WHISTLEBLOWERS — "It’s illegal to demote or fire an employee for reporting hazardous
conditions at work," notes Myron Levin for Fairwarning.org.  "But in California, (OSHA) safeguards for whistleblowers are
little more than words on paper, advocates for workers say. When
workers file complaints about retaliation, the investigations drag on
longer in California than in any other state, according to U.S.
government data. In California, complainants also have less chance of
getting a favorable ruling or a settlement than in most other states,
the numbers show." The problem: severe staff overload.

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
“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.”