According to a new report from the Center for Effective Government, American workplace health and safety is suffering from – and as a result of – a serious lack of resources. While the number of US workplaces doubled between 1981 and 2011 and the number of US workers increased from 73 million to 129 million during this time, during the same 30 years, the number of Occupational Safety and Health Administration (OSHA) inspectors has declined. Instead of one inspector for every 1,900 workplaces, there is now only one inspector for every 4,300 workplaces (or, measured in other terms, one inspector for each 62,000 workers). This means that OSHA can only inspect about one percent of all US workplaces each year. As a result, writes the Center, it is even more important that workers be able to report on workplace health and safety problems, action that is protected by the US Occupational Safety and Health (OSH) Act.
But, says report author Katie Weatherford, regulatory policy analyst at the Center for Effective Government, “too often, when workers raise concerns about health and safety hazards on the job, employers retaliate with reduced hours or dismissal, even though doing so is clearly illegal.” Further, she says, “Neither federal OSHA nor its state-level counterparts currently do enough to protect workers from being harassed, suspended, or fired for reporting health and safety problems.” The problem, writes the Center, is that existing protections against such retaliation are too weak, a problem exacerbated by the recent trend in declining enforcement resources, declining union or other organized labor protections for many workers and policies that allow employers to fire workers for any reason – or for no cause – as long as they employer doesn’t violate discrimination laws. The overall upshot, Weatherford told The Pump Handle, “is that workers are not empowered to speak up” and "OSHA can’t really operate the way it’s supposed to."
These criticisms come despite an OSHA whistleblower protection program that is supposed to protect workers who report on occupational health and safety problems, as well as ongoing efforts by the Obama administration to strengthen this program, including by increasing funding and establishing a new Whistleblower Protection Advisory Committee. “Protecting workers who identify wrongdoing is an essential cornerstone of the U.S. Department of Labor's worker protection enforcement efforts,” said former Labor Secretary Hilda Solis announcing the committee’s formation in December 2012.
More complaints, slow responses
Research by the Center, however, shows that since 2005, the annual number of complaints filed with OSHA by workers citing retaliation – firing, hours cut back or other punitive action – for reporting on workplace health and safety problems has increased by nearly 50 percent. Additional research cited by the Center’s report indicates that nearly 60 percent of all complaints filed by workers about employer retaliation are from workers who reported on workplace health and safety problems.
“This is a big problem,” a veteran occupational health and safety field inspector told The Pump Handle, “in the sense that workers are reluctant to file complaints for fear of retaliation.” And, he said, “there’s enough retaliation that workers’ fears are well grounded.”
About a fifth of the retaliation complaints filed with OSHA in 2012 were rejected because they were filed after the 30-day deadline. The Center for Effective Government says this is too short a time period since it often takes longer than that for employees to find out if their health and safety complaint prompted their dismissal or other punitive action. In 2012, 1745 retaliation complaints were filed, and in 2011, 1666. Only about 400 in each year were found by OSHA to merit OSHA action. Thus far in 2013, the numbers look to be comparable. Exactly why complaints are dismissed or not pursued is not detailed. A Katie Weatherford points out, unless the details come out in litigation or settlement or are otherwise released after the fact, there’s no way from the outside to find out what’s in complaints that have been dismissed.
The magazine Inside Counsel, whose audience is business attorneys, suggests that the high ratio of retaliation complaints dismissed to those pursued is due to a rise in nuisance complaints. Weatherford has a different view. She says for one, workers don’t take the decision to file such complaints lightly, especially as they do fear retaliation. She also says that one reason for an uptick in recent retaliation complaints may be the result of Obama administration policies that have encouraged workers to come forward and report on workplace health and safety problems. In addition, she points out that many complaint cases may end up being dismissed for logistical reasons, including difficulty of producing the required evidence that the Center says places unreasonable burdens on workers.
Investigations into retaliation complaints, writes the Center, now typically take more than five months to complete, making it increasingly difficult to pursue them successfully. “Moreover,” says the report, “when employers retaliate against employees and nothing happens, it sends a powerful signal to other workers to not complain. The longer an investigation takes, the more likely it is that retaliation will have a chilling effect on other workers.”
This pattern was confirmed by the veteran inspector who said that in his state there is a big backlog of pending investigations that can take “more than a year” to complete, thanks to short-staffing that results in only five state agency professionals tasked with following up on retaliation complaints in a state with more than 18 million workers. The result of these delays, he said, is, “for practical purposes,” the elimination of the right to have a workplace health and safety report retaliation complaint investigated.
The Center also points out that under the OSH Act, there is no fine on employers who improperly fire a worker for reporting workplace health and safety problems. Only if a case is successfully litigated or settled on the worker’s behalf does an employer pay any damages or back wages. “With the threat of paying damages so remote, employers have little incentive to voluntarily settle claims by compensating employees or rehiring them. Only a small percentage of complaints result in a settlement, and the average amount is too low to encourage employees to step forward and report health and safety hazards,” writes the Center. Yet another problem with the existing system, says the Center is that OSHA and state OSH programs lack the power to preliminarily reinstate an employee whose retaliation complaint is deemed of merit but is pending investigation.
The Center report also explains that 21 states have their own occupational health and safety programs that protect all workers in the state, while four others have programs that protect only the state’s public-sector workers. All others states rely on federal OSHA for workplace health and safety enforcement – although federal OSHA rules don’t cover state or local government workers anywhere. Seven of the states without their own programs have some kind of additional whistle-blower protections in place that can be used to help workers in cases of retaliation for reporting workplace health and safety problems. But state agencies are also operating under budget constraints, many severe, that hinder their ability to respond to retaliation complaints.
What’s needed to fix the situation, says the Center, is legislation to strengthen worker protections against retaliation at both the state and federal level. Given the current state of Congressional politics, however, the Center suggests that advocates concentrate their efforts at the state level. “The best solution to this problem would be legislation on the federal level, like the Protecting America’s Workers Act,” the report concludes. “But in the absence of Congress moving in the near term to better protect workers’ voice and safety, it is critical that states act.”
Meanwhile the roster of 2013 workplace fatalities continues to grow. While the number of these deaths has declined significantly since OHSA was established, most of these incidents continue to happen while people are just doing their jobs. How many could have been averted with more inspection resources is impossible to know. Under current circumstances, the Center report contends, enabling workers to report unsafe conditions without fear of retribution would make US workplaces less hazardous. As the veteran inspector said, “It stands to reason if people are afraid to report, these things don’t get fixed.”
Elizabeth Grossman is the author of Chasing Molecules: Poisonous Products, Human Health, and the Promise of Green Chemistry, High Tech Trash: Digital Devices, Hidden Toxics, and Human Health, and other books. Her work has appeared in a variety of publications including Scientific American, Yale e360, Environmental Health Perspectives, TheAtlantic.com, The Washington Post, Salon and The Nation.