employers who do obey OSHA standards 

and regulations. 

OSHA’s area directors offer penalty reductions and reclassifications of citations 

(e.g., from serious to other-than-serious) in order to compel prompt correction of the 

hazard. From a local OSHA manager’s perspective, s/he would rather get the dangerous situation rectified so that workers at the site are protected from potential 

harm, rather than risk a chance that the employer will contest the citation and penalty. 

OSHA’s inspectors and local managers are truly in a difficult position because the 

citations and penalties are linked to hazard abatement. The principle of prevention 

must be enshrined in our workplace OHS regulatory system. This means providing 

OSHA the authority to compel immediate abatement of hazards that are known to 

contribute to serious injury, illness or death. We can’t make advances in preventing 

harm to workers when our system forces local OSHA staff to bargain with employers for worker protections that they are already required to implement. The informal settlement process should not only expedite abatement of the hazard, but also 

32

give OSHA leverage to require employers to implement measures that go above and 

beyond what is required by OSHA. 

Further, PAWA discussion draft, provides employers with a right to seek an expedited review of abatement if they believe it is unwarranted. This due process protection will ensure that employers are not forced to make investments where they can 

argue it is unnecessary. This is intended to prevent a backlog of cases before the 

OSHRC and avert the situation now experienced by the Mine Safety and Health Review Commission. 

Civil and criminal penalties 

Ultimately, our nation’s health and economy would be served best by an occupational health and safety regulatory system that prevents work-related injuries and 

illnesses. In a regulatory system like OSHA’s, penalties must be severe enough to 

compel violators to change their behavior, and to deter lawbreaking by those who 

might be tempted to flout safety and health regulations in an effort to increase production or cut costs. 

Our occupational health and safety (OHS) regulatory system should require the 

equivalent of ‘‘points on their permanent record.’’ Employers who flagrantly, willfully or repeatedly violate laws designed to protect workers from injuries and illnesses should see their finances and reputations suffer. Our system should take advantage of the times when such employers are caught, and capitalize on these grievous situations for their value as a deterrent for companies nationwide. It may not 

deter other bad actors, but it will catch the attention of those who might be tempted 

to cut a few corners when under pressure. 

I believe the majority of employers respect worker health and safety laws and intend to comply with them. At times, however, competing forces color their judgment, 

and they break a rule because the likelihood of causing harm is low, as is the risk 

of getting caught. Responsible employers know that workplace OHS standards are 

based on lessons learned and have a public health and safety purpose. But, from 

time to time, when certain competing forces weigh on them, they make a calculation. They weigh the risk of suffering harm or causing harm to another and the likelihood of getting caught breaking the law. 

The deterrent effect of OSHA’s penalty system could be amplified to outweigh the 

influence of competing forces. This is particularly relevant today; the U.S. needs an 

effective system to prevent occupational injuries and illnesses, but OSHA’s responsibilities are grossly mismatched with its budget and resources. I strongly support 

PAWA’s provisions to increase OSHA penalties and ensure they are adjusted regularly for inflation. I also endorse the proposed criminal provisions, especially the 

classification from misdemeanor to felony, and the extension to include serious bodily injuries, not just worker fatalities. OSHA’s penalty calculation should also include a specific factor that assesses the economic benefits reaped by an employer 

for violating health and safety regulations, which will level the economic playing 

field for firms that invest in progressive, effective OHS labor-management systems. 

The OSH Act places a duty on employers to provide safe and healthy workplaces,13 but it imposes no obligation on them to address hazards on a companywide basis. Congress should mandate such a duty on large companies. When a serious hazard has been identified by OSHA at one facility, the firm should be required 

to conduct an audit to determine whether the same hazard exists at other facilities. 

If comparable hazards or violations are found at another site, citations for those violations should be classified using the new category of ‘‘reckless disregard.’’ The corresponding civil penalty should be hefty (e.g., $220,000 as provided in the MINER 

Act of 2006).14

I appreciate the opportunity to appear before you today, and would be pleased to 

answer any questions you may have.

APPENDIX A

COMPARISON OF FATAL INJURY RATES FOR SELECTED NATIONS (2005–2007)*

2005 2006 2007

Canada ................................................................................................................................ 6.8 5.9 6.3

France ................................................................................................................................. 2.7 3.0 3.4

Germany .............................................................................................................................. 2.4 2.5 2.2

Norway ................................................................................................................................. 2.1 1.3 1.6

Russian Federation ............................................................................................................. 12.4 11.9 12.4

Sweden ................................................................................................................................ 1.6 1.6 1.7

United States ...................................................................................................................... 4.01 4.01 4.01

*Per 10,000 workers. 

33

Source: International Labour Organization (ILO), LABORSTA. 

ENDNOTES

1 Assistant Secretary of Labor David Michaels. Written testimony before the Workforce Protections Subcommittee of the House Education and Labor Committee, March 16, 2010. 2OSHA. Field Operations Manual, CPL 02-00-148, page 11-12. 

3For example, Mrs. Diane Lillicrap, whose son Steven, 21 was killed on a construction site 

while disassembling a crane, was invited by the OSHA area director in St. Louis to meet with 

his entire staff. She was able to talk about her son, and share information that was potentially 

valuable to the front-line investigators. I understand the meeting was a valuable experience for 

all; sometimes we need very personal reminders of why we chose a career in public service. Her 

meeting with the OSHA St. Louis office took place a number of weeks before OSHA issued citations to the employer. It did not delay the investigation. 4Section 7 of the Mine Improvement and New Emergency Response Act of 2006. Public Law 

109-236. 5 Christy Carpenter, Introductory Remarks, ‘‘Anyone Can Whistle: The Essential Role of the 

Whistleblower in American Society,’’ sponsored by the Government Accountability Project and 

the Paley Center for Media, February 17, 2010. 6 Remarks by the President on Mine Safety, White House Rose Garden, April 15, 2010. 

7Section 105(c) of the Federal Mine Safety & Health Act of 1977. Public Law 95-164. 

8See GAO report ‘‘ Whistleblower Protection Program: Better Data and Improved Oversight 

Would Help Ensure Program Quality and Consistency,’’ GAO-09-106; January 2009. http://

www.gao.gov/new.items/d09106.pdf 9Public Law 111-148. 

10Zuckerman JM. Submission to OSHA Docket 2010-0004, ‘‘OSHA Listens,’’ February 28, 

2010. 11Section 5 of the Mine Improvement and New Emergency Response Act of 2006. Public Law 

109-236. 12Section 10(b) of OSH Act. 13Section 5(a) of OSH Act. 14 Under the Miner Act of 2006, Congress created a new violation category called ‘‘flagrant’’ 

representing ‘‘reckless or repeated failure to make reasonable efforts to eliminate a known violation of a mandatory health or safety standard that substantially and proximately caused, or reasonably could have been expected to cause, death or serious bodily injury.’’ A civil penalty of 

up to $220,000 can be assessed. Since the law was passed, MSHA has used the ‘‘flagrant’’ classification 92 times with assessed penalties totaling $14,552,400. 

Chairwoman WOOLSEY. You get the prize. You didn’t even go all 

the way for 5 minutes, but we will get you later. 

Mr. Jorgensen. 

STATEMENT OF NEAL JORGENSEN, WHISTLEBLOWER AND 

FORMER EMPLOYEE, PLASTIC INDUSTRIES 

Mr. JORGENSEN. Thank you for inviting me here today. My name 

is Neal Jorgensen. I live in Preston, Idaho. I became a whistleblower after being fired by Plastic Industries for filing a complaint 

with OSHA about the company’s safety problems. 

Here are some things to think about while I am giving my testimony. If you are my friend and you had violations in your workplace and you came to me and asked my opinion, I would say, work 

safe, look for a new job. You work safe so you don’t get hurt and 

look for a new job because it will cost you your job and twice as 

much as it cost the employer. 

The company fired me 2 weeks after I filed the complaint because OSHA went to the company and conducted a safety inspection and found eight safety violations, including two serious, considered serious, by OSHA and one for not having machine guards 

on a band saw and one for not having proper shut-off controls on 

a bailing machine and a pressure washer. After the company fired 

me, I filed another complaint with OSHA known as a whistleblower 

complaint. Filing that complaint did not work well for me. I was 

not protected by OSHA law. 

The reason I am here to tell my story is that my employer got 

away with firing me without any consequences. Although OSHA inVerDate 0ct 09 2002 15:58 Dec 15, 2010 Jkt 000000 PO 00000 Frm 00037 Fmt 6633 Sfmt 6602 G:\DOCS\111TH\WP\111-58\56055.TXT HBUD PsN: DICK
34

vestigated the facts of my case, found it was sound, and tried to 

collect the wages I would have earned if I had not been fired, the 

government lawyers decided not to take my case to court. Under 

OSHA law, only the government can take these cases to court. 

That does not seem fair to me. 

It also does not seem fair that the only thing that the owner of 

the company, Rex Pitcher, was asked to pay was the fines for the 

violations OSHA found during this safety inspection; and those 

fines were later reduced, a lot. OSHA initially asked the company 

to pay $2,550, but it was later reduced to $1,500. 

OSHA recommended the government lawyers take my case to 

court, but they decided not to. The main reason they gave was it 

was a resource-intensive case and two judges in Idaho who would 

get these cases were not likely to decide in my favor. 

I was advised that lawyers sent a memo which says, we believe 

we have an approximate 25 percent chance of success. There are 

two U.S. District Court judges in Idaho, one of whom routinely is 

not well disposed towards government cases and the other who can 

go either way. 

It is sad to me that the company can treat an employee this way 

and get off scot-free. Isn’t the purpose of the whistleblower laws to 

protect workers who report unsafe conditions? 

I thought I did the right thing, but the system did not work for 

me. The OSHA law did not provide the protections I needed; and 

the only lesson the owner of the company learned is that he can 

treat his employees any way he likes, then lie about it and nothing 

will happen to him, nothing. 

Would I recommend that someone would file a whistleblower 

complaint? No way. Absolutely not. The way the law is written, not 

a chance. 

I have found in my life for something that will really make an 

impression it has to have teeth in it. When I was 5 years old, I followed some friends on my trike up to a pond to go frog hunting. 

My parents found me and my tricycle, and my tricycle got a ride 

home with mom. I got to ride a switch home in front of Dad all 

the way home. 

The next time I went to that pond, I was about 11 years old, and 

it was winter, no chance of drowning there. I think OSHA needs 

a ‘‘switch’’, something with some teeth in it. 

Thank you for letting me tell my story. I hope you are able to 

do something to improve the OSHA law that is supposed to protect 

workers. 

[The statement of Mr. Jorgensen follows:]

Prepared Statement of Neal Jorgensen, Whistleblower and Former 

Employee, Plastic Industries 

Thank you for inviting me here today. 

My name is Neal Jorgensen. I live in Preston, Idaho. I became a whistleblower 

in 2004 after being fired by Plastic Industries for filing a complaint with OSHA 

about the company’s safety problems. 

Here’s something to think about while I’m giving my testimony. If you were a 

friend and you had violations in your place of work and asked my opinion, I would 

say ‘‘work safe, so you don’t get hurt, and look for a new job, because it will cost 

you your job and twice as much as the employer is fined if you report the violations.’’

35

The company fired me two weeks after I filed the complaint because OSHA went 

to the company and conducted a safety inspection, and found eight safety violations—including two that were considered ‘‘serious’’ by OSHA: one for not having 

machine guards on a bandsaw, and one for not having the proper shut-off controls 

on a baling machine and a pressurized washer. OSHA originally fined the company 

$2,550 for these violations. After the company fired me, I filed another complaint 

with OSHA known as a ‘‘whistleblower’’ complaint. Filing that complaint did not 

work out well for me—I was not protected by the OSHA law. 

The reason I am here to tell my story today is that my employer got away with 

firing me without any consequences. Although OSHA investigated the facts of my 

case, found it was sound, and tried to collect the wages I would have earned if I 

had not been fired, the government lawyers decided not to go to court on my behalf 

to enforce the law. I found out that I could not have taken the company to court, 

even if I could have afforded it. The OSHA law does not allow individuals who file 

these types of whistleblower complaints to go to court—only the government can 

take these cases to court. That does not seem fair to me. 

It also does not seem fair that the only thing the owner of the company, Rex 

Pitcher, was asked to pay was the fines for the violations OSHA found during its 

safety inspection. And those fines were later reduced a lot. Although OSHA initially 

asked the company to pay $2,550, it was later reduced to $1,500. 

I filed my whistleblower complaint and an investigator from OSHA interviewed 

several people at the company to check out the facts. However, the owner, Rex 

Pitcher, lied to OSHA. First, he told OSHA I was fired because I was a temporary 

employee and had found another job. Then, he changed his story and said I was 

fired for poor performance. 

Luckily, the OSHA investigator was pretty good and said the company’s explanations for my firing were inconsistent and not believable. He also found there was 

no evidence to support the company’s claim that I was only given a job until I found 

work elsewhere. The only reason I got a second job was because I needed it to support my family. The owner knew I had gotten a second job and had no problem with 

it. 

The OSHA investigator found no evidence of any of my so-called performance 

problems in the company files. He also found out that, after I filed the whistleblower 

complaint, Rex Pitcher asked a shift foreman to write a letter to the company about 

my work. He did, but when the investigator showed the foreman the typewritten 

letter and asked him if he wrote it, the foreman said he sent a handwritten letter 

to the company and that the good things he said about my work were deleted. The 

foreman said the company must have removed the positive comments before typing 

it up and giving it to OSHA! Again, the owner of the company lied. 

In October 2004, OSHA completed its investigation and decided that my case was worth pursuing. OSHA tried to get the owner to pay me back wages of $2,912, but 

he refused. 

October 2004 was a pretty bad month for me. In addition to Rex Pitcher refusing 

to agree to pay the back wages I was owed, my wife left me and filed for divorce. 

I also found out that her lawyer was also representing my former employer in my 

whistleblower case! I told the OSHA investigator about this. He contacted the government lawyer and asked about this apparent conflict of interest. The lawyer said 

it wasn’t a problem because he was ‘‘against Neal either way.’’ At that point, I felt 

I could not win. 

In December 2004, OSHA sent the case to the Department of Labor’s lawyers and 

recommended that they take the company to court. Sadly, the lawyers decided not 

to pursue my case. They sent it back to OSHA to do more digging. After OSHA did 

this, the government lawyers decided not to go to court. 

The main reason they gave was that the two judges in Idaho who get these cases 

were not likely to decide in my favor. The lawyers stated—and I’m quoting here:

‘‘we believe we have an approximate 25% chance of success. There are two 

U.S. District Court judges in Idaho, one of whom is routinely not well disposed towards the government’s cases, and the other who can go either 

way.’’

I have attached a copy of their report to the written version of my testimony. 

It’s sad to me that the company could treat an employee this way and get off scot 

free. Isn’t the purpose of the whistleblower laws to protect workers who report unsafe conditions? 

I thought I did the right thing, but the system did not work for me. The OSHA 

law did not provide the protections I needed and the only lesson the owner of the 

company learned is that he can treat his employees any way he likes, and then lie 

about it, and nothing will happen to him. Nothing. 

36

Would I recommend that someone file a whistleblower complaint with OSHA? Absolutely not, the way the law is written. 

I have found to really make an impression on someone, there has to be some real 

consequences. Let me illustrate. 

When I was 4 or 5, I followed my neighbors to a pond to go frog hunting. My parents found out and found me on my tricycle just before I got to the pond. Mom took 

my trike home and Dad chased me home with a switch. The next time I even 

thought of going to that pond I was 11 and it was winter, so there was no chance 

of drowning. OSHA needs a ‘‘switch’’ to provide more help to workers to keep them 

safe. 

I have also worked for companies that have had dealings with the EPA, which 

seems to be able to deal with possible safety and health problems better than 

OSHA. For example, at the company where I work now, the manager found there 

was a floor drain under the extruder, so the water that flows into the drain could 

have been contaminated. Because the company had previously been fined by EPA 

for a similar situation, it decided to spend a lot of time and money to recycle the 

water back to the extruder so the drain could be closed, which eliminated the chance 

of violating EPA’s rules. The EPA has some teeth, unlike OSHA, which needs to be 

able to provide more help to workers to keep them safe. 

Thank you for letting me tell my story. I hope you are able to do something to 

improve the OSHA law that is supposed to protect workers. 

Chairwoman WOOLSEY. Thank you, Mr. Jorgensen. 

Mr. Chinn. 

STATEMENT OF LLOYD CHINN, PARTNER,

PROSKAUER ROSE LLP 

Mr. CHINN. Yes. Thank you. Good morning, Chairwoman Woolsey. 

Chairwoman WOOLSEY. I don’t believe you have your microphone 

on. If you do, put it closer to you. 

Mr. CHINN. My apologies for that. If that’s the worst trouble I get 

into today, that would probably be a successful day. In any event, 

I will start again. 

Good morning, Chairwoman Woolsey, Ranking Member 

McMorris Rodgers, members of the subcommittee, my fellow panel 

members, and representatives of employers in the audience, as well 

as the individuals in the audience who are family members of those 

who have been killed or injured terribly while working on the job. 

My name is Lloyd Chinn; and I am a partner in a law firm, 

Proskauer Rose. I practice labor and employment law. I advise employers as to what they need to do to comply with the laws. I litigate disputes between employers and their employees. 

A significant component of my practice is the litigation of what 

may generically be referred to such as whistleblower or retaliation 

claims; and it is a privilege and an honor for me to speak with you 

today about this important topic, this topic as it is addressed in the 

Protecting American Workers Act, or, as I believe we have license 

to call it from the chairwoman, PAWA. 

I am going to focus on Title II of PAWA, which I think we would 

all agree completely rewrites the current section 11(c) of the OSH 

Act. 

The first question for me is what exactly is motivating this complete rewrite of the statute. I mean, at the end of the day, it may 

well make sense to do some of this, but I think it is an appropriate 

question at the outset to pose. 

The purpose of the statute, as stated in the statute and as everyone on this panel would agree, is to advance workplace safety. It 

37

is not to promote employment litigation. This is not an employment 

litigation statute as such, like Title VII of the Civil Rights Act. 

The claim apparently is that the current whistleblower protections in the statute are inadequate, but what is the evidence to 

support that claim? There are something like 1,200 to 1,300 claims 

per year made under 11(c) of the OSH Act. And while it tugs at 

the heartstrings to listen to Mr. Jorgensen’s story, and I admit 

that, one, I don’t think it is appropriate to formulate policy based 

on one example or perhaps an example in Ms. Rhinehart’s paper 

of a Mr. Wood who had an incredible odyssey through the legal system that lasted something like a decade in the 1990s. I don’t think 

it makes sense to base policy involving thousands of claims made 

per year based on minimal anecdotes, a minimal number of anecdotes like that. 

And while it may be unpopular to say this in this room, for every 

example like Mr. Jorgensen’s, there are hundreds of meritless 

claims filed per year, and everybody, if people are being honest, 

Mr. Barab, who is currently in this role at OSHA, will agree that 

the overwhelming majority of claims, measured by any objective 

standard filed with OSHA, are meritless. And, for that matter, that 

is true for virtually every statute, employment statute on the 

books, and there really is no disputing this. 

Now, again, this story about meritless claims and the expenses 

associated with those claims, or defending those claims, is not the 

sort of story that is going to bring a tear to your eye, as did Ms. 

Ford’s as I was listening to it. 

But in a time when we have approximately 10 percent unemployment in this country, it strikes me that it is at least relevant, it 

is at least worth putting into the mix, into the arguments being 

considered, every action you take, like these whistleblower protections in PAWA, will be an additional expense to employers. That 

is, it will make it more expensive to employ someone should you 

enact these provisions. 

Now, you may decide, as one might be willing to do, that it is 

worth it. But I think that it is at least worthwhile to have that 

issue on the table. And the primary way in which PAWA will increase the expenses of litigation is that PAWA bestows significant 

new rights of action on 11(c) complainants. 

PAWA’s simultaneously provides section 11(c) whistleblowers the 

opportunity to take their claims to the OALJ, the Office of Administrative Law Judges, or to the Administrative Review Board and 

sets very tight timelines within which those bodies must reach 

final decisions on those claims. This is not realistic. Of the total 

whistleblower claims under all statutes addressed by OSHA per 

year, those filed under 11(c) account for a large majority, approximately 65 percent in 2007. This is a potential tripling of the pool 

of cases that will be going through the OALJ and ARB system; and 

I am unaware, although Mr. Barab may be able to address this, of 

any plans to expand those bodies in a significant fashion to address 

these additional claims. 

So what this means, in reality, is that every OSH whistleblower 

will really have an immediate right to go to court, because OALJ 

and ARB will never meet these timelines that are in the statute 

currently, and nobody in this room can debate that. I really don’t 

38

think that is a debatable point. Liberal academics writing in the 

field agree completely with what I am saying right now. 

So what we have here is this logjam that already exists in the 

OALJ and ARB. It will be worsened dramatically by this addition 

of new cases, so everything goes to Federal court then. 

My understanding is that there is a lot of criticism of the time 

it takes for these complaints to be addressed. Well, for those of you 

who litigate in Federal court in this room, I assure you that the 

Federal litigation process is not the most efficient for resolving disputes of this matter. It is very lengthy, very time-consuming, and 

very expensive. 

If you look at the GAO’s recent report, interestingly enough the 

most efficient procedure described in that report is the appeals 

committee that addresses 11(c) complaints. That appeals committee 

addresses matters on a far rapid, far more efficient basis than either OALJ, ARB, and certainly the Federal courts. 

In closing, I would simply ask the subcommittee to maintain an 

open mind with respect to certain particulars of the statute, which 

we will be talking about more during the course of the hearing. 

Thank you very much. 

[The statement of Mr. Chinn follows:]

Prepared Statement of Lloyd B. Chinn, Partner, Proskauer Rose LLP 

Good morning Chairwoman Woolsey, Ranking Member Rodgers and Members of 

the Subcommittee. My name is Lloyd Chinn, and I am a partner with the law firm 

Proskauer Rose LLP in its New York City office. It is an honor to appear before 

you at this hearing to address the Protecting America’s Workers Act (‘‘PAWA’’), specifically Title II ‘‘Increasing Protections for Whistleblowers.’’ My testimony is not intended to represent the views of Proskauer or any of the firm’s clients. 

Although I practice out of my firm’s New York City office, I have handled employment matters in federal and state courts and administrative agencies around the 

country. My eighteen year legal career has been almost exclusively devoted to the 

representation of employers in employment matters, whether engaged in counseling 

for the purpose of avoiding employee disputes or litigating those disputes as they 

arise. Throughout, I have advised and represented clients in connection with litigating or avoiding retaliation and whistleblower claims. 

PAWA’s rewriting of the OSH Act whistleblower provisions 

Title II of PAWA re-writes Section 11 (c) (29 U.S.C. 660 (c)) of the Occupational 

Safety and Health Act, fundamentally changing the statute in a variety of ways including: 

• Adding an entirely new form of protected whistleblower activity—an employee’s 

refusal to perform his or her duties—that is (i) unprecedented among the seventeen 

statutes whistleblower statutes administered by OSHA; and (ii) supplants an already comprehensive and reasonable OSHA regulatory scheme on the topic. 

• Modifying the current statute of limitations by triggering the commencement of 

the running of limitations period not only upon the date of the alleged violation but 

alternatively upon the date that a complainant ‘‘knows or should reasonably have 

known’’ that a violation occurred. 

• Allowing any a complaint to bring any time-barred claims (other than a termination claim) provided that just one alleged adverse action is timely. 

• Lengthening the current limitations period from 30 to 180 days. 

• Providing the right for a de novo hearing before an administrative law judge. 

• Providing the right for an administrative appeal to the Secretary of Labor (in 

effect, the Department of Labor’s Administrative Review Board). 

• Providing a complainant the right to bring a de novo action in a United States 

District Court, if either the administrative law judge or the Secretary of Labor has 

failed to meet very strict (and unrealistic time periods). 

• Providing a right of appeal to the United States Court of Appeals following a 

final decision. 

39

• Allowing either the Secretary of Labor or the complainant to commence an action in the United States District Court to enforce any order—even if preliminary—

issued under this statute. 

• Adopting a complainant-favorable burden of proof, requiring only that the complainant prove that his or her protected activity was a ‘‘contributing factor’’ in the 

alleged adverse action. 

• Providing a variety damages recoverable by a complainant including, in addition to backpay, unlimited ‘‘consequential’’ damages and attorneys’ fees and costs—

while notably providing no right of recovery of costs or attorney’s fees by a prevailing employer. 

• Prohibiting (at least arguably) pre-dispute arbitration agreements, whether executed by individual employees or contained within a collective bargaining agreement. 

Where is the empirical rationale? 

Before turning to the more problematic of these provisions, a rather obvious question is ‘‘Why?’’ The stated purpose of the Occupational Safety and Health Act of 

1970 is ‘‘to assure so far as possible every working man and woman in the Nation 

safe and healthful working conditions and to preserve our human resources.’’ 29 

U.S.C. 651(b). None of the provisions alluded to above bears directly on the question 

of workplace safety; rather, they all enhance the position of complainants in employment litigation. If PAWA is, in fact, about workplace safety, it is only by virtue of 

several unstated assumptions: (i) that Occupational Safety and Health whistleblowers (‘‘OSH whistleblowers’’) contribute to overall workplace safety by bringing 

to light dangerous conditions; (ii) OSH whistleblowers will only come forward if 

there are adequate legal protections to prevent retaliation and; (iii) the current legal 

protections for such whistleblowers are inadequate. While it may be fair to assume 

the truth of assumptions (i) and (ii), at least for the sake of argument, the third 

proposition rests on a questionable empirical judgment about the inadequacy of protections provided under the current law. 

I am unaware of any empirical data supporting the assertion that the current 

statute fails to protect occupational safety and health whistleblowers. Indeed, my 

concern is that this assumption is supported by nothing more than cherry-picked 

anecdotes or conclusory assertions that occupational safety and health OSH whistleblowers do not ‘‘win often enough.’’ According to data for fiscal year 2007, OSHA 

received 1205 OSH whistleblower complaints under the Occupational Safety and 

Health Act alone. U.S. Gov’t Accountability Office, ‘‘Whistleblower Protection Program: Better Data and Improved Oversight Would Help Ensure Program Quality 

and Consistency,’’ 26 (2009) [hereinafter 2009 GAO report]. Pointing to one or even 

a handful of anecdotes is of no statistical significance when addressing numbers like 

this. 

Moreover, to decry the fact that the ‘‘win rate’’ for OSH whistleblowers is ‘‘low’’ 

assumes that either that there is an objective standard for judging whether the 

‘‘win’’ rate is high or low—and there isn’t—or that there has been a study of case 

outcomes, and (based on some objective criteria) those outcomes incorrectly favored 

employers. The recent GAO study of OSHA’s Whistleblower Protection Program expressly disavowed undertaking any such analysis, ‘‘[W]e did not address the quality 

of [OSHA’s] investigations or the appropriateness of whistleblower outcomes because 

these aspects were beyond the scope of the engagement.’’ 2009 GAO report, at 4-

5. 

In fact, although PAWA apparently posits access to the federal courts as a panacea for OSH whistleblowers, there is no reason to believe the ‘‘win’’ rate there will 

be any better than before OSHA. Indeed, in every administrative forum and court 

system in which I’ve practiced as an employment lawyer, it has been well understood that, in the aggregate, employment litigation plaintiffs lose more often than 

they win. This state of affairs is not, in my opinion, because of any particular bias 

in any of these court or administrative systems against plaintiffs; rather, it is simply because in the context of a particular employment statute, there is some substantial number of meritless claims filed. 

And finally, if assumptions (i), (ii) and (iii) were each valid, then one would expect 

(all other things being equal) that inadequate OSH whistleblower protections have 

led to a less-safe workplace. But Bureau of Labor Statistics data support no such 

conclusion. According to BLS, both nonfatal injuries as well as fatalities in the 

workplace have continually declined over the past decade. See BLS, http://

www.bls.gov/iif/oshwc/cfoi/cfch0007.pdf; http://www.bls.gov/iif/oshwc/osh/os/

osnr0032.txt. 

40

1 Although some states recognize, either at common law or by statute, a cause of action for 

being retaliated against for failing to perform certain job duties, these states generally limit the 

protection to a refusal to perform unlawful activities. For instance, under Texas law, employees 

may refuse to work in unsafe work environments if they were to perform an illegal act that 

carries criminal penalties. See Hancock v. Express One Intern., Inc., 800 S.W.2d 634, 636 (Tex. 

App. Dallas 1990), writ denied, (Nov. 11, 1992). Likewise, N.Y. LAB. LAW § 740 prohibits employers from taking retaliatory action against an employee who ‘‘objects to, or refuses to participate in an activity, policy or practice of the employer that is in violation of law, rule or regulation,’’ if ‘‘the violation creates and presents a substantial and specific danger to the public health 

or safety.’’ 2Proposed paragraph 4(A) in Section 203 refers to ‘‘paragraph (3)(A)’’, although there does not 

appear to be a subparagraph (A) to paragraph 3. 

Particular concerns regarding PAWA 

Given the degree to which PAWA re-writes Section 11 (c), one could go on at some 

length about the proposed changes. I will focus my remarks on a few sections that, 

in my view, merit some discussion. 

Refusal to Work 

PAWA amends 29 U.S.C. 660(c), to add an entirely new form of protected activity 

under the act. It prohibits the discharge or any other form of discrimination against 

an employee ‘‘for refusing to perform the employee’s duties if the employee has a 

reasonable apprehension that performing such duties would result in serious injury 

to, or serious impairment of the health of, the employee, or other employees.’’ To 

receive protection under the section, the complainant must merely conclude, as a 

‘‘reasonable person’’ would, that there is ‘‘bona fide danger of a serious injury, or 

serious impairment of health, resulting from the circumstances.’’ Id. 

It is, of course, a sensible proposition that an employee should not have to engage 

in work that will result in his or her injury or death. But PAWA’s particular definition of protected activity appears to be unprecedented in federal whistleblower statutes.1 And, moreover, OSHA regulations already address the issue of when an employee may refuse to work due to work conditions in a comprehensive and reasonable fashion. 

Current OSHA regulations already prohibit discrimination against an employee 

who refuses to work. 29 CFR § 1977.12. But the regulations make clear that ‘‘as 

a general matter, there is no right afforded by the Act which would entitle employees to walk off the job because of potential unsafe conditions at the workplace.’’ 29 

CFR § 1977.12(b)(1). The regulations recognize that ‘‘an employer would not ordinarily be in violation of section 11(c) by taking action to discipline an employee for 

refusing to perform normal job activities because of alleged safety or health hazards.’’ Id. To avoid frivolous employee complaints and work stoppages, OSHA regulations provide that for an employee’s refusal to work to be protected, a reasonable 

person must agree that there is ‘‘a real danger of death or serious injury.’’ 29 CFR 

§ 1977.12(b)(2). The employee must also demonstrate that he or she has refused to 

work in ‘‘good faith.’’ Id. In addition, before discontinuing work, OSHA regulations 

require that an employee take various steps to place the employer on notice of the 

unsafe working conditions: (i) apprise the employer of the alleged hazard, if possible; 

(ii) ask the employer to rectify the danger; and (iii) unless there is insufficient time, 

‘‘resort to regular statutory enforcement channels.’’ Id. 

Section 202 of PAWA’s use of the ‘‘reasonable apprehension’’ standard and its failure to incorporate the employer protections contained in the OSHA regulations have 

the potential to encourage excessive litigation and false claims. If it is truly necessary to address this issue through legislation, the standards set forth in the 

OSHA regulations should be used as a guide. 

Statute of Limitations Issues 

Section 203 of PAWA amends the existing statute of limitations provision in three 

ways: (i) by incorporating an alternative ‘‘discovery rule’’ concept for triggering the 

limitations period; (ii) by permitting ‘‘continuing violation’’ claims of virtually any 

sort, without regard to whether there is any connection between the timely assertions and the untimely ones; and (iii) by extending the current limitations period 

from thirty (30) to one hundred—eighty (180) days. 

The most dramatic of these statute of limitation changes permits a complaint to 

be filed on the later of either the ‘‘date on which the alleged violation occurs’’ or 

‘‘the date on which the employee knows or should reasonably have known that such 

alleged violation occurred.’’ 2 The latter option, a ‘‘discovery rule’’, is a foreign concept in employment law. For example, of the seventeen OSHA-enforced whistleblowing laws, the statute of limitations under all of these statutes only begins to 

run when the alleged violation occurred. A discovery rule is not only unprecedented 

41

with respect to the OSHA-enforced whistleblowing statutes, it is not expressly 

adopted in any other federal employment statute, including the staples of employment discrimination law: Title VII of the Civil Rights Act of 1964, the Americans 

with Disabilities Act, or the Age Discrimination in Employment Act. It is hard to 

imagine how an OSH whistleblowing claim so unique that it would be alone among 

federal employment laws to apply a discovery rule. 

Legislatures and courts have presumably rejected a discovery rule in employment 

litigation because it is a bad idea. ‘‘One can never be sure exactly when on that continuum of awareness a plaintiff knew or should have known enough that the limitations period should have begun. A discovery rule thus substitutes a vague and uncertain period for a definite one.’’ J.D. Hamilton v. 1st Source Bank, 928 F.2d 86, 

88 (4th Cir. 1990). As a discovery rule has no firm outer limit, it would permit 

claims to be asserted years after the fact. Over the course of time, witnesses become 

unavailable and memories fade. Records are lost as electronic storage systems 

change. Moreover, it is not at all clear how a discovery rule benefits workplace safety—stale claims advanced many months or years after the fact will unlikely have 

any effect whatsoever on a practice that may well have changed with time. Indeed, 

that is precisely why the OSHA-enforced whistleblower statutes contain relatively 

brief (30—180 day) statutes of limitation—so to encourage the prompt reporting of 

conduct that is allegedly violative of the underlying statutes. While one can imagine 

the rationale behind a discovery rule in the context of certain personal injury-type 

cases (e.g., a surgical instrument left inside a person following surgery), there is no 

similar imperative in the employment litigation field. 

Section 203 also provides that, for statute of limitations purposes, except for a termination, any series of alleged violations is timely provided that one alleged violation occurred within the limitations period. Although this subparagraph is labeled 

‘‘Repeat Violation’’, it really should be referred to as ‘‘Continuing Violation.’’ In the 

Title VII context, the Supreme Court has held quite clearly that discrete discriminatory acts outside the limitations period are time barred, even if related to alleged 

acts that are timely. National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 

(2002); see also Delaware State College v. Ricks, 449 U.S. 250 (1980). Even the more 

liberal approaches to the continuing violation doctrine adopted by the circuit courts 

of appeal that existed prior to Morgan required some relationship between the timely allegations and the untimely ones. See, e.g., Morgan v. Amtrak, 232 F.3d 1008, 

1015-1016 (9th Cir. 2002). Under PAWA, no such requirement exists. A complainant 

could theoretically link an act taken years earlier, of a completely different nature, 

by different managers, in response to a totally distinct complaint, to a timely adverse action and proceed against the company with respect to both claims. 

Finally, PAWA extends the existing statute of limitations period by a factor of six, 

from 30 to 180 days. In other words, of the OSHA-administered whistleblower statutes, the OSH whistleblower provision is now among the longest instead of among 

the shortest. As noted above in a different context, it is unclear how this lengthening of the limitations period improves workplace safety, given that it encourages 

complainants to sit on claims instead of advancing them promptly. 

New rights of action 

Currently, 29 U.S.C. § 660 (c) allows a complainant to file a complaint with the 

Secretary of Labor, which the Secretary of Labor is to investigate. The Secretary 

may then bring an action in the United States district court against the employer. 

By regulation, an employee submits his or her initial complaint to OSHA, and it 

is investigated. 29 CFR § 1977.15. Once an initial determination is made, only the 

whistleblower (not the employer) may request a review by OSHA’s Appeals Committee. The Appeals Committee either returns the matter for further investigation 

or denies the appeal. 

While it is true that, of the 17 OSHA-administered whistleblower statutes, only 

three follow this particular procedure (the other two are the Asbestos Hazard Emergency Response Act and the International Safe Container Act), there is a sensible 

policy rationale for employing this process for the OSH whistleblower provisions. 

The substantive OSH Act is, after all, the area of law most familiar to the typical 

OSHA investigator. It is the one substantive Act (out of the seventeen) on which 

all OSHA whistleblower investigators are trained. 2009 GAO report, at 39. 

Permitting OSH whistleblowers to take their claims before the Department of Labor’s Office of Administrative Law Judges (‘‘OALJ’’) and Administrative Review 

Board (‘‘ARB’’) will have a significant impact on these bodies. OSH whistleblower 

claims make up, by far, the largest number of whistleblower claims addressed by 

OSHA under the 17 whistleblower statutes. For fiscal year 2007, of the 1,864 whistleblower complaints addressed by OSHA, 1,205 (approximately 65%) were OSH 

whistleblower claims. In essence, the adoption of PAWA would increase by approxiVerDate 0ct 09 2002 15:58 Dec 15, 2010 Jkt 000000 PO 00000 Frm 00045 Fmt 6633 Sfmt 6621 G:\DOCS\111TH\WP\111-58\56055.TXT HBUD PsN: DICK
42

mately 200 percent the number of potential cases to be addressed by the OALJ and 

ARB. So doing will undoubtedly cause substantial delays in the processing of these 

claims. It is unclear how such delays will result in a safer workplace. What is certain is that employers will be forced to expend substantial sums defending OSH 

whistleblower claims through these additional processes—the majority of which will 

ultimately be found to be meritless. 

Of course, PAWA would permit OSH whistleblowers to proceed to United States 

district court if the OALJ has not issued a decision and order within 90 days of a 

hearing request or if the ARB has not issued a decision within 60 days of receiving 

the administrative appeal. Given that the vast majority of cases handled by the 

OALJ and ARB do not currently meet these timelines, it seems particularly unlikely 

they will do so once their pool of cases is dramatically increased. So the assumption 

under PAWA should be that every OSH whistleblower will at least have the opportunity to take his or her claims to United States district court. Again, it is not at 

all clear how this expansion of United States district court jurisdiction will improve 

workplace safety, but subjecting employers to federal court litigation in 1200 potential additional cases per year will certainly cost employers dearly. 

Chairwoman WOOLSEY. Thank you. 

Before we go to Ms. Rhinehart, those with placards, you need to 

hold them down and please don’t stand up. Thank you very much. 

I mean, yes, in front of you but just not up. Thank you. Thank you. 

Ms. Rhinehart. 

STATEMENT OF LYNN RHINEHART, GENERAL COUNSEL,

AFL–CIO 

Ms. RHINEHART. Thank you, Chairwoman Woolsey, Ranking 

Member McMorris Rodgers, and the other members of the panel for 

holding this hearing and for inviting me here today to testify on 

the need to strengthen the anti-retaliation whistleblower protections in the Occupational Safety and Health Act. 

My name is Lynn Rhinehart, and I am the general counsel at the 

AFL–CIO. We are a labor federation representing about 11 million 

workers across the United States, and we are in strong support of 

the Protecting America’s Workers Act and the provisions in it to 

strengthen the penalties and strengthen the whistleblower protections in the law. We really appreciate your holding this hearing 

today on Workers Memorial Day, a day when we honor and pay 

tribute to workers who are killed on the job. 

I want to acknowledge the family members who are here on the 

panel and here in the room and express our sympathies for their 

loss. We are all here for the same reason, which is that we believe 

strongly that those fatalities should not have occurred in vain and 

that we need to redouble our efforts to take measures, strengthen 

the law, do what we need to do to make sure that further fatalities 

don’t happen in America’s workplaces; and, frankly, we have a lot 

of work to do. 

Still today, 5,000 workers, more than 5,000 workers, die on the 

job each year. That is 14 workers each and every day who are 

killed from workplace hazards, and millions more are injured. Five 

thousand workers a year is the population of many small towns 

across America, and it is that number of workers killed on the job 

each and every year from workplace hazards. It is just an unacceptable level of tragedy in America’s workplaces that we have 

much work to do to address. 

I think everybody on the panel would agree that in order to address workplace hazards and to try to get preventive actions in 

43

place before injuries, illnesses, and fatalities occur, that you need 

the full and active involvement of workers. Workers are the eyes 

and ears in the workplace. It is their jobs. They see the hazards. 

They know the hazards. They know what solutions might be put 

in place to address those hazards. 

So employers who are being proactive about health and safety in 

their workplaces want and need the full and active involvement of 

their workers in identifying hazards, and especially given the fact 

that OSHA can’t be everywhere at all times. In fact, it would take 

them 137 years to be in each workplace just once, all the more reason why we need the active and full involvement of workers in 

identifying hazards and protecting their health and safety on the 

job. 

In order to have that active involvement, workers need to feel secure that if they raise a hazard, if they bring a concern forward, 

if they file a complaint with OSHA, that their jobs are going to be 

secure. They are not going to be fired or demoted or transferred or 

suffer other retaliation for speaking out. The system really depends 

on that. 

And, unfortunately, we don’t have that situation today. As Mr. 

Jorgensen’s story so painfully shows, workers today do not have a 

right to speak out about job hazards without retaliation and have 

a remedy behind them for speaking out and pursuing their rights. 

It is even more important in today’s bad economy that the law 

be strengthened. The fear of retaliation, the fear of losing one’s job 

is even more intense when you are looking at an almost 10 percent 

unemployment situation, and that just exacerbates workers’ fears 

of speaking out. 

Workers who are covered by a union contract are in a better position because they have their union in that contract backing them 

up if they suffer retaliation for reporting job hazards. But, unfortunately, that is protection that is only afforded this moment to a minority of workers in America’s workplaces. 

So most workers are left with the protections of the Occupational 

Safety and Health Act; and these protections, by any measure, are 

exceedingly weak. They are the weakest of any of the 17 whistleblower laws that OSHA itself enforces. How ironic that the weakest 

law enforced by OSHA is the OSH Act. 

I attached a chart to my testimony that laid out some of the 

ways that the OSH Act’s anti-retaliation whistleblower protections 

fall short of the standard laid out in so many other laws, including 

Sarbanes-Oxley, including the Surface Transportation Act, including the recent health care reform that was adopted. By any meaningful measure, the OSH Act whistleblower protections fall short of 

the mark. 

The statute of limitations is exceedingly short, only 30 days. 

There is no right under the OSH Act for workers to get their job 

back, for preliminary reinstatement while their cases are pending, 

and they have no right to get a hearing before an administrative 

law judge or a court. They are completely dependent on the Secretary of Labor bringing their cases forward; and, as we have 

heard, that rarely happens. 

And the burdens on the Department of Labor are significant as 

well. They can’t pursue an administrative process themselves. They 

44

need to go to Federal District Court to pursue these whistleblower 

cases in court. 

So the law is extremely weak. There is a saying in the law that 

rights without remedies are really no rights at all; and, frankly, 

that is what we are talking about here with the whistleblower protections and the Occupational Safety and Health Act. The provisions are so weak as to really be meaningless. 

So we support the provisions in the Protecting America’s Workers Act. We think that they would make a real, positive difference 

in protecting workers’ ability to raise safety and health hazards on 

the job. It would update the law, bring it up to par with other antiretaliation protections in other laws, including laws that have been 

passed over the past 5 years with bipartisan support and signed 

into law by both Republican and Democratic Presidents. We think 

that these measures would give workers more meaningful rights to 

participate in safety and health on the job and bring about preventive efforts before injuries, illnesses, and fatalities occur. 

I would like to make just two other brief comments in the time 

that I have. One is that, while we fully support the provision in the 

Protecting America’s Workers Act that would give workers a right 

to pursue their own case before an ALJ or a Federal court if the 

Secretary did not pursue their case or if the case was proceeding 

too slowly, we don’t do that right as a substitute for the Secretary 

of Labor still having her own robust anti-retaliation whistleblower 

program. We think that you need both. You need the agency program, and you need the private right of action. 

The other comment I would make is that it really seems to me 

that employers ought to support the provisions, the anti-retaliation 

provisions in this legislation, because employers who want their 

workers to feel secure speaking out about job hazards should support there being a law to back workers up when they do step forward and exercise those rights. 

These are modest measures. They are not novel. They are not 

radical. They would simply bring the OSH Act into the mainstream 

and make it more uniform with other anti-retaliation whistleblower 

laws that have been passed by Congress over the years. So we 

think it is necessary, we think it is overdue, and we urge their 

prompt adoption. 

Thanks very much. 

[The statement of Ms. Rhinehart follows:]

Prepared Statement of Lynn Rhinehart, General Counsel, AFL–CIO 

Chairman Woolsey, Ranking Member Rodgers, and Members of the Subcommittee: 

My name is Lynn Rhinehart, and I am the General Counsel of the AFL–CIO, a 

federation of 56 national unions representing more than 11.5 million working men 

and women across the United States. Thank you for the opportunity to testify today 

about the urgent need to strengthen the anti-retaliation provisions in the Occupational Safety and Health Act (OSH Act), and about how H.R. 2067, the Protecting 

America’s Workers Act, addresses this need. 

Today is Workers Memorial Day, a day unions and others here and around the 

globe remember those who have been killed, injured and made ill on the job. The 

recent tragedies at the Massey coal mine in West Virginia, the Tesoro refinery in 

Washington State, and the Kleen Energy Systems facility in Connecticut, are vivid 

and painful reminders of the need to continue and redouble our efforts to assure 

safe and healthful working conditions for all workers. In 2008, the last year for 

which comprehensive data are available, 5,214 workers were killed on the job—an 

45

average of 14 workers each day, and millions of workers were injured. Clearly, more 

needs to be done to bring about the OSH Act’s promise of safe and healthful jobs 

for all workers. We greatly appreciate your holding this hearing today, on Workers 

Memorial Day, to focus attention on workplace safety and health, on shortcomings 

in the existing law, and on proposals to strengthen it. 

Today marks the 39th anniversary of the day the Occupational Safety and Health 

Act took effect. In the nearly 40 years since the OSH Act’s enactment, it has never 

been significantly amended or strengthened.1 As a result, many provisions in the 

law, including its penalty provisions and its anti-retaliation provisions, have fallen 

far behind other worker protection, public health, and environmental laws. It is past 

time for these provisions to be updated and strengthened. 

There is universal agreement about the importance of workers being involved in 

addressing safety and health hazards at the workplace. Workers see first-hand the 

hazards posed by their jobs and their workplaces, and they are an important source 

of ideas for addressing these hazards. But in order for workers to feel secure in 

bringing hazards to their employer’s attention, they must have confidence that they 

will not lose their jobs or face other types of retaliation for doing so. All too often, 

fear of retaliation for ‘‘rocking the boat’’ leads workers to stay quiet about job hazards, sometimes with tragic results, as we saw with the Massey mine explosion earlier this month.2

The importance of workers being able to raise concerns about workplace hazards 

with their employers without risking their jobs is especially acute under the OSH 

Act, because, given limited resources and the vast number of workplaces under 

OSHA’s jurisdiction, actual inspection and oversight of workplaces by OSHA inspectors is quite rare. In its most recent annual report on the state of workplace safety 

and health, released today in conjunction with Workers Memorial Day, the AFL–

CIO found that, according to the most recent statistics, it would take 91 years for 

federal and state OSHA inspectors to conduct a single inspection of each of the 8 

million workplaces in the United States.3 Given the paucity of inspectors and inspections, OSHA needs workers to be the eyes and ears on the ground, bringing 

problems and hazards to the attention of their employers to bring about prompt, corrective action before injuries, illnesses, and fatalities occur. 

Unfortunately, the anti-retaliation provisions in the OSH Act are exceedingly 

weak. Ironically, they are far weaker than the other 16 anti-retaliation laws that 

are also enforced by OSHA, and they are weaker than the anti-retaliation provisions 

in the Mine Safety and Health Act. As a consequence, workers who are fired or face 

other retaliatory action for filing an OSHA complaint or raising concerns about 

workplace hazards are left with very little recourse, unless they are fortunate 

enough to be covered by a union contract, which provides far stronger protections 

and quicker remedies. 

The U.S. Government Accountability Office (GAO) surveyed seventeen whistleblower statutes enforced by OSHA and found that the OSH Act contains much 

weaker whistleblower provisions than these other federal laws.4 Four weaknesses 

are particularly problematic: (1) the Act’s short statute of limitations for filing whistleblower complaints; (2) the absence of preliminary reinstatement while cases are 

proceeding through the system; (3) the lack of an administrative process for hearing 

cases; and (4) the absence of a private right of action for workers to pursue their 

own cases before the agency or in federal court in situations where the Secretary 

of Labor fails or chooses not to act. 

Short Statute of Limitations. Under the OSH Act, workers must file a retaliation 

complaint within 30 days or their claims are barred by the statute of limitations. 

This is an exceedingly short statute of limitations when compared to other laws, 

which provide a minimum of 60 days and more typically 180 days for workers to 

file a complaint. 

Indeed, many of the whistleblower statutes enforced by the Department of 

Labor—ranging from the Surface Transportation Assistance Act (which protects 

whistleblowers who complain about violations of federal truck safety regulations) to 

the Energy Reorganization Act (which protects whistleblowers who work at nuclear 

facilities) to the Sarbanes-Oxley Act (which protects whistleblowers who report corporate fraud) to the whistleblower provisions contained in the newly-passed Patient 

Protection and Affordable Care Act (which protects whistleblowers who complain 

about violations of the health care law) allow employees between 60 and 180 days 

to file a complaint.5 And, of course, the many anti-discrimination statutes enforced 

by the Equal Employment Opportunity Commission (EEOC), such as Title VII and 

the Americans with Disabilities Act, allow employees either 180 or 300 days (depending on the state) to file a charge based on retaliation for complaining about discrimination. 

46

The OSH Act’s exceedingly short statute of limitations makes it far more likely 

that workers who face discharge or other retaliation will miss the deadline for filing 

a complaint, meaning that they will have no real recourse under the OSH Act. 

No Preliminary Reinstatement. The second major shortcoming in the OSH Act’s 

anti-retaliation provisions is the absence of language authorizing preliminary reinstatement of a worker while his or her case is pending and working its way through 

the process. Here again, almost all of the other anti-retaliation laws enforced by 

OSHA authorize the Secretary to order preliminary reinstatement where she finds 

reasonable cause, after an initial investigation, to believe that a violation has occurred. The preliminary reinstatement provisions in the Federal Mine Safety and 

Health Act are even stronger. They call for the Federal Mine Safety and Health Review Commission to order immediate preliminary reinstatement in all cases unless 

the Secretary determines that the complaint was frivolously brought. 30 U.S.C. § 

815(c). 

Preliminary reinstatement is an important component to a meaningful anti-retaliation process, because it means that a worker will not be out of work losing pay 

and benefits while the case is pending. It is a common feature of other anti-retaliation statutes, including statutes enforced by OSHA, and it has proven workable. It 

should be added to the OSH Act. 

No Administrative Process. Unlike most other whistleblower laws enforced by 

OSHA, there is no administrative process for pursuing anti-retaliation claims under 

the OSH Act. Instead of conducting an investigation and issuing a preliminary 

order, with review before an administrative law judge within the agency, as is the 

case with most other whistleblower laws, the Secretary must file suit on the worker’s behalf in federal district court—a costly, resource intensive, and time-consuming 

process that the Secretary rarely pursues. 

According to data provided by OSHA, in FY 2009, OSHA received 1,280 complaints alleging violations of the 11(c) anti-retaliation provisions in the OSH Act, 29 

U.S.C. § 659(c). The majority were dismissed. Nearly 20 percent of the cases (246 

cases) settled. OSHA recommended that the Secretary pursue litigation in 15 cases; 

4 cases were actually brought. Since 1996, the Secretary of Labor has filed only 32 

cases in federal district court under Section 11(c). And, because the OSH Act does 

not authorize workers to pursue their cases on their own, workers in the thousands 

of cases the Secretary did not pursue were left without meaningful recourse. 

The absence of an administrative process greatly weakens the effectiveness and 

utility of the anti-retaliation provisions in the OSH Act. 

No Right of Appeal or Private Action. The fourth major shortcoming in the OSH 

Act’s anti-retaliation provisions is the absence of a right for workers to get a hearing 

or pursue their own case before an administrative law judge or the court. Under 

the OSH Act, workers are entirely dependent on the Secretary of Labor to pursue 

their cases, because there is no administrative process for them to access and no 

right to bring their case in federal district court if the Secretary elects not to proceed. As the statistics outlined above reveal, the Secretary pursues only a handful 

of cases each year, leaving the rest of workers without a forum to pursue their own 

cases. 

The absence of a private right of action for workers to pursue their own cases before an administrative agency or the court makes the OSH Act’s anti-retaliation provisions far weaker and far outside the mainstream of other anti-retaliation laws. As 

the chart attached to this testimony shows, other whistleblower provisions enacted 

by Congress provide workers with the ability to seek a hearing before an administrative law judge, or a de novo hearing before a federal district court, or both. In 

contrast, an employee who brings a whistleblower complaint under the OSH Act is 

wholly dependent on the Secretary of Labor to vindicate his or her rights; if the Secretary delays or declines to pursue the employee’s case—which, as explained above, 

is what happens in the vast majority of cases—the whistleblower has no recourse 

under the law. This is a serious shortcoming that greatly undermines the effectiveness of the OSH Act and its anti-retaliation provisions. 

The case of whistleblower Roger Wood illustrates the problem. Wood was an experienced electrician who worked at a chemical weapons disposal facility, a facility 

where the working conditions were described by a federal court as ‘‘probably as dangerous as any undertaken in the world.’’ 6 Wood repeatedly complained about unsafe 

working conditions, including inadequate safety equipment, resulting in an OSHA 

investigation and the employer being cited for two serious safety violations. Subsequently, Wood was fired after he refused to work in a toxic area without adequate 

safety equipment.7 Wood filed a whistleblower complaint with the Department of 

Labor, and a regional Department of Labor official recommended that the agency 

file suit on Wood’s behalf. But after over five years of internal review, the Department ultimately declined to pursue Wood’s case. Wood sued in federal court seeking 

47

to force the Department of Labor to file suit on his behalf. A full ten years after 

he was fired, the U.S. Court of Appeals for the D.C. Circuit denied Wood’s claim, 

finding that the Occupational Safety and Health Act’s whistleblower provision left 

all determinations as to whether to bring suit solely in the hands of the Department 

of Labor.8

The Anti-Retaliation Provisions in the Protecting America’s Workers Act Will 

Help Bring the OSH Act’s Protections into the Mainstream 

The Protecting America’s Workers Act (PAWA) will update and improve the OSH 

Act’s anti-retaliation provisions and bring them up to par with other anti-retaliation 

laws enforced by OSHA. By providing more meaningful anti-retaliation protections 

to workers, PAWA will help encourage employees to speak out when they become 

aware of hazardous workplace conditions, which will help bring about corrective action and prevent injuries, illnesses, and deaths on the job. 

PAWA accomplishes these goals by making the following common-sense changes, 

as reflected in the March 9, 2010 Discussion Draft of Modifications to H.R. 2067: • It extends the statute of limitations for filing complaints from the current 30 

days to 180 days; • It establishes clear and reasonable timeframes for the Secretary of Labor to 

complete her investigation and for administrative law judges to hear and decide 

cases, and authorizes workers to pursue their cases before an ALJ or federal court 

when these deadlines are missed; • It provides for preliminary reinstatement of workers after an investigation and 

determination by the Secretary of Labor. The Secretary is given 90 days to investigate cases and issue a preliminary order. In cases where the Secretary of Labor 

finds reasonable cause to believe that a violation of the anti-retaliation provisions 

has occurred, the bill allows the Secretary to issue a preliminary order reinstating 

the employee to his or her position, along with other relief; • In the event that the Secretary dismisses a complaint, or does not issue a timely preliminary order, i.e., within 120 days, PAWA permits an employee to request 

a hearing before an administrative law judge; • If an administrative law judge does not timely issue a decision (i.e., within 90 

days), or there is no timely decision on an internal appeal of an ALJ decision, PAWA 

authorizes workers to bring their case to federal district court; • PAWA codifies the longstanding rule that workers are protected against retaliation when they refuse in good faith to perform work they reasonably believe poses 

an imminent danger to their health or safety. OSHA’s regulations to this effect have 

been upheld by the U.S. Supreme Court, see Whirlpool Corp. v. Marshall, 445 U.S. 

1 (1980); PAWA codifies these rules; • PAWA also codifies OSHA’s existing regulations providing that the OSH Act’s 

anti-retaliation protections extend to workers who report injuries and illnesses, 29 

CFR § 1904.36. The General Accountability Office has found that fear of discharge 

or other retaliation is a significant factor in workers being reluctant to come forward 

to report workplace injuries and illnesses.9 Explicitly stating that workers are protected against retaliation for reporting injuries will help ensure that workers are not 

discouraged from coming forward when they are injured on the job; 

• PAWA clarifies the remedies that are available to workers who are victims of 

unlawful retaliation. These remedies are well-established, even in the few cases that 

have been brought under the OSH Act, but including them in the statute removes 

any doubt about their availability. 

In sum, there is nothing novel about any of these improvements to the OSH Act’s 

anti-retaliation protections. Rather, all of PAWA’s proposed improvements are wellestablished means to protecting whistleblowers that Congress has routinely included 

in other federal statutes in the four decades since the Occupational Safety and 

Health Act was passed. It is essential that Congress incorporate these sound and 

proven protections into the Occupational Safety and Health Act, so that workers 

who raise concerns about hazardous working conditions receive the same basic protections against retaliation as those who complain about corporate malfeasance, environmental or transportation hazards, or health care fraud. 

As the Subcommittee considers legislative change to improve worker protections, 

including the ability to speak out about job hazards without retaliation, we suggest 

that the Subcommittee also look at additional measures for protecting these rights, 

such as the civil penalty provisions for violations of the anti-retaliation provisions 

of the Mine Safety and Health Act that were adopted by Congress in 2008 as part 

of the S-MINER Act, H.R. 2768. The S-MINER Act authorized civil penalties of not 

less than $10,000 and not more than $100,000 for each violation of the Mine Act’s 

anti-retaliation provisions. Adopting a civil penalty for violations, in addition to the 

individual remedies provided for in the Protecting America’s Workers Act, would 

strengthen the tools for enforcing these rights and help deter violations of them. 

48

The AFL–CIO urges prompt action on the Protecting America’s Workers Act. It 

is past time to update and strengthen the Occupational Safety and Health Act so 

that workers in this country will be better protected from job hazards and better 

protected when they speak out about them. 

Again, thank you for the opportunity to testify today. I would be happy to respond 

to any questions. 

ENDNOTES

1The OSH Act’s civil penalties were last increased in 1990 as part of the omnibus budget reconciliation bill. P.L. No. 101-508. 2Dan Barry, et al., ‘‘2 Mines Show How Safety Practices Vary Widely’’, N.Y. Times (April 22, 

2010). See also Peter Kilborn, ‘‘In Aftermath of Deadly Fire, a Poor Town Struggles Back,’’ N.Y. 

Times (Nov. 25, 1991) (workers at the Imperial Food chicken processing plant, where 25 workers 

died in a fire, did not raise safety complaints because they feared losing their jobs). 3 AFL–CIO, Death on the Job: The Toll of Neglect (April 2010). 

4Government Accountability Office, Whistleblower Protection Program: Better Data and Improved Oversight Would Help Ensure Program Quality and Consistency 50-65 (Jan. 2009). 5See id. at 51; see also P.L. 111-148, 124 Stat. 119 (2010). 

6Wood v. Department of Labor, 275 F.3d 107, 108 (D.C. Cir. 2001). 

7 Id. 

8 Id. at 111-12. 

9GAO, Workplace Safety and Health: Enhancing OSHA’s Records Audit Process Could Improve the Accuracy of Worker Injury and Illness Data (Oct. 2009). 

Chairwoman WOOLSEY. Thank you very, very much. 

I need to say, before we start our questions, I have two committees that are both marking up legislation. So if I get up and leave, 

I will be back. It is because I have to go vote at another committee, 

and one of our members will take the chair. So please don’t take 

it personally. But so far, so good. 

So I am going to begin the questioning with you, Jordan. 

At last month’s committee hearing on OSHA penalties, Assistant 

Secretary Michaels testified that OSHA had reservations about certain victims’ rights provisions in PAWA, namely, allowing a family 

member to meet with OSHA before the agency decides to issue a 

citation and family members appearing before the parties conducting settlement discussions. You have also reiterated this in 

your testimony today. 

So, you know, the family members are here. You have heard 

from them. We have all—we can’t question whether what we are 

doing is necessary or not necessary. What we want to find out is 

how to do it so it works, works for them, and doesn’t get all bogged 

down. We have learned some things from MSHA. So how does the 

MSHA’s experience relate to your reservations and how can we settle those reservations? Or do we need to continue discussion on it? 

What would you think would be the best way to proceed? 

Mr. BARAB. Well, first of all, let me clarify. Dr. Michaels expressed—I wouldn’t—I would say we have not even reservations. 

We have some concerns. We obviously need the law, and everybody 

needs the law—workers, families—to work as efficiently as possible. 

But I want to reiterate that we fully support family involvement. 

We fully support the provisions in this law. In fact, we are already 

going to be implementing some of the provisions of this law even 

before it is passed, which we hope will happen soon. So our statements of concern, you know, are in no way—should in no way communicate that we are not fully in support of this or fully in support 

of family participation. 

49

We do want to talk to—we have been actually talking to MSHA. 

We realize MSHA has learned some important lessons certainly 

from Sago and Crandall Canyon on how to relate to families and 

how this can be done best, and we will be talking to them. We are 

talking to them, we will be talking to them more, and we will be 

learning from them. 

We learned an incredible amount just from the families that are 

here today. They came into town. They talked with Secretary Solis 

yesterday. We are in frequent contact with them. 

We have already, you know, told our field staff not only to make 

sure that we implement what we already have consistently, but we 

will be actually assigning OSHA staff to be family liaisons. We do 

want to improve the way we are doing things; and, again, we fully 

support what is in the law. 

So I don’t want it to be taken, because we have expressed some 

concerns that this work right, that we aren’t—we don’t have full 

confidence that that can be done, either through the law or through 

the regulatory process. 

Chairwoman WOOLSEY. Okay. I hear that. But tell us how, what 

needs to be fixed to work right, with the idea that this administration follows 8 years of not giving a hoot. So how do we make sure 

we put into place the right programs, the right policies that will 

carry on from administration to administration? 

Mr. BARAB. Okay. Just one example that was raised today that 

Ms. Ford has raised, which I think was quite legitimate, that she 

and her family found out about the settlement we reached with 

ADM through the news media. 

Now we followed the letter of our instructions of informing the 

family immediately. But by ‘‘inform’’, we meant we dropped a letter 

in the mail. Obviously, that was not adequate. That was, in retrospect, particularly inexcusable. That is no way to inform a family 

of a settlement, and we are going to be changing that. 

And we are going to be redefining the word ‘‘inform’’ to you call 

them. You call the family. You talk to the family before the media 

is notified, certainly. 

We are going to be doing training for our field staff to make sure 

that they are comfortable. Some of the problem we have is people, 

you know, understandably are just not comfortable dealing with 

family members who are in the midst of tragedy, and we are going 

to be dealing with that as well. 

So there are a number of actions we are going to take, a number 

of things we have learned and have been learning. And, again, we 

fully support what you are doing here. 

Chairwoman WOOLSEY. Congresswoman McMorris Rodgers. 

Mrs. MCMORRIS ROGERS. Well, again, just let me say thank you 

to everyone for being here. Your testimony is extremely helpful to 

us as we are working on this legislation. And the previous administration, the 8 years before this administration, I believe that we actually saw both injury and workplace-related death rates decrease. 

And, as I sit here, I think that part of the key is making sure 

that we have better partnerships between everyone that is involved 

and working together, because we do have a shared goal, and not 

make it adversarial. 

50

Mr. Jorgensen, I wanted to ask, because I understand that these 

whistleblower complaints are to be anonymous, and I just wanted 

to ask how you think your employer learned that you were the one 

that had brought the case forward. 

Mr. JORGENSEN. Previous to my blowing the whistle——

Chairwoman WOOLSEY. Do you have your microphone on, Mr. 

Jorgensen? 

Mr. JORGENSEN. Previous to my turning in the complaint, my 

wife and a friend of hers had worked there, and they quit quite 

fiery. And when the complaint come down, it was kind of—I think 

it was kind of obvious the route that it came from. They were disgruntled. I was upset because I had talked to a couple of the employees there who had had their finger cut in the band saw, which 

was my concern, but I think they kind of figured it out because my 

wife and her friend had quit. 

Mrs. MCMORRIS ROGERS. Okay. Thank you. 

Mr. Chinn, your testimony highlighted the many provisions in 

the draft legislation that would make changes to the current whistleblower system. Are there any provisions that you believe merit 

more attention? 

Mr. CHINN. Yes, I do. Thank you for that question, because I 

think there are a couple of areas that—even if you accept everything that has been said so far in the testimony, I think there are 

a couple of areas here that deserve some attention, and maybe it 

is the sort of attention that only a lawyer who lives these kind of 

phrases and words and provisions in litigation, you know, can appreciate, I suppose. 

One area that I think deserves some particular attention is the 

limitations area, that is, the statute of limitations. And I will save 

for last my comments on what has been the focal point so far, and 

that is simply the increase in the period from 30 to 180 days. 

What I would like to focus on first is, in this statute there is a 

novel, at least as employment law goes, insertion of something that 

lawyers refer to as a discovery rule for the purpose of commencing 

the limitations period. That is, the limitations period begins either 

within a certain period of the alleged violation itself, that is the 

norm, or the date on which the employee knows or reasonably 

should have known that such a violation occurred. And it is that 

second component that I think is troubling. 

To my knowledge, it is a foreign concept in employment litigation, completely. It is a vague and uncertain standard; and, moreover, it doesn’t really make any sense in the context of retaliation 

and whistle blowing. It might make sense in the context of, like, 

a medical malpractice case where a surgical instrument is left inside a person and it is not discovered for years afterwards. But 

here we are talking about the whistleblower context. 

Think about what Mr. Jorgensen described. We are talking about 

cause and effect. We are talking about—and that is the crux of a 

whistleblower complaint. That is, I complained and something happened to me because of that complaint. It is not a mystery. There 

is not some mysterious—if it really is true, if someone is being fired 

because they are a whistleblower, there is going to be some temporal connection between those concepts. So there is no need for—

51

even if this weren’t foreign to employment law, there is no need for 

it here. 

Secondly, with respect to the limitations period provisions in the 

statute, there is an extremely broad continuing violation provision 

lurking behind a heading called repeat violations. And essentially, 

what that means, as written, is if you have one timely——

Chairwoman WOOLSEY. Finish your thought. 

Mr. CHINN. Okay. If you have one timely complaint to make, you 

may also complain about any untimely complaints that you want 

to going back as many years as you want to relating to any sorts 

of incidents, prior complaints, prior actions you want to. 

Chairwoman WOOLSEY. Okay. Mr. Hare. 

Mr. HARE. Thank you, Madam Chairman. 

Mr. Chinn, I don’t know if you noticed when you were testifying 

but several of the people in the audience were holding up pictures 

of their families, family members. I want to be very honest with 

you. A couple of times, you know, you were talking about the expense to the employers and things of this nature and that this—

you know, about the numbers of meritless cases. 

It would seem to me, from my opinion, that looking at these families—these are sisters, brothers, husbands, wives, dads, grandfathers. We just lost 29 miners because you had an employer that 

cared more about profits than he cared about keeping the people 

safe. And we have had four of those. 

And I have to be honest with you. I don’t know. I am much less 

interested in the expense to the employers to keep their workers 

safe than keeping the workers actually safe. I mean, I think that 

every employer has a responsibility and I think every worker has 

every right to assume that when they go into work every day that 

they are going to go to work under safe circumstances, as best they 

can, and be able to come home to their families. I don’t think it is 

rocket science. 

I also think that when you referred to Mr. Jorgensen’s case, here 

is a guy that saw something and reported it and lost his job. And 

then he was told, you can’t even—basically, because you got a couple of lawyers out there you are probably going to roll the dice on 

whether or not you are going to be able to prevail in your case. 

This system is upside down. It is completely upside down. 

I would much rather look at the statistics, as was mentioned, 

that 5,000 people every year die in this country. And I think there 

are a number of good employers in this country. But they have an 

obligation, those that aren’t, to clean up their act. And if they don’t, 

they shouldn’t just be fined. They ought to end up in prison if they 

are not going to change what they are doing, the way they are acting. They would rather pay fines than keep people safe. I think 

that is—I don’t know how these guys can go to sleep at night, to 

be honest with you. 

But I just wanted to ask, if I could—the person from the AFL–

CIO, you were kind of shaking your head when some of that was 

being testified—I am sorry—Ms. Rhinehart—the testimony that 

will lead to excessive litigation and false claims and those kinds of 

things. I wondered if, you know, you didn’t get an opportunity to, 

but you could probably tell this is a very emotional issue to me. I 

came out of a factory. 

52

I would like to hear your take maybe to respond to what Mr. 

Chinn had to say. Maybe I got it wrong, but I was shaking my 

head, too, to be honest with you. 

Ms. RHINEHART. Thank you for the opportunity to address some 

of those points. I tried not to shake too hard, but I couldn’t help 

myself. 

A couple of things. In terms of the concern that actually giving 

workers a remedy for these rights would lead to false claims, I completely disagree. Workers are not going to file these claims lightly. 

Filing a claim about retaliation with the government is a big deal. 

Workers know that they can lose their jobs. They know that these 

cases take a long time to be pursued. They know that there is no 

assurance that they are going to win at the end of the day. 

What we get in this legislation is workers get a fair shot. They 

get a fair shot to bring their case forward and to try to prove up 

their case, which is much more than they have right now under 

current law. 

The information that we have shows the problem isn’t frivolous 

claims. The problem is workers don’t have the right right now to 

bring forward their claims, and that is the problem that the PAWA 

legislation is seeking to address and the reason why we fully support it. 

If I could just say a word about the notion that the statute of 

limitations in the legislation is somehow an outlier and bizarre in 

the area of employment law. That is just not the case. The discovery rule that the statute of limitations is from the time of the 

act or from the time the victim discovered the act is well settled 

in employment law, in Title VII law, even under the Occupational 

Safety and Health Act for whistleblower cases, and so it is just not 

accurate to say that this is a novel or bizarre concept in the area 

of labor and employment law. 

If I could make just one final point, which is one of the premises 

of Mr. Chinn’s testimony seemed to be that whistleblower protections don’t have anything to do with safety and health. They have 

to do with employment litigation, but they don’t have anything to 

do with worker safety and health. 

We couldn’t disagree more. We think they have everything to do 

with workers feeling secure to speak out, raise hazards, and be involved in protecting their health and safety on the job before injuries and illnesses occur. 

Mr. HARE. Well, I know I am out of time, but it would just seem 

to me that if Mr. Jorgensen or any worker sees something that is 

dangerous, that could be harmful to people that they work with, 

and they report it and they get fired for doing that, A, that is obscene to fire the person. And B, it doesn’t allow the employer to do 

anything to correct the problem for the people that are there in the 

plant or wherever to keep them out of harm’s way. It makes absolutely no sense to me. 

Chairwoman WOOLSEY. Ms. Shea-Porter. 

Ms. SHEA-PORTER. Thank you very much. 

I have several concerns that I heard in front of me. 

First, I would like to start, Ms. Ford, and say I am very sorry 

about your loss. And I wondered if you have spoken to other famiVerDate 0ct 09 2002 15:58 Dec 15, 2010 Jkt 000000 PO 00000 Frm 00056 Fmt 6633 Sfmt 6602 G:\DOCS\111TH\WP\111-58\56055.TXT HBUD PsN: DICK
53

lies that are in the same situation, and do they feel like they have 

been shut out. 

Ms. FORD. I have spoken to many of the families behind me. I 

have spoken to many families in Nebraska, many families. I have 

spoken to an individual that actually fell from a grain elevator 

after my uncle passed in the accident. And they said, we can’t come 

forth because he still works there. I don’t think that is right. 

Ms. SHEA-PORTER. So you think having a voice and allowing 

them to speak early would help other families as well? 

Ms. FORD. Oh, yes. I mean, from day one after this accident I 

started my research and there was so much I had found out. And 

if I had understood about the whole 6-month time frame this outcome would have been so different. I mean, I sat at my kitchen 

table and spoke to the OSHA representative and said, no, this was 

not grandfather-claused in. And it wasn’t. I was right. And I find 

out in January, 2010, that I was right; and it could have been prevented. Things could have changed. 

Ms. SHEA-PORTER. You could have had a voice at the table. 

Ms. FORD. Yes. 

Ms. SHEA-PORTER. And, Dr. Monforton, what about that 8-hour 

rule that they have that they don’t have to report a death or something that could have led to a death in 8 hours? What is your concern about that? 

Ms. MONFORTON. That is a very big disparity between the Mine 

Safety Act and the OSHA law. Under the Mine Safety Act, it was 

immediate notification of a fatality, which was fuzzy language. So 

after the Miner Act passed, they stipulated that within 15 minutes 

of the employer learning of the incident, not just of a fatality but 

for a serious injury that is likely to cause a death, and under the 

OSHA statute it is 8 hours for a fatality which, for many reasons, 

is problematic, including, you know, the employer could actually 

change the scene of the crime, so to speak. 

And, also, under OSHA, it is only if there are three or more people that are hospitalized. So there are huge disparities between the 

two statutes. 

And I think something that this subcommittee could look at is 

how do we take some of the things that are terrific in the Mine Act 

and extend them to all workers and vice versa, OSHA to MSHA. 

Ms. SHEA-PORTER. And, in all fairness, it could be accidental, 

where they don’t realize over the 8-hour period of time that they 

are changing or interfering with some evidence. So it could be accidental, simply trying to clear things up. 

Ms. MONFORTON. Right. Maybe just, you know, cleaning up the 

scene. 

Ms. SHEA-PORTER. But the point is that the evidence should be 

intact, I think is what you are getting at. 

Ms. MONFORTON. Exactly. So as soon as OSHA knows, you know, 

if it is the type of thing they hear the initial information, they may 

want to give the employer some instruction about what to do or 

what not to do. 

Ms. SHEA-PORTER. Okay. Thank you. 

I also had a question for you. The U.S. Chamber of Commerce 

testified at a recent hearing that small businesses should have the 

right to recover attorneys’ fees from employees who file whistleVerDate 0ct 09 2002 15:58 Dec 15, 2010 Jkt 000000 PO 00000 Frm 00057 Fmt 6633 Sfmt 6602 G:\DOCS\111TH\WP\111-58\56055.TXT HBUD PsN: DICK
54

blower claims and then fail to prevail at a hearing. Do you think 

that would have any kind of chilling effect? Do you have any concerns about the loser having to pay? 

Mr. BARAB. Yeah, I think it is clear it would have a chilling effect. Workers already face enough intimidation about filing complaints, and I think the fact that they not only might lose that or 

be fired due to a failure to sustain a whistleblower complaint but 

to think that they also might be essentially fined for that I think 

would have a chilling effect. We don’t want to just allow workers 

to file whistleblower complaints or file health and safety complaints. We want to encourage them to do that. And this goes in 

exactly the opposite direction. 

Ms. SHEA-PORTER. Thank you. 

Do you agree, Mr. Chinn? 

Mr. CHINN. Do I agree as to the attorneys’ fees provision? 

Ms. SHEA-PORTER. Yes. 

Mr. CHINN. As PAWA is written, I don’t see that there is any 

possibility of an employer recovering, if the employer prevails. 

Of course, in Federal court, if the action proceeds to Federal 

court, the matter would be governed by rule 11 of the Federal 

Rules of Civil Procedure. If the matter were frivolous, an employer 

could recover attorneys’ fees under that provision. 

Ms. SHEA-PORTER. But I wondered if you just agreed with the 

chambers perspective on that. 

Mr. CHINN. Well, if what Ms. Rhinehart said was true, I don’t 

agree with what was just stated. Ms. Rhinehart said that employees will not bring forward meritless claims. Now, we know statistically that that is just an incorrect statement. I mean, even under 

the Obama OSHA, claims are rejected as meritless. 

But if Ms. Rhinehart were accurate, then claimants have nothing 

to fear, because they will always win under this legislation. Therefore, there should be, at least for small businesses or, at a minimum, if the matter is frivolous or brought in bad faith, there 

should be some provision for attorneys’ fees, but nobody here 

should be concerned about it because, as Ms. Rhinehart said, no action will ever be brought without merit. 

Ms. SHEA-PORTER. And in all fairness then you would also have 

to say that, since cases are found to be meritless, that there is 

enough protection in there for business as well. 

Thank you. I yield back. 

Chairwoman WOOLSEY. Congressman Payne. 

Mr. PAYNE. Thank you very much. 

Mr. Barab, looking at the testimony, although I didn’t hear it, 

but Mr. Jorgensen testified that he had filed a complaint with 

OSHA regarding unsafe working conditions, and he was terminated 

a week after the inspection. Despite the employer claiming that he 

was fired for poor performance, the OSHA inspector discovered that 

the employer altered job performance documents which they gave 

to OSHA omitting anything positive about Mr. Jorgensen. 

So I guess my question is, is it correct that OSHA investigators 

found that Mr. Jorgensen’s case had merit? And, if so, did Mr. 

Jorgensen have a strong case? And how do you feel about the way 

the law treats Mr. Jorgensen and other people like him? 

Mr. BARAB. Thank you, Mr. Payne. 

55

Yes, OSHA did find merit. OSHA found that it was a strong case. 

And as Mr. Jorgensen related, the solicitors decided not to take 

that, not to litigate that case. 

Quite frankly, I am appalled by this. I am appalled that in the 

21st century, 40 years after the Occupational Safety and Health 

Act was passed, that workers still have to be afraid to exercise 

their rights under this law. I am not going to sit here—I mean, we 

did find merit. The solicitors didn’t take it. I am not going to sit 

here and certainly condemn the solicitors. They have their own priorities. They have their own resource decisions. They have to make 

some very difficult decision about this, and I am sure it hurts them 

as much as it hurts us that this wasn’t taken forward. 

The fact is, though, that we are both—both us, OSHA, the solicitors, and certainly workers are operating in what is now basically 

a dysfunctional system. It just doesn’t work. And what we are asking you to do, what PAWA is asking you to do, what PAWA would 

do is really fix that system so that workers actually have a chance 

to exercise their rights under the law and succeed if they are discriminated against for that. 

Mr. PAYNE. Since you brought up the solicitors, let me ask you 

this. And you indicate they have a tough time. But over the past 

14 years the Solicitor’s Office has brought suit in only 7 percent of 

the 467 merit cases it sent to OSHA and declined to prosecute 60 

percent of those cases. Is Mr. Jorgensen’s case an isolated one, or 

do you believe there are other meritorious claims which have been 

left by workers who were left, really, without any real recourse, 

sort of left high and dry? Why do you feel that the Solicitor’s Office 

has such a low rate of success? 

Mr. BARAB. Well, I think clearly Mr. Jorgensen’s case is not an 

isolated case. There are many, many cases on those. I mean, the 

figures speak for themselves. And I am not with the Solicitor’s Office. I am not going to really testify for the solicitors. But I do want 

to kind of outline the general environment that we all work in. 

I mean, the solicitors have to make—they have got, you know, 

X amount of resources. They have to make some difficult decisions. 

They may have, for example, class action suits that may affect 

thousands of workers. They may have a very difficult penalty case, 

settlement case for a worker fatality that they have to deal with. 

And then they also may have whistleblower cases that may only affect one worker for a few thousand dollars. 

I am not saying at all that these aren’t important certainly to 

that worker who is unfairly fired for exercising his health and safety rights. But the fact is that there are some difficult decisions that 

have to be made here. 

But, again, let me reiterate that those difficult decisions are 

forced upon them because we are working in this dysfunctional system, and that is what we need to change. We need to change the 

system. 

Mr. PAYNE. Well, let me say that I also feel that we need to 

strengthen the system. We should really be protecting workers. 

Even worse, back about 10 or 15 years ago, there was a move afoot 

by the then-controlled Republican Congress to have OSHA have inspections done and that the company would pay for the inspections 

and that the results would be given to the company without the 

56

public knowing what was in it; and, therefore, the company then 

would supposedly use this as a working tool to go and try to correct 

problems that the OSHA inspector found. 

Of course, it, fortunately, really did not get off the ground, because it is difficult enough under the environment that we currently have for the workers to get justice. If you had the company 

paying for the inspection, it would be total injustice, in my opinion. 

So, with that, thank you and I will yield back the balance of my 

time. 

Chairwoman WOOLSEY. We are going to have a second round of 

questions, and I will yield to Congresswoman McMorris Rodgers. 

Mrs. MCMORRIS ROGERS. Thank you, Madam Chairwoman. 

Much of the work of this subcommittee focuses on how we can 

get employers and employees to work more proactively to prevent 

accidents and illnesses from occurring and encourage that participation. And Mr. Morikawa mentioned the results of your electrical 

contractors transmission and distribution strategic partnership for 

safety and the success of it. I wanted to ask you how you believe 

we could translate that experience into OSHA’s everyday practices, 

especially as the agency has announced cuts in this area. 

Mr. MORIKAWA. Thank you very much for that question. 

The work with the ET&D partnership has been particularly positive and reinforcing because you took parties who were traditional 

adversaries and competitors and you pulled them all together for 

a common purpose and that common purpose was to reduce injuries and fatalities on the job. So it starts with that philosophy. It 

is an attitude. It is a desire to make a cultural change in an industry, which is very significant. As you can see, when you get everybody together in a cooperative basis, join hands to try to reduce injuries and fatalities and to find the causes and to stop them, you 

can have dramatic effect. 

Now, the issue I am concerned with is the fact that—first of all, 

I don’t take issue with the fact that OSHA needs to have a strong 

and vibrant enforcement program. Neither the chamber nor I personally have ever taken the view that an enforcement program 

should be replaced by cooperative programs. What I think should 

be done, however, is that groups of employers or individual employers that have indicated a commitment to prevention of accidents 

and fatalities on the job should be encouraged by OSHA. They 

should be incented to do the right thing. 

Now, commonly, there is the notion that companies that go into 

partnerships are supposed to gain some sort of strategic advantage, 

that they are looking for some type of immunity or they are looking 

for some sort of special treatment from OSHA. ET&D is an excellent example of that. These issues came up at the time we formed 

ET&D. The question was asked by OSHA, what sorts of immunity, 

what special treatment would you like as a result of it? Is that 

what you are really after here? 

And, resoundingly, the members of the partnership—again, remember this, union, non-union companies, together with one of the 

largest labor unions in America, along with these trade associations—got together and said, no, we are not looking for any special 

treatment. In fact, we are not looking for inspection immunity, citation immunity. We are not looking for special points and privilege, 

57

et cetera. We are looking for your cooperation so that we can get 

together as a group and solve these problems as a group and not 

do it by fighting with each other. 

Again, the partnership never took the position that they 

shouldn’t be cited if they violated OSHA standards. But what we 

did do is we focused on compliance cooperatively, and you can see 

the dramatic impact that has had. OSHA should be encouraged to 

do that. 

Mr. BARAB. Just for the record, we fully support that partnership. We love that partnership. We think it has been very effective, 

and we have not cut back funding for these partnerships. 

Mrs. MCMORRIS ROGERS. Okay. Great. Great. Thank you. 

And, Madam Chairwoman, I have a case I would like to submit 

for the record. This is on April 19, 2010, the National Labor Relations Board found that the International Union of Operating Engineers, local 513, in violation of the National Labor Relations Act 

for fining a union member for reporting another union member’s 

safety violation to their employer. IUOE had fined an employee 

$2,500 for informing his employer that a fellow employee and union 

member had violated a safety protocol, and I would like to submit 

that for the record. 

Chairwoman WOOLSEY. Without objection. 

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Mrs. MCMORRIS ROGERS. And I would like to ask, Ms. Rhinehart, 

if the AFL is examining any changes to protect whistleblowers 

within the union. 

Ms. RHINEHART. Thanks for the question. I am not familiar with 

the case that you just mentioned, but I will take a look at it. 

The stronger whistleblower protections in PAWA would apply to 

unions as employers just as they apply to private sector employers, 

and we fully support that. 

Mrs. MCMORRIS ROGERS. Okay. And I yield back. 

Chairwoman WOOLSEY. I was quite surprised that Mr. Chinn can 

sit here this morning and ask what motivates updating PAWA, 

why bringing section 11(c) into the 21st century, 11(c) of the OSH 

Act, is—what motivates us to do that, after hearing the Secretary 

and hearing the witnesses before you and knowing the stories of 

the family members sitting behind you. That just—I find that very 

hard to believe. So then the idea that—from that statement to during times of bad economic situations around the country, 10 percent unemployment—that we can’t upgrade and fix what is so necessary to our workers and for our workers. So I would like to ask 

the members—the witnesses if they think there is a time and place 

when it is too—we can’t afford to take care of our workers and we 

can’t afford to update their worksites and our laws that protect 

them. Starting with you, Ms. Rhinehart. 

Mr. JORGENSEN. May I speak for a second? 

Chairwoman WOOLSEY. Oh, sure. Mr. Jorgensen. 

Mr. JORGENSEN. Two points here. First of all, OSHA should be 

a police officer. And, you know, just for the record, I am on the minority side of the House when it comes to my political group. 

Chairwoman WOOLSEY. Oh, gosh. Then we are not going to listen 

to you. Go ahead. 

Mr. JORGENSEN. I think, you know, if a person comes forward 

and says something and he gets beat up for it, he is going to tell 

all his friends and nobody else is going to come forward. Bottom 

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Like I said, I took my—you know, when I was asked, was talked 

about coming here, I went to my employer, my current employer, 

which is Sunoco out of South Carolina. I explained what had happened to me, what was—what I knew of what the law was for and 

said, should I go? Because, you know—and mentioned, you know, 

I know it will be a good experience. And my manager said, you 

should go, not just because it is a good experience, because it is 

right. 

Chairwoman WOOLSEY. Oh, thank you to that manager. Thank 

you for sharing that, Mr. Jorgensen. 

Ms. Rhinehart. 

Ms. RHINEHART. Thank you. Just a couple of comments. 

One is, there is a desperate need to update and strengthen this 

law. And I just want to reinforce a point that has sort of come out 

in the course of this discussion but that really needs to be made 

clear, and that is what an outlier the whistleblower protections in 

the OSH Act are relative to really virtually any other law and the 

absence of a private right of action and ability of workers like Mr. 

Jorgensen to bring their case forward if the Secretary of Labor 

can’t act. It is—the OSH Act is way out of the mainstream, and it 

is past time to bring it into the mainstream of other whistleblower 

laws. So thank you for your efforts to that end. 

Chairwoman WOOLSEY. Okay. Thank you. 

Dr. Monforton. 

Ms. MONFORTON. As a professor of public health and someone 

who studies history, I mean, we have heard through the time of the 

OSHA law that there is, you know, you never have a perfect time 

to reduce injuries and illnesses. If you listen to the business community and you look at the difficult time that OSHA has had in 

regulating many, many hazards, you know, we would never get 

anything done if people were looking for the perfect time. 

And I also would like to draw people’s attention to the hearing 

yesterday in the Senate which focused also on worker health and 

safety. And it came through loud and clear that during the most 

difficult time, when our economy is in the tank, that is the exact 

time that workers are most at risk of being exploited, and that is 

when we need very strong whistleblower protection laws. And people will take risks if they are afraid of losing their job or they are 

laid off, and that is why we really need these strong whistleblower 

protections. 

Chairman WOOLSEY. Thank you. 

Mr. Morikawa—I am going to take the prerogative of the chair 

and let Ms. Ford and Jordan speak, also—would you like to respond to that? 

Mr. MORIKAWA. Well, first of all, I think that PAWA is an act 

which has significant merit. There is no question that there are 

issues that have been raised, that have led everybody here to this 

meeting today. I think what we are discussing really are aspects 

of PAWA which we think just don’t necessarily work in real practice, and what we have tried to inject into the discussion today is 

a real-life experience that places us in a somewhat unique position 

of actually agreeing with each other. 

I am actually talking to Mr. Barab, who I have known for many 

years, and we have had differences in the past, but we certainly 

68

have no disagreement here about the impact that certain aspects 

of this legislation can have in terms of taking an agency which is 

really faced with a difficult mission of trying to enforce laws for so 

many millions of workplaces in America with a very, very small 

staff. And, as a consequence of that, they are faced with a challenge of trying to decide which cases to pursue, how to pursue them 

and when to pursue them, issues of timing, resource deployment, 

et cetera. And in that respect we certainly respect and we give deference to the prosecutorial discretion that agencies such as OSHA 

and the Solicitor’s Office need to have in order to enforce the laws 

that they have been charged to enforce. So, in that respect, they 

really are acting and should be acting as the representative of employees in these types of cases. 

Chairman WOOLSEY. Okay. Thank you. 

Ms. Ford. 

Ms. FORD. Like Dr. Monforton said, I would have to agree, there 

is probably no time, the best time to fix to make safety. However, 

in saying that, I hope the employers know that it was the hard 

work of people like my uncle and my father who make these companies what they are today. They have the name, but it is the people that make it, and if it was not for them, they wouldn’t be where 

they are. 

Chairman WOOLSEY. Thank you very much. 

Secretary Barab. 

Mr. BARAB. Thank you. 

I have been working in this field for close to 30 years, and one 

thing that is more and more obvious to me is that OSHA doesn’t 

work and workplace health and safety doesn’t work unless workers 

are actively involved, and the only way workers are going to be actively involved is if they do not fear retaliation. And that is not the 

situation now. 

Now, I just want to mention one thing. It is true that OSHA only 

finds merit in 25 percent of these cases. That does not mean, however, and I certainly don’t agree with the fact that OSHA thinks 

that the other 76 percent of these cases are frivolous. All this 

means is that these workers—nor does it mean that these workers 

didn’t actually have a good-faith belief that there was a health and 

safety problem or that there was a health and safety problem. It 

simply means that, under the way the law is written now, they 

could not assemble the kind of evidence that they needed to prevail 

in the case. So, again, I totally reject that that figure means that 

these cases were frivolous. 

And, secondly, just in terms of responding to Mr. Morikawa, I do 

understand, obviously, we all understand, that there are serious resource problems. And I will take your comments as an endorsement 

for increasing our resources. But I also want to say that just for 

that reason is why we need Protecting America’s Worker’s rights, 

why we need a private right of action and the other elements that 

are in the whistleblower provisions of this law. So this is—it has 

been 40 years now since this law was passed. There are some very 

clear, very obvious problems that are keeping workplaces from 

being as safe as they can be, and now it is high time to actually 

make those changes. 

Chairwoman WOOLSEY. Okay. It appears I am really out of time. 

69

Ms. Shea-Porter. 

Ms. SHEA-PORTER. Thank you. 

I just have a quick question, but, first, I wanted to say that I do 

know that most companies are very interested in keeping their 

workers safe; and I think that, you know, they do everything they 

can. I did work in factories through college, and I saw some pretty 

awful things, and I saw some pretty wonderful employers. I think 

that really reflects, you know, what the world is like; and that is 

why we have to have a strong agency for the few who would not 

follow the rules. But, mostly, I think that we have come a long way 

since I was in college, and I am happy to see that. 

I do go to factories and I look very closely at so many markers 

that maybe other people wouldn’t know to look for, and I appreciate that I had seen a tremendous improvement. 

Having said that, Ms. Rhinehart, I felt I needed to give you an 

opportunity to respond to Mr. Chinn’s comments at the end of my 

last 5 minutes. Because I agree with Mr. Barab about what those 

numbers really signify, but I wanted to give you a chance to talk 

about whether they are frivolous suits and exactly what is happening out there, in your opinion. 

Ms. RHINEHART. Thank you. 

Really, very little is known about the reasons why the cases were 

dismissed by OSHA, withdrawn by the complainant, not processed 

further through the system. In a good number of cases, I imagine 

the worker missed the statute of limitations, which is a problem 

that is addressed by the pending legislation to lengthen the exceedingly short statute of limitations that currently exists in the OSH 

Act. 

If a worker was fired for filing an OSHA complaint and filed 

their whistleblower complaint on day 35 as opposed to day 30, that 

case would have been dismissed. It wouldn’t have merit under the 

current law, but it doesn’t mean that the worker wasn’t wrongfully 

terminated. They just missed the statute of limitation. So that is 

just one example. 

There are a lot of things that go into whether or not a case is 

withdrawn, dismissed, or doesn’t proceed further through the system. So I think that you can’t just assume that they they all didn’t 

proceed because they were not meritorious or they were frivolous. 

There is just no evidence to support that. 

And, as I said earlier on this point, workers don’t bring these 

cases forward lightly. They know the consequences of coming forward and filing a claim with the government against their employer and what that could mean for them in their job and future 

jobs and so forth. They don’t bring these claims forward lightly, 

which is all the more reason why we need a stronger law to protect 

them when they do come forward to raise these concerns. Thank 

you. 

Ms. SHEA-PORTER. Thank you. 

And, also, I would add that sometimes has an impact on them 

in their community, in their social life because of the role, if it is 

a very prominent role, that the business has in a community. So 

I would agree that, for the most part, they don’t step forward lightly. It is a serious issue. 

Thank you, and I yield back. 

70

Chairwoman WOOLSEY. Well, in closing, I would like to thank 

this wonderful panel of witnesses. Every one of you participated absolutely to the degree that we were hoping. We have learned from 

you, and your testimony will make a difference. And thank you, 

families, again, for being here and loved ones and friends of those 

who have died at the workplace. 

Today, as we said, is Workers Memorial Day, a day when we 

honor fallen workers and recommit ourselves to ensuring the safety 

and health of all workers. As our witnesses have testified, it has 

been 40 years since the OSH Act was amended and, well, passed 

in the first place and fully amended. In those 40 years, we have 

learned a lot about working and what needs to be changed; and 

PAWA will modernize the OSH Act, give workers and their families 

the protections they need to report unsafe and unhealthy practices 

and be involved in the process when an incident causes a fatality 

or a serious injury. 

I am looking forward to our bill, PAWA, proceeding through the 

committee and the floor for a vote. It wouldn’t have been possible 

without your input and without your interest, and I thank you all 

very much for that and thank you for coming. 

As previously ordered, members have 14 days to submit additional materials for the hearing records. Any member who wishes 

to submit follow-up questions in writing to the witnesses should coordinate with the majority staff within 14 days. 

Then I ask unanimous consent to include the following 14 items 

into the hearing. So, without objection, I would like to place the following letters into the record: 1, the discussion draft for Protecting 

America’s Workers Act of March 9, 2010; 2, data on the Solicitor 

of Labor’s disposition of 11(c) retalitaion cases from 1995 through 

2009; 3, statistics and outcomes on whistleblower cases filed with 

OSHA for 2008; 4, OSHA’s actions on 11(c) cases completed in fiscal year 2009; 5, DOL’s letter to Neal Jorgensen dated April 7, 

2005; 6, the ADM Miling Company informal settlement agreement; 

7, an e-mail from OSHA to Ms. Ford; 8, the Kansas Supreme Court 

Case, Flenker v. Willamette Industries, Inc.; 9, the Missouri Court 

of Appeals case, Shawcross v. Pyro Products, Inc.; 10, the U.S. 

Court of Appeals case, Wood v. Department of Labor; 11, an Administrative Law Journal article by Eugene Fidell, titled Federal 

Protection of Private Sector Health and Safety Whistleblowers; 12, 

an Employee Rights and Employment Policy Journal by Jarrod 

Gonzalez titled, A Pot of Gold at the End of the Rainbow: An Economic Incentives Based Approach to OSHA Whistleblowing; 13, a 

GAO report titled Better Data and Improved Oversight Would Help 

Ensure Program Quality and Consistency; and, finally, 14, Comparison of Anti-Retaliation Provisions in Other Laws, prepared by 

AFL–CIO; and 15, National Labor Relations Board case dated April 

19 of 2010. 

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[DISCUSSION DRAFT]

[AS OF MARCH 9, 2010] 

[Modifications to HR 2067, Protecting America’s Workers Act] 

111TH CONGRESS 

2D SESSION H. R. ll

To amend the Occupational Safety and Health Act of 1970 to expand coverage under the Act, to increase protections for whistleblowers, to increase penalties for certain violators, and for 

other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

MS. WOOLSEY introduced the following bill; which was referred to 

the Committee on lllllllllllllll

A BILL

To amend the Occupational Safety and Health Act of 1970 to expand coverage under the Act, to increase protections for whistleblowers, to increase penalties for certain violators, and for 

other purposes.

Be it enacted by the Senate and House of Representatives of the United States 

of America in Congress assembled, 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Protecting America’s Workers Act’’. 

SEC. 2. REFERENCES. 

Except as otherwise expressly provided, wherever in this Act an amendment or 

repeal is expressed in terms of an amendment to, or repeal of, a section or other 

provision, the reference shall be considered to be made to a section or other provision of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.). 

TITLE I—COVERAGE OF PUBLIC EMPLOYEES 

AND APPLICATION OF ACT 

SEC. 101. COVERAGE OF PUBLIC EMPLOYEES. 

(a) IN GENERAL.—Section 3(5) (29 U.S.C. 652(5)) is amended by striking ‘‘but 

does not include’’ and all that follows through the period at the end and inserting 

‘‘including the United States, a State, or a political subdivision of a State.’’. 

(b) CONSTRUCTION.—Nothing in this Act shall be construed to affect the application of section 18 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 667). 

SEC. 102. APPLICATION OF ACT. 

Section 4(b) (29 U.S.C. 653(b)(1)) is amended—

(1) by redesignating paragraphs (2), (3), and (4) as paragraphs (5), (6), and 

(7), respectively; and 

(2) by striking paragraph (1) and inserting the following: 

‘‘(1) If a Federal agency has promulgated and is enforcing a standard or regulation affecting occupational safety or health of some or all of the employees within 

that agency’s regulatory jurisdiction, and the Secretary determines that such a 

standard or regulation as promulgated and the manner in which the standard or 

72

regulation is being enforced provides protection to those employees that is at least 

as effective as the protection provided to those employees by this Act and the Secretary’s enforcement of this Act, the Secretary may publish a certification notice in 

the Federal Register. The notice shall set forth that determination and the reasons 

for the determination and certify that the Secretary has ceded jurisdiction to that 

Federal agency with respect to the specified standard or regulation affecting occupational safety or health. In determining whether to cede jurisdiction to a Federal 

agency, the Secretary shall seek to avoid duplication of, and conflicts between, 

health and safety requirements. Such certification shall remain in effect unless and 

until rescinded by the Secretary. 

‘‘(2) The Secretary shall, by regulation, establish procedures by which any person who may be adversely affected by a decision of the Secretary certifying that the 

Secretary has ceded jurisdiction to another Federal agency pursuant to paragraph 

(1) may petition the Secretary to rescind a certification notice under paragraph (1). 

Upon receipt of such a petition, the Secretary shall investigate the matter involved 

and shall, within 90 days after receipt of the petition, publish a decision with respect to the petition in the Federal Register. 

‘‘(3) Any person who may be adversely affected by—

‘‘(A) a decision of the Secretary certifying that the Secretary has ceded jurisdiction to another Federal agency pursuant to paragraph (1); or 

‘‘(B) a decision of the Secretary denying a petition to rescind such a certification notice under paragraph (1), 

may, not later than 60 days after such decision is published in the Federal Register, 

file a petition challenging such decision with the United States court of appeals for 

the circuit in which such person resides or such person has a principal place of business, for judicial review of such decision. A copy of the petition shall be forthwith 

transmitted by the clerk of the court to the Secretary. The Secretary’s decision shall 

be set aside if found to be arbitrary, capricious, an abuse of discretion, or otherwise 

not in accordance with law. 

‘‘(4) Nothing in this Act shall apply to working conditions covered by the Federal Mine Safety and Health Act of 1977 (30 U.S.C. 801 et seq.).’’. 

TITLE II—INCREASING PROTECTIONS FOR 

WHISTLEBLOWERS 

SEC. 201. EMPLOYEE ACTIONS. 

Section 11(c)(1) (29 U.S.C. 660(c)(1)) is amended by inserting before the period 

at the end the following: ‘‘, including the reporting of any injury, illness, or unsafe 

condition to the employer, agent of the employer, safety and health committee involved, or employee safety and health representative involved’’. 

SEC. 202. PROHIBITION OF DISCRIMINATION. 

Section 11(c) (29 U.S.C. 660(c)) is amended by striking paragraph (2) and inserting the following: 

‘‘(2) No person shall discharge or in any manner discriminate against an 

employee for refusing to perform the employee’s duties if the employee has a 

reasonable apprehension that performing such duties would result in serious injury to, or serious impairment of the health of, the employee or other employees. 

The circumstances causing the employee’s apprehension of serious injury or serious impairment of health shall be of such a nature that a reasonable person, 

under the circumstances confronting the employee, would conclude that there 

is a bona fide danger of a serious injury, or serious impairment of health, resulting from the circumstances. In order to qualify for protection under this 

paragraph, the employee, when practicable, shall have sought from the employee’s employer, and have been unable to obtain, a correction of the circumstances 

causing the refusal to perform the employee’s duties.’’. 

SEC. 203. PROCEDURE. 

Section 11(c) (29 U.S.C. 660(c)) is amended by striking paragraph (3) and inserting the following: 

‘‘(3) COMPLAINT.—Any employee who believes that the employee has been 

discharged, disciplined, or otherwise discriminated against by any person in violation of paragraph (1) or (2) may seek relief for such violation by filing a complaint with the Secretary under paragraph (5). 

‘‘(4) STATUTE OF LIMITATIONS.—

‘‘(A) IN GENERAL.—An employee may take the action permitted by paragraph (3)(A) not later than 180 days after the later of—

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‘‘(i) the date on which an alleged violation of paragraph (1) or (2) 

occurs; or 

‘‘(ii) the date on which the employee knows or should reasonably 

have known that such alleged violation occurred. 

‘‘(B) REPEAT VIOLATION.—Except in cases when the employee has been 

discharged, a violation of paragraph (1) or (2) shall be considered to have 

occurred on the last date an alleged repeat violation occurred. 

‘‘(5) INVESTIGATION.— ‘‘(A) IN GENERAL.—An employee may, within the time period required 

under paragraph (4)(B), file a complaint with the Secretary alleging a violation of paragraph (1) or (2). If the complaint alleges a prima facie case, the 

Secretary shall conduct an investigation of the allegations in the complaint, 

which—

‘‘(i) shall include—

‘‘(I) interviewing the complainant; 

‘‘(II) providing the respondent an opportunity to—

‘‘(aa) submit to the Secretary a written response to the 

complaint; and 

‘‘(bb) meet with the Secretary to present statements from 

witnesses or provide evidence; and 

‘‘(III) providing the complainant an opportunity to—

‘‘(aa) receive any statements or evidence provided to the 

Secretary; 

‘‘(bb) meet with the Secretary; and 

‘‘(cc) rebut any statements or evidence; and 

‘‘(ii) may include issuing subpoenas for the purposes of such investigation. 

‘‘(B) DECISION.—Not later than 90 days after the filing of the complaint, 

the Secretary shall—

‘‘(i) issue a decision on whether to order relief; and 

‘‘(ii) notify, in writing, the complainant and the respondent named 

in the complaint of such decision. 

‘‘(6) PRELIMINARY ORDER FOLLOWING INVESTIGATION.—If, after completion of 

an investigation under paragraph (5)(A), the Secretary finds reasonable cause 

to believe that a violation of paragraph (1) or (2) has occurred, the Secretary 

shall issue a preliminary order providing relief authorized under paragraph (14) 

at the same time the Secretary issues a decision under paragraph (5)(B). If a 

de novo hearing is not requested within the time period required under paragraph (7)(A)(i), such preliminary order shall be deemed a final order of the Secretary and is not subject to judicial review. 

‘‘(7) HEARING.—

‘‘(A) REQUEST FOR HEARING.—

‘‘(i) IN GENERAL.—A de novo hearing on the record before an administrative law judge may be requested—

‘‘(I) by the complainant or respondent within 30 days after receiving notification of a decision or preliminary order for relief 

issued under paragraph (5)(B) or (6), respectively; 

‘‘(II) by the complainant within 30 days after the date the complaint is dismissed without investigation by the Secretary under 

paragraph (5)(A); or 

‘‘(III) by the complainant within 120 days after the date of filing the complaint, if the Secretary has not issued a decision under 

paragraph (5)(B). 

‘‘(ii) REINSTATEMENT ORDER.—The request for a hearing shall not 

operate to stay any preliminary reinstatement order issued under paragraph (6). 

‘‘(B) PROCEDURES.—

‘‘(i) IN GENERAL.—A hearing requested under this paragraph shall 

be conducted expeditiously and in accordance with rules established by 

the Secretary for hearings conducted by administrative law judges. 

‘‘(ii) SUBPOENAS; PRODUCTION OF EVIDENCE.—In conducting any 

such hearing, the administrative law judge may issue subpoenas. The 

respondent or complainant may request the issuance of subpoenas that 

require the deposition of, or the attendance and testimony of, witnesses 

and the production of any evidence (including any books, papers, documents, or recordings) relating to the matter under consideration. 

‘‘(iii) DECISION.—The administrative law judge shall issue a decision not later than 90 days after the date on which a hearing was reVerDate 0ct 09 2002 15:58 Dec 15, 2010 Jkt 000000 PO 00000 Frm 00077 Fmt 6633 Sfmt 6621 G:\DOCS\111TH\WP\111-58\56055.TXT HBUD PsN: DICK
74

quested under this paragraph and promptly notify, in writing, the parties and the Secretary of such decision, including the findings of fact 

and conclusions of law. If the administrative law judge finds that a violation of paragraph (1) or (2) has occurred, the judge shall issue an 

order for relief under paragraph (14). If review under paragraph (8) or 

(11) is not timely requested, such order shall be deemed a final order 

of the Secretary that is not subject to judicial review. 

‘‘(8) ADMINISTRATIVE APPEAL.— ‘‘(A) IN GENERAL.—Not later than 30 days after the date of notification 

of a decision and order issued by an administrative law judge under paragraph (7), the complainant or respondent may file, with objections, an administrative appeal with the Secretary (or an administrative review body 

designated by the Secretary). 

‘‘(B) STANDARD OF REVIEW.—In reviewing the decision and order of the 

administrative law judge, the Secretary (or designated administrative review body) shall affirm the decision and order if it is determined that the 

factual findings set forth therein are supported by substantial evidence and 

the decision and order are made in accordance with applicable law. 

‘‘(C) DECISION.—If the Secretary grants the administrative appeal and 

finds that a violation of paragraph (1) or (2) has occurred, the Secretary 

shall issue, within 60 days of receipt of the administrative appeal, a final 

decision and order providing relief authorized under paragraph (14), and 

such decision and order shall constitute a final agency action. 

‘‘(9) SETTLEMENT IN THE ADMINISTRATIVE PROCESS.— ‘‘(A) IN GENERAL.—At any time before issuance of a final order, an investigation or proceeding under this subsection may be terminated on the 

basis of a settlement agreement entered into by—

‘‘(i) the Secretary or an administrative law judge conducting a 

hearing under this subsection; 

‘‘(ii) the complainant; and 

‘‘(iii) the respondent. 

‘‘(B) PUBLIC POLICY CONSIDERATIONS.—The Secretary or an administrative law judge conducting a hearing under this subsection may not accept 

a settlement that contains conditions conflicting with the rights protected 

under this Act or that are contrary to public policy, including a restriction 

on a complainant’s right to future employment with employers other than 

the specific employers named in a complaint. 

‘‘(10) INACTION BY THE SECRETARY OR ADMINISTRATIVE LAW JUDGE.— ‘‘(A) IN GENERAL.—The complainant may bring a de novo action described in subparagraph (B) if—

‘‘(i) an administrative law judge has not issued a decision and order 

within the 90-day time period required under paragraph (7)(B)(iii); or 

‘‘(ii) the Secretary has not issued a decision and order within the 

60-day time period required under paragraph (8)(C). 

‘‘(B) DE NOVO ACTION.—Such de novo action may be brought at law or 

equity in the United States district court for the district where a violation 

of paragraph (1) or (2) allegedly occurred or where the complainant resided 

on the date of such alleged violation. The court shall have jurisdiction over 

such action without regard to the amount in controversy and to order appropriate relief under paragraph (14). Such action shall, at the request of 

either party to such action, be tried by the court with a jury. 

‘‘(11) JUDICIAL REVIEW.—

‘‘(A) TIMELY APPEAL TO THE COURT OF APPEALS.—Any party adversely 

affected or aggrieved by a final decision and order issued under this subsection may obtain review of such decision and order in the United States 

Court of Appeals for the circuit where the violation, with respect to which 

such final decision and order was issued, allegedly occurred or where the 

complainant resided on the date of such alleged violation. To obtain such 

review, a party shall file a petition for review not later than 60 days after 

the final decision and order was issued. Such review shall conform to chapter 7 of title 5, United States Code. The commencement of proceedings 

under this subparagraph shall not, unless ordered by the court, operate as 

a stay of the final decision and order. 

‘‘(B) LIMITATION ON COLLATERAL ATTACK.—An order and decision with 

respect to which review may be obtained under subparagraph (A) shall not 

be subject to judicial review in any criminal or other civil proceeding. 

‘‘(12) ENFORCEMENT OF ORDER.—If a respondent fails to comply with an 

order issued under this subsection, the Secretary or the complainant on whose 

75

behalf the order was issued may file a civil action for enforcement in the United 

States district court for the district in which the violation was found to occur 

to enforce such order. If both the Secretary and the complainant file such action, the action of the Secretary shall take precedence. The district court shall 

have jurisdiction to grant all appropriate relief including, injunctive relief, compensatory or exemplary damages, and reasonable attorneys’ fees and costs. 

‘‘(13) BURDENS OF PROOF.—

‘‘(A) CRITERIA FOR DETERMINATION.—In adjudicating a complaint pursuant to this subsection, the Secretary or a court may determine that a violation of paragraph (1) or (2) has occurred only if the complainant demonstrates that any conduct described in paragraph (1) or (2) with respect 

to the complainant was a contributing factor in the adverse action alleged 

in the complaint. 

‘‘(B) PROHIBITION.—Notwithstanding subparagraph (A), a decision or 

order that is favorable to the complainant shall not be issued in any administrative or judicial action pursuant to this subsection if the respondent 

demonstrates by clear and convincing evidence that the respondent would 

have taken the same adverse action in the absence of such conduct. 

‘‘(14) RELIEF.—

‘‘(A) ORDER FOR RELIEF.—If the Secretary or a court determines that a 

violation of paragraph (1) or (2) has occurred, the Secretary or court, respectively, shall have jurisdiction to order all appropriate relief, including injunctive relief, compensatory and exemplary damages, including—

‘‘(i) affirmative action to abate the violation; 

‘‘(ii) reinstatement without loss of position or seniority, and restoration of the terms, rights, conditions, and privileges associated with the 

complainant’s employment, including opportunities for promotions to 

positions with equivalent or better compensation for which the complainant is qualified; 

‘‘(iii) compensatory and consequential damages sufficient to make 

the complainant whole, (including back pay, prejudgment interest, and 

other damages); and 

‘‘(iv) expungement of all warnings, reprimands, or derogatory references that have been placed in paper or electronic records or databases of any type relating to the actions by the complainant that gave 

rise to the unfavorable personnel action, and, at the complainant’s direction, transmission of a copy of the decision on the complaint to any 

person whom the complainant reasonably believes may have received 

such unfavorable information. 

‘‘(B) ATTORNEYS’ FEES AND COSTS.—If the Secretary or a court grants 

an order for relief under subparagraph (A), the Secretary or court, respectively, shall assess, at the request of the employee against the employer—

‘‘(i) reasonable attorneys’ fees; and 

‘‘(ii) costs (including expert witness fees)) reasonably incurred, as 

determined by the Secretary or court respectively, in connection with 

bringing the complaint upon which the order was issued. 

‘‘(15) PROCEDURAL RIGHTS.—The rights and remedies provided for in this 

subsection may not be waived by any agreement, policy, form, or condition of 

employment, including by any pre-dispute arbitration agreement or collective 

bargaining agreement. 

‘‘(16) SAVINGS.—Nothing in this section shall be construed to diminish the 

rights, privileges, or remedies of any employee who exercises rights under any 

Federal or State law or common law, or under any collective bargaining agreement. 

‘‘(17) ELECTION OF VENUE.—

‘‘(A) IN GENERAL.—An employee of an employer who is located in a 

State that has a State plan approved under section 18 may file a complaint 

alleging a violation of paragraph (1) or (2) by such employer with—

‘‘(i) the Secretary under paragraph (5); or 

‘‘(ii) a State plan administrator in such State. 

‘‘(B) REFERRALS.—If—

‘‘(i) the Secretary receives a complaint pursuant to subparagraph 

(A)(i), the Secretary shall not refer such complaint to a State plan administrator for resolution; or 

‘‘(ii) a State plan administrator receives a complaint pursuant to 

subparagraph (A)(ii), the State plan administrator shall not refer such 

complaint to the Secretary for resolution.’’. 

76

SEC. 204. RELATION TO ENFORCEMENT. 

Section 17(j) (29 U.S.C. 666(j)) is amended by inserting before the period the 

following: ‘‘, including the history of violations under section 11(c)’’. 

TITLE III—INCREASING PENALTIES FOR 

VIOLATORS 

SEC. 301. POSTING OF EMPLOYEE RIGHTS. 

Section 8(c)(1) (29 U.S.C. 657(c)(1)) is amended by adding at the end the following new sentence: ‘‘Such regulations shall include provisions requiring employers 

to post for employees information on the protections afforded under section 11(c).’’. 

SEC. 302. EMPLOYER REPORTING OF WORK-RELATED DEATHS AND HOSPITALIZATIONS AND 

PROHIBITION ON DISCOURAGING EMPLOYEE REPORTS OF INJURY OR ILLNESS. 

Section 8(c)(2) (29 U.S.C. 657(c)(2)) is amended by adding at the end the following new sentences: ‘‘Such regulations shall require employers to promptly notify 

the Secretary of any work-related death or work-related injury or illness that results 

in the in-patient hospitalization of an employee for medical treatment. Such regulations shall also prohibit the employer from adopting or implementing policies or 

practices by the employer that have the effect of discouraging accurate recordkeeping and the reporting of work-related injuries or illnesses by any employee or 

in any manner discriminates or provides for adverse action against any employee 

for reporting a work-related injury or illness.’’

SEC. 303. NO LOSS OF EMPLOYEE PAY FOR INSPECTIONS. 

Section 8(e) (29 U.S.C. 657(e)) is amended by inserting after the first sentence 

the following: ‘‘Time spent by an employee participating in or aiding any such inspection shall be deemed to be hours worked and no employee shall suffer any loss 

of wages, benefits, or other terms and conditions of employment for having participated in or aided any such inspection.’’. 

SEC. 304. INVESTIGATIONS OF FATALITIES AND SIGNIFICANT INCIDENTS. 

Section 8 (29 U.S.C. 657) is amended by adding at the end the following new 

subsection: 

‘‘(i) INVESTIGATION OF FATALITIES AND SERIOUS INCIDENTS.—

‘‘(1) IN GENERAL.—The Secretary shall investigate any significant incident or an 

incident resulting in death that occurs in a place of employment. 

‘‘(2) APPROPRIATE MEASURES.—If a significant incident or an incident resulting 

in death occurs in a place of employment, the employer shall promptly notify the 

Secretary of the incident involved and shall take appropriate measures to prevent 

the destruction or alteration of any evidence that would assist in investigating the 

incident. The appropriate measures required by this paragraph do not prevent an 

employer from taking action on a worksite to prevent injury to employees or substantial damage to property or to avoid disruption of essential services necessary to 

public safety. If an employer takes such action, the employer shall notify the Secretary of the action in a timely fashion. 

‘‘(3) DEFINITIONS.—In this subsection: 

‘‘(A) INCIDENT RESULTING IN DEATH.—The term ‘incident resulting in death’ 

means an incident that results in the death of an employee. 

‘‘(B) SIGNIFICANT INCIDENT.—The term ‘significant incident’ means an incident that results in the in-patient hospitalization of 2 or more employees for 

medical treatment.’’. 

SEC. 305. PROHIBITION ON UNCLASSIFIED CITATIONS. 

Section 9 (29 U.S.C. 658) is amended by adding at the end the following: 

‘‘(d) No citation for a violation of this Act may be issued, modified, or settled 

under this section without a designation enumerated in section 17 with respect to 

such violation.’’. 

SEC. 306. VICTIMS’ RIGHTS. 

The Act is amended by inserting after section 9 (29 U.S.C. 658) the following: 

‘‘SEC. 9A. VICTIM’S RIGHTS. 

‘‘(a) RIGHTS BEFORE THE SECRETARY.—A victim or the representative of a victim, shall be afforded the right, with respect to an inspection or investigation conducted under section 8 to—

77

‘‘(1) meet with the Secretary regarding the inspection or investigation conducted under such section before the Secretary’s decision to issue a citation or 

take no action; 

‘‘(2) receive, at no cost, a copy of any citation or report, issued as a result 

of such inspection or investigation, at the same time as the employer receives 

such citation or report; 

‘‘(3) be informed of any notice of contest or addition of parties to the proceedings filed under section 10(c); and 

‘‘(4) be provided notification of the date and time or any proceedings, service 

of pleadings, and other relevant documents, and an explanation of the rights of 

the employer, employee and employee representative, and victim to participate 

in proceedings conducted under section 10(c). 

‘‘(b) RIGHTS BEFORE THE COMMISSION.—Upon request, a victim or representative of a victim shall be afforded the right with respect to a work-related bodily injury or death to—

‘‘(1) be notified of the time and date of any proceeding before the Commission; and 

‘‘(2) receive pleadings and any decisions relating to the proceedings; and 

‘‘(3) be provided an opportunity to appear and make a statement in accordance with the rules prescribed by the Commission. 

‘‘(c) MODIFICATION OF CITATION.—Before entering into an agreement to withdraw or modify a citation issued as a result of an inspection or investigation of an 

incident under section 8, the Secretary shall notify a victim or representative of a 

victim and provide the victim or representative of a victim with an opportunity to 

appear and make a statement before the parties conducting settlement negotiations. 

In lieu of an appearance, the victim or representative of the victim may elect to submit a letter to the Secretary and the parties. 

‘‘(d) SECRETARY PROCEDURES.—The Secretary shall establish procedures—

‘‘(1) to inform victims of their rights under this section; and 

‘‘(2) for the informal review of any claim of a denial of such a right. 

‘‘(e) COMMISSION PROCEDURES.—The Commission shall establish procedures relating to the rights of victims to be heard in proceedings before the Commission. 

‘‘(f) DEFINITION.—In this section, the term ‘victim’ means—

‘‘(1) an employee, including a former employee, who has sustained a workrelated injury or illness that is the subject of an inspection or investigation conducted under section 8, or 

‘‘(2) a family member (as further defined by the Secretary) of a victim described in paragraph (1), if—

‘‘(A) the victim dies as a result of a incident that is the subject of an 

inspection or investigation conducted under section 8; or 

‘‘(B) the victim sustains a work-related injury or illness that is the subject of an inspection or investigation conducted under section 8, and the victim because of incapacity cannot reasonably exercise the rights under this 

section.’’. 

SEC. 307. RIGHT TO CONTEST CITATIONS AND PENALTIES. 

Section 10 (20 U.S.C. 659) is amended—

(1) in the first sentence of subsection (b)—

(A) by inserting ‘‘, with the exception of violations designated as serious, willful, or repeated,’’ after ‘‘(which period shall not begin to run’’; 

(2) in subsection (c)—

(A) in the first sentence—

(i) by inserting after ‘‘that he intends to contest a citation issued 

under section (9)’’ the following: ‘‘(or a modification of a citation issued 

under this section)’’; 

(ii) by inserting after ‘‘the issuance of a citation under section 9’’ 

the following: ‘‘(including a modification of a citation issued under such 

section)’’; 

(iii) by inserting after ‘‘files a notice with the Secretary alleging’’ 

the following: ‘‘that the citation fails properly to designate the violation 

as serious, willful, or repeated, that the proposed penalty is not adequate, or’’; 

(B) by inserting after the first sentence, the following: ‘‘The pendency 

of a contest before the Commission shall not bar the Secretary from inspecting a place of employment or from issuing a citation under section 9.’’; and 

(C) by amending the last sentence—

(i) by inserting ‘‘employers and’’ after ‘‘Commission shall provide’’; 

and 

78

(ii) by inserting before the period at the end ‘‘, and notification of 

any modification of a citation’’. 

(3) by adding at the end the following: 

‘‘(d) CORRECTION OF SERIOUS, WILLFUL, OR REPEATED VIOLATIONS; ABATEMENT

PENDING CONTEST AND PROCEDURES FOR A STAY.— ‘‘(1) PERIOD PERMITTED FOR CORRECTION OF SERIOUS, WILLFUL, OR REPEATED

VIOLATIONS.—For each violation which the Secretary designates as serious, willful, or repeated, the period permitted for the correction of the violation shall 

begin to run upon receipt of the citation. 

‘‘(2) FILING OF A MOTION OF CONTEST.—The filing of a notice of contest by 

an employer—

‘‘(A) shall not operate as a stay of the period for correction of a violation 

designated as serious, willful, or repeated; and 

‘‘(B) may operate as a stay of the period for correction of a violation not 

designated by the Secretary as serious, willful, or repeated. 

‘‘(3) CRITERIA AND RULES OF PROCEDURE FOR STAYS.—

‘‘(A) MOTION FOR A STAY.—An employer may file with the Commission 

a motion to stay a period for the correction of a violation designated as serious, willful, or repeated. 

‘‘(B) CRITERIA.—In determining whether a stay should be issued on the 

basis of a motion filed under subparagraph (A), the Commission shall consider whether—

‘‘(i) the employer has demonstrated a substantial likelihood of success on its contest to the citation; 

‘‘(ii) the employer will suffer irreparable harm absent a stay; and 

‘‘(iii) a stay will adversely affect the health and safety of workers. 

‘‘(C) RULES OF PROCEDURE.—The Commission shall develop rules of procedure for conducting a hearing on a motion filed under subparagraph (A) 

on an expedited basis. At a minimum, such rules shall provide: 

‘‘(i) That a hearing before an administrative law judge shall occur 

not later than 15 days following the filing of the motion for a stay (unless extended at the request of the employer), and shall provide for a 

decision on the motion not later than 15 days following the hearing 

(unless extended at the request of the employer). 

‘‘(ii) That a decision of an administrative law judge on a motion for 

stay is rendered on a timely basis. 

‘‘(iii) That if a party is aggrieved by a decision issued by an administrative law judge regarding the stay, such party has the right to file 

an objection with the Commission not later than 5 days after receipt 

of the administrative law judge’s decision. Within 10 days after receipt 

of the objection, a Commissioner, if a quorum is seated pursuant to section 12(f), shall decide whether to grant review of the objection. If, 

within 10 days after receipt of the objection, no decision is made on 

whether to review the decision of the administrative law judge, the 

Commission declines to review such decision, or no quorum is seated, 

the decision of the administrative law judge shall become a final order 

of the Commission. If the Commission grants review of the objection, 

the Commission shall issue a decision regarding the stay not later than 

30 days after receipt of the objection. If the Commission fails to issue 

such decision within 30 days, the decision of the administrative law 

judge shall become a final order of the Commission. 

‘‘(iv) For notification to employees or representatives of affected 

employees of requests for such hearings and shall provide affected employees or representatives of affected employees an opportunity to participate as parties to such hearings.’’. 

SEC. 308. CONFORMING AMENDMENTS. 

(a) SECTION 17.—Section 17(d) (29 U.S.C. 666(d)) is amended to read as follows: 

‘‘(d) Any employer who fails to correct a violation designated by the Secretary 

as serious, willful or repeated and for which a citation has been issued under section 

9(a) within the period permitted for its correction (and a stay has not been issued 

by the Commission under section 10(d)) may be assessed a civil penalty of not more 

than $7,000 for each day during which such failure or violation continues. Any employer who fails to correct any other violation for which a citation has been issued 

under section 9(a) of this title within the period permitted for its correction (which 

period shall not begin to run until the date of the final order of the Commission 

in the case of any review proceeding under section 10 initiated by the employer in 

good faith and not solely for delay of avoidance of penalties) may be assessed a civil 

79

penalty of not more than $7,000 for each day during which such failure or violation 

continues.’’. 

(b) SECTION 11(A).—The first sentence of section 11(a) (29 U.S.C. 660(a)) is 

amended by—

(1) by inserting ‘‘(or the failure of the Commission, including an administrative law judge, to make a timely decision on a request for a stay under section 

10(d))’’ after ‘‘an order’’ ; 

(2) by striking ‘‘subsection (c)’’ and inserting ‘‘subsections (c) and (d)’’; and 

(3) by inserting ‘‘(or in the case of a petition from a final Commission order 

regarding a stay under section 10(d), 15 days)’’after ‘‘sixty days’’. 

SEC. 309. CIVIL PENALTIES. 

(a) IN GENERAL.—Section 17 (29 U.S.C. 666) is amended—

(1) in subsection (a)—

(A) by striking ‘‘$70,000’’ and inserting ‘‘$120,000’’; 

(B) by striking ‘‘$5,000’’ and inserting ‘‘$8,000’’; and 

(C) by adding at the end the following: ‘‘If such a violation causes the 

death of an employee, such civil penalty amounts shall be increased to not 

more than $250,000 for each such violation, but not less than $50,000 for 

each such violation, except that for an employer with 25 or fewer employees 

such penalty shall not be less than $25,000 for each such violation.’’; 

(2) in subsection (b)—

(A) by striking ‘‘$7,000’’ and inserting ‘‘$12,000’’; and 

(B) by adding at the end the following: ‘‘If such a violation causes the 

death of an employee, such civil penalty amounts shall be increased to not 

more than $50,000 for each such violation, but not less than $20,000 for 

each such violation, except that for an employer with 25 or fewer employees 

such penalty shall not be less than $10,000 for each such violation.’’; 

(3) in subsection (c), by striking ‘‘$7,000’’ and inserting ‘‘$12,000’’; 

(4) in subsection (d), by striking ‘‘$7,000’’ and inserting ‘‘$12,000’’; 

(5) by redesignating subsections (e) through (l) as subsections (f) through 

(m), respectively; and (6) in subsection (j) (as redesignated by paragraph (5)), by striking ‘‘$7,000’’ and inserting ‘‘$12,000;’’. 

(b) INFLATION ADJUSTMENT.—Section 17 (29 U.S.C. 666) (as amended by subsection (a)) is further amended by inserting after subsection (d) the following: 

‘‘(e) Amounts provided under this section for civil penalties shall be adjusted by 

the Secretary at least once during each 4-year period to account for the percentage 

increase or decrease in the Consumer Price Index for all urban consumers during 

such period.’’. 

SEC. 310. OSHA CRIMINAL PENALTIES. 

(a) IN GENERAL.—Section 17 (29 U.S.C. 666) (as amended by section 309) is further amended—

(1) by amending subsection (f) to read as follows: 

‘‘(f)(1) Any employer who knowingly violates any standard, rule, or order promulgated under section 6 of this Act, or of any regulation prescribed under this Act, 

and that violation caused or contributed to death to any employee, shall, upon conviction, be punished by a fine in accordance with section 3571 of title 18, United 

States Code, or by imprisonment for not more than 10 years, or both, except that 

if the conviction is for a violation committed after a first conviction of such person 

under this subsection or subsection (i), punishment shall be by a fine in accordance 

with section 3571 of title 18, United States Code, or by imprisonment for not more 

than 20 years, or by both. 

‘‘(2) For the purpose of this subsection, the term ‘employer’ means, in addition 

to the definition contained in section 3 of this Act, any officer or director.’’; (2) in subsection (g), by striking ‘‘fine of not more than $1,000 or by imprisonment for not more than six months,’’ and inserting ‘‘fine in accordance with 

section 3571 of title 18, United States Code, or by imprisonment for not more 

than 2 years,’’; (3) in subsection (h), by striking ‘‘fine of not more than $10,000, or by imprisonment for not more than six months,’’ and inserting ‘‘fine in accordance 

with section 3571 of title 18, United States Code, or by imprisonment for not 

more than 5 years,’’; 

(4) by redesignating subsections (j) through (m) as subsections (k) through 

(n), respectively; and 

(5) by inserting after subsection (i) the following: 

‘‘(j)(1) Any employer who knowingly violates any standard, rule, or order promulgated under section 6, or any regulation prescribed under this Act, and that vioVerDate 0ct 09 2002 15:58 Dec 15, 2010 Jkt 000000 PO 00000 Frm 00083 Fmt 6633 Sfmt 6621 G:\DOCS\111TH\WP\111-58\56055.TXT HBUD PsN: DICK
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lation causes or contributes to serious bodily harm to any employee but does not 

cause death to any employee, shall, upon conviction, be punished by a fine in accordance with section 3571 of title 18, United States Code, or by imprisonment for not 

more than 5 years, or by both, except that if the conviction is for a violation committed after a first conviction of such person under this subsection or subsection (e), 

punishment shall be by a fine in accordance with section 3571 of title 18, United 

States Code, or by imprisonment for not more than 10 years, or by both. 

‘‘(2) For the purpose of this subsection, the term ‘employer’ means, in addition 

to the definition contained in section 3 of this Act, any officer or director. 

‘‘(3) For purposes of this subsection, the term ‘serious bodily harm’ means any 

circumstance, deficiency, or shortfall that could result in an injury or illness including, risk of death, unconsciousness, physical disfigurement, or loss or impairment 

(whether permanent or temporary) of the function of a bodily member, organ, or 

mental facility.’’. 

(b) JURISDICTION FOR PROSECUTION UNDER STATE AND LOCAL CRIMINAL LAWS.—

Section 17 (29 U.S.C. 666) (as amended by subsection (a)) is further amended by 

adding at the end the following: 

‘‘(o) Nothing in this Act shall preclude a State or local law enforcement agency 

from conducting criminal prosecutions in accordance with the laws of such State or 

locality.’’. 

TITLE IV—EFFECTIVE DATE 

SEC. 401. EFFECTIVE DATE. 

(a) GENERAL RULE.—Except as provided for in subsection (b), this Act and the 

amendments made by this Act shall take effect not later than 90 days after the date 

of the enactment of this Act. 

(b) EXCEPTION FOR STATES AND POLITICAL SUBDIVISIONS.—The following are exceptions to the effective date described in subsection (a): 

(1) A State that has a State plan approved under section 18 (29 U.S.C. 667) 

shall amend its State plan to conform with the requirements of this Act and 

the amendments made by this Act not later than 12 months after the date of 

the enactment of this Act. The Secretary of Labor may extend the period for 

a State to make such amendments to its State plan by not more than 12 

months, if the State’s legislature is not in session during the 12-month period 

beginning with the date of the enactment of this Act. Such amendments to the 

State plan shall take effect not later than 90 days after the adoption of such 

amendments by such State. 

(2) This Act and the amendments made by this Act shall take effect not 

later than 36 months after the date of the enactment of this Act in a State, or 

a political subdivision of a State, that does not have a State plan approved 

under section 18 (29 U.S.C. 667). 

Solicitors’ Dispositions of OSHA 11(c) Merit Cases

From 10/1/1995 to 10/1/2009

Between 10/1/1995 to 10/1/2009 (14 years) 6.9% of the cases referred to SOL were 

litigated. Out of 467 cases OSHA referred to SOL in this period, only 32 lawsuits 

in 11(c) cases have been filed. Two hundred and seventy-nine merit cases have been 

rejected.

CASES REFERRED TO SOL 10/1/1995 TO 3/24/2009

Region 1 Region 2 Region 3 Region 4 Region 5 Region 6 Region 7 Region 8 Region 9 Region 10 Total 

Litigated and lost ......... 1 1 0 0 1 0 0 0 0 0 3

Litigated and won ........ 1 5 1 0 0 1 0 0 0 0 8

Rejected by SOL ............ 20 16 42 29 70 67 9 18 6 2 279

Settled before litigation 14 12 5 15 42 26 9 20 1 12 156

Settled during litigation 0 9 0 1 2 1 1 0 0 7 21

Total Referred ........... 36 43 48 45 115 95 19 38 7 21 467

Percent Litigated ...... 5.6% 34.9% 2.1% 2.2% 2.6% 2.1% 5.3% 0.0% 0.0% 30.3% 6.9%

(Data from IMS Activity Measures Report) 

81

STATISTICS AND OUTCOMES ON WHISTLEBLOWER CASES FILED WITH OSHA 

[Break-out of meritorious] 

FY 2008 Cases Received 

Cases 

Completed 

Withdrawn Dismissed Total Meritorious 

Litigation 

or Findings 

Settled by 

OSHA 

Settled by 

Parties 

AHERA/ISCA .............................. 2 0.09% 1 0 1 0 0 0 0

AIR21 ........................................ 82 3.72% 65 5 50 12 3 7 2

CPSIA ........................................ 0 0.00% 0 0 0 0 0 0 0

Environmental ........................... 52 2.36% 50 6 37 10 1 6 3

ERA ........................................... 39 1.77% 30 2 23 5 0 1 4

FRSA ......................................... 42 1.90% 16 2 12 2 1 1 0

11(c) ......................................... 1,388 62.95% 1,259 227 834 261 15 203 43

NTSSA ....................................... 18 0.82% 6 0 7 0 0 0 0

PSIA .......................................... 3 0.14% 1 0 1 0 0 0 0

SOX ........................................... 232 10.52% 189 24 128 42 0 15 27

STAA .......................................... 347 15.74% 322 30 183 116 8 94 14

Totals ................................... 2,205 .............. 1,939 296 1,276 448 28 327 93

Total Determinations* .......... .............. .............. .............. .............. .............. 2,020 .............. .............. ..............

*This number doesn’t equal Cases Completed because each complainant recieves his or her own findings, so where a case has mutiple complainants, it has mutiple outcomes.

Source: DOL. 

OSHA’s Actions on 11(c) Cases Completed in FY 2009

In FY 2009, federal OSHA completed 1,205 11(c) cases and recommended that the 

Department of Labor’s Office of the Solicitor (SOL) litigate 24 of the cases (2%); 

state-plans states completed 999 11(c) cases and recommended that 50 of the cases 

(5%) be litigated.

FY 2009 Total cases 

completed 

Withdrawn by 

OSHAa

Dismissed by 

OSHAa

Settled by 

OSHAa

Settled the 

parties 

Litigation 

recommended b

Fed OSHA ........................ 1,205 (100%) 188 (16%) 729 (60%) 210 (17%) 54 (4%) 24 (2%) 

States ............................. 999 (100%) 151 (15%) 662 (66%) 106 (11%) 30 (3%) 50 (5%)

Total .................. 2,204 (100%) 339 (15%) 1,391 (63%) 316 (14%) 84 (4%) 74 (3%) 

a Cases shown as withdrawn, dismissed, and settled by OSHA include cases withdrawn, dismissed, and settled by the state safety and health enforcement agencies in state-plan states. b Cases sent to the SOL for litigation may later be settled by the SOL or the courts. 

82


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83


jorg-2.eps
84


adm-1.eps
85

——Original Message——

From: Bare, Ben—OSHA [mailto:Bare.Ben@dol.gov] 

Sent: Monday, February 01, 2010 11:35 AM 

To: tford@neb.rr.com 

Subject: RE: Emailing: Establishment Search Results Page.htm 

Dear Ms. Ford, 

Thank you for the note of sympathy for Mr. Wilson’s family. We will let his family 

know. 

To follow-up on the information for the manlift fatalities and the number of inspections for ADM, we found 21 manlift fatalities and 9 injuries for the period 1972 to 

present. 

For the ADM inspection history, we could only run a query back to 1999. For this 

period, there are 87 inspections. Running a report from 1972 to present causes an 

error due to the great number of hits using several name variations for ADM. 

Please let me know if the inspection history from 1999 to present meets your needs. 

If not, I can have the reports run in 10-year periods. It will require a couple more 

days to get the information. 


adm-2.eps
86

I hope the manlift fatality information meets your needs. 

Please let me about the inspection history. 

Thank you 

Ben 

——Original Message——

From: tford@neb.rr.com [mailto:tford@neb.rr.com] 

Sent: Sunday, January 31, 2010 9:18 AM 

To: Bare, Ben—OSHA 

Subject: RE: Emailing: Establishment Search Results Page.htm 

Dear Mr. Bare, 

I know you are probably very busy with the death of Mr. Tim Wilson, and I know 

the death was caused by a lift accident as well, however I know they are very different lifts. I am sure that you are someone else will speak with the family. I would 

greatly appreciate if you could give them our condolences. 

Thank you 

Tonya Ford 

Bare wrote: 

Thank you 

Talk with you next week 

From: tford@neb.rr.com [mailto:tford@neb.rr.com] 

Sent: Sat 1/30/2010 9:56 AM 

To: Bare, Ben—OSHA 

Subject: RE: Emailing: Establishment Search Results Page.htm 

Dear Mr. Bare, 

No I am sorry for the confusion I received the accident report and investigations 

that you guys were doing regarding my Uncles accident on January 29, 2009. 

Please let me know if you have any more questions. 

Thanks 

Tonya Ford 

Bare wrote: 

Dear Ms. Ford, 

Just so I clearly understand your message below, you have received the paperwork 

needed for the number of ADM inspections? If so, do you still want me to get the 

information? 

I just want to make sure I’m getting what you need. 

Sincerely, 

Ben 

From: tford@neb.rr.com [mailto:tford@neb.rr.com] 

Sent: Fri 1/29/2010 11:45 PM 

To: Bare, Ben—OSHA 

Subject: RE: Emailing: Establishment Search Results Page.htm 

Dear Mr. Bare, 

I want to thank you for all your time and effort in researching this, I did receive 

the inspection paperwork today and I thank you for that as well. 

Thank you and I look forward to receiving this information 

Tonya Ford 

Bare wrote: 

Dear Ms. Ford, 

I’m still collecting and verifying the information. I apologize this is taking longer 

than expected. 

The data shows 21 manlift fatalities inspections and 9 accident inspections that involved injuries. That is for all industries not just grain. The ADM inspection data 

is more sensitive due the possible spelling of the name and volume of establishments with ADM etc as part of the company name. I want to provide the best possible information and I need another day or two next week to finalize the information. 

Thanks for your understanding, 

Ben 

87

——Original Message——

From: Bare, Ben—OSHA 

Sent: Thursday, January 28, 2010 5:13 PM 

To: ‘tford@neb.rr.com’

Subject: RE: Emailing: Establishment Search Results Page.htm 

Dear Ms. Ford, 

Just wanted to touch base and let know I haven’t the information for the ADM inspection numbers and manlift fatalities. Should have the information tomorrow 

afternoon. 

Sorry for the delay, 

Ben 

——Original Message——

From: tford@neb.rr.com [mailto:tford@neb.rr.com] 

Sent: Wednesday, January 27, 2010 12:21 PM 

To: Bare, Ben—OSHA 

Subject: Re: Emailing: Establishment Search Results Page.htm 

Thank you so much for explaining how this lovely site works....I have to admit my 

background is Web design and this baffled me. Thank you and I look forward to 

getting the other information 

Tonya Ford 

Bare wrote: 

Dear Ms. Ford 

Below is the inspection information involving your Uncle. 

To run this report go to establishmnet search, enter the A D M Milling. Use spaces 

between the letters. Select open case option. The prefilled date range should be correct. Below is the result I got I have asked for additional assistance to help identify 

the number of manlift fatalities and the total number of ADM inspections. I should 

the aditional information for you in a day or two. 

Hope this helps. 

Sincerely, 

Ben 

SUPREME COURT OF KANSAS

DAVID FLENKER, APPELLANT, v. WILLAMETTE INDUSTRIES, INC., APPELLEE.

No. 80,408; 266 Kan. 198; 967 P.2d 295; 1998 Kan. 

CASE SUMMARY

PROCEDURAL POSTURE: The United States Court of Appeals for the Tenth Circuit certified the action initiated by appellant employee to the court to determine 

whether the remedy provided by OSHA, 29 U.S.C.S. § 660(c), precluded the filing 

of a state common law discharge claim against appellee employer. Appellant contended that he was discharged in retaliation for filing OSHA complaints. 

OVERVIEW: Appellant employee filed OSHA complaints against appellee employer. Appellant was subsequently terminated by appellee. The federal court certified the action to the court to determine whether the remedy provided by OSHA, 

29 U.S.C.S. § 660(c), precluded the filing of a state common law wrongful discharge, 

pursuant to the Kansas Act Against Discrimination, Kan. Stat. Ann. § 44-1001, et 

seq., claim against appellee. The court held that OSHA did not occupy state common-law retaliation claims and did not conflict or preempt such state law. Pursuant 

to the alternative remedies doctrine, OSHA would be substituted for the state retaliation claim if the substituted statute provided an adequate alternative remedy. The 

court held that OSHA’s alternative remedies were not adequate and that OSHA did 

not preempt appellant’s state wrongful discharge claim. The court answered the federal court’s determination and held that OSHA did not provide an adequate alternative remedy under the circumstances. 

OUTCOME: The court answered the federal court’s determination and held that 

OSHA did not provide an adequate alternative remedy to appellant employee’s state 

common law wrongful discharge claim filed against appellee employer pursuant to 

the Kansas Act Against Discrimination. The court held that OSHA did not occupy 

state common-law retaliation claims and that the federal statute did not conflict or 

preempt the state law. 

CORE TERMS: retaliatory discharge, alternative remedy, collective bargaining 

agreement, public policy, common-law, public policy exception, retaliation, disVerDate 0ct 09 2002 15:58 Dec 15, 2010 Jkt 000000 PO 00000 Frm 00091 Fmt 6633 Sfmt 6621 G:\DOCS\111TH\WP\111-58\56055.TXT HBUD PsN: DICK
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charged, at-will, certified question, cause of action, certification, state law, common 

law, statutory scheme, statutory remedy, deems appropriate, appropriate relief, arbitration, preemption, aggrieved, corrugated, plant, remedy provided, employee’s 

right, wrongful discharge, violation of state, adequately protected, civil action, termination 

At-will employment is the general rule in Kansas. In the absence of a contract, 

expressed or implied, between an employee and his employer covering the duration 

of employment, the employment is terminable at the will of either party. 

There public policy exceptions to the at-will employment doctrine, including the 

whistle-blower’s exception. Termination, in retaliation for the good faith reporting 

of a co-worker’s or employer’s serious infraction of rules, regulations, or law pertaining to public health, safety, and the general welfare, is an actionable tort. However, exceptions to the at-will employment doctrine should be limited to situations 

where there is no adequate alternative remedy. 

The availability of remedies for wrongful discharge under Kansas Act Against Discrimination, Kan. Stat. Ann. § 44-1001, et seq., precludes expanding the remedies 

available at common law. 

The trial court must investigate the adequacy of an alternative remedy before 

classifying a situation as being under the public policy exception to the employmentat-will doctrine. Kansas Act Against Discrimination, Kan. Stat. Ann. § 44-1001, et 

seq., provides an adequate and exclusive state remedy for violations of the public 

policy against wrongful termination of whistleblowers. 

A retaliatory discharge action for filing a workers compensation claim is based on 

a violation of state public policy independent of a collective bargaining agreement. 

An arbitration procedures provided for in the collective bargaining agreement are 

a ‘‘limited remedy,’’ and might not result in the employee’s right being ‘‘adequately 

protected.’’

Preemption is an application of law concept in which federal law must be applied 

to the exclusion of state law for uniformity of interpretation. 

The alternative remedies doctrine, referenced sometimes as preclusion, is a substitution of law concept. Under the alternative remedies doctrine, a state or federal 

statute would be substituted for a state retaliation claim if the substituted statute 

provides an adequate alternative remedy. The question to ask in resolving recognition of a state tort claim for retaliatory discharge is whether the statutory remedy 

is adequate and thus precludes the common-law remedy. 

See 29 U.S.C.S. § 660(c)(1) and (2). 

In Ohio, an at-will employee who is discharged or disciplined for filing a complaint 

with OSHA, 29 U.S.C.S. § 660, et seq., concerning matters of health and safety in 

the workplace is entitled to maintain a common-law tort action against the employer 

for wrongful discharge/discipline in violation of public policy. 

OSHA, 29 U.S.C.S. § 660, et seq., only allows an employee to file a complaint with 

the Secretary of Labor who then decides whether to bring an action on the employee’s behalf. 29 U.S.C.S. § 660(c)(2). The employee’s right to relief is even further restricted in that the complaint must be filed within 30 days of the discrimination or 

discharge. The decision to assert a cause of action is in the sole discretion of the 

Secretary of Labor and the statute affords the employee no appeal if the secretary 

declines to file suit. Although an employee may obtain any type of relief possible 

under the Fair Labor Standards Act through the employee’s own actions, the relief 

available under OSHA is limited to what the Secretary of Labor deems appropriate. 

Unless an employee acts immediately and files a complaint with the Secretary of 

Labor, there is no remedy available without the public policy exception. 

All appropriate relief in OSHA, 29 U.S.C.S. § 660, et seq., includes punitive damages, and the federal courts have the power to award any appropriate relief in a 

cognizable cause of action brought pursuant to a federal statute. 

OSHA, 29 U.S.C.S. § 660, et seq., says that the secretary shall cause such investigation to be made as he deems appropriate, and if upon such investigation, the 

secretary determines that the provisions of the section have been violated, he shall 

bring an action. No guidance is given as to what factors the secretary must or may 

consider to constitute an investigation. The Secretary’s discretion is a significant 

limitation on the employee’s right of redress. In addition, the limitation period for 

filing an OSHA, 29 U.S.C.S. § 600, et seq., complaint is 30 days from discharge. 

OSHA, 29 U.S.C.S. § 660, § 11(c) (1) declares discharge in retaliation for filing 

a complaint to be a violation of OSHA. 

The factfinding process in arbitration does not equate with judicial factfinding. 

Rules of evidence do not usually apply; the rights and procedures common to civil 

trials such as discovery, compulsory process, cross-examination, and testimony 

under oath are often severely limited or unavailable. The same observation can be 

89

made about the investigation that the Secretary of Labor is directed to make under 

OSHA, 29 U.S.C.S. § 660, § 11(c). 

Under OSHA, 29 U.S.C.S. § 660, § 11(c), the decision to pursue an employee’s 

claim of retaliatory discharge is made by an administrative agency. Unless there is 

some kind of administrative appeal of OSHA’s decision not to pursue the complaint, 

an employee is limited to voting against an incumbent legislator or against the current administration. A ballot box exercise provides less recourse than a suit against 

one’s labor union in federal or state trial court. 

Under the Energy Reorganization Act (ERA), 42 U.S.C.S. § 5851, et seq., if the 

complainant has made a prima facie showing, 42 U.S.C.S. § 5851(b)(3)(A), upon receipt of a complaint the secretary shall conduct an investigation without OSHA’s ‘‘as 

he deems appropriate’’ language of the violation alleged. 42 U.S.C.S. § 5851(b)(2)(A). 

If the ERA investigation reveals the complaint has merit and after a public hearing, 

the secretary shall order preliminary relief and may order compensatory relief after 

a final order is entered. 42 U.S.C.S. § 5851(b)(2)(A) and (B). Further, an employee 

is given the right to file suit in federal court to require compliance with such an 

order. 42 U.S.C.S. § 5851(e). 

Under the adequate alternative remedy test, the administrative remedy provided 

by OSHA, 29 U.S.C.S. § 660, § 11(c), is less adequate than the remedy under the 

Energy Reorganization Act, 42 U.S.C.S. § 5851, et seq. Although OSHA entitles an 

employee to file a complaint under 29 U.S.C.S. § 600, § 11(c), there is no provision 

for an employee to bring a private action in federal court. 

See 42 U.S.C.S. § 2000e-5(b). 

See U.S.C.S. § 2000e-5(f)(1). 

Under Title VII of the Civil Rights Act, 42 U.S.C.S. § 2000a, et seq., an aggrieved 

person is not left without a remedy if the administrative agency does not pursue 

the complaint; the complainant is given permission to sue. Also, there is no agency 

discretion language in the Title VII provision providing for agency investigation. 

The employee’s remedy is more effective under Title VII than it is under OSHA, 29 

U.S.C.S. § 660, et seq. 

An employee is adequately protected contractually from retaliatory discharge. Employees who are fully covered and protected by a collective bargaining agreement 

are barred from bringing an action in tort for a retaliatory discharge. 

Syllabus by the Court 

The remedy provided by the Occupational Safety and Health Administration § 

11(c) (29 U.S.C. § 660[c] [1994]) for employees who allege that they have been discharged in retaliation for filing complaints under that statute does not preclude the 

filing of a Kansas common-law wrongful discharge claim under Kansas’s public policy exception to at-will employment. 

On a certification of a question of law from the United States Court of Appeals 

for the Tenth Circuit, ROBERT H. HENRY, judge. 

COUNSEL: Stephen J. Dennis, of Overland Park, argued the cause and was on 

the brief for appellant. 

Rody P. Biggert, of Seyfarth, Shaw, Fairweather & Geraldson, of Chicago, Illinois, 

argued the cause, andJohn L. Vratil, of Lathrop & Gage, L.L.C., of Overland Park, 

was with him on the brief for appellee. 

JUDGES: The opinion of the court was delivered by SIX, J. 

OPINION BY: SIX 

OPINION

[*198] [**297] The opinion of the court was delivered by 

SIX, J.: The United States Court of Appeals for the Tenth Circuit has certified 

the following question to this court under K.S.A. 60-3201: 

‘‘Does the remedy provided by OSHA § 11(c) [***2] [29 U.S.C. § 660(c) (1994)] for 

employees who allege that they have been discharged in retaliation for filing complaints under that statute preclude the filing of a Kansas common law wrongful discharge claim under Kansas’s public policy exception to at-will employment?’’

The answer is, ‘‘no.’’

This case arises out of the March 11, 1994, firing of David Flenker, a worker at 

Willamette Industries, Inc.’s (Willamette) corrugated paper manufacturing plant. 

Willamette’s basis for firing Flenker was that he failed to comply with the terms 

of the rehabilitation agreement he had signed under Willamette’s alcohol and drug 

use policy. Flenker contends that he was fired because he [*199] reported unsafe 

working conditions to Willamette and the Occupational Safety and Health Administration (OSHA). 

Our analysis of the certified question is advanced by posing and answering two 

secondary questions. 

90

1. Does the rule in Coleman v. Safeway Stores, Inc., 242 Kan. 804, 812-13, 752 

P.2d 645 (1988), extend to situations other than the collective bargaining agreement 

context? The answer is ‘‘yes.’’

2. If Coleman extends beyond the collective bargaining context, is the remedy in 

OSHA § 11(c) ‘‘adequate’’? [***3] The answer is ‘‘no.’’

FACTS

The Tenth Circuit Certification Order informs us that: 

‘‘Mr. Flenker worked as a Class C mechanic for Willamette, a corrugated paper 

manufacturer. After a dispute with his temporary supervisor concerning the safety 

of a piece of machinery known as a corrugated downstacker device, Mr. Flenker 

made it known at the plant that he intended to file a complaint with OSHA regarding the machinery. 

‘‘Mr. Flenker received a disciplinary warning as a result of the dispute with his 

temporary supervisor. The next day, Mr. Flenker received a three-day suspension 

from his supervisor for his improper installation of gauges and for the improper repair of sprockets on the bandler line. 

‘‘Mr. Flenker later filed his OSHA complaint, alleging violations concerning the 

safety of the corrugated downstacker and other matters. OSHA subsequently made 

a surprise investigation of the Willamette plant. Although the downstacker met 

OSHA safety standards, OSHA found that several of Mr. Flenker’s other complaints 

were valid. 

‘‘About a month later, plant manager Dale McGinnis terminated Mr. Flenker’s 

employment, contending Mr. Flenker failed to obey the terms of a Rehabilitation 

Agreement [***4] he had signed under Willamette’s Alcohol and Drug Use Policy. 

Mr. Flenker claims he was fired because he reported unsafe working conditions to 

Willamette and to OSHA. 

[**298] ‘‘Shortly after his termination, Mr. Flenker filed a section 11(c) retaliatory 

discharge complaint with OSHA, which he later withdrew. Mr. Flenker was informed, presumably by an OSHA employee, that because he had fixed the machine 

in question, which had been a part of his section 11(c) claim, he no longer had a 

claim under OSHA. In September 1995, he filed this action in state court. Willamette removed the action to federal court pursuant to 28 U.S.C. § 1446(b). 

‘‘Mr. Flenker claims that he was discharged because he exercised his statutory 

right to report unsafe working conditions to his employer. He seeks compensatory 

damages for lost wages and benefits and emotional pain and suffering.’’

[*200] Flenker chose to litigate his claims in state court; however, Willamette removed the lawsuit to federal court. 

DISCUSSION

We restate the certified question: 

Does the remedy provided by OSHA § 11(c) for employees who allege that they 

have been discharged in retaliation for filing complaints under that statute preclude 

the filing [***5] of a Kansas common law wrongful discharge claim under Kansas’ 

public policy exception to at-will employment? 

At-Will Employment and Exceptions 

At-will employment is the general rule in Kansas. We said in Johnston v. Farmers 

Alliance Mutual Ins. Co., 218 Kan. 543, 546, 545 P.2d 312 (1976): ‘‘In the absence 

of a contract, expressed or implied, between an employee and his employer covering 

the duration of employment, the employment is terminable at the will of either 

party.’’

We have recognized public policy exceptions to the at-will employment doctrine. 

For a review of the Kansas case law, see Worth and Landis, Fire at Will? The Status of Judicially Created Exceptions to Employment-at-Will in Kansas, 64 J.K.B.A. 

22 (1995). The so-called whistle-blower’s exception was first announced in Palmer 

v. Brown, 242 Kan. 893, 752 P.2d 685 (1988). Termination, in retaliation for the 

good faith reporting of a co-worker’s or employer’s serious infraction of rules, regulations, or law pertaining to public health, safety, and the general welfare, is an actionable tort. 242 Kan. at 900. Palmer involved an employee’s reporting of allegedly 

improper medicaid billing practices [***6] to ‘‘unspecified authorities.’’ 242 Kan. at 

894. 

Willamette argues that Flenker has no independent state law tort claim, relying 

on Polson v. Davis, 895 F.2d 705 (10th Cir. 1990). Federal courts in Kansas have 

followed Polson’s interpretation of Kansas law (exceptions to the at-will employment 

doctrine should be limited to situations where there is no adequate alternative remedy), e.g., Conner v. Schnuck Markets, Inc., 906 F. Supp. 606, 614 (D. Kan. 1995). 

91

[*201] Polson observed that Kansas federal district courts were split on whether 

the public policy exception should be extended to cover conduct protected under a 

statutory scheme, specifically the Kansas Act Against Discrimination (KAAD), 

K.S.A. 44-1001 et seq. 895 F.2d at 709. Wynn v. Boeing Military Airplane Co., 595 

F. Supp. 727 (D. Kan. 1984) held that the public policy exception permitting an 

independent cause of action should apply in cases in which a worker’s termination 

is alleged to stem from conduct proscribed by KAAD. Judge Theis in Wynn reasoned 

that the fact that the various remedies might differ is sufficient to require recognition of a state common law remedy. 895 F.2d at 709. [***7] 

In contrast, Judge Rogers in Tarr v. Riberglass, Inc., 1984 U.S. Dist. LEXIS 

19784, No. 83-4234, 1984 WL 1481 (D. Kan. February 3, 1984), and Judge O’Connor 

in the lower Polson decision, 635 F. Supp. 1130 (D. Kan. 1986), and Robinson v. Colt 

Indus. Operating Corp., No. 84-2471 (unpublished D. Kan. March 5, 1986), held that 

the availability of remedies under KAAD precludes expanding the remedies available at common law. 895 F.2d at 709. 

Polson chose to follow the preclusive approach, discerning in Coleman v. Safeway 

Stores, Inc., 242 Kan. at 813-14, a reliance on ‘‘inadequacy of arbitration to compensate employees for torts committed by employers.’’ 895 F.2d at 709. Polson 

[**299] concluded: ‘‘It appears that we must investigate the adequacy of the alternative remedy before classifying a situation as being under the public policy exception to the employment-at-will doctrine.’’ 895 F.2d at 709. Polson reasoned that this 

court would adopt the view that KAAD provides an adequate and exclusive state 

remedy for violations of the public policy at issue. 895 F.2d at 709. We note, however, that Polson seems to employ a strict view of ‘‘adequate,’’ finding there is no 

evidence that the [***8] remedies provided for in KAAD were ‘‘constitutionally inadequate to compensate plaintiff,’’ or ‘‘so inadequate to enforce the stated public policy 

as to require bolstering by a common law cause of action.’’ 895 F.2d at 709-10. 

Coleman v. Safeway Stores 

Our discussion of Polson necessarily leads to a review ofColeman. Coleman is important here because our answer to the certified [*202] question is based on our 

precedent, not on federal rulings interpreting Kansas law. 

Coleman overruled Cox v. United Technologies, 240 Kan. 95, 727 P.2d 456 (1986), 

Smith v. United Technologies, 240 Kan. 562, 731 P.2d 871 (1987), and Armstrong 

v. Goldblatt Tool Co., 242 Kan. 164, 747 P.2d 119 (1987). The overruled cases involved the interrelationship of Kansas tort law and the law of labor union contracts. 

In each of the three overruled cases: (1) a discharged employee was covered by a 

collective bargaining agreement, (2) the agreement prohibited the employee’s discharge except for just cause, and (3) the employee was held not to have a cause of 

action in tort for wrongful discharge. Colemanreasoned that a retaliatory discharge 

action for filing a workers compensation [***9] claim is based on a violation of state 

public policy independent of a collective bargaining agreement. 242 Kan. 804, Syl. 

P1, 752 P.2d 645. Coleman also concluded that the arbitration procedures provided 

for in the collective bargaining agreement were a ‘‘limited remedy,’’ and might not 

result in the employee’s right being ‘‘adequately protected.’’ 242 Kan. at 813-14. 

Preemption and Alternate Remedies Preclusion 

Preemption is not an issue here. Willamette does not contend that OSHA preempts state common-law retaliation claims. The Tenth Circuit in a footnote to its 

certification order says ‘‘Congress did not intend for OSHA § 11(c) to occupy this 

field of law, nor does OSHA conflict with state law, thereby preempting it. See, 

Schweiss v. Chrysler Motors Corp., 922 F.2d 473, 475-76 (8th Cir. 1990).’’ Preemption is an application of law concept in which federal law must be applied to the 

exclusion of state law for uniformity of interpretation. English v. General Electric 

Co., 496 U.S. 72, 110 L. Ed. 2d 65, 110 S. Ct. 2270 (1990); see also, Annot., Federal 

Pre-Emption of Whistleblower’s State-Law Action For Wrongful Retaliation, 99 

A.L.R. Fed. 775, 810. 

The alternative remedies [***10] doctrine at issue here, referenced sometimes as 

preclusion, is a substitution of law concept. Under the alternative remedies doctrine, 

a state or federal statute would be substituted for a state retaliation claim if the 

substituted statute [*203] provides an adequate alternative remedy. Bair v. Peck, 

248 Kan. 824, 838, 811 P.2d 1176 (1991). Masters v. Daniel, Intern. Corp., 917 F.2d 

455, 457 (10th Cir. 1990), relied on Polson.The question to ask in resolving recognition of a state tort claim for retaliatory discharge is whether the statutory remedy 

is adequate and thus precludes the common-law remedy. 917 F.2d at 457 (held the 

Energy Reorganization Act, 42 U.S.C. § 5851 et seq. [1994], provided an adequate 

alternative remedy). 

92

Willamette argues that ‘‘the majority of other jurisdictions that have addressed 

the issue preclude common law retaliatory discharge claims when there is an adequate alternative state or federal remedy.’’ The large number of cases Willamette 

cites is misleading. Most of them simply state the court’s conclusion without an 

analysis of why the alternative remedy is adequate. See Walsh v. Consolidated 

Freightways, Inc., 278 Ore. 347, 563 P.2d 1205, 1208 [***11] (‘‘We feel that existing 

remedies are adequate.’’) Furthermore, two of Willamette’s cases, List v. Anchor 

Paint Mfg. Co., 910 P.2d 1011, 1014 (Okla. 1996) (finding that the Age Discrimination in Employment Act, 29 U.S.C. § 621 et [**300] seq. [1994], precludes retaliatory 

discharge claim), and Wehr v. Burroughs Corp., 438 F. Supp. 1052 (E.D. Pa. 1977) 

(‘‘The legislature would have provided additional relief in the [Human Rights] statute if it thought it necessary.’’) evaluate the adequacy of statutory schemes other 

than OSHA. Listand Wehr are not controlling of the ultimate question here, whether OSHA, in particular, provides an adequate alternative remedy. Because of the 

Coleman rule that an alternative remedy must be adequate, whether a statute other 

than OSHA is adequate is irrelevant here. The question is whether OSHA’s remedy 

is adequate. 

The Sub-issues 

We now examine whether Coleman extends to situations other than collective bargaining agreements. The parties have skirted this inquiry by focusing on Polsonand 

other federal cases, in which the interrelation of state law and usually federal statutory schemes was directly presented. [***12] Coleman’s reasoning is a dominant influence in answering the certified question. Although Coleman arose in the collective 

bargaining context, we extend its ruling to employees [*204] protected by statutory 

schemes such as OSHA. In Coleman, we said: ‘‘Our recognition of such causes of 

action is limited to wrongful discharge in violation of state public policy clearly declared by the legislature or by the courts.’’ 242 Kan. 804, Syl. P4, 752 P.2d 645. Applicability of the Coleman rule here, therefore, depends on whether whistle-blowing 

is protected by a clearly declared public policy. It is. Palmerheld: ‘‘It is declared the 

public policy of the State of Kansas to encourage citizens to report infractions of the 

law pertaining to public health, safety, and the general welfare.’’ 242 Kan. 893, Syl. 

P1, 752 P.2d 685. 

Having extended Coleman’s shadow beyond the facts of collective bargaining, we 

next ask: Is the remedy in OSHA § 11(c) [29 U.S.C. § 660(c)] ‘‘adequate’’? We conclude it is not. 

OSHA § 11(c) states: 

‘‘(1) No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be 

instituted any proceeding [***13] under or related to this chapter or has testified 

or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this chapter. 

‘‘(2) Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of this subsection may, within thirty days 

after such violation occurs, file a complaint with the Secretary alleging such discrimination. Upon receipt of such complaint, the Secretary shall cause such investigation to be made as he deems appropriate. If upon such investigation, the Secretary determines that the provisions of this subsection have been violated, he shall 

bring an action in any appropriate United States district court against such person. 

In any such action the United States district court shall have jurisdiction, for cause 

shown to restrain violations of paragraph (1) of this subsection and order all appropriate relief including rehiring or reinstatement of the employee to his former position with back pay.’’ 29 U.S.C. § 660(c)(1) and (2) (1994). 

Willamette cites six cases in which the statutory remedies in OSHA were held to 

be adequate: [***14] Miles v. Martin Marietta Corp., 861 F. Supp. 73 (D. Colo. 

1994); King v. Fox Grocery Co., 642 F. Supp. 288, 290 (W.D. Pa. 1986); Grant v. 

Butler, 590 So. 2d 254 (Ala. 1991); Corbin v. Sinclair Marketing, Inc., 684 P.2d 265 

(Colo. App. 1984); Burnham v. Karl & Gelb, P.C., 1997 Conn. Super. LEXIS 645, 

*11-15, 1997 WL 133399 *5-6 (Conn. Super. Ct. 1997); Walsh v. Consolidated 

Freightways, [*205] 278 Ore. 347, 563 P.2d 1205 (1977). None of the six cases focuses on a Coleman-style search for an adequate alternative remedy. 

Willamette acknowledges four cases from New Jersey and California support 

Flenker’s position that OSHA’s remedies should not preclude a state common-law 

claim for retaliatory discharge: Jenkins v. Family Health Program, 214 Cal. App. 

3d 440, 262 Cal. Rptr. 798 (1989); Hentzel v. Singer Co., 138 Cal. App. 3d 290, 188 

Cal. Rptr. 159 (1982); Cerracchio v. Alden Leeds, Inc., 223 N.J. Super. 435, [**301] 

538 A.2d 1292 (1988); and Lepore v. National Tool and Mfg. Co., 224 N.J. Super. 

463, 540 A.2d 1296 (1988). 

93

The Ohio Supreme Court has also permitted a common-law tort retaliatory discharge claim in an OSHA setting. Kulch v. Structural Fibers, Inc., 78 Ohio St. 3d 

134, [***15] 677 N.E.2d 308 (1997). Kulch held that ‘‘an at-will employee who is discharged or disciplined for filing a complaint with OSHA concerning matters of 

health and safety in the workplace is entitled to maintain a common-law tort action 

against the employer for wrongful discharge/discipline in violation of public policy.’’ 

78 Ohio St. 3d at 162. 

The Missouri Court of Appeals in Shawcross v. Pyro Products, Inc., 916 S.W.2d 

342 (1995), a retaliatory discharge preemption case, has analyzed the inadequacy 

of OSHA’s remedy: 

‘‘OSHA only allows an employee to file a complaint with the Secretary of Labor 

who then decides whether to bring an action on the employee’s behalf. 29 U.S.C. 

§ 660(c)(2) (1985). The employee’s right to relief is even further restricted in that 

the complaint must be filed within thirty days of the discrimination or discharge. 

Id. The decision to assert a cause of action is in the sole discretion of the Secretary 

of Labor and the statute affords the employee no appeal if the Secretary declines 

to file suit. Id. It is obvious from the language of the two statutes that although 

an employee may obtain any type of relief possible under FLSA [Fair Labor [***16] 

Standards Act] through the employee’s own actions, the relief available under OSHA 

is limited to what the Secretary of Labor deems appropriate. It should also be noted 

that unless an employee acts immediately and files a complaint with the Secretary 

of Labor, there is no remedy available without the public policy exception.’’ 916 

S.W.2d at 345. 

Because of Coleman’s specific requirement that an alternative remedy be ‘‘adequate,’’ we examine OSHA § 11 (c) in detail. The remedy under § 11(c), as 

Shawcross observes, is the right to file a complaint with the Secretary of Labor. Willamette overstates what [*206] happens next. Willamette suggests that upon receiving the complaint, ‘‘the Secretary is directed to investigate the complaint,’’ and if 

the Secretary finds a violation, the Secretary ‘‘shall bring an action in any appropriate district court’’ to recover ‘‘all appropriate relief.’’ Willamette cites cases that 

hold that ‘‘all appropriate relief’’ in the statute includes punitive damages,e.g., Reich 

v. Skyline Terrace, Inc., 977 F. Supp. 1141 (N.D. Okla. 1997), and that the ‘‘federal 

courts have the power to award any appropriate relief in a cognizable cause of action brought pursuant [***17] to a federal statute.’’ Franklin v. Gwinnett County 

Public Schools, 503 U.S. 60, 71, 117 L. Ed. 2d 208, 112 S. Ct. 1028 (1992). 

Willamette neglects to point out clearly that OSHA § 11(c) says that the Secretary 

‘‘shall cause such investigation to be made as he deems appropriate,’’ and ‘‘if upon 

such investigation, the Secretary determines that the provisions of this subsection 

have been violated, he shall bring an action.’’ (Emphasis added.) As the certification 

order notes no guidance is given ‘‘as to what factors the Secretary must or may consider to constitute an investigation.’’ Flenker correctly comments that the Secretary’s discretion is a significant limitation on the employee’s right of redress. 

What would, in a common-law tort action, be the decision of the plaintiff and plaintiff’s counsel is, under § 11(c), the decision of a government employee. The concerns 

of the government employee could range from budget constraints to political pressure. In addition the limitation period for filing an OSHA § 11(c) complaint is 30 

days from discharge. 

The Tenth Circuit in its certification order remarked: ‘‘This remedy [section 11(c)] 

has been recognized as a ‘limited’ [***18] one, providing only for administrative proceedings and suit in federal court which may be brought by the Secretary if the Secretary so elects. Holmes v. Schneider Power Corp., 628 F. Supp. 937, 939 (W.D. Pa.), 

aff’d 806 F.2d 252 (3d. Cir. 1986).’’ We agree. 

The facts here illustrate the type of agency ruling for which the employee cannot 

receive redress. The certification order says that after Flenker filed his complaint 

with OSHA, ‘‘Mr. Flenker was informed, presumably by [**302] an OSHA employee, 

that because he had fixed the machine in question, which had been a part of his 

section [*207] 11(c) claim, he no longer had a claim under OSHA.’’ Section 11(c) (1) 

declares discharge in retaliation for filing a complaint to be a violation of OSHA. 

Fixing the defective equipment in question does not cancel the wrong of retaliatory 

discharge. The OSHA statute, however, does not appear to provide a second chance 

for Flenker to try to convince the agency to see things his way. 

The inadequacy of the OSHA remedy is not outweighed by the factors cited by 

Willamette. Willamette suggests that under OSHA (1) there is a lower burden of 

proof, (2) the Secretary of Labor has considerable resources and expertise [***19] 

in investigating the complaint, (3) the available federal discovery process is for gathering evidence for use at trial, and (4) the employee has the Secretary’s experienced 

representation at trial without cost to the employee. If the complaint is only halfVerDate 0ct 09 2002 15:58 Dec 15, 2010 Jkt 000000 PO 00000 Frm 00097 Fmt 6633 Sfmt 6621 G:\DOCS\111TH\WP\111-58\56055.TXT HBUD PsN: DICK
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heartedly investigated, or a suit is not filed by the Secretary of Labor, the OSHA 

factors do not benefit the discharged employee at all. 

In evaluating the collective bargaining remedy we held to be inadequate in Coleman, we noted: ‘‘The factfinding process in arbitration does not equate with judicial 

factfinding. Rules of evidence do not usually apply; the rights and procedures common to civil trials such as discovery, compulsory process, cross-examination, and testimony under oath are often severely limited or unavailable.’’ 242 Kan. at 814 (citing 

Alexander v. Gardner-Denver Co., 415 U.S. 36, 56-57, 39 L. Ed. 2d 147, 94 S. Ct. 

1011 [1974]). The same observation can be made about the investigation that the 

Secretary of Labor is directed to make under OSHA § 11(c). 

We noted in Coleman that the decision to enter a collective bargaining agreement 

is made by majority vote. Such agreements are not designed to protect [***20] individual workers, but to balance the individual against the collective interest. We 

said: 

‘‘The potential result of a union’s emphasis on the collective good is that, in some 

cases, the employee may be left without a remedy for an employer’s violation of 

state public policy. Here, Coleman’s union has decided for the good of the union not 

to support Coleman’s claim by arbitration. If there is no independent state action 

for retaliatory discharge, and no avenue for Coleman to pursue her state public policy right against her employer, Coleman is limited to proceeding against her representative, the union, in federal or state court under * * * the [*208] [Labor Management Relations Act] for her union’s breach of its duty of fair representation.’’ 242 

Kan. at 814-15. 

Similarly, under OSHA § 11(c), the decision to pursue an employee’s claim of retaliatory discharge is made by an administrative agency. Unless there is some kind 

of administrative appeal of OSHA’s decision not to pursue the complaint, which neither party has suggested exists, an employee is limited to voting against an incumbent legislator or against the current administration. A ballot box exercise provides 

less recourse than [***21] a suit against one’s labor union in federal or state court, 

which we found inadequate in Coleman. 242 Kan. at 814-15. 

Other Federal Statutory Remedies 

It is instructive to compare OSHA § 11(c) to other federal statutory remedies. 

Under the Energy Reorganization Act (ERA), if ‘‘the complainant has made a prima 

facie showing,’’ 42 U.S.C. § 5851(b)(3)(A), ‘‘upon receipt of a complaint * * * the Secretary shall conduct an investigation [without OSHA’s ‘as he deems appropriate’ 

language] of the violation alleged.’’ (Emphasis added.) § 5851(b)(2)(A). If the ERA 

investigation reveals the complaint has merit and after a public hearing, the Secretary shall order preliminary relief and may order compensatory relief after a final 

order is entered. 42 U.S.C. § 5851(b)(2)(A) and (B). Further, an employee is given 

the right to file suit in federal court to require compliance with such an order. 42 

U.S.C. § 5851(e). 

Under the adequate alternative remedy test, the administrative remedy provided 

by OSHA § 11(c) is less adequate than the remedy under the ERA. Although OSHA 

entitles an employee to file a complaint under [**303] § 11(c), there is no provision 

for an employee to bring a private [***22] action in federal court. 

We next turn to examine the employment discrimination provisions of the Civil 

Rights Act. 42 U.S.C. § 2000a et seq. (1994). Title VII provides in part: 

‘‘Whenever a charge is filed * * * alleging that an employer * * * has engaged 

in an unlawful employment practice, the [Equal Employment Opportunity] Commission shall serve a notice of the charge * * * and shall make an investigation thereof.’’ 42 U.S.C. § 2000e-5(b) (1994). 

[*209] ‘‘The person * * * aggrieved shall have the right to intervene in a civil action brought by the Commission. * * * If a charge filed with the Commission * * * 

is dismissed by the Commission, or if within one hundred and eighty days from the 

filing of such charge * * * the Commission has not filed a civil action under this 

section * * * the Commission * * * shall so notify the person aggrieved and within 

90 days * * * a civil action may be brought against the respondent named in the 

charge * * * by the person claiming to be aggrieved.’’ 42 U.S.C. § 2000e-5(f)(1). 

Under Title VII, the aggrieved person is not left without a remedy if the administrative agency does not pursue the complaint; the complainant is given permission 

to sue. [***23] Also, there is no agency discretion language in the Title VII provision 

providing for agency investigation. The employee’s remedy is more effective under 

Title VII than it is under OSHA. 

Polson was correct in surmising the Kansas rule to be that an adequate alternative remedy precludes a common-law retaliatory discharge action. However, neither the Polson facts nor KAAD is before us here. This is an OSHA case. We are 

not reviewing Polson’s conclusion that we would find that KAAD provided an ‘‘adeVerDate 0ct 09 2002 15:58 Dec 15, 2010 Jkt 000000 PO 00000 Frm 00098 Fmt 6633 Sfmt 6621 G:\DOCS\111TH\WP\111-58\56055.TXT HBUD PsN: DICK
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quate and exclusive state remedy for violations of the public policy enunciated 

therein.’’ 895 F.2d at 706. 

Coleman, while never specifically saying so, assumes that an adequate alternative 

remedy would preclude a common-law cause of action for retaliatory discharge. The 

cases overruled by Coleman (Cox, Smith,and Armstrong) make the same assumption. 

In Cox, we said: ‘‘An employee is adequately protected contractually from retaliatory discharge.’’ (Emphasis added.) 240 Kan. at 99. In Smith we said, ‘‘In Cox, we 

declined to extend the tort of retaliatory discharge * * * [citation omitted] to include an employee adequately protected [***24] contractually from such discharge 

by a collective bargaining agreement.’’ (Emphasis added.) 240 Kan. at 572. In Armstrong, we held that the decision in Cox controlled, and plaintiffs who are ‘‘fully covered and protected by a collective bargaining agreement’’ are barred from bringing 

an action in tort for a retaliatory discharge. (Emphasis added.) 242 Kan. at 168. 

The Colemanmajority found the arguments in the Cox and Armstrong dissents 

persuasive, and, applying the adequate alternative [*210] remedy test, held that Cox 

‘‘did not fully recognize the limited remedy afforded the injured employee through 

collective bargaining.’’ 242 Kan. at 813. Thus, Coleman overruled Cox, Smith, and 

Armstrong on the ground that the overruled cases wrongly found the remedy under 

the collective bargaining agreements to be adequate, not on the ground that ‘‘adequacy’’ was not the test. Coleman, Cox, Smith, and Armstrong apply the same ‘‘adequate remedy’’ test. 

We answer the certified question in the negative, on the ground that OSHA § 

11(c) (29 U.S.C. § 660[c]) does not provide an adequate alternative remedy under 

the facts certified [***25] here. 

SANDRA SHAWCROSS, AND GAYE BAILEY, PLAINTIFFS/APPELLANTS,

VS. PYRO PRODUCTS, INC., DEFENDANT/RESPONDENT.

NO. 67859

COURT OF APPEALS OF MISSOURI, EASTERN DISTRICT, DIVISION FOUR

916 S.W.2d 342; 1995 Mo. App. LEXIS 2126

December 26, 1995, OPINION FILED 

PRIOR HISTORY: [**1] Appeal from the Circuit Court of Jefferson County. Hon. 

John L. Anderson. 

DISPOSITION: We reverse and remand for further proceedings. 

CASE SUMMARY: 

PROCEDURAL POSTURE: Plaintiff former employees sought review of a decision 

of the Circuit Court of Jefferson County (Missouri), which dismissed, for failure to 

state a claim upon which relief could be granted, their petition against defendant 

former employer for wrongful discharge under Missouri’s public policy exception to 

the employment at-will doctrine, based on their allegation that they were fired in 

retaliation for complaints about safety problems. 

OVERVIEW: The employees alleged that the employer’s fireworks production factory was unsafe. When their employer learned that they had contacted the United 

States Department of Labor to determine if any of the conditions at the factory 

plant violated the Occupational Safety and Health Act (OSHA), they were fired. The 

employer argued that OSHA provided their exclusive remedy. The court reversed 

the trial court’s dismissal of their petition against the employer for wrongful discharge. The court held that the employees’ allegations were sufficient to state a 

claim for wrongful discharge under Missouri’s public policy exception to the employment at will doctrine for a discharge precipitated by an employee’s report of violations of law or public policy. Under OSHA, 29 U.S.C.S. § 660(c)(2), an employee 

could file a complaint for wrongful discharge within 30 days after the discharge, but 

the Secretary of Labor had sole discretion to determine whether to bring a wrongful 

discharge action in federal court. Because OSHA did not provide a complete remedy, 

it did not displace the common law remedy under Missouri’s public policy exception 

to the employment at will doctrine. 

OUTCOME: The court reversed the circuit court’s dismissal of the employees’ petition. 

CORE TERMS: public policy exception, at-will, wrongful discharge, statutory remedy, state law, pre-emption, wrongful discharge, occupational safety, cause of action, 

retaliatory discharge, reporting, working conditions, plant, Health Act OSHA, Energy Reorganization Act, federal law, common law, state remedies, employee’s 

rights, remedy provided, remedy available, sole discretion, remedial measures, reinstatement, discharging, discharged, pre-empted, pre-empts, contacted, factory 

96

In reviewing a trial court’s dismissal of an action, the appellate court accepts as 

true the facts properly pleaded, giving the averments a liberal construction and 

making those reasonable inferences fairly deducible from the facts stated. Viewing 

the pleadings in this light, the court determines if the pleader has demonstrated 

any basis for relief. 

An employer may discharge an at-will employee, with or without cause, and not 

be subject to wrongful discharge liability. However, while employers may terminate 

employees at-will for no reason, or for an arbitrary or irrational reason, there is no 

right to discharge an employee for an unlawful reason or purpose which goes 

against public policy. 

When the discharge of an at-will employee violates a clear mandate of public policy, the employee has a wrongful discharge claim. Missouri courts have recognized 

four categories of cases under the public policy exception: (1) discharge of an employee because of his or her refusal to perform an illegal act; (2) discharge because 

an employee reported violations of law or public policy to superiors or public authorities; (3) discharge because an employee participated in acts that public policy 

would encourage, such as jury duty, seeking public office, asserting a right to collective bargaining, or joining a union; and (4) discharge because an employee filed a 

worker’s compensation claim. Missouri courts have limited the public policy exception to apply only to those cases when the discharge of an employee violates a constitutional provision, a statute, or a regulation based on a statute. 

The Occupational Safety and Health Act (OSHA) prohibits employers from discharging or discriminating in any way against an employee because that employee 

has filed a complaint, instituted an action, or otherwise exercised any right available under OSHA. 29 U.S.C.S. § 660(c)(1). 

The Occupational Safety and Health Act permits an employee to file a complaint 

with the Secretary of Labor within 30 days after the discrimination or discharge has 

occurred. 29 U.S.C.S. § 660(c)(2). The Secretary has sole discretion in deciding 

whether to bring an action in federal court regarding the employee’s rights. 29 

U.S.C.S. § 660(c)(2). Should the Secretary choose to do so, the statute allows for reinstatement of the employee to the employee’s former position with back pay. 29 

U.S.C.S. § 660(c)(2). The statute provides no means of appeal for an employee whose 

complaint is not acted upon by the Secretary. 29 U.S.C.S. § 660(c)(2). 

The Occupational Safety and Health Act does not bar a state wrongful discharge 

claim. 

The remedial measures provided for in the Occupational Safety and Health Act 

do not preempt a state law wrongful discharge claim. 

Preemption can occur when (1) federal law expressly preempts state law; (2) federal law occupies the field so completely that preemption may be inferred; or (3) 

there is a conflict between federal and state law. 

The Occupational Safety and Health Act only allows an employee to file a complaint with the Secretary of Labor who then decides whether to bring an action on 

the employee’s behalf. 29 U.S.C.S. § 660(c)(2). The employee’s right to relief is even 

further restricted in that the complaint must be filed within 30 days of the discrimination or discharge. 29 U.S.C.S. § 660(c)(2). The decision to assert a cause of action 

is in the sole discretion of the Secretary of Labor and the statute affords the employee no appeal if the Secretary declines to file suit. 

A statutory remedy shall not be deemed to supersede and displace remedies otherwise available at common law in the absence of language to that effect unless the 

statutory remedy fully comprehends and envelopes the remedies provided by common law. 

JUDGES: CLIFFORD H. AHRENS, Presiding Judge. James A. Pudlowski and 

Stanley A. Grimm, JJ., concur. 

OPINION BY: CLIFFORD H. AHRENS 

OPINION

[*343] Plaintiffs appeal the circuit court’s dismissal of their petition for wrongful 

discharge against their employer under Missouri’s public policy exception to the employment at-will doctrine for failure to state a claim upon which relief can be granted. Plaintiffs alleged defendant violated public policy by firing them in retaliation 

for filing complaints regarding the safety problems in defendant’s factory. We reverse and remand. 

In reviewing a trial court’s dismissal of an action, ‘‘we accept as true the facts 

properly pleaded, giving the averments a liberal construction and making those reasonable inferences fairly deducible from the facts stated.’’ Petersimes v. Crane Co., 

835 S.W.2d 514, 515 (Mo. App. 1992). Viewing the pleadings in this light, we deterVerDate 0ct 09 2002 15:58 Dec 15, 2010 Jkt 000000 PO 00000 Frm 00100 Fmt 6633 Sfmt 6621 G:\DOCS\111TH\WP\111-58\56055.TXT HBUD PsN: DICK
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mine if the pleader has demonstrated any basis for relief. Luethans v. Washington 

University, 838 S.W.2d 117, 119 (Mo. App. 1992). 

Plaintiffs, in [**2] their petition, alleged the following facts: Plaintiffs, Sandra 

Shawcross and Gaye Bailey were employed by defendant Pyro Products, Inc., in its 

fireworks production factory in Jefferson County, Missouri. Plaintiffs concede they 

were employees at-will. On numerous occasions prior to March 23, 1994, they complained to defendant that working conditions in defendant’s plant were unsafe. 

Plaintiffs also contacted the United States Department of Labor to determine if any 

of the conditions at defendant’s plant violated the Occupational Safety and Health 

Act (‘‘OSHA’’). On March 23, 1994, plaintiffs met with Ronald Walker, an officer of 

defendant, discussed their concerns regarding safety in the plant, and informed Mr. 

Walker that they had contacted the Department of Labor. On March 24, 1994, defendant discharged plaintiffs as a direct result of their contacting the Department 

of Labor. 

Generally, an employer may discharge an at-will employee, with or without cause, 

and not be subject to wrongful discharge liability. Dake v. Tuell, 687 S.W.2d 191, 

193 (Mo. 1985). However, this court, while recognizing that employers may terminate employees at-will ‘‘for no reason, or for an arbitrary or [**3] irrational reason,’’ 

has specifically determined that there is no right to discharge an employee for an 

unlawful reason or purpose which goes against public policy, and has recognized the 

public policy exception to employment at-will. Petersimes, 835 S.W.2d at 516. 

When the discharge of an at-will employee violates a clear mandate of public policy, this court has determined that the employee has a wrongful discharge claim. 

Id. The courts of this state have recognized four categories of cases under the public 

policy exception: (1) discharge of an employee because of his or her refusal to perform an illegal act; (2) discharge because an employee reported violations of law or 

public policy to superiors or public authorities; (3) discharge because an employee 

participated in acts that public policy would encourage, such as jury duty, seeking 

public office, asserting a right to collective bargaining, or joining a union; and (4) 

discharge because an employee filed a worker’s compensation claim. Lynch v. 

Blanke Baer and Bowey Krimko, Inc., 901 S.W.2d 147, 150 (Mo. App. 1995). 

The courts of this state have limited the public policy exception to apply only to 

those cases when [**4] the discharge of an employee violates a constitutional provision, a statute, or a regulation based on a statute. See Luethans, 838 S.W.2d at 120. 

Plaintiffs’ petition asserts a wrongful discharge action under Missouri’s public policy exception to the employment at-will doctrine. [*344] Plaintiffs alleged in their 

petition that their discharge by defendant violated OSHA because that section protects employees reporting to the Department of Labor from retaliatory discharge. 29 

U.S.C. § 660(c)(1) (1985). OSHA prohibits employers from discharging or discriminating in any way against an employee because that employee has filed a complaint, 

instituted an action, or otherwise exercised any right available under OSHA. Id. 

Plaintiffs further alleged that because the purpose of OSHA is to assure workers 

‘‘safe and healthy working conditions’’ and because OSHA prohibits employers from 

discharging employees for exercising their rights under OSHA, defendant’s discharge of plaintiffs was a violation of public policy. Plaintiffs alleged they were employed by defendant at-will. They alleged that OSHA promotes public policy by ensuring safe working conditions. Finally, they alleged defendant [**5] violated public 

policy when it fired plaintiffs for reporting to the Department of Labor. We believe 

plaintiffs have alleged facts sufficient to state a claim for wrongful discharge under 

Missouri’s public policy exception. 

Defendant argues that the public policy exception does not apply to cases such as 

this one where the statute, which is the basis for the public policy exception, provides its own remedy. OSHA permits an employee to file a complaint with the Secretary of Labor within thirty days after the discrimination or discharge has occurred. 29 U.S.C. § 660(c)(2) (1985). The Secretary has sole discretion in deciding 

whether to bring an action in federal court regarding the employee’s rights. Id. 

Should the Secretary choose to do so, the statute allows for reinstatement of the employee to the employee’s former position with back pay. Id. The statute provides no 

means of appeal for an employee whose complaint is not acted upon by the Secretary. Id. Defendant contends the remedy provided by the statute is the exclusive 

remedy available to employees in those situations. 

Defendant bases its argument on this court’s decision in Hendrix v. Wainwright 

Industries, [**6] 755 S.W.2d 411 (Mo. App. 1988). The employee in Hendrix did not 

allege the employer’s actions violated Missouri’s public policy, as plaintiffs have in 

the instant case. 755 S.W.2d at 412-413. The petition in Hendrix asserted only a 

conspiracy to violate OSHA. However, defendant points to the general statement of 

law in Hendrix: 

98

Any remedy for retaliatory discharge must come from within the agency. There 

is no private cause of action for violation of the Occupational Safety and Health Act. 

Id. at 413. This pronouncement of the law was taken from Taylor v. Brighton 

Corp., 616 F.2d 256, 264 (6th Cir. 1980). Since Taylor, the Eighth Circuit has examined the same issue and determined that OSHA does not bar a state wrongful discharge claim. Schweiss v. Chrysler Motors Corp., 922 F.2d 473, 475 (8th Cir. 1990). 

In Schweiss, as in the instant case, the plaintiff alleged she was discharged for reporting violations of OSHA at her workplace. Schweiss, 922 F.2d at 474. The Eighth 

Circuit determined that those allegations were sufficient to state a cognizable claim 

under Missouri law. Id. The only issue which remained for the court’s decision [**7] 

was whether OSHA pre-empted plaintiff’s state law claim. Id. 

The Eighth Circuit found no language in the statute expressly pre-empting state 

law. Schweiss, 922 F.2d at 474. It also found no reason to infer pre-emption from 

the language of the statute, noting that ‘‘[OSHA] expressly allows for state regulation in the occupational safety field of law.’’ Id. The court specifically held that the 

remedial measures provided for in OSHA did not preempt a state law wrongful discharge claim. Id. at 475. 

In reaching its decision in Schweiss, the Eighth Circuit relied on a recently decided U.S. Supreme Court case, English v. General Electric Co., 496 U.S. 72, 78-

79, 110 S. Ct. 2270, 110 L. Ed. 2d 65, 74 (1990). In English, the Supreme Court 

examined whether the Energy Reorganization Act of 1974 pre-empted a state law 

tort claim. That statute provides remedial measures to retaliatory discharge similar 

to those provided for in OSHA. 42 U.S.C. § 5851 (1995). Although defendant disagrees, we believe the issue in this case is also whether [*345] OSHA pre-empts 

plaintiff’s wrongful discharge claim. Pre-emption can occur when: (1) federal law expressly pre-empts [**8] state law; (2) federal law occupies the field so completely 

that pre-emption may be inferred; or (3) there is a conflict between federal and state 

law. English, 496 U.S. at 78-79. The Supreme Court found no pre-emption of the 

state tort claim by the federal statute, noting, ‘‘ordinarily the mere existence of a 

federal regulatory or enforcement scheme, even one as detailed as [the Energy Reorganization Act], does not by itself imply pre-emption of state remedies.’’ Id. at 80. 

The court found no actual conflict between the federal and state remedies, and thus 

no pre-emption. Id. at 81. The Eighth Circuit applied English to the facts of 

Schweiss and held that OSHA allows a state wrongful discharge claim under Missouri’s public policy exception. Schweiss, 922 F.2d at 475. 

We believe Schweiss and English promote the more just policy of allowing plaintiffs remedies in addition to the single narrow remedy provided by OSHA. For these 

reasons, we follow Schweiss and English. 

Defendant further contends that state law simply does not apply where a federal 

statutory remedy exists, regardless of preemption. Defendant relies on Clark v. Beverly Enterprises-Missouri, [**9] 872 S.W.2d 522, 525 (Mo. App. 1994) for this rule. 

However, the rule is merely dicta in Clark. The statute in Clark did not provide 

a remedy and plaintiff was allowed to assert a private cause of action. Defendant 

also relies on Prewitt v. Factory Motor Parts, Inc., 747 F. Supp. 560, 565 (W.D. Mo. 

1990), which was cited by the Western District in Clark as authority for this rule. 

Prewitt is distinguishable. 

The employee in Prewitt brought suit for wrongful discharge under the Fair Labor 

Standards Act (‘‘FLSA’’). 29 U.S.C. § 215(a)(3) (1965). In Count I of the employee’s 

complaint, she alleged wrongful discharge under FLSA. Id. at 561. Count II was a 

claim for wrongful discharge under Missouri’s public policy exception to the employment at-will doctrine. Id. The federal district court concluded the employee had not 

stated a claim upon which relief could be granted as to Count II. 747 F. Supp. at 

565. The court reasoned that FLSA provided a complete range of remedies for the 

employee and thus the public policy exception did not apply in that instance. Id. 

The distinction between Prewitt and the instant case lies in the statutory remedies. [**10] FLSA allows an employee to bring a claim in either federal or state 

court to recover ‘‘employment, reinstatement, promotion, and the payment of lost 

wages and an additional equal amount as liquidated damages.’’ 29 U.S.C. § 216(b) 

(1995 Supp.). In contrast, OSHA only allows an employee to file a complaint with 

the Secretary of Labor who then decides whether to bring an action on the employee’s behalf. 29 U.S.C. § 660(c)(2) (1985). The employee’s right to relief is even further restricted in that the complaint must be filed within thirty days of the discrimination or discharge. Id. The decision to assert a cause of action is in the sole discretion of the Secretary of Labor and the statute affords the employee no appeal if the 

Secretary declines to file suit. Id. It is obvious from the language of the two statutes 

that although an employee may obtain any type of relief possible under FLSA 

through the employee’s own actions, the relief available under OSHA is limited to 

what the Secretary of Labor deems appropriate. It should also be noted that unless 

99

1We express no opinion on the merits of plaintiffs’ claims. 

1 UE&C is a subsidiary of Raytheon Industries. 

2On a motion to dismiss, the facts as alleged in the complaint are taken as true and all reasonable inferences therefrom are drawn in the plaintiff’s favor. See Sugar D. Co. v. Niagara 

Frontier Tariff Bureau, Inc., 476 U.S. 409, 411, 90 L. Ed. 2d 413, 106 S. Ct. 1922 (1986). 

an employee acts immediately and files a complaint with the Secretary of Labor, 

there is no remedy available without the public [**11] policy exception. We agree 

that, in instances such as Prewitt, a complete statutory remedy should replace the 

common law remedy, but such a result should not occur, in cases such as this, 

where the statutory remedy is incomplete. 

A statutory remedy shall not be deemed to supersede and displace remedies otherwise available at common law in the absence of language to that effect unless the 

statutory remedy fully comprehends and envelopes the remedies provided by common law. 

Prewitt, 747 F. Supp. at 565, citing Detling v. Edelbrock, 671 S.W.2d 265, 271-

272 (Mo. banc 1984). 

We find OSHA does not provide a complete remedy and therefore we conclude 

that Missouri’s public policy exception is applicable [*346] notwithstanding the existence of the federal statutory remedy under OSHA. Plaintiffs have stated a claim 

of wrongful discharge under the public policy exception to Missouri’s employment 

at-will doctrine.1 We reverse and remand for further proceedings. 

ROGER WOOD, APPELLANT V. DEPARTMENT OF LABOR AND

ELAINE CHAO, SECRETARY OF LABOR, APPELLEES

NO. 00-5297

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

275 F.3d 107; 2001 U.S. App. LEXIS 27258

September 7, 2001, Argued 

December 28, 2001, Decided 

PRIOR HISTORY: [**1] Appeal from the United States District Court for the District of Columbia. (No. 98cv02364). 

Wood v. Herman, 104 F. Supp. 2d 43, 2000 U.S. Dist. LEXIS 9867, 16 I.E.R. Cas. 

(BNA) 905, 2000 O.S.H. Dec. (CCH) P 32167 (D.D.C. 2000) 

DISPOSITION: Affirmed. 

COUNSEL: Joanne Royce argued the cause for the appellant. James R. Klimaski 

was on brief. 

Beverly M. Russell, Assistant United States Attorney, argued the cause for the 

appellees. Kenneth L. Wainstein, Acting United States Attorney at the time the 

brief was filed, R. Craig Lawrence, Assistant United States Attorney, and Ann 

Rosenthal and John Shortall, Attorneys, United States Department of Labor, were 

on brief for the appellees. 

JUDGES: Before: HENDERSON, RANDOLPH and ROGERS, Circuit Judges. 

Opinion for the court filed by Circuit Judge HENDERSON. 

OPINION BY: KAREN LECRAFT HENDERSON 

OPINION

[*108] KAREN LECRAFT HENDERSON, Circuit Judge: Appellant Roger Wood 

seeks review of the district court’s dismissal of his appeal from the decision of the 

Department of Labor (DOL) declining to file suit on his behalf for retaliatory discharge under section 11(c) of the Occupational Safety and Health Act (Act), 29 

U.S.C. § 660(c). The district court held that the DOL’s decision not to sue was committed to the agency’s discretion by law and thus not subject to judicial review pursuant to the United [**2] States Supreme Court’s decision in Heckler v. Chaney, 470 

U.S. 821, 84 L. Ed. 2d 714, 105 S. Ct. 1649 (1985). In light of the limited issue Wood 

raises on appeal, we affirm the district court’s dismissal of his complaint but on a 

different ground. 

I. Wood was employed as a senior electrician by United Engineers and Constructors (UE&C)1 at the Johnston Atoll Chemical Agent Disposal System (JACADS).2

JACADS is a facility consisting of several chemical weapons incinerators located on 

the Johnston Atoll in the Pacific Ocean. The facility is operated by UE&C pursuant 

to a U.S. Army contract to dismantle and destroy the lethal chemical weapons stockpile stored on the island. Due to the type of weapon handled at JACADS, the working conditions at the facility are probably as dangerous as any undertaken in the 

world. 

100

3 A toxic entry is an entry into an environment where toxic contamination exists. See Compl. 

P 15. 4 ‘‘Serious’’ means a ‘‘hazard, violation or condition such that there is a substantial probability 

that death or serious physical harm could result.’’ See 29 C.F.R. § 1960.2(v). 5On February 2, 1991 Wood had received and signed a ‘‘FINAL REPRIMAND’’ letter detailing 

his refusal to work as directed. The reprimand stated that ‘‘any further incidents, in which your 

actions are interpreted as insubordination * * * will result in the immediate termination of 

your employment at JACADS.’’ JA 123. 6Section 660(c) has three subsections. Defining ‘‘protected activity’’ under the Act, section 

660(c)(1) provides: ‘‘No person shall discharge or in any manner discriminate against any employee because * * * of the exercise by such employee * * * of any right afforded by this chapter.’’ 29 U.S.C. § 660(c)(1). Section 660(c)(2) provides the complaint procedure and describes the 

prohibited action, see infra p. 6, and section 660(c)(3) sets forth the Secretary’s notice deadline 

once a complaint is filed. 

[**3] According to his complaint, before working at JACADS, Wood was employed 

at the Pine Bluff Arsenal in Arkansas, where he gained extensive experience in the 

field of chemical weapons destruction, making over 1000 ‘‘toxic entries’’3 with various levels of protective clothing and respirators. Upon his arrival at JACADS in 

1990, Wood discovered that management and many of his co-employees failed to appreciate the dangers associated with the destruction of chemical weapons. In particular, he found basic safety equipment and training, the norm at Pine Bluff, inadequate at JACADS. As a result, Wood began making a number of safety complaints 

about conditions at the facility. In November 1990, Wood’s concerns were confirmed 

when an investigation conducted [*109] by the Occupational Safety and Health Administration (OSHA) resulted in the issuance of a ‘‘serious’’ 4 citation for two violations. The violations included the provision of unapproved respirators, 29 C.F.R. § 

1910.134(c), and the standby team’s use of improper protective equipment, 29 C.F.R. 

§ 1910.134(e)(3)(iii). Coincident with the citation, OSHA mandated that all toxic entries be [**4] discontinued until JACADS complied with a schedule of specific safety 

precautions. 

Subsequently, Wood and his supervisors had a number of clashes regarding safety 

issues at JACADS. The supervisors saw many of Wood’s allegations as scare tactics, 

intended to frighten his co-workers. The disputes culminated in Wood’s refusal to 

work in a toxic area because UE&C had not provided him with new corrective 

lenses for the facepiece of his protective mask. Because he had already received a 

final reprimand for refusal to work,5 Wood was discharged for insubordination on 

February 4, 1991. 

[**5] On February 15, 1991 Wood filed a complaint with OSHA alleging that his 

discharge violated section 11(c)(2) of the Act, which prohibits reprisals against employees who raise health and safety concerns. See 29 U.S.C. § 660(c).6 OSHA regional investigator John Braeutigam was initially assigned to investigate Wood’s allegations and, based on his investigation, the San Francisco Regional OSHA Office 

concluded that UE&C had violated section 11(c)(2) of the Act by terminating Wood 

for making safety complaints about the conditions at JACADS. When attempts at 

settlement proved unsuccessful, the Regional Office forwarded the complaint to the 

DOL Regional Solicitor with the recommendation that ‘‘a case be filed on Wood’s behalf.’’ After further research, the Regional Solicitor concluded that the case was inappropriate for litigation due to a possible jurisdictional conflict with the Department of the Army (Army), which, he concluded, was responsible for setting the safety standards at JACADS. As a result, DOL’s Office of the Solicitor (DOL Solicitor) 

referred Wood’s claim to the Army. The Army conducted its own investigation and, 

in February 1996, finally returned [**6] the case to DOL without taking any action. 

In April 1996 OSHA and the DOL Solicitor reviewed Wood’s case again. In a letter dated May 3, 1996 the OSHA Assistant Secretary notified Wood that OSHA 

would take no further action. Explaining that the right to refuse to work is very 

limited, the Assistant Secretary concluded that Wood’s refusal to participate in toxic 

entries did not meet the applicable legal test and thus his termination did not violate section 11(c). The Assistant Secretary also [**7] suggested that UE&C’s probable jurisdictional defense based on the Army’s [*110] authority over JACADS 

would ‘‘further complicate the litigation.’’

On October 2, 1998 Wood filed the instant action seeking judicial review of the 

DOL Secretary’s decision declining to bring a civil action on his behalf pursuant to 

section 11(c)(2) of the Act. Count I of his complaint alleged that the Secretary ‘‘determined that Raytheon, [Wood’s] employer, had violated 29 U.S.C. § 660(c)’’ and 

then ‘‘unlawfully declined to file suit in an appropriate U.S. district court against 

Raytheon.’’ Compl. P P 57-58. Counts II and III alternatively charged that the statement of reasons regarding the decision not to sue contained in the Assistant SecVerDate 0ct 09 2002 15:58 Dec 15, 2010 Jkt 000000 PO 00000 Frm 00104 Fmt 6633 Sfmt 6621 G:\DOCS\111TH\WP\111-58\56055.TXT HBUD PsN: DICK
101

7 Count II also challenged the Assistant Secretary’s additional rationale included in his May 

3, 1996 letter that the jurisdictional issue would likely complicate the litigation of Wood’s claim. 

Counts IV, V and VI laid out additional grounds for relief which are not before us on appeal. 8 Chaney noted that an agency’s decision to decline enforcement is ‘‘generally committed to 

an agency’s absolute discretion’’ and ‘‘involves a complicated balancing of a number of factors 

which are peculiarly within [agency] expertise.’’ 470 U.S. at 831 (citations omitted). In addition, 

‘‘the agency is far better equipped than the courts to deal with the many variables involved in 

the proper order of its priorities.’’ Id. at 831-32. 

retary’s May 3, 1996 letter violated the Administrative Procedure Act (APA), 5 

U.S.C. § 706(2)(a).7 Defendants DOL and the DOL Secretary moved to dismiss. 

[**8] On June 23, 2000 the district court dismissed Wood’s complaint, concluding 

that the Secretary’s decision declining to bring a section 11(c) suit was not judicially 

reviewable. Wood v. Herman, 104 F. Supp. 2d 43, 48 (D.D.C. 2000). The district 

court relied on the holding in Heckler v. Chaney, 470 U.S. 821, 84 L. Ed. 2d 714, 

105 S. Ct. 1649 (1985), in which the Supreme Court declared that an agency decision declining to initiate an enforcement action is generally ‘‘presumed immune from 

judicial review’’ unless the statute ‘‘has provided guidelines for the agency to follow 

in exercising enforcement powers.’’ Wood v. Herman, 104 F. Supp. 2d at 45-46 

(D.D.C. 2000) (quoting Chaney, 470 U.S. at 832-33).8 ‘‘Unable to discern any meaningful guidelines for the Secretary to follow in deciding whether to bring an enforcement action,’’ the district court held that ‘‘the Chaney presumption of 

nonreviewability must govern.’’ 104 F. Supp. 2d at 46. Without separately discussing 

the APA claims, the district court dismissed the entire action. This appeal followed. 

[**9] II. 

On appeal, as he did in the district court, Wood frames the issue as ‘‘whether the 

Secretary of Labor’s decision not to bring an enforcement action, despite having 

found a violation under 29 U.S.C. § 660(c), is reviewable.’’ Appellant’s Br. at 2. We 

review the dismissal of Wood’s complaint de novo. Gilvin v. Fire, 259 F.3d 749, 756 

(D.C. Cir. 2001). In deciding a purely legal question, we need not adopt the reasoning relied upon below. See Eldred v. Reno, 345 U.S. App. D.C. 89, 239 F.3d 372, 

374-75 (D.C. Cir. 2001). While we affirm the district court’s dismissal of Count I, 

we do so on a different basis from the one used below. We conclude that Count I 

fails to state a claim on which relief can be granted, Fed. R. Civ. P. 12(b)(6), because 

the Secretary did not determine that Wood’s discharge violated section 11(c) of the 

Act. 

In challenging the Secretary’s non-enforcement decision, Wood relies principally 

upon the language of section 11(c)(2). We allow Wood to fall on his statutory 

‘‘sword.’’ The pertinent language of section 11(c)(2) of the Act provides: 

[*111] 

Any employee who believes that he has been discharged or otherwise discriminated [**10] against by any person in violation of this subsection may * * * file a 

complaint with the Secretary alleging such discrimination. Upon receipt of such 

complaint, the Secretary shall cause such investigation to be made as he deems appropriate. If upon such investigation, the Secretary determines that the provisions 

of this subsection have been violated, he shall bring an action in any appropriate 

United States district court against such person * * *

29 U.S.C. § 660(c)(2) (emphasis added). Count I mirrors the statutory language, 

alleging that the Secretary determined that Wood’s employer had violated section 

11(c)(2) and then ‘‘unlawfully failed to bring an action.’’ In light of the congressional 

mandate reflected by the ‘‘shall’’ language, Wood argues, the Chaney presumption 

of non-reviewability is inapplicable. 

Wood’s contention is based on the premise that the Secretary’s statutory duty to 

bring suit under section 11(c)(2) arises only if the Secretary first finds a violation. 

As discussed below, the Secretary made no such determination here and concluded 

instead that Wood’s refusal to work was not protected activity under the Act. Wood 

appears to view [**11] the Secretary’s determination that the subsection was not 

violated and the Secretary’s decision not to bring suit as two sides of the same coin 

so that he may challenge the latter without regard to the former. As the complaint 

itself appears to recognize, however, the Secretary’s determination that section 

11(c)(2) has been violated at all is a requisite precondition to her enforcement decision. Count I alleges ‘‘the Secretary conducted an investigation into plaintiff’s claim 

of retaliation; confirmed its merits; and determined that Raytheon, plaintiff’s employer, had violated 29 U.S.C. § 660(c) by terminating plaintiff in retaliation for protected activity.’’ Compl. P 57 (emphasis added). In his Reply Brief, Wood further argues that because the ‘‘Secretary of Labor unquestionably found a violation of § 

11(c),’’ the DOL ‘‘was obligated to file suit on his behalf.’’ Reply Br. at 1 (emphasis 

added). Although Count I (paragraph 57) of the complaint alleges that the first step 

102

9 In holding that the Secretary’s decision not to sue was unreviewable, the district court did 

not reach Counts II and III, Wood v. Herman, 104 F. Supp. 2d at 45; on appeal Wood did not 

raise, in the alternative, an issue on either, and accordingly, Wood has waived any objection 

to their dismissal. Moreover, the court does not reach the questions whether either the Secretary’s determination of a violation vel non or her determination upon finding a violation not 

to file a complaint are subject to judicial review. 

of the statutory directive detailed above was met, Wood’s complaint also recites the 

contents of the Assistant Secretary’s May 3rd letter, which states in part that ‘‘we 

conclude [**12] that your refusal to work does not meet the test set forth in [section 

11(c)].’’ Compl. P 50 (emphasis added). See generally 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1357, at 319-20 (2d ed. 1990). On 

its face, then, the complaint foretells its own demise. Wood’s challenge to the Secretary’s decision not to bring suit on his behalf, which forms the basis of Count I, 

cannot be heard if the Secretary did not first determine that UE&C violated section 

11(c)(2). 

Section 11(c)(2) designates the Secretary as the official who decides whether and 

to what extent an investigation is ‘‘appropriate’’ and, based on that investigation, 

whether the complainant has made out a claim that his employer discriminated 

against him, by discharge or otherwise, for his protected activity. 29 U.S.C. § 660(c). 

To demonstrate that the Secretary ‘‘unquestionably’’ found a violation, Wood 

sweepingly contends that ‘‘every single Department of Labor official and attorney 

who investigated the facts found a strong merit case.’’ Reply Br. at 1. His contention, even if true, is irrelevant. Only the Secretary of Labor is authorized to ‘‘determine’’ whether [**13] the ‘‘subsection has been violated.’’ The Secretary has delegated to the Assistant Secretary for Occupational Safety and Health ‘‘the authority 

and assigned [*112] responsibility for administering the safety and health programs 

and activities of the Department of Labor * * * under * * * the Occupational Safety and Health Act of 1970.’’ See Secretary’s Order 3-2000, 65 Fed. Reg. 50017 (August 16, 2000). Using this authority, the Assistant Secretary for Occupational Safety 

and Health John Deer determined on May 3, 1996 that Wood’s refusal to work was 

not protected activity under section 11(c)(2) and therefore UE&C did not violate the 

Act by discharging him. The first step of section 11(c)(2) not having been taken, 

then, Wood cannot as a matter of law make out a retaliatory discharge claim as set 

forth in Count I.9

[**14] For the foregoing reasons, the district court’s dismissal of Count I of Wood’s 

complaint is 

Affirmed. 

CASE SUMMARY: 

PROCEDURAL POSTURE: Appellant employee sought review of the United 

States District Court for the District of Columbia’s dismissal of his appeal from the 

decision of defendant Department of Labor, which declined to file suit on his behalf 

for retaliatory discharge under § 11(c) of the Occupational Safety and Health Act, 

29 U.S.C.S. § 660(c). 

OVERVIEW: The employee had filed a complaint with the Occupational Safety 

and Health Administration (OSHA) alleging that he had been discharged for raising 

health and safety concerns. The employee alleged that the Secretary of the Department of Labor (DOL) had determined that the employer had violated 29 U.S.C.S. 

§ 660(c) and then unlawfully declined to file suit against the employer. The district 

court held that the DOL’s decision not to sue was committed to the agency’s discretion by law and was not subject to judicial review. The court affirmed the district 

court’s decision, but on a different basis. The court found that as a matter of law, 

the employee could not make out the retaliatory discharge claim because the Assistant Secretary for Occupational Safety and Health, who had been delegated the authority to decide whether a complainant had made out a claim that his employer 

discriminated against him, had determined that the employee’s refusal to work was 

not protected activity under 29 U.S.C.S. § 660(c) and that, therefore, the employer 

did not violate the Occupational Safety and Health Act by discharging him. 

OUTCOME: The court affirmed the dismissal of the count alleging that the secretary had unlawfully declined to file suit against the employer. 

CORE TERMS: protected activity, regional, judicial review, chemical weapons, declining, file suit, bring suit, enforcement action, jurisdictional, protective, reprimand, 

retaliatory discharge, agency decision, unquestionably, discriminated, destruction, 

terminating, retaliation, respirators, discharged, unlawfully, reviewable, confirmed, 

guidelines, assigned, insubordination, termination, supervisors, complicate 

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[The article, ‘‘A Pot of Gold at the End of the Rainbow: An Economic Incentives-Based Approach to OSHA Whistleblowing,’’ by 

Jarod S. Gonzalez, may be accessed at the following Internet address:] 

http://papers.ssrn.com/sol3/papers.cfm?abstract—id=1538336

[The GAO report, ‘‘Whistleblower Protection Program: Better 

Data and Improved Oversight Would Help Ensure Program Quality 

and Consistency,’’ January 2009, may be accessed at the following 

Internet address:] 


fid-17.eps
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http://www.gao.gov/new.items/d09106.pdf 

COMPARISON OF ANTI–RETALIATION PROVISIONS IN OTHER LAWS 

Statute Statute of 

limitations 

Preliminary 

reinstatement 

Right to get 

hearing before 

ALJ or court 

Federal Railroad Safety Act (amended 2007) ........................................................ 180 days Yes Yes 

Consumer Product Safety Improvement Act (2008) ............................................... 180 days Yes Yes 

Surface Transportation Assistance Act (1982, amended 2007) ............................ 180 days Yes Yes 

Aviation Investment And Reform Act (2000) ......................................................... 90 days Yes Yes 

Sarbanes-Oxley (2002) ............................................................................................ 90 days Yes Yes 

Patient Protection and Affordable Care Act (2010) ............................................... 180 days Yes Yes 

Clean Air Act (1977) ............................................................................................... 30 days Yes Yes 

Mine Safety and Health Act (1977) ....................................................................... 60 days Yes Yes 

OSH Act (1970) ....................................................................................................... 30 days No No 

The AFL–CIO urges prompt action on the Protecting America’s Workers Act. It 

is past time to update and strengthen the Occupational Safety and Health Act so 

that workers in this country will be better protected from job hazards and better 

protected when they speak out about them. 

Again, thank you for the opportunity to testify today. I would be happy to respond 

to any questions. 

[Additional submissions of Mr. Miller follow:]

JASON M. ZUCKERMAN, 

THE EMPLOYMENT LAW GROUP, 

May 11, 2010. 

Hon. GEORGE MILLER, Chairman, 

Committee on Education and Labor, 2181 Rayburn House Office Building, Washington, DC 20515. 

RE: Statute of Limitations in Whistleblowers Provisions of PAWA.

DEAR REPRESENTATIVE MILLER: I am a principle at the Employment Law Group 

and my practice focuses on representing employees in whistleblower retaliation actions. I commend the leadership of the Workforce Protections Subcommittee of the 

House Education and Labor Committee for focusing on the critical need to amend 

the whistleblower protection provision of the Occupational Safety and Health Act. 

The lack of a private right of action and the 30-day statute of limitations render 

the whistleblower provision wholly ineffective. Workers should not be forced to jeopardize their safety and health in order to keep their jobs. I have represented individuals who made the difficult choice to complain to management about the unsafe 

work conditions and as a result thereof, suffered swift and severe retaliation. As 

written, the whistleblower provision in the Protecting America’s Workers Act (H.R. 

2067) takes a balanced approach to providing long overdue whistleblower protections to workers. In light of the recent oil rig explosion off the coast of Louisiana, 

the tragic deaths of 29 miners at the Upper Big Branch mine, and other workplace 

fatalities, ensuring the right of workers to report unsafe work conditions should be 

a no-brainer. 

During the hearing held on April 28, 2010 a witness criticized the statue of limitations provision in Section 203, asserting that the ‘‘’discovery rule’ is a foreign concept in employment law’’ and that a discovery rule is ‘‘not expressly adopted in any 

other federal employment statute including the staples of employment discrimination law: Title VII of the Civil Rights Act of 1964, the Americans with Disabilities 

Act, or the Age Discrimination in Employment Act.’’ In fact, the ‘‘discovery rule’’ has 

been applied to employment discrimination statutes. See, e.g., Eber v. Harris County Hosp. Dist., 130 F. Supp. 2d 847, 864 (S.D. Tex. 2001) (‘‘The Fifth Circuit has 

adopted a discovery rule for determining when a party’s claim under the ADA accrues. An ADA cause of action accrues when the employee receives unequivocal notice of facts giving rise to his claim or a reasonable person would know of the facts 

giving rise to the claim.’’ [internal cites and quotes omitted]); Deily v. Waste Management of Allentown, 118 F. Supp. 2d 539, 542-543 (E.D. Pa. 2000) (fact issue on 

when Plaintiff discovered his termination); Brickings v. Bethlehem Lukens Plate, 82 

F. Supp. 2d 402, 409 (E.D. Pa. 2000; Conners v. Maine Medical Center, 42 F. Supp. 

121

2d 34, 51-52 (D. Me 1999), on reconsideration, 70 F. Supp. 2d 40 (D. Me. 1999); Silk 

v. City of Chicago, 1996 WL 312074, at *7 (N.D. Ill. 1996); Washburn v. SauerSundstrand, Inc., 909 F. Supp. 554, 558 (N.D. Ill. 1995). For example, the Seventh 

Circuit held Cada v. Baxter Healthcare Corp., 920 F.2d 446 (7th Cir. 1990) that ‘‘the 

rule that postpones the beginning of the limitations period from the date when the 

plaintiff is wronged to the date when he discovers he has been injured is the ‘‘discovery rule’’ of federal common law, which is read into statutes od limitations in federal-question cases (even when those statutes of limitations are barrowed from state 

law) in the absence of a contrary directive from Congress.’’ Id. At 450. 

Significantly, the Supreme Court held in Ledbetter v. Goodyear Tire & Rubber 

Co., Inc., 550 U.S. 618 (2007) that the discovery rule may apply to claims under the 

Title VII of the Civil Rights Act of 1964 and the Equal Pay Act. Ledbetter, 550 U.S. 

618, 642 n. 10 (‘‘We have previously declined to address whether Title VII suits are 

amenable to a discovery rule. National Railroad Passenger Corporation v. Morgan, 

536 U.S. 101, 114, n. 7, 122 S. Ct. 2061, 153 L.Ed.2d 106 (2002). Because Ledbetter 

does not argue that such a rule would change the outcome in her case, we have no 

occasion to address this issue.’’). 

Other recent decisions acknowledge that the statute of limitations should begin 

to run when the plaintiff has actual knowledge of a discriminatory injury. See, e.g., 

Foster v. Gonzales, 516 F. Supp. 2d 17, 23 n.5 (D.D.C. 2007) citing Del. State Coll. 

v. Ricks, 449 U.S. 250, 261 (1980)) (180-day period begins running on date on which 

‘‘plaintiff had notice of final (as opposed to a tentative) termination decision’’); see 

also James v. England, 332 F. Supp. 2d 239, 245 (D.D.C. 2004) (holding that Ricks 

controls start of limitations period for Title VII claims by private sector employees). 

The Third Circuit discussed Ricks in Colgan v. Fisher Scientific Co. 935 F. 2d 

1407 (3d Cir. 1991). By noting that Prof. Ricks has received ‘‘explicit notice that his 

employment would end’’ upon expiration of his terminal contract after his denial of 

tenure, the Court implicitly provided a notice requirement to trigger the limitations 

period; i.e., when the employer has established its official position and made that 

position apparent to the employee by explicit notice. See Colgan, 935 F. 2d at 1416-

17. In Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F. 3d 1380 (3d Cir. 1994), 

the Third Circuit said that the discovery rule (so famous in tort cases) is implicit 

in the Ricks holding that the limitations period begins to run at the time the allegedly discriminatory decision is made and communicated to the employee. See id. At 

1386 n.5 (citing Ricks, 449 U.S. at 258); see also Merrill v. Southern Methodist 

Univ., 806 F.2d 600.604-05 (5th Cir. 1986) (stating that limitations period in Title 

VII cases starts to run on date when plaintiff knows or reasonably should know that 

discriminatory act has occurred, not on date victim first perceived that discriminatory motive caused act). 

In sum, there is substantial precedent in employment law for applying a discovery 

rule to the statute of limitations. Please feel free to contact me at 202-261-2810 if 

you would like additional information. 

Very truly yours, 

JASON M. ZUCKERMAN, 

The Employment Law Group, PC. 

OFFICE OF THE SOLICITOR

Strategic Goals and Performance Measures 

1. Maintain an Effective Litigation Strategy That Advances Departmental Goals. 

1.1 Percent of favorable outcomes in cases submitted for litigation. [Repeat annual 

targets of 95%]. 

1.2 Close an increasing percentage of all cases annually. [Ascending Target.] 

1.3 The ratio of total resources expended for litigation to program recoveries demonstrates that the cost of litigation is a decreasing percentage of the total 

amount of restitution, recoveries and penalties awarded. [Descending Target.] 

1.4 Percent of favorable outcomes, in whole or in part, in appellate matters. [Repeat 

annual target of 98%.] 

1.5 Successfully establish/defend and important legal principle in 75% of all cases 

submitted for litigation and 75% of appellate matters. 

2. DOL Regulations Achieve Agency Policy Objectives and Comply with All Legal Requirements. 

2.1 The major provisions of final DOL rules and regulations are not successfully 

challenged an increasing percentage of the time. [Ascending Target.] 

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2.2 Increase the rate of completion of major task regarding legal review and drafting 

by the SOL Divisions of regulation within deadlines established in advance with 

the responsible DOL agency. [Ascending Target.] 

3. DOL Actions Are Based on Sound Legal Advice. 

3.1 Increase in average legal opinions/advice per FTE devoted to that 

function. [Ascending Target.]

4/21/10

[Questions submitted to witnesses and their responses follow:]

[VIA EMAIL], 

U.S. CONGRESS, 

Washington, DC, May 3, 2010. 

Hon. JORDAN BARAB, Deputy Assistant Secretary, 

U.S. Department of Labor, Occupational Safety & Health Administration, 200 Constitution Avenue, Washington, DC 20210. 

DEAR MR. BARAB: Thank you for testifying at the Workforce Protections Subcommittee’s hearing on ‘‘Whistleblower and Victim’s Rights Provisions of H.R. 2067, 

the Protecting America’s Workers Act,’’ held on Wednesday, April 28, 2010. 

Committee Members have additional questions for which they would like written 

responses from you for the hearing record. 

Representative Lynn Woolsey (D-CA) asks the following questions: 

1. Under Section 18 of the OSH Act, OSHA and ‘‘state-plan’’ states share joint 

jurisdiction over section 11(c) anti-retaliation cases, and workers are free to file in 

either venue. However, in practice OSHA has a policy, which sends claims from 

workers employed in state-plan states back to the states to investigate. PAWA 

makes clear that it is the option of workers in state-plan states to file with federal 

OSHA or the state, and OSHA cannot remove a case back to the state once a worker 

makes a selection. Your testimony questions whether this provision is necessary, implying that since state plans are presumed to be ‘‘at least as effective as’’ federal 

OSHA, there is no need to give workers in state-plan states the right to select a 

venue. 

A) Has OSHA completed its audit of all 22 state plans under the enhanced review 

launched by the Administration? 

B) Do you have evidence based on case file reviews that all 22 state plans are 

currently ‘‘at least as effective as’’ federal OSHA in implementing anti-retaliation 

provisions? If not, when will you have this information? 

C) If PAWA is enacted, it will take at least two years before all states enact 

changes to their whistleblower laws under Section 11(c). Does the Administration 

believe workers who lose their jobs during this transition period should be required 

to file 11(c) complaints in states with state plans that provide inadequate whistleblower relief, while workers in federal OSHA states enjoy better protections? 

D) Your testimony raised a concern about giving workers the freedom to choose 

the venue in which they want to bring a whistleblower claim, based on a concern 

about agency resource demands. Could you please explain why Congress should 

enact legislation which deprives workers of their current statutory right to select 

what they believe is the best venue for their anti-retaliation claims? 

2. If PAWA’s whistleblower provisions are enacted, the Office of Whistleblower 

Programs at OSHA would be responsible for administering these claims. Will it be 

relatively easy to get this reformed 11(c) process up and running? 

3. Since PAWA provides 11(c) whistleblowers with access to an administrative 

hearing process plus a private right of action if DOL fails to act on a timely basis, 

isn’t it the case that the Solicitor’s office would be relieved of having to use its 

scarce resources to evaluate and prosecute a large percentage of these 11(c) antiretaliation cases? 

4. Mr. Chinn’s testimony contends that none of the 17 whistleblower statutes administered by OSHA use the ‘‘discovery rule’’ for determining whether the statute 

of limitation should be extended in cases where workers did not know they were 

the subject of retaliatory action until later on. 

A) Isn’t it the case that OSHA regulations at 29 CFR 1977.15(d)(3) extend statutes of limitations in ways that are similar to the discovery rule? 

B) Are there other whistleblower statutes administered by OSHA, which also 

allow for extending the statute of limitations in instances where the complainant 

learned of the discriminatory conduct outside the time period set forth in the statute 

of limitations? 

123

5. The U.S. Chamber of Commerce testified at a recent hearing that small businesses should have the right to recover attorney’s fees from employees who file 

whistleblower claims and fail to prevail at a hearing. 

A) Does the Administration support a loser pay provision where workers would 

have to pay an employer’s legal costs in a retaliation case? 

6. Tonya Ford testified about the January 29, 2009 incident at an Archer Daniels 

Midland plant in Lincoln, Nebraska that killed her uncle, Robert Fitch and questioned the sufficiency of the citations for which the Company was cited. 

(A) Does OSHA have any policy directives relating to use of the OSHAct’s general 

duty clause in cases where portions of that standard deal with the design requirements of grandfathered man lifts installed prior to 1971? 

(B) In addition to the specific standards for which ADM was cited in regard to 

the man lift, was OSHA prohibited from using the OSHAct’s general duty clause 

to cite ADM for failure to maintain a workplace free from recognized hazards that 

led to the death of Mr. Fitch? If there was no prohibition, why wasn’t ADM also 

cited under the general duty clause? 

(C) As part of its informal settlement agreement with ADM, why didn’t OSHA require the Company to replace all 5 of the man lifts at this plant instead of just one 

manlift? 

(D) Does OSHA plan to issue a new directive with regard to the man lift standard 

(Part 1910.68) and the applicability of the general duty clause? 

Please send an electronic version of your written response to the questions in 

Microsoft Word format to Lynn Dondis at lynn.dondis@mail.house.gov and Richard 

Miller at richard.miller@mail.house.gov by close of business Wednesday, May 12, 

2010, the date on which the hearing record will close. If you have any questions, 

please do not hesitate to contact Ms. Dondis or Mr. Miller at 202-226-1881. 

Sincerely, 

GEORGE MILLER, 

Chairman. 

OSHA Responses to Additional Questions for the Hearing Record 

REPRESENTATIVE LYNN WOOLSEY (D-CA)

Question 1: Under Section 18 of the OSH Act, OSHA and ‘‘state-plan’’ states share 

joint jurisdiction over section 11(c) anti-retaliation cases, and workers are free to file 

in either venue. However, in practice OSHA has a policy, which sends claims from 

workers employed in state-plan states back to the states to investigate. PAWA makes 

clear that it is the option of workers in state-plan states to file with federal OSHA 

or the state, and OSHA cannot remove a case back to the state once a worker makes 

a selection. Your testimony questions whether this provision is necessary, implying 

that since state plans are presumed to be ‘‘at least as effective as’’ federal OSHA, 

there is no need to give workers in state-plan states the right to select a venue. 

A. Has OSHA completed its audit of all 22 state plans under the enhanced review 

launched by the Administration? 

B. Do you have evidence based on case file reviews that all 22 state plans are currently ‘‘at least as effective as’’ federal OSHA in implementing anti-retaliation provisions? If not, when will you have the information? 

C. If PAWA is enacted, it will take at least two years before all states enact changes 

to their whistleblower laws under Section 11(c). Does the Administration believe 

workers who lose their jobs during this transition period should be required to file 

11(c) complaints in states with state plans that provide inadequate whistleblower relief, while workers in federal OSHA states enjoy better protections? 

D. Your testimony raised a concern about giving workers the freedom to choose the 

venue in which they want to bring a whistleblower claim, based on a concern about 

agency resource demands. Could you please explain why Congress should enact legislation which deprives workers of their current statutory right to select what they believe is the best venue for the anti-retaliation claims?

Answer: 

A. OSHA’s Regional Offices are in the process of completing their baseline enhanced evaluations of 21 of the 22 comprehensive State Plans, covering both the private and public sectors, and 4 of the 5 Public Employee Only State Plans. (Evaluation of the Nevada Plan was completed previously in 2009, and the Illinois public 

employee plan was only recently approved and is not yet operational.) The reports 

will be submitted to the Assistant Secretary for review prior to public issuance. We 

anticipate that the reports should all be issued by the end of August. 

124

B. The evaluations will be focused primarily on enforcement, but if deficiencies 

are identified in a State Plan’s anti-retaliation program, the report will include recommendations for improvement. As indicated above, OSHA anticipates that the reports should all be issued by the end of August. At that time OSHA will be better 

able to assess the overall effectiveness of State Plan discrimination programs. 

It should be noted that the State Plans operate under authority of State law and 

have statutory nondiscrimination provisions parallel to those of Section 11(c) of the 

OSH Act. The States also extend these protections to State and local government 

employees. Should a State’s occupational safety and health anti-retaliation program 

be found to be seriously flawed, OSHA would temporarily discontinue its referral 

of complaints to the State for investigation and would concurrently accept complaints filed directly with the State for dual Federal filing, thus assuring the protection of the workers’ rights. 

C. No. If PAWA is enacted, the States will be expected to enact parallel amendments to their State laws within 12 months, as specified in the current bill. Until 

such time as State law is amended, OSHA would expect most complainants to take 

advantage of their right to file their complaints with Federal OSHA under PAWA. 

Federal OSHA would investigate those complaints. Until such time as each State’s 

statutory authority is upgraded, OSHA would require the States to advise complainants of the expanded rights available to them under the Federal program and of 

their right to file their complaint with Federal OSHA instead of the State. 

D. Under current law, Federal OSHA retains authority to accept and investigate 

complaints of discrimination filed by private sector workers in State Plan States 

even when the State has achieved final approval status and the authority for concurrent Federal enforcement jurisdiction has been relinquished under Section 18(e). 

Complainants may file either with Federal or State OSHA or they may timely file 

with both in order to retain their rights. Dual investigation by both authorities is 

an inappropriate use of scarce resources. Thus OSHA routinely defers its investigation of such dually filed complaints to the State, but retains the authority to act 

later on the complaint should the State investigation be found lacking. OSHA similarly refers Federally filed complaints from workers in State Plan States to the 

State for investigation. When a complainant files his/her discrimination complaint 

only with the State Plan, Federal OSHA’s authority is limited to monitoring the 

State’s performance through investigation of Complaints About State Program Administration (CASPAs). OSHA is providing Federal funding to allow the States to 

run effective State Plans, including a required anti-retaliation program. Where the 

State anti-retaliation program, after any revisions mandated by PAWA have been 

accomplished, is determined to be at least as effective as the Federal, resources can 

be most effectively utilized by allowing the State to conduct the investigation. 

Once the states have made the statutory changes needed to comply with PAWA, 

their whistleblower programs will be as effective as OSHA’s. Providing workers a 

choice between equivalent protections would not necessarily strengthen whistleblower protection. States with approved plans contribute valuable expertise, staffing 

and funding to the nation’s overall safety and health effort, and their assistance is 

also much needed in enforcing workplace anti-retaliation laws. We feel that, from 

a resource allocation standpoint, it is better to leave the choice of state or federal 

remedies to OSHA rather than individual complainants. One alternative might be 

a provision that filing a complaint with either OSHA or a state constitutes a valid 

filing with the other authority; OSHA would have the discretion to proceed in a case 

where OSHA believes its involvement would add value. 

Question 2: If PAWA’s whistleblower provisions are enacted, the Office of the Whistleblower Protection Programs at OSHA would be responsible for administering these 

claims. Will it be relatively easy to get this reformed 11(c) up and running?

Answer: 

The reforms entailed by the enactment of PAWA would necessitate revision of 29 

CFR Part 1977. OSHA’s whistleblower investigation procedure regulations are not 

subject to the notice and comment procedures of the APA; nevertheless, we initially 

promulgate such regulations as interim final rules and provide the public with the 

opportunity to submit comments. A final rule will be published after the agency receives and reviews the public’s comments. 

Changes to the law enacted by PAWA would, of course, become effective on the 

date specified by Congress. Therefore, until Part 1977 is revised, OSHA would have 

to take several immediate steps to make the regulated community aware of the 

changes. We would reach out to employers and employees through our Web site, updated fact sheets and OSHA posters, and possibly other means. In addition, when 

a section 11(c) complaint is filed, we would explain in the notification letters to the 

employee and employer that recent amendments to the Occupational Safety and 

Health Act resulted in new procedures and we would enclose a copy of the revised 

125

statute. Finally, OSHA would quickly revise the chapter on section 11(c) in the 

Whistleblower Investigations Manual. 

Question 3: Since PAWA provides 11(c) whistleblowers with access to an administrative hearing process plus a private right of action if DOL fails to act on a timely 

basis, isn’t it the case that the Solicitor’s office would be relieved of having to use 

its scarce resources to evaluate and prosecute a large percentage of these 11(c) antiretaliation cases?

Answer: 

Under the existing Section 11(c), complainants have no private right of action, a 

key element of whistleblower protections that is available under all but two other 

whistleblower statutes enforced by OSHA. The private rights of action under PAWA 

would ensure a hearing for complainants, and could also reduce the demand on 

SOL’s litigation resources. 

Question 4: Mr. Chinn’s testimony contends that none of the 17 whistleblower statutes administered by OSHA use the ‘‘discovery rule’’ for determining whether the statute of limitation should be extended in cases where workers did not know they were 

the subject of retaliatory action until later on. 

A. Isn’t it the case that OSHA’s regulation at 29 CFR 1977.15(d)(3) extends the 

statutes of limitations in ways that are similar to the discovery rule? 

B. Are there other whistleblower statutes administered by OSHA, which also allow 

for extending the statute of limitations in instances where the complainant learned 

of the discriminatory conduct outside of the time period set forth in the statute of 

limitations?

Answer: 

A. 29 CFR 1977.15(d)(3) narrowly addresses one application of the principle of equitable tolling, by which a filing deadline may be delayed or suspended if the employer has concealed or misled the employee regarding the grounds for discharge or 

other adverse action. PAWA addresses a somewhat different principle, which comes 

into play when a complainant only discovers he has been retaliated against after 

the normal filing period has elapsed. This ‘‘discovery rule’’ would come into play in 

situations where, even though an employer has not affirmatively misled the complainant, the complainant only discovers after the end of the filing period that he 

did not receive a pay increase afforded to others, or discovers that instead of being 

temporarily laid off, his employer had decided not to call him back. PAWA would 

clarify that in such cases the filing period does not begin to run until the complainant knows or should reasonably have known that he has been retaliated against. 

B. The Supreme Court held in Delaware State College v. Ricks, 449 U.S. 250, that 

the date of an adverse action is when the decision is made and communicated to 

the employee. Therefore, if an employer has not yet communicated the adverse decision to the employee until much later, then for purposed of evaluating timeliness, 

the adverse action has not occurred until the date on which it was communicated. 

In addition, OSHA accepts untimely complaints in certain circumstances under the 

doctrine of equitable tolling. The principle of equitable tolling, which applies in some 

situations, including where an employer has concealed or misled an employee about 

the grounds for adverse action, is well established in case law under the various 

anti-retaliation statutes, although it is not expressly set forth in the statutes themselves. OSHA’s Whistleblower Investigation Manual has adopted that principle for 

all anti-retaliation laws administered by OSHA. I am not aware that such a discovery rule exists under any of these statutes. 

Question 5: The U.S. Chamber of Commerce testified at a recent hearing that small 

businesses should have the right to recover attorney’s fees from employees who file 

whistleblower claims and fail to prevail at a hearing. 

A. Does the administration support a loser pay provision where workers would 

have to pay employer’s legal costs in a retaliation case?

Answer: 

The possibility that an employee—in many cases, an out-of-work former employee—might become responsible for paying an employer’s attorney fees would be 

a powerful disincentive to any worker who considers filing a retaliation complaint, 

and would have a chilling effect on the exercise of employee rights in the workplace. 

Moreover, the Chamber assumes that any complaint that isn’t found to have merit 

was brought frivolously. OSHA does not believe that a complainant’s motive for 

bringing reasonably believed occupational safety or health concerns to the attention 

of their employers or the government should be called into question. We strongly 

oppose such a provision. 

Question 6: Tonya Ford testified about the January 29, 2009 incident at Archer 

Daniels Midland plant in Lincoln, Nebraska that killed her uncle, Robert Fitch and 

questioned the sufficiency of the citations for which the Company was cited. 

126

A. Does OSHA have any policy directives relating to the use of the OSH Act’s general duty clause in cases where portions of that standard deal with the design requirements of grandfathered man lifts installed prior to 1971? 

B. In addition to the specific standards for which ADM was cited in regard to the 

man lift, was OSHA prohibited from using the OSH Act’s general duty clause to cite 

ADM for failure to maintain a workplace free from recognized hazards that led to 

the death of Mr. Fitch? If there was no prohibition, why wasn’t ADM also cited under 

the general duty clause? 

C. As part of its informal settlement agreement with ADM, why didn’t OSHA require the company to replace all 5 of the manlifts in the in the plant instead of just 

one manlift? 

D. Does OSHA plan to issue a new directive with regard to the manlift standard 

(Part 1910.68) and the applicability of the general duty clause?

Answer: 

A. Yes. OSHA issued a directive on October 30, 1978 regarding inspections of man 

lifts. That directive is still in effect, however, OSHA will be updating the directive 

to clarify the intent. 

B. OSHA is not prohibited from using the general duty clause to cite design requirements of manlifts. OSHA did not identify ‘‘design’’ deficiencies on the manlift 

in question at ADM. Rather, the citations addressed maintenance and inspection. 

Where existing standards apply to particular hazards, citing the general duty clause 

is not permitted under Occupational Safety and Health Review Commission case 

law. 

C. The accident involved only one manlift, therefore the investigation was limited 

in scope and did not include the other manlifts. The investigation was not expanded 

to the other manlifts, primarily for two reasons: 1) OSHA did not observe numerous 

significant deficiencies with the manlift associated with the accident, and 2) during 

employee interviews, no concerns were identified with other manlifts. When a violation is found on one manlift the employer is then put on notice to review others and 

make appropriate corrections where needed. Manlifts are permitted under 29 CFR 

1910, therefore OSHA cannot require employers to replace manlifts with other 

forms of personnel transport. During the informal conference the employer proposed 

removing the manlift completely and installing an elevator. The proposed abatement 

was more extensive and more costly than compliance with the OSHA manlift standard. Other manlifts were not discussed, as they were not a point of concern during 

the informal conference, and the employer had already volunteered to abate beyond 

what OSHA could require. 

During a follow-up inspection, OSHA found that two manlifts, the Feed Mill and 

Elevator ‘‘A’’ manlifts, had not been in service for over 5 years. One had been deenergized, with all electrical connection removed completely, and the other had the 

belt removed completely. 

Two other manlifts, Elevator ‘‘D’’ and the Mill Area manlift, were operational and 

used by employees. OSHA inspected both manlifts. The follow-up inspection is still 

open. 

D. Yes. 

[VIA EMAIL], 

U.S. CONGRESS, 

Washington, DC, May 3, 2010. 

Ms. TONYA FORD, 

333 W. Chadderton Drive, Lincoln, NE 68521. 

DEAR MS. FORD: Thank you for testifying at the Workforce Protections Subcommittee’s hearing on ‘‘Whistleblower and Victim’s Rights Provisions of H.R. 2067, 

the Protecting America’s Workers Act,’’ held on Wednesday, April 28, 2010. 

Committee Members have additional questions for which they would like written 

responses from you for the hearing record. 

Representative Lynn Woolsey (D-CA) asks the following questions: 

1. If you had been permitted to participate in the OSHA settlement discussions 

with ADM, would you have raised the fact that abatement should have required replacement of the other four man lifts at the plant and not just the one that was 

replaced under the settlement agreement? 

2. I understand that you had been trying for quite a while to make meaningful 

contact with OSHA, and at this point, you have had conversations with the local 

and the national office. Have they told you everything you need to know, and if not, 

why not? How would you recommend Congress remedy this problem? 

127

Please send an electronic version of your written response to the questions in 

Microsoft Word format to Lynn Dondis of the Subcommittee staff at 

lynn.dondis@mail.house.gov by close of business Wednesday, May 12, 2010, the date 

on which the hearing record will close. If you have any questions, please do not hesitate to contact Ms. Dondis at 202-226-1881. 

Sincerely, 

GEORGE MILLER, 

Chairman. 

Ms. Ford’s Response to Written Follow-up Questions 

DEAR CHAIRWOMAN WOOLSEY, RANKING MEMBER MCMORRIS-RODGERS AND MEM- BERS OF THE COMMITTEE: I want to thank you again for the opportunity to testify 

to you about my family, and how we want to make sure no families go through what 

we have in the last 18 months. I hope we can work together to make a difference 

and my Uncles life will not be in vein.

1. If you had been permitted to participate in the OSHA settlement discussion with 

ADM, would you have raised the fact that abatement should have required replacement of the other four man lifts at the plant and not just the one that was replaced 

under the settlement agreement?

I want to start off by saying many families that I have met in the last 18 months 

have the same feelings, we are here to make sure that other families do not go 

through what we are going through today. There is no price on my Uncle’s life, nothing can bring him back and the completion of our family will never return. We stand 

up and speak in honor of our loved ones that we have lost. I promised my Uncle 

that his death would not be in vein. I stand by those words today and will until 

I can honestly say to my Uncle; I tried with all my heart and soul for your horrible, 

preventable death to save a life and to protect a family from the hurt we feel. 

I truly believe that if my family would have had the chance to participate in the 

OSHA informal settlement discussion with ADM, we would have raised the fact that 

the abatement should definitely have required that all 5 of the belt operated man 

lifts in the Archer Daniel Midland plant be replaced. As stated in my testimony, 

I have done so much research on these devices and they are inherently unsafe. It 

is a device that causes many injuries and even deaths. My Uncle, Father and even 

my Grandfather worked for ADM. My Uncle worked 32 years at this plant, going 

up down these devices. He knew the rules, the regulations and he followed them. 

So do all the other men and women that work at this and many other grain milling 

plants in Nebraska and in the United States. No matter how safe a worker is, these 

device are a hazardous device and should not have been in this plant. The average 

age of the employees at the Archer Daniel Midland plant, located in Lincoln, NE, 

are employees that have been employed with ADM for 30+ years putting them at 

an average age of 50-55 years old. The chance of a man or women having heart attack increases each year after age of 45. Could you image having a heart attack on 

a device with no walls near you, nothing to hold to, nothing to jump too, the nearest 

landing 40 ft below? 

If we would have had the chance to participate in the settlement discussion with 

ADM, we would have made sure that OSHA knew that this was not the only beltoperated man lift in the plant. OSHA’s decision to allow ADM to replace just one 

of the five man lifts was not sufficient to protect the lives of the other workers at 

that plant. Again, nothing is going to bring my Uncle back, however the men and 

women that work not only at this Grain Milling plant, but others around the Nation 

deserve to be safe. Going to work should not be a grave mistake, and my Uncle, 

Father and Grandpa were just three of the men that helped make Archer Daniel 

Midland Plant what it is today and that is a company that has the stock market 

value of $18.31 billion dollars.

2. I understand that you had been trying for quite a while to make meaningful 

contact with OSHA, and at this point you have had conversations with the local and 

the national office. Have they told you everything you need to know, and if not, why 

not? How would you recommend Congress remedy this problem?

I have to admit the past 18 months have been frustrating. Hearing from the local 

news the fines and penalties against ADM were deleted by OSHA was really disrespectful to both my Uncle and our entire family. I’ve heard from OSHA that they 

wants to receive our family’s input on how they can communicate better with us 

and other families that have lost loved ones. I have openly given them suggestions 

and honestly can say that the local OSHA representative has tried to be responsive 

to us. We still don’t have all our questions answered and it seems as though the 

128

answers need to come from OSHA headquarters in Washington, DC, but I feel they 

have not been eager to speak with us. I will be honest many families will listen and 

respect what OSHA has concluded in their loved ones investigation. Many families 

do not understand all of OSHA rules and regulations, I chose to listen and learn 

and educate myself on the investigation process. Maybe that was my fault but, 

today I need closure, I believe my family deserves the right to know why ADM, a 

company that makes so much money was not ordered to remove all of those belt 

operated man lifts. Why a company found all around the world was able to delete 

the citations from their records. We can’t delete my Uncle from our memory and 

yet they deleted an accident that took a man’s life that worked for them for 32 

years. 

Family members want open lines of communication throughout the investigation 

process. We deserve that. We realize that through this communication we may find 

out things that are painful, such as what our loved ones went through in their last 

moments. We may find out the horrible way our loved ones died. We need to know 

each detail of their last breath. The fact is we want to know this. We need to know 

this to get some measure of closure. We want to know someone cares. We need to 

know what went wrong that day and how OSHA is working to ensure it does not 

happen again to another family.We know that OSHA will not necessarily know all 

facts, but we want to know what they know. 

I truly believe that it is very beneficial for Congress to pass PAWA (Protecting 

America’s Workers Act). It is time for families to honor their loved ones and for all 

of us to work as a team, to make a difference and make work a safer place to be. 

I have one question to all employers, why don’t you want to protect and honor 

the men and women that make your company what it is today and what it will become tomorrow? 

[VIA EMAIL], 

U.S. CONGRESS, 

Washington, DC, May 3, 2010. 

Dr. CELESTE MONFORTON, Assistant Research Professor, 

U.S. Department of Labor, Occupational Safety & Health Administration, 200 Constitution Avenue, Washington, DC 20210.Dept. of Environ & Occup Health, 

School of Public Health & Health Services, George Washington University, 2100 

M Street NW, Ste 203, Washington, DC 20037. 

DEAR DR. MONFORTON: Thank you for testifying at the Workforce Protections Subcommittee’s hearing on ‘‘Whistleblower and Victim’s Rights Provisions of H.R. 2067, 

the Protecting America’s Workers Act,’’ held on Wednesday, April 28, 2010. 

Committee Members have additional questions for which they would like written 

responses from you for the hearing record. 

Representative Lynn Woolsey (D-CA) asks the following questions: 

1. Your testimony raised a question about the views of the U.S. Chamber of Commerce regarding victims’ rights. In particular, their witness, Mr. Snare testified on 

March 16 that: 

‘‘Given the legal nature of these proceedings, there does not appear to be much 

value to this presentation [by families of victims] other than to sensationalize, presumably, already emotional and sensitive matters.’’

A) Is it not the case that the OSHA’s regulations and procedures already allow 

workers or their representatives to meet with OSHA Area Directors prior to settlements? 

B) What value could family members provide to OSHA’s process of informal or 

formal settlements? 

C) Some employer representatives have suggested that having families in the 

room at the same time as employers could inappropriately influence the settlement 

process, and urged that meetings with families take place separately from meetings 

with employers. Is it imperative that meetings with the Area Directors and families 

include the employers or their attorneys at the same time? 

2. Mr. Morikawa, who was testifying on behalf of the US Chamber of Commerce 

at the April 28 hearing, noted that PAWA does not define the term ‘‘representative’’ 

in Section 306 of the discussion draft pertaining to victim’s families. 

A) How would you recommend that the term ‘‘representative’’ in the PAWA Section 306 be defined? Or should it be left undefined? 

B) Should the law prohibit any attorney from representing victim’s families in 

these meetings between families and OSHA? 

3. How does inclusion of family members in an investigation improve the investigation? 

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4. Your testimony supports the idea of requiring abatement of serious hazards 

pending employer contest of citations. Do you think that this provision in PAWA, 

if enacted, would have had an impact of the outcome of OSHA’s informal settlement 

involving ADM? 

5. Should the right of families to be involved with the modification of or settlement of citations include formal settlements or informal settlements, or both? Is the 

text of Section 306 of the March 9 discussion draft sufficiently clear on the types 

of settlement proceedings which should include families? 

Please send an electronic version of your written response to the questions in 

Microsoft Word format to Lynn Dondis of the Subcommittee staff at 

lynn.dondis@mail.house.gov by close of business Wednesday, May 12, 2010, the date 

on which the hearing record will close. If you have any questions, please do not hesitate to contact Ms. Dondis at 202-226-1881. 

Sincerely, 

GEORGE MILLER, 

Chairman. 

Dr. Monforton’s Written Responses to Questions for the Record 

1. Your testimony raised a question about the views of the U.S. Chamber of Commerce regarding victims’ rights. In particular, their witness, Mr. Snare testified on 

March 16 that: 

‘‘Given the legal nature of these proceedings, there does not appear to be much 

value to this presentation [by families of victims] other than to sensationalize, presumably, already emotional and sensitive matters.’’

A) Is it not the case that the OSHA’s regulations and procedures already allow 

workers or their representatives to meet with OSHA Area Directors prior to settlements?

RESPONSE: In OSHA’s current Field Operations Manual (FOM), the agency provides guidance to its field offices on allowing workers or their representatives to participate in its settlement processes. For an informal conference, which must be held 

within 15 working days of the date the citations were issued, the FOM states: 

‘‘If an informal conference is requested by the employer, an affected employee or 

his representative shall be afforded the opportunity to participate.’’ (FOM 7-3) 

To the extent that an affected worker or an employee representative is aware of 

the employer’s request for an informal conference, h/she may request to participate. 

I understand, however, that some employee representatives do not learn of the employer’s request for an informal conference with OSHA until after the fact, making 

null this ‘‘opportunity to participate.’’ Setting aside this deficiency in OSHA’s application of this policy, the OSH Act explicitly states that affected workers or their representative have a right to participate in these proceedings.

B) What value could family members provide to OSHA’s process of informal or formal settlements?

RESPONSE: I disagree strongly with the U.S. Chamber of Commerce’s assertion 

that family member participation in OSHA’s informal or formal settlement process 

adds no value ‘‘other than to sensationalize’’ matters. I believe that the victim’s 

rights provisions in the Protecting America’s Workers Act (H.R. 2067), which are 

quite modest, have the potential to advance worker health and safety in a positive 

way. First, family members often have information or physical evidence that can be 

useful to the OSHA investigators. Allowing family members to participate in the informal contest discussions would be a final opportunity for OSHA to receive this potentially vital information. Second, allowing a family member representative to participate in discussions between OSHA and the company will make the settlement 

process more transparent and accountable to the public. Currently, these negotiations are held behind closed doors, and family members are not privy to the evidence and arguments offered by each side. Family members should have the right 

to know more than just the final terms of the settlement. The why and who benefits 

from the terms of the settlement will help the families and the public at large understand how our worker health and safety enforcement system operates (or fails 

to operate as intended.) Finally, many family member victims of workplace fatalities 

want steps to be taken by employers and OSHA so that other families are spared 

from suffering a similar loss. Family members may turn out to be our nation’s best 

allies for securing improvements in worker health and safety.

C) Some employer representatives have suggested that having families in the room 

at the same time as employers could inappropriately influence the settlement process, 

and urged that meetings with families take place separately from meetings with emVerDate 0ct 09 2002 15:58 Dec 15, 2010 Jkt 000000 PO 00000 Frm 00133 Fmt 6633 Sfmt 6621 G:\DOCS\111TH\WP\111-58\56055.TXT HBUD PsN: DICK
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ployers. Is it imperative that meetings with the Area Directors and families include 

the employers or their attorneys at the same time?

RESPONSE: I expect that having family members in the room at the same time 

as employers and OSHA will influence the settlement process. That’s the point and 

why I strongly support these provisions of H.R. 2067. 

I believe that family members should have the opportunity to witness the negotiations between OSHA and the employer during an informal or formal settlement 

process. It is imperative that if the family requests to participate that the employer 

or his attorney be present to face the victim’s family.

2. Mr. Morikawa, who was testifying on behalf of the US Chamber of Commerce 

at the April 28 hearing, noted that PAWA does not define the term ‘‘representative’’ 

in Section 306 of the discussion draft pertaining to victim’s families. 

A) How would you recommend that the term ‘‘representative’’ in the PAWA Section 

306 be defined? Or should it be left undefined?

RESPONSE: The term ‘‘representative’’ should be defined as any individual designated by the victim’s next of kin, including herself or himself, as well as a substitute representative when necessary. (E.g., if a victim’s mother wants to represent 

herself, but on a particular occasion wants her sister to participate on her behalf, 

the designation process should be flexible to accommodate this mother’s wishes.)

B) Should the law prohibit any attorney from representing victim’s families in 

these meetings between families and OSHA?

RESPONSE: No. The law should not prohibit any class, occupation, or personal 

or professional distinction of an individual from representing the victim’s family in 

the meetings between the company and OSHA. The family of a worker killed on the 

job should have the right to select whomever they wish to serve as their representative. Some may want to represent themselves, others may want their pastor, their 

counselor, or an attorney. 

There are some who suggest that family members should be barred from designating a private attorney as their representative because somehow it will ‘‘lawyerup’’ the process. This argument is unconvincing. Federal OSHA relies on the Solicitor’s Office for legal advice, and many employers retain attorneys, especially in fatality cases. Lawyers are already part of the informal and formal settlement process. 

A family member victim of a workplace fatality should have the option of choosing 

an attorney as their family representative. One witness at the Subcommittee’s April 

28, 2010 hearing suggested: 

‘‘involving a private attorney in settlement meetings at any level could have a 

‘‘chilling effect’’ * * * by discouraging the parties from engaging in candid discussions which are necessary in order to accomplish the settlement of OSHA cases.’’ 

(Dennis J. Morikawa, April 28, 2010) 

I disagree. There are some employers who are eager to blame a deceased worker 

for his/her own death. I believe these employers will be less likely to do so with the 

victim’s family present and may be forced to examine their firm’s own practices and 

violations of health and safety standards. Moreover, some employers may be compelled to abate the identified hazards and improve their safety performance if they 

know that the victim’s family will be present in the settlement negotiations. Finally, 

the objective of the negotiation should not be to merely ‘‘accomplish the settlement 

of OSHA cases.’’ Rather, the objective should be to compel a change in the employer’s and the respective industry’s behavior about eliminating hazards and preventing injuries, disease and deaths among the workforce. I don’t foresee a ‘‘chilling 

effect,’’ but rather, sunshine on a process that demands more openness.

3. How does inclusion of family members in an investigation improve the investigation?

RESPONSE: Family members potentially have information or physical evidence 

that can be useful to the OSHA investigators. The information may relate to hazards or worksite practices the deceased worker communicated to his family, may 

lead investigators to former or current employees with whom OSHA investigators 

should speak, or examples of hazardous conditions that exist at other worksites 

under the control of the same employer.

4. Your testimony supports the idea of requiring abatement of serious hazards 

pending employer contest of citations. Do you think that this provision in PAWA, if 

enacted, would have had an impact of the outcome of OSHA’s informal settlement 

involving ADM?

RESPONSE: Yes, I support PAWA’s provision requiring abatement of serious hazards pending employer contest. My experience working at the Mine Safety and 

Health Administration informs my view and makes me a firm proponent of this provision. Employers should not be allowed to disregard known serious hazards and 

131

hold hostage the correction of hazards in order to strike a deal with OSHA to reduce 

a monetary penalty or the severity classification of the violation. 

In the case that resulted following the fatal fall in January 2009 of Mr. Robert 

Fitch at the Archer Daniels Midland plant, OSHA made several errors. The outcome 

of the case might have been quite different in several respects, including had the 

PAWA provision requiring abatement of serious hazards been adopted. We can’t 

make advances in preventing harm to workers when our system forces local OSHA 

staff to bargain with employers for worker protections that they are already required to implement. The informal settlement process should not only expedite 

abatement of the hazard, but also give OSHA leverage to require employers to implement measures that go above and beyond simply compliance with OSHA’s minimum standards.

5. Should the right of families to be involved with the modification of or settlement 

of citations include formal settlements or informal settlements, or both? Is the text 

of Section 306 of the March 9 discussion draft sufficiently clear on the types of settlement proceedings which should include families?

RESPONSE: Yes, family members should have the right to participate in the 

modification of or settlement of citations whether in the formal or informal setting. 

The text contained in Section 9A and Section 306 make it clear that family members 

will be granted the following rights: 

1. Meet with the Secretary’s representative (e.g., OSHA official) before a decision 

is made to issue a citation or take no action. 

2. Receive any citations or other documents at the same time as the employer receives them. 

3. Be granted the opportunity to appear and make a statement before OSHA and 

the employer during informal and formal settlement negotiations. 

4. Be afforded the right to appear and make a victim’s impact statement before 

the Occupational Safety and Health Review Commission (OSHRC) in those instances when a case proceeds to it for adjudication. 

[VIA EMAIL], 

U.S. CONGRESS, 

Washington, DC, May 3, 2010. 

DENNIS J. MORIKAWA, Partner, 

Morgan, Lewis & Bockius LLP, 1701 Market Street, Philadelphia, PA 19103-2921. 

DEAR MR. MORIKAWA: Thank you for testifying at the Workforce Protections Subcommittee’s hearing on ‘‘Whistleblower and Victim’s Rights Provisions of H.R. 2067, 

the Protecting America’s Workers Act,’’ held on Wednesday, April 28, 2010. 

Committee Members have additional questions for which they would like written 

responses from you for the hearing record. 

Representative Lynn Woolsey (D-CA) asks the following questions: 

1. Dr. Montforton has testified that Congress should strengthen the Act by assigning designated family liaisons in each area office. Do you agree with that approach? 

2. Your testimony suggests that PAWA should define at what point in time and 

how often families should have an opportunity to make a statement before the 

OSHA Review Commission on cases which are contested. The discussion draft of 

PAWA leaves it up to the OSHA Review Commission to determine the proper role 

of a family member in its proceedings. Isn’t the Commission is in the best position 

to spell out that process in its regulations? 

Please send an electronic version of your written response to the questions in 

Microsoft Word format to Lynn Dondis of the Subcommittee staff at 

lynn.dondis@mail.house.gov by close of business Wednesday, May 12, 2010, the date 

on which the hearing record will close. If you have any questions, please do not hesitate to contact Ms. Dondis at 202-226-1881. 

Sincerely, 

GEORGE MILLER, 

Chairman. 

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134

[VIA EMAIL], 

U.S. CONGRESS, 

Washington, DC, May 3, 2010. 

Ms. LYNN RHINEHART, General Counsel, 

AFL–CIO, 815 16th Street, NW, Washington, DC 20006. 

DEAR MS. RHINEHART: Thank you for testifying at the Workforce Protections Subcommittee’s hearing on ‘‘Whistleblower and Victim’s Rights Provisions of H.R. 2067, 

the Protecting America’s Workers Act,’’ held on Wednesday, April 28, 2010. 

Committee Members have additional questions for which they would like written 

responses from you for the hearing record. 

Representative Lynn Woolsey (D-CA) asks the following questions: 


mori-3.eps
135

1. PAWA extends the statute of limitations for filing a complaint to 180 days after 

the date the alleged violation occurred, or the date the employee knew or should 

have known that it occurred. This construct is known as the discovery rule. Mr 

Chinn’s testimony contends that PAWA’s use of the discovery rule is ‘‘unprecedented’’ and that the discovery rule is a ‘‘foreign concept’’ in employment law, and 

is not used ‘‘expressly’’ in any employment laws. Isn’t it the case that the discovery 

rule is widely applied by courts in employment law, and a similar construct is used 

by OSHA in determining whether the statute of limitations should be tolled? Could 

you please provide specific examples? 

A) Mr. Chinn’s testimony states that PAWA will lead to ‘‘excessive litigation and 

false claims,’’ if Congress adopts a provision which prohibits discrimination against 

workers who refuse unsafe work where they have ‘‘a reasonable apprehension that 

performing such duties would result in serious injury?’’ Is there any evidence to support his statement? 

Please send an electronic version of your written response to the questions in 

Microsoft Word format to Lynn Dondis of the Subcommittee staff at 

lynn.dondis@mail.house.gov by close of business Wednesday, May 12, 2010, the date 

on which the hearing record will close. If you have any questions, please do not hesitate to contact Ms. Dondis at 202-226-1881. 

Sincerely, 

GEORGE MILLER, 

Chairman. 

Ms. Rhinehart’s Responses to Questions for the Record

From Chairwoman Woolsey 

1. PAWA extends the statute of limitations for filing a complaint to 180 days after 

the date the alleged violation occurred, or the date the employee knew or should have 

known that it occurred. This construct is known as the discovery rule. Mr. Chinn’s 

testimony contends that PAWA’s use of the discovery rule is ‘‘unprecedented’’ and that 

the discovery rule is a ‘‘foreign concept’’ in employment law, and is not used ‘‘expressly’’ in any employment laws. Isn’t it the case that the discovery rule is widely 

applied by courts in employment law, and a similar construct is used by OSHA in 

determining whether the statute of limitations should be tolled? Could you please 

provide specific examples?

Use of the discovery rule and/or the related concept of equitable tolling are commonplace under various employment laws. 

OSHA currently tolls (i.e. extends) the 30 day statute of limitations for equitable 

reasons or where the employer has misled the employee as to the reasons for the 

adverse action taken against him/her. See 29 CFR 1977.15(d)(3). Similarly, courts 

reviewing OSHA 11(c) cases have applied equitable tolling principles to allow consideration of complaints filed outside the 30 day statute of limitations. See, e.g., 

Donovan v. Hahner, 736 F.2d 1421 (10th Cir. 1984) (employer lied to employee 

about the reason for which he was fired, which justified tolling the statute of limitations); Donovan v. Peter Zimmer America, Inc., 557 F. Supp. 642 (DSC 1982) (applying equitable tolling). 

Relatedly, courts have applied the discovery rule in cases brought under other employment statutes. For example, in Cada v. Baxter Healthcare Corp., 920 F.2d 446, 

448 (7th Cir. 1990), the Seventh Circuit, in a case brought under the Age Discrimination in Employment Act, held that the discovery rule applies in discrimination 

cases. In his opinion, Judge Posner explained that ‘‘the ‘discovery rule’ of federal 

common law * * * is read into statutes of limitations in federal-question cases 

* * * in the absence of a contrary directive from Congress.’’ Several other circuits 

have followed Cada in applying the discovery rule in employment-related cases. See, 

e.g., Podobnik v. United States Postal Serv., 409 F.3d 584, 590 (3rd Cir. 2005) 

(ADEA case); Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380 (3rd Cir. 

1994) (Title VII case); Union Pac. R.R. v. Beckham, 138 F.3d 325, 330 (8th Cir. 

1998) (ERISA case); Connors v. Hallmark & Son Coal Co., 935 F.2d 336, 343 (D.C. 

Cir. 1991) (ERISA case). See also J. Geils Band Employee Benefit Plan v. Smith 

Barney Shearson, Inc., 76 F.3d 1245, 1253 (1st Cir. 1996) (noting that Section 1113 

of ERISA explicitly incorporates the federal common law ‘discovery rule.’)

2. Mr. Chinn’s testimony states that PAWA will lead to ‘‘excessive litigation and 

false claims,’’ if Congress adopts a provision which prohibits discrimination against 

workers who refuse unsafe work where they have ‘‘a reasonable apprehension that 

performing such duties would result in serious injury?’’ Is there any evidence to support his statement?

136

No. In fact, the provision Mr. Chinn criticizes is simply a codification of OSHA 

regulations that have existed for decades. Under longstanding OSHA regulations 

that have been upheld by the U.S. Supreme Court, see Whirlpool v. Marshall, 445 

U.S. 1 (1980), employees are protected against discrimination when they refuse in 

good faith to perform work that exposes the employee to a hazardous condition that 

a reasonable person would conclude presents a real danger of death or serious injury. See 29 CFR 1977.12(b)(2). I am not aware of any evidence suggesting that employees have excessively utilized this right or filed false claims concerning the exercise of this right. To the contrary, the evidence strongly suggests that many employees are reluctant to exercise their rights under the OSH Act because of fear of retaliation by their employers and the absence of meaningful recourse under the OSH 

Act—a problem that the Protecting America’s Workers Act seeks to correct. 

Chairwoman WOOLSEY. With that, this hearing is adjourned. 

Thank you very much again. 

[Whereupon, at 11:55 a.m., the subcommittee was adjourned.]

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