OSHA Conducts First of Several Hearings on Whistleblower Protections

Truck driver
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Officials with the Occupational Safety and Health Administration had scheduled a two-hour public hearing June 12 for trucking and rail industry stakeholders to disclose issues facing the agency’s whistleblower protection program — but the hearing only lasted an hour.

And comments came mostly from the usual sources: the Owner-Operator Independent Drivers Association, American Trucking Associations and the Teamsters union.

The hearing was the first in a series of OSHA meetings soliciting ideas from workers in industries ranging from trucking and rail to aviation and nuclear power who are protected from employer retaliation by 22 different laws.

Last year, OSHA received 424 retaliation complaints from surface transportation workers and 293 from rail workers, said Francis Yebesi, acting director of the agency’s whistleblower protection program.

“Because of the volume of cases that OSHA handles, we decided to take input on these relevant communities on how we can improve,” Yebesi said.

Although the number of commenters at the hearing was small, some of the testimony raised concerns with the treatment of whistleblowers.

Jay Grimes, director of federal affairs for OOIDA, said that drivers have had unsatisfactory experiences with the Federal Motor Carrier Safety Administration’s National Consumer Complaint database to report unsafe practices by their employers.

“But our general thought is that many drivers are not aware of the OSHA whistleblower protections provided by the Surface Transportation Act,” Grimes told OSHA officials. “Drivers are more likely familiar with the DOT and FMCSA filing processes rather than OSHA’s.”

Whistleblowers serve a purpose, not just for the whistleblowers but for the safety of the public at large.

Richard Renner, Washington attorney

American Trucking Associations members support the goals established in the Surface Transportation Assistance Act to protect whistleblowers as a means to ensure highway safety for all drivers, said Abigail Potter, ATA’s manager of safety and occupational health policy.

“Creating an environment that allows whistleblowers to come forward to identify the small percentage of bad actors in our industry who woefully violate the federal regulations is necessary to create a safe working environment. However, some of our members have found instances where individuals file whistleblower claims that when all of the facts are established are not legitimate.”

She continued: “The time spent working on whistleblower claims that do not meet the threshold of the STAA violations takes away from time and resources that could be spent improving a motor carrier’s operations.”

Richard Renner, an attorney with Washington law firm Kalijarvi, Chuzi, Newman & Fitch, said that the “win rate” for whistleblowers is way too low. “It does not encourage employees to come forward,” he said.

“Whistleblowers serve a purpose, not just for the whistleblowers but for the safety of the public at large,” Renner told OSHA officials. “The basic idea here is that we want to raise concerns about dangers that might affect the public, dangers to our financial system and dangers to the integrity of our workplaces.”

As a result, Renner said Congress has intentionally made whistleblower complaints easy to prove — since 1989, by requiring only a “clear and convincing” standard of proof in courts.

“What we cannot accept is having someone who sincerely raised a safety or compliance concern and then suffers the adverse action and cannot get a remedy for it,” said Renner, who has represented whistleblowers. “The courts have well recognized that the purpose at issue here is as much the public’s interest in receiving the informed opinion of the employee as it is the employee’s own right to disseminate it.”

“For employers, this is a tough standard, and not by accident,” Renner added.

Azita Mashayekhi, with the Teamsters’ safety and health department, said her union is concerned about the status of the agency’s whistleblower protection advisory committee, which has been archived on the whistleblower protection program’s website. According to the website, the committee last met in October 2016.

Mashayekhi also suggested that the office is short-staffed and should seek additional funding to hire more dedicated staff.