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Federal law often leaves whistleblowers out in the cold

Bill would give workers right to request hearing if they've faced retaliation from employers.

By Ames Alexander
aalexander@charlotteobserver.com

Congressional Democrats and employee rights groups are pushing to plug what they view as gaping holes in laws designed to protect workplace whistleblowers.

Federal laws prohibit employers from retaliating against workers who alert authorities to health and safety problems on the job. Under the law, however, those who face such retribution have just 30 days to file a complaint with the U.S. Department of Labor. Many workers don't learn of their whistleblower rights that quickly, experts say.

If employers refuse to settle such complaints, workers can't act on their own to take them to federal court.

A bill introduced by U.S. Rep. Lynn Woolsey, D-Calif., would change that. The legislation would give workers a full year to file complaints, and allow them to request administrative hearings and file civil actions on their own in federal court. The bill also would prohibit companies from firing employees for reporting workplace injuries.

In an Observer investigation into working conditions in the poultry industry, more than a dozen workers told the newspaper they were fired after getting hurt on the job.

Eric Frumin, occupational safety and health director for Unite Here, a union that represents about 450,000 workers, says current whistleblower law is “so weak, it's an invitation to employers to retaliate against people who report injuries.”

Most of the more than 1,000 U.S. workers a year who file federal whistleblower complaints get no satisfaction. Fewer than one of every four get settlements or rulings in their favor.

And when employers refuse to settle, workers can do little but hope that federal lawyers will fight their cases in court. That rarely happens. Since 2003, the federal government has litigated just two cases a year, on average.

“Any whistleblowers who are fired and are expecting to exercise their rights are chasing a rainbow,” says Tom Devine, legal director for the Government Accountability Project, a nonprofit that seeks to help whistleblowers. “…The current whistleblower protection law is a fraud.”

The need for whistleblowers

Supporters hope Woolsey's legislation passes next year.

“We just can't operate without whistleblowers,” said Peter Galvin, a recently retired congressional staffer who helped draft the bill. “We don't have enough investigators to find things. Beyond that, it seems un-American to fire people for helping to enforce federal law. … But that's what we do.”

U.S. Rep. Mel Watt, D-Charlotte, said he'd likely support the bill because he thinks employees need more time to file complaints – and more power to fight in court if Labor Department investigators don't rule in their favor. It appears, he said, that current protections “are not enough.”

Business groups oppose the legislation.

“I don't think we need more opportunities to get into federal court,” said Marc Freedman, director of labor law policy for the U.S. Chamber of Commerce. “I don't think that helps resolve problems brought to light. That's more of a punitive measure than a corrective measure.”

A leading S.C. Republican on the House panel that must consider the bill also questions whether it makes sense. U.S. Rep. Joe Wilson said the bill might add unnecessary bureaucracy.

“The reforms outlined in this legislation could ultimately cause more confusion and problems than they would solve,” said Wilson, the ranking minority member of the Subcommittee on Workforce Protections.

Complaints dismissed over technicalities

Like North Carolina's Retaliatory Employment Discrimination Act, federal law is supposed to protect workers who call attention to unsafe working conditions. But state and federal statutes also differ. For instance, federal laws, unlike North Carolina's, are designed to protect workers who alert authorities to securities fraud – but not those who are fired in retaliation for filing workers' compensation claims.

In 2007, 22 percent of those who filed whistleblower complaints with the U.S. Department of Labor got settlements or rulings in their favor. That's down from 29 percent in 2000. Asked to comment, labor officials said they consider the current rate within the normal historical range.

A new report from the Government Accountability Project highlights shortcomings in the coverage and enforcement of laws to protect corporate whistleblowers.

The report describes the experience of a Maryland worker who was fired after alerting authorities that his employer had thrown toxic industrial cleaner into a trash bin. He complained to a state agency, but didn't learn he needed to file the complaint with federal OSHA until after the 30-day deadline had passed. Investigators threw out his complaint, saying it had come too late.

The federal law that's supposed to protect employees who report corporate fraud has also come under scrutiny.

The Labor Department has been dismissing many of those complaints on a technicality, arguing that workers at corporate subsidiaries aren't covered, according to news reports. Two U.S. senators this month called for the agency to stop rejecting claims from workers on those grounds.

Out of 1,273 corporate whistleblower complaints filed since 2002, The Wall Street Journal reported, the government ruled in favor of whistleblowers just 17 times and dismissed 841 cases. The rest of the cases were either settled, pending or withdrawn.

Congressional leaders have also asked the U.S. Government Accountability Office to examine the Labor Department's investigation of whistleblower complaints.

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