OSHA whistleblowers experience justice delayed, justice denied

posted on:
October 18, 2016

Andrew Brashier

As of Oct. 6, the Occupational Safety and Health Administration (OSHA) has failed to process 34 out of the 91 complaints it has received since 2002 from Wells Fargo employees. Some of these cases have been awaiting investigation and adjudication for over a decade. These significant delays are due to the crushing case load OSHA is receiving under the whistleblower program.

In fiscal 2015, OSHA received 3,288 whistleblower cases; however, OSHA currently only has 88 full-time investigators in 10 regional offices. Concerning the complaints from Wells Fargo employees, Sen. David Vitter stated, “It’s absolutely outrageous that whistleblowers contacted OSHA as early as 2009 about potential fraud at Wells Fargo, and yet these government bureaucrats failed to do their job.”

Unfortunately, the OSHA whistleblower statute fails to provide whistleblowers with a private right of action. If OSHA does not take any action, then the whistleblower is simply left without any remedy. However, unlike OSHA’s whistleblower program, the False Claims Act (FCA) allows whistleblowers to independently pursue claims on the government’s behalf and to file a retaliation claim before a court of law.

Congress should amend the OSHA whistleblower statute to allow, at the very least, the ability for whistleblowers to pursue retaliation claims against their employers when they report violations to OSHA under their whistleblower program. As the OSHA whistleblower program is currently orchestrated, whistleblowers who decide to report to OSHA are sticking their necks out without any hope of seeing a court of law in the event they are retaliated against. The whistleblower’s sole hope is that OSHA will take action on their behalf. A very unlikely prospect, considering how long it is taking OSHA to investigate, much less actually act, on behalf of whistleblowers.

However, if you have knowledge of someone defrauding the Government, then the FCA is the better statute to pursue legal remedy than the OSHA whistleblower program. The qui tam provision of the FCA provides an avenue for whistleblowers to blow the whistle on fraud and file suit on behalf of the Government. The FCA provides protection against retaliation and monetary incentives for blowing the whistle on fraud against the government, which includes 15 to 30 percent of the amount recovered. Moreover, the government has at least 60 days to determine whether or not to intervene in the action.

If the Government declines to intervene, the whistleblower − also known as a relator − may move forward with the action. In my law partner’s book, Whistleblowers: A Brief History & A Guide to Getting Started, Lance Gould explains, “If the Government chooses not to intervene, the relator is permitted to move forward with the action. When the Government declines intervention the relator’s share is increased to an amount of 25 to 30 percent. If the qui tam lawsuit is successful, the relator is also entitled to recover attorney’s fees and expenses from the defendant.”

Are you aware of fraud being committed against the federal government, or a state government? If so, the FCA can protect and reward you for doing the right thing by reporting the fraud. If you have any questions about whether you qualify as a whistleblower, please contact an attorney at Beasley Allen for a free and confidential evaluation of your claim. There is a contact form on this website, or you may email one of the lawyers on our whistleblower litigation team: Archie Grubb, Larry Golston, Lance Gould or Andrew Brashier.

If you are a lawyer, you may also contact Beasley Allen for a free copy of Lance Gould’s book, Whistleblowers: A Brief History & A Guide to Getting Started.

Gould, C. Lance. Whistleblowers: A Brief History and a Guide to Getting Started. Print.

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