Protection lags for workers who report hazards on the job

Screen grab of Neal Jorgensen testifying at a congressional hearing on April 28, 2010.
Screen grab of Neal Jorgensen testifying at a congressional hearing on April 28, 2010. fairwarning.org

Neal Jorgensen’s mistake was taking the government at its word. After he reported hazards at his job with a plastics recycling firm in Preston, Idaho, two things happened right away. The Occupational Safety and Health Administration cited the plant for multiple violations, and Jorgensen was fired.

It’s illegal to terminate a worker blowing the whistle on safety violations. Jorgensen complained that he had been fired for exercising his rights, and an OSHA investigation substantiated the claim. At that point, Jorgensen’s employer could have settled for a modest amount of back wages, but refused.
The OSHA law tells what should have happened next. It directs the Secretary of Labor to sue employers who discriminate against workers for exercising their right to report job-related hazards. However, when OSHA referred Jorgensen’s case to lawyers for the Department of Labor in December 2004, they refused to pursue it.
“My employer got away with firing me without any consequences,” Jorgensen, 58, said in an interview.
It was not an isolated case. Over the years, scores of whistleblowers have seen their cases fall into a black hole because the Office of the Solicitor, the legal arm of the labor department, wouldn’t pursue them in court, undermining protections in the OSHA law. The situation has spurred calls for stronger protections for whistleblowers, which critics say are grossly inadequate.
From 1995-2009, regional solicitors filed 32 whistleblower lawsuits, while rejecting 279 other cases referred to them by OSHA, or almost nine times as many, according to government figures reviewed by FairWarning, an online nonprofit public interest publication.
“They (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 whistleblower 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.’’
The solicitor’s office declined interview requests, but in an e-mail response said its record is better than critics say.
The statement said that along with 32 lawsuits, settlements were reached in 156 other cases referred by OSHA; solicitors litigated or settled about 40 percent of referrals over the last 14 years, and more than 50 percent over the last five years.
Another set of numbers provide a different perspective: About 2,000 whistleblower complaints are filed per year. About 80 percent of cases are dismissed by OSHA or withdrawn. OSHA refers to the other 20 percent as “merit’’ cases, though most of them are settled with the employer and relatively few result in a finding in the complainant’s favor.
OSHA and the solicitor’s office are backing legislation in Congress to allow workers to pursue retaliation complaints on their own if government lawyers won’t.
Some critics, though cite inadequate staffing, bulging caseloads and long delays in completing investigations, and say the whistleblower program is broken and will not be fixed by a tweak in the law.
OSHA is spread so thin that, by one estimate, inspectors would need 137 years to visit each workplace under its jurisdiction just once. To encourage workers to serve as extra eyes and ears, Congress included whistleblower protections in the Occupational Safety and Health Act of 1970. Congress later added whistleblower provisions to a wide array of regulatory measures — on air and water quality, airline and trucking safety, even accounting fraud—and OSHA was assigned the task of enforcing them.
In one critical area, the newer laws administered by OSHA provide greater protection for whistleblowers than the 40-year-old OSHA statute. Under the more modern laws, if a complaint is dismissed by OSHA, the employee can take the case to an administrative law judge, a forum where complainants have had some success in overturning OSHA’s findings.
Under the original OSHA law, however, there is no independent right of appeal. That is what’s behind the proposed change in the law.
The bill under consideration, dubbed the Protecting America’s Workers Act, was introduced by Rep. Lynn Woolsey, D-Calif., and has 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. Similar legislation is pending in the Senate.
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In April, 2004, after a fellow worker at Plastic Industries, Inc. was cut by a bandsaw, Neal Jorgensen co-signed a complaint to the OSHA office in Boise. OSHA did an inspection and issued several citations, including ‘’serious’’ ones for lack of a guard on the bandsaw and inoperative safety features on other machinery.
With the plant buzzing about who called OSHA, suspicion quickly focused on Jorgensen. A few days after the inspection, he was sent home on grounds that a baling machine OSHA had found in violation was not available for use. It turned out that other workers did run the baler the same day though the violation had not been fixed, according to the OSHA investigation.
The next day, Jorgensen was informed he was being fired for poor performance. However, OSHA found that company managers made inconsistent statements about the reasons for the firing, and altered at least one document in the course of the investigation, removing a foreman’s positive statements about Jorgensen.
It wouldn’t have cost much to settle the case. OSHA calculated that Jorgensen was due $2,911.57 in lost pay. However, the company balked, and OSHA referred the case to the regional solicitor in Seattle.
Jorgensen got the bad news in an April 2005. The letter said “the case was deemed unsuitable for litigation” due to “insufficient evidence.”
A cruder explanation emerged a few weeks ago when Jorgensen told his story to Congress. In testimony before the House Subcommittee on Workforce Protections on April 28, Jorgensen read from an internal memo from the regional solicitor’s office that discussed his case. “We believe we have an approximate 25 percent chance of success,” the memo said. “There are two U.S. district Court judges in Idaho, one of whom routinely is not well disposed towards the government cases, and the other who can go either way.’”
“I thought I did the right thing,” Jorgensen told the panel, “but the system did not work for me.”
Jorgensen said as things now stand, he would not advise anyone to file a whistleblower complaint. ‘’Absolutely not,’’ he said. “The way the law is written — no chance.’’

This story was part of a Fairwarning.org investigation. Fairwarning.org is an online investigative publication focused on safety and health issues affecting consumers and workers.

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