FairWarning.org
California whistle-blowers be wary. Cases where employers allegedly retaliate against employees for reporting hazardous conditions at work take the longest to resolve in this state, according to a FairWarning report this week.
Investigations of whistle-blower retaliation cases in California concluded between Oct. 1, 2008, and Sept. 15, 2009, took an average of 484 days to complete, according to Occupational Safety and Health Administration numbers provided by FairWarning. The time allotted by OSHA law to close such a case is 90 days.
Whistle-blowers in the state also usually lose their cases or never have them settled. Just 10 percent of California cases in the same 2008-09 time period were settled or won by whistle-blowers, which is about half the average of the 24 states with primary responsibility for workplace safety under agreements with OSHA.
Many whistle-blowers have seen their cases fall to the wayside, whether it be because the lawyers with the Department of Labor decide not to pursue them or because OSHA investigators, who can face caseloads that surpass the number they are able to handle by a few times over, are spread too thin:
According to current and former OSHA investigators, it’s harder to settle many other whistle-blower complaints because employers know they won’t be sued.
'[The solicitors] want cases that are slam dunks,' said a frustrated OSHA investigator who, like several others, talked to FairWarning on condition of anonymity. 'They don’t want a case that we could possibly lose … That’s just a ridiculous standard.'
Another investigator told of being laughed at when he asked the lawyer for an employer to produce a company document in a whistle-blower case. 'What are you going to do, take us to court?' he recalled the lawyer asking. 'And we both laughed,' the investigator said, 'because the odds of the solicitor taking the case to court are … slim to none.'
OSHA started taking steps to hire another 25 investigators this year, and changes to the law have been proposed.
The bill under consideration, dubbed the Protecting America’s Workers Act, would bring whistle-blower provisions of the OSHA law more in line with the modern statutes. Introduced by Rep. Lynn Woolsey, D-Calif., with more than 80 co-sponsors, it would provide a right of appeal to an administrative judge if OSHA rejects a case or the solicitor won’t pursue it. In addition, it would extend the current deadline for filing a complaint from 30 to 180 days. Similar legislation is pending in the Senate.
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