On Wednesday, the House Workforce Protections Subcommittee held a hearing on the whistleblower and victim's rights provisions contained in the Protecting America’s Workers Act (PAWA) (H.R. 2067), a measure introduced by Rep. Lynn Woolsey (D- CA), chair of the subcommittee, last April. A companion bill (S. 1580) was introduced in the Senate by the late Sen. Ted Kennedy (D-MA) in August 2009. This bill would amend the Occupational Safety and Health (OSH) Act by expanding its coverage, increasing whistleblower protections, and enhancing employer penalties for violations, among other significant changes. The hearing on Wednesday focused on the bill’s provisions that would strengthen workplace whistleblower protections, and would give injured workers, their families and families of workers who died in work-related incidents the right to meet with investigators, receive copies of citations, and to have an opportunity to make a statement before any settlement negotiations.

Jordan Barab, Deputy Assistant Secretary of Labor for OSHA, testified (pdf) that the Administration “strongly supports” PAWA’s whistleblower protections, which would strengthen the OSH Act’s anti-retaliation provision by “including the full range of procedures and remedies available under the more modern statutes and by codifying certain provisions, such as exemplary damages and the right to refuse work that could result in serious injury or illness, which have been available but not expressly authorized by current statute.” The amendments would also increase the existing 30-day deadline for filing a retaliation complaint to 180 days. Barab also praised PAWA’s adoption of the “contributing factor” test for determining when illegal retaliation has occurred. This test, Barab explained, is less stringent than the current “motivating factor” test OSHA uses to evaluate the employer’s decision to take adverse action against the employee following whistleblower activity. The new provisions would also allow both the DOL and the complainant to file a civil action for enforcement of an order providing relief for retaliation violations in federal court.

In addition to PAWA’s current provisions, Barab suggested further amending the OSH Act to provide for assessment of civil penalties against employers that violate the whistleblower provisions. Barab called for subjecting these employers to “civil penalties of not less than $10,000 and not more than $100,000 for each occurrence of a violation.”

Other witnesses, however, questioned (pdf) the need for these enhanced whistleblower provisions, which they believed do not directly relate to improving worker safety, but rather enhance a complainant’s position during the litigation process. In addition, the provision that would prohibit the discharge or any other form of discrimination against an employee “for refusing to perform the employee’s duties if the employee has a reasonable apprehension that performing such duties would result in serious injury to, or serious impairment of the health of, the employee, or other employees” is written too broadly, according to an employment attorney. Under PAWA, a complainant seeking protection under this provision must simply conclude, as a “reasonable person” would, that there is “bona fide danger of a serious injury, or serious impairment of health, resulting from the circumstances.” Under current OSH regulations already in place to protect against worker discrimination, an employee who refuses to work must demonstrate that he or she has refused to work in “good faith,” and that a reasonable person would agree that there exists “a real danger of death or serious injury.” In addition, employees must take certain steps to place the employer on notice of any workplace danger before refusing to work. According to the witness, “PAWA’s ‘reasonable apprehension’ standard and its failure to incorporate the employer protections contained in the OSHA regulations have the potential to encourage excessive litigation and false claims,” in addition to unnecessary work stoppages.

With respect to Section 306 of PAWA, which address victim’s rights, a witness testifying (pdf) on behalf of the U.S. Chamber of Commerce emphasized that “further clarification of the rights, duties and responsibilities of the entities covered under discussion draft Section 306, which purports to address Victim’s Rights, is necessary to truly advance the interests of safety and health in the workplace.” For instance, the witness claimed, a “representative of the victim” described in the legislation should be defined so as not to include a private attorney who is involved in third-party litigation related to the matter.

A complete list of witnesses and their testimony can be found here.

Meanwhile, Sen. Mike Enzi (R-WY) has introduced a bill – the Voluntary Protection Program Act (S. 3257) – that would effectively reauthorize OSHA’s Voluntary Protection Programs (VPP) initiative, and expand it to include more small businesses. As stated in an OSHA fact sheet (pdf) on the VPP, businesses partner with OSHA to “develop and implement systems to effectively identify, evaluate, prevent, and control occupational hazards to prevent employee injuries and illnesses.” During a recent web chat, OSHA officials noted that due to limited resources, the agency plans to shift its focus from VPP to enforcement efforts. To that end, less money was requested for VPP in OSHA’s 2011 proposed budget. To restore the necessary funding to carry out VPP, Sen. Enzi’s bill would provide the DOL with “such sums as may be necessary for fiscal year 2010 and each succeeding fiscal year.”

Photo credit:  Lkmorlan