OSHA budget constraints have created a backlog and significant delays in the handling of whistleblower complaints.
The number of whistleblower complaints rose by 29% over the last five years – from 7,408 complaints in 2014 to 9,566 complaints in 2018. In 2018, OSHA opened full investigations into 3,007 of those complaints.
While the number of complaints has gone up, the number of OSHA investigators has declined. OSHA employed 76 investigators at the end of 2018, down from 100 in 2014.
OSHA’s increased workload, combined with the loss of investigators, has led to it being unable to complete its investigation process in the time required by law.
OSHA is supposed to take no more than 90 days to complete whistleblower investigations. In 2018, it took the agency an average 272 days to make a determination on a complaint.
The backlog has gotten so bad that in some cases OSHA may be aware of a complaint for months before an employer is contacted, notes attorney Brodie Erwin of the Ogletree Deakins law firm.
The delays led employees to pursue claims in court, after the expiration of the 90-day period. Delays in the process also mean employers have problems locating witnesses to disprove allegations.
“Employers will want to prepare themselves for these types of claims and the agency delays associated with increased whistleblower activity nationwide,” says Erwin. “Establishing policies and procedures regarding how to log, track, and handle internal complaints that could lead to federal whistleblower claims is one way.”