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Employer Retaliation

Meaningful Protection for Health and Safety Whistleblowers

By Doug Parker, Executive Director


One of the cruel ironies of the laws that protect workers against illegal retaliation is that a worker must generally be able to afford getting fired in order to fight to get her job back. According to the most recent federal audit of California’s state OSHA plan, the average retaliation investigation took 422 days to complete. It is not unusual for the better part of a year to pass before an investigation is even meaningfully underway. A year-long investigation is not a path to justice for most workers—nor is it a deterrent for employers willing to break the law to silence workers. If anything, this kind of delay is an invitation to ignore workers’ rights. 

California’s State Labor Federation is hoping to change this, and Worksafe is fully behind the effort. The Labor Fed is working on a bill to give the office of the California Labor Commissioner the power to seek court injunctions to temporarily reinstate workers to their jobs while their retaliation claims are investigated. This would give the Labor Commissioner a powerful tool to protect health and safety whistleblowers. With the power to take swift court action, the Labor Commissioner can show workers that state regulators have their back when an employer breaks the law. While this doesn’t solve the Labor Commissioner's need for additional resources to speed up health and safety cases, it does put some teeth behind the agency’s efforts to deal with outlaw employers that break the law with impunity because they know delays in the system will grind down the will of most workers to assert their rights.

This is not a novel idea. Workers in the nation’s coal mines, gravel pits and quarries have had the right to temporary reinstatement during health and safety retaliation investigations since the 1970’s. Under Section 105(c) of the federal Mine Safety and Health Act, any miner who claims to have been discharged for exercising health and safety rights has the right to temporary reinstatement pending the investigation and final outcome of the case, so long as the complaint “is not frivolously brought,” which has been construed to mean there is a reasonable basis for the claim. 

Congress has recognized that whistleblower retaliation against miners has a chilling effect on safety complaints, which miners pay for with their lives, and that protecting workers demands strong enforcement tools like temporary reinstatement. California should recognize that this chilling effect kills workers in all industries, not just mining, and give the Labor Commissioner the power to seek temporary reinstatement of workers with viable health and safety retaliation claims until their allegations are fully investigated and adjudicated.