Discrimination against whistleblowers is barred by the federal Occupational Safety and Health Act. States such as California that have taken primary authority over job safety also have responsibility for enforcing whistleblower protections.
But California is an outlier among the states. While the OSHA law specifies that whistleblower investigations be completed within 90 days, in California it takes more than 400 days on average to close a case — an eternity for a worker fighting to get his job back or be awarded lost pay. In each of the last five years, California ranked last or next to last among 24 states in time to complete investigations.
For example, it took an average of 484 days to complete the cases closed in California between October 1, 2008 and September 15, 2009 (see chart here). During the same period, for most other states, the average time to complete investigations was 50 to 160 days. In states where federal OSHA still has primary responsibility, the average completion time for investigations is about 155 days, an OSHA spokesman said.
Moreover, while nationwide about 20 percent of cases are resolved successfully for whistleblowers — through a settlement or favorable investigation findings — in California the success rate most years is 15 percent or less, according to U.S. figures. For example, between October 1, 2008 and September 15, 2009, complainants were successful in 19 percent of cases handled by 24 states, but in just 10 percent of California cases.
The figures were provided by OSHA to the House Committee on Education and Labor, and were reviewed by FairWarning.
While Cal/OSHA checks job sites in the state for compliance with health and safety rules, a sister agency — the state Division of Labor Standards Enforcement — has the job of investigating worker claims of retaliation for reporting safety violations or refusing to work under unsafe conditions. Roughly 200 of these complaints are logged per year.
The main reason investigations drag on so long is that there are five investigators to clear a large backlog and handle new complaints. The investigators generally have averaged 40 to 60 open cases at a time apiece, according to the labor standards division. Many cases wind up being tossed out as “abandoned’’ because complainants have given up or can’t be found by the time investigators get to them.
“Complainants get no help from the government,” said Fran Schreiberg, a Bay Area lawyer and board member of Worksafe, a worker advocacy group. “Workers respond to this dismal record,” she said. “They realize that the agencies charged with protecting their jobs when they go out on a limb to refuse unsafe work or complain about safety are for the most part useless.”
In a statement to FairWarning, a spokesman said the labor standards division “constantly reviews its procedures and institutes changes to increase efficiency, including updated training for investigators as well as an updated operational manual.”
“We know that we face challenges in processing the workload, and we have implemented changes that are resulting in measured improvements,” said Dean Fryer, spokesman for the California Department of Industrial Relations, of which the labor standards division is part. “We will continue to focus on ways to enhance our efforts and better serve those who rely on us to ensure they are treated fairly in the workplace.”