In 1995, a little known Republican Congressman named John Boehner stated that “Most employers would describe OSHA as the Gestapo of the federal government.” Boehner went on to bigger and worse things, before failing into obscurity, but the Associated Press apparently thinks that Boehner was on to something.
Writing about how a tiny, understaffed agency like OSHA can enforce its new “Vax-or-Test” emergency standard, the AP’s Paul Wiseman points out that “Just 1,850 inspectors will oversee 130 million workers at 8 million job sites. So the agencies must rely on whistleblowers.”
But then went on to say:
So the government will rely upon a corps of informers to identify violations of the order: Employees who will presumably be concerned enough to turn in their own employers if their co-workers go unvaccinated or fail to undergo weekly tests to show they’re virus-free.
Horrors!! Yes, hard to believe, but shifty, traitorous employees will stoop so low as to turn their own employers into the “Gestapo of the federal government.” Can Gitmo and concentration camps be far behind?
Meanwhile, Back in the Real World
From its earliest conception, before anyone knew how underfunded and understaffed OSHA would eventually become, the founding mothers and fathers of the Occupational Safety and Health Act (OSHAct) realized that OSHA would never have enough inspectors to cover the country adequately and therefore gave workers important rights to involve themselves in the safety and health of their workplaces — and to be protected against retaliation for that involvement. The law intended workers to be OSHA’s eyes and ears.
Rather than being labeled as “informers,” workers who file complaints should be praised as heroes.
For example, workers fought for and were given the right to file a complaint and request an OSHA inspection if they suspected that their employer was not in compliance with OSHA standards or is otherwise endangering their health or safety. Workers (or their representatives) have a right to walk around with inspectors when they come for an inspection. Workers have to right to access records of the chemicals they’re exposed to, as well as their medical records. And workers have a limited right to participate in proceedings when employers contest a citation. Almost every OSHA standard issued in the past 50 years requires workers to be trained about the hazards they’re exposed to and about the employer’s legal responsibility to control those hazards.
Section 11(c) of the OSHAct warns employers that they may not “discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act.” In some cases, this language has been interpreted to allow workers to refuse hazardous work without retaliation.
In fact, worker involvement is not a betrayal of their employers, but rather the key to OSHA’s success in significantly reducing the number of injuries, illnesses and deaths in this country’s workplaces.
Few of these rights have quite lived up to their promise. Despite what the law says, workers often do not feel safe exercising their rights if they aren’t protected by a union. Unfortunately, union membership and the security that comes with it, has declined substantially since the and when the OSHAct was passed in 1970. The anti-retaliation language has proven to be weak and antiquated. Almost every whistleblower/anti-retaliation legislation passed by Congress since 1970 has much stronger provisions than Section 11(c).
COVID has not made things any better. Wiseman notes that former OSHA Chief of Staff Debbie Berkowitz wrote a report for the National Employment Law Project that found that “OSHA dismissed — without investigating — more than half the COVID-related complaints of retaliation it received from whistleblowers. Just 2% of complaints were resolved in the five-month period.”
“Technically,” Berkowitz said, “the law says that companies can’t retaliate against a worker for raising a health and safety issue or filing an OSHA complaint or even reporting an injury. But retaliation is rampant.”
Of course, despite its size, OSHA’s enforcement problem may not be quite so dire. Most employers — like most American citizens — will comply with the law even if a cop isn’t looking over their shoulder all the time (and even if their traitorous employees, children and friends don’t betray them.)
As former OSHA head David Michaels says in the article:
“Most employers — they’re law abiding ….They’re trying to make sure that they meet the requirements of every law and regulation . Now OSHA will follow up. They’ll respond to complaints. They’ll do spot checks. They’ll issue citations and fines, and they’ll make a big deal of those” to discourage other potential violators.
In other words…
In other words, the right of employees to report to OSHA if “their own employer” are threatening their lives is not a betrayal, it’s a good thing. And it’s not just a good thing, it the essential underpinning of every employee’s legal right to a safe workplace. And not only is it essential, but that right and workers’ tools need to be strengthened and expanded.
OSHA’s anti-retaliation language needs to be much stronger and workers need a clear right to refuse unsafe work. All workers need the clear right to be represented in inspections and other procedures by anyone of their choosing, even if they don’t belong to unions. And workers need significantly expanded rights to participate when employers contest citations.
Many of the improvements workers need are included in the Protecting America’s Workers Act, which is introduced in the House and Senate every year, but doesn’t go anywhere because too many Republicans still see OSHA as the Gestapo, rather than the legal guarantor of workers right to come home safely after work.
Bottom line: Rather than being labeled as “informers,” workers who file complaints should be praised as heroes.