Remarks by
Dr. David Michaels
Assistant Secretary of Labor for Occupational Safety and Health
Whistleblower Protection Advisory Committee Meeting
Wednesday, September 3, 2014

[as prepared for delivery]

Thank you to the members of Whistleblower Protection Advisory Committee for all your work and a special thanks to Chair of the Advisory Committee, Emily Spieler, and the Work Group Chairs:

• Dave Eherts - 11(c) Work Group
• Jon Brock - Best Practices and Corporate Culture Group
• Eric Frumin - Transportation Industry Work Group

We're very lucky to have Tom Perez as our Secretary of Labor. He is a true champion for worker safety and he brings many years of fighting hard against discrimination.

I also want to introduce our new permanent Deputy Director Anthony Rosa and our acting Director Nancy Smith. They are here with me to help answer questions.

Since I last addressed this committee, we have continued to strengthen and improve OSHA's whistleblower program. As you know, protecting whistleblowers is a responsibly we take very seriously. I want to begin by focusing on our improvements since we last met and providing a perspective over the last five years since I began at OSHA.

Our whistleblower program is clearly getting stronger. From 2009 through June 30th of this year, OSHA has issued 3,726 merit determinations, recovering over $119,000,000 in damages for whistleblower complainants, and reinstated 389 whistleblowers to their positions.

In 2013, we more than doubled the number of merit determinations we issued in 2009 (from 450 in FY2009 to 934 in FY2013). These 934 merit determinations included 74 merit findings, 860 settlement agreements, and awards of over $25 million in total damages to whistleblower complainants - that's an 89% increase from the $13.25 million in damages awarded in FY2009.

In the first three quarters of this year, we've already issued 602 merit determinations and awarded approximately $21.5 million in damages to whistleblower complainants.

As you can see, our efforts are having results. I want to go over a few of the improvements we have made since our last meeting:

A significant concern of ours has been OSHA's ever-increasing inventory of pending cases, including over-aged (also known as backlog) cases, which grew steadily from FY2005 to FY2012. To address this trend, we streamlined our procedures for documenting the outcomes of complaints - whether they were withdrawn or settled, or if the parties stopped cooperating with OSHA's investigation. These new procedures, as well as a new structure we've piloted, which I will discuss next, have contributed to a significant reduction in pending case inventory in FY2013 and 2014.

During this period, several regions piloted a new organizational structure, which created a new position-an Assistant Regional Administrator for Whistleblower Protection. The new position allowed for direct caseload management and oversight of whistleblower investigations by subject matter experts, resulting in more efficient and effective investigations under all statutes. Following the success of the pilot, we are implementing this new structure and position for every region.

We are also continuing to work closely with the agencies whose whistleblower provisions we enforce. We recently entered into a Memorandum of Understanding with the Federal Motor Carriers Safety Administration. This MOU provides for a better exchange of information between the two agencies, and enables OSHA to access valuable data from FMCSA about the 'safety fitness' and compliance history of commercial motor carriers, and drivers' crash and inspection history, and their safety records.

We are working on a new policy memo clarifying the Agency's position regarding burden of proof in whistleblower investigations. The memo will change the burden of proof to be based on a "reasonable cause" that a violation occurred, which is a lesser burden to prove than a "preponderance of the evidence." OSHA and the office of the Solicitor of Labor are working on this policy memo and it should be completed shortly.

We've also had great success with our Section 11(c) appeals program. Faced with more than 200 outstanding appeal cases pending review, we implemented internal procedures to tackle the backlog. Now we're down to only 33 appeals pending review. Moreover, we've drastically reduced our response time to appellants - from 279 days in the first quarter of FY 2013 to only 89 days last quarter. For each case, we also conduct two independent reviews to ensure the quality of our responses. Complex cases are referred to our solicitors for further review and legal analysis, and if additional investigative work is needed, the case is remanded back to the field for further investigation.

Our National Office has been conducting on-site audits of our regional programs to ensure they are strong and effective throughout the country. In the last few months, we also developed a tool to increase the consistency and uniformity of self-audits conducted by each OSHA region. The tool is designed to ensure that the each region is following the Whistleblower Investigations Manual and using consistent metrics to evaluate regional performance.

And here are a few examples of some of OSHA's very recent enforcement case successes:

Just last month, OSHA reached a settlement with Gaines Motor Lines Inc., and two individuals, to compensate four former truck drivers who were fired for participating in an inspection audit, in violation of the whistleblower protection provision of the Surface Transportation Assistance Act. The settlement required the employer to pay more than $262,000 in back pay wages, interest, and compensatory damages.

As you know, we've also been dealing with several11(c) investigations against AT&T. These cases stem from AT&T's retaliatory practices against employees who report work-related injuries. Cases have already been filed in U.S. District Court and several newer cases are being investigated as well. OSHA will continue to pursue AT&T's and other companies' compliance with this basic worker right!

In July 2014, the Department of Labor entered into a consent order in the amount of $100,000 with McKees Rocks Industrial Enterprises, after we filed a lawsuit in federal court. Our investigation found that found McKees Rocks fired the worker because they suspected that the worker had called OSHA, triggering an OSHA inspection. The order also required McKees Rocks to prominently display information on whistleblower protections at the facility; remove all disciplinary action in the worker's official employment record; and provide prospective employers with a neutral reference for the worker.

In June 2014, the Department of Labor obtained a settlement from Crown Furniture after filing a lawsuit in U.S. District Court. In this case, our investigation found that Crown Furniture fired the worker after he called OSHA to report safety and health hazards in including the presence of asbestos, mold and rodents in the basement.

Last month, OSHA ordered Asphalt Specialists to pay nearly one million dollars in damages, including almost $250,000 in back wages to the drivers it had terminated for raising safety concerns, $110,000 in compensatory damages and $600,000 in punitive damages, and to reinstate the drivers. These workers raised safety concerns after being directed to violate U.S. Department of Transportation mandated hours of service for commercial truck drivers.

And also last month, we ordered a contractor for the U.S. Department of Energy's Hanford nuclear facility in Washington State to reinstate an environmental specialist who was fired in retaliation for voicing nuclear and environmental safety concerns. On six different occasions the employee reported concerns about lack of adherence to nuclear and environmental safety regulations. OSHA ordered Washington River Protection Solutions to immediately rehire the employee and pay the employee $186,000 in lost pay plus interest, $24,000 in compensatory damages, $10,000 in punitive damages, and reasonable attorney's fees.

Yet, we still have a lot of work ahead of us. The Department's FY 2015 budget request for Whistleblower programs reflects our commitment to continuing to build the program; the $21,250,000 request would support a total of 158 full time employees (FTE), 27 positions more than our current FTE level of 131.

And now I want to focus on some of those areas where we need your help - the concerns on which your work groups have focused.

First, I'd like your advice and input on effective means to change corporate culture around the issue of whistleblowers. OSHA is committed to providing and showcasing industry best practices that encourage employers to establish effective anti-retaliation reporting programs in their workplaces.

We would like your assistance in helping employers achieve a "culture of ethics and compliance"- as WPAC member Greg Keating said in his recent Congressional testimony. A culture "in which compliance with the letter and spirit of the law is both required and encouraged at every level of the organization; employees feel welcomed and encouraged to share concerns about possible non-compliance; and individuals who come forward in good faith to report possible misconduct or safety concerns can do so without fear of retaliation of any kind."

I encourage WPAC, especially the Best Practices Work Group, to play a big role in this discussion. With your assistance in collecting best practices and making recommendations to OSHA, we can collectively affect a positive corporate culture change that encourages employees to report concerns without fear of retaliation while realizing benefits for employers who establish these programs in their workplaces.

I also very much look forward WPAC's 11(c) and Transportation Work Groups' ideas and recommendations.

Section 11c complaints are the majority of OSHA's whistleblower investigations. As I testified before Congress in April, this section of the OSH Act is in need of significant upgrades if OSHA is to fulfill its mission, and protect workers who raise safety and health concerns. As such, I look forward to reviewing your recommendations to strengthen this statute.

And I also look forward to the transportation Work Group's recommendations. Over the last few years, retaliation complaints from rail workers increased faster than complaints under any other whistleblower statute we enforce. OSHA has taken several steps to discourage railroad employers from continuing the policies that lead to retaliation. For example, OSHA signed an agreement with the Federal Railroad Administration to collaborate to protect railroad workers from reprisal when they report safety violations to the government or report work related injuries or illnesses to their employer. We also issued several widely-publicized enforcement findings in the railroad industry and were successful in getting one key employer to sign a voluntary accord, agreeing to revise several personnel policies that OSHA found had violated the whistleblower provisions of the Federal Railroad Safety Act. But there is more work to be done, protecting not just railroad workers but workers employed across the transportation industry -and I look forward to your recommendations on where and how to most effectively and productively focus our efforts to achieve the greatest impact in this industry.

I thank all three work groups personally for your passion, dedication and time expended on these important program areas.

We are very excited to have established WPAC to provide perspective, insight and recommendations to help us maintain and improve our whistleblower protection efforts.

Your research, analysis and recommendations will help strengthen our program.

We are very appreciative of your time and interest in promoting worker safety and the ability of workers to voice safety and health concerns.

Thank you.