Blowing the Whistle on Whistleblower ‘Protections’

Several major bills lately have included provisions to expand whistleblower protections for employees. The goal of such provisions is to allow employees to report actual employer wrongdoing, bringing regulatory violations and crimes to light in order to correct them. In the cases of the Protecting America’s Workers Act, the Robert C. Byrd Miner and Safety Act and now the Offshore Oil and Gas Worker Whistleblower Protection Act of 2010, these safeguards are meant to allow employees to report unsafe work practices by employers without retaliation.

These protections would be administered by the Department of Labor through the Occupational Safety and Health Administration (OSHA.) Would they accomplish their stated goal? Well, it’s valuable to look at how other similar whistleblower statutes have played out. OSHA currently has responsibility for processing allegations of whistleblower claims under the Sarbanes-Oxley (“Sarbox”) corporate governance laws. But in examining the caseload of these allegations of the 1,066 claims filed by employees only 25 whistleblower claims were actually upheld. This means that only about 2 percent of all of these whistleblower claims were legitimate.

This is a problem for employers, as they must use valuable resources to address all those other 98 percent of claims that have no merit and are not acted on by OSHA. These claims can be costly and further drive up the cost of doing business in the United States. As several of the aforementioned bills have expansive whistleblower enhancement included, we would hope that Congress would take the time to carefully review and debate the effectiveness of such measures.

The signs of such careful review are not encouraging. The Offshore Oil and Gas Worker Whistleblower Protection Act of 2010 was introduced by Rep. George Miller (D-CA) late Monday night and is slated to be voted on by the full House on Friday. The speedy action is far from the regular order that would allow the careful consideration of such a major bill that would divert resources away from job creation.

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