Does your company encourage transparency and ethical behavior, or does it shut down employees speaking up when they see wrongdoing? As I’ve written about before, odds are that many employees don’t even bother speaking up since they do not see corrective action.
For the ones that do speak up and are retaliated against, they may file claims with the Occupational Safety and Health Administration. OSHA enforces the whistleblower retaliation provisions of more than 20 laws, including Sarbanes-Oxley, protecting workers who report a broad range of alleged misdeeds — from workplace safety and health to food safety lapses, railroad hazards, and financial fraud. However, the agency is so far behind in investigating claims that many whistleblowers may decide not to even bother reporting misdeeds as their complaints go by the wayside.
A February 20, 2019 article from Bloomberg Law, written by Bruce Rolfsen, shows the numbers to explain the significant delays experienced by litigators and attorneys alike in Occupational Safety and Health Administration’s investigation of whistleblower claims. Joseph C. Toris summarized this and other articles when he discussed the strain increased wait times due to staff decrease and whistleblower claim increase bring to OSHA in the National Law Review on February 25.
And the mishaps may certainly escalate as a result. According to agency data provided to Bloomberg Law, OSHA is so far behind in its investigations many are taking a year or longer to complete. It appears that the increasing workload has resulted in “the agency closing fewer cases, workers waiting longer for OSHA decisions, and delays for employers defending themselves.”
There are fewer investigators today, a decline of 24% since 2014, yet in that same time period complaints have grown by 29%, from 7,048 in 2014 to 9,566 in 2018. In 2018 OSHA closed 2,964 complaint investigations, 15% fewer than in 2017. And in 2018 only 23% of its cases ended with settlement agreements between the company and the employee.
So what’s the problem?
A big part of the issue is that because of less federal funding combined with a hiring freeze, investigations now take considerably longer. In an interview with Bloomberg Law, employer-side attorney Raymond Perez, of counsel at Jackson Lewis PC’s Atlanta office, “Months and months go by and you never hear anything back from OSHA.”
If this trend continues it could have significant impact. It could mean that more than two-thirds of the complaints filed with OSHA could be closed without a complete investigation. In fact, in 2018, OSHA dismissed 1637 investigated complaints, 528 were withdrawn and only 695 were settled.
OSHA may be doing the best it can; however, does this encourage companies who are in fact guilty of a mishap to not act on correcting the issue? My personal experience bears this out as I filed a Sarbanes-Oxley complaint with OSHA when I was retaliated against by Citigroup and dismissed when I reported their continued fraudulent business practices in buying and selling bad mortgages.
A copy of my complaint, which had been sealed by the Financial Crisis Inquiry Commission but recently released by the National Archives, also went to the SEC. And in July of 2008, the SEC invited me to testify and provide additional evidence. Despite the Sarbanes Oxley complaint and the additional evidence of the fraud, the government still bailed out Citigroup to the tune of $350 billion in capital and toxic asset guarantees just three months later.
Lest we forget, unethical practices spurred more than half of the largest bankruptcies in the past 30 years, like Enron, Lehman Brothers, and WorldCom. And it takes a larger economic toll, estimated at $1.228 trillion, according to the Society for Human Resource Management.
The Occupational Safety and Health Administration has guidelines all employees need to be familiar with in reporting employer retaliation. Still, while the whistleblower protection programs offer avenues to take if a whistleblower is retaliated against, if the required investigative process continues to be further delayed there is little doubt that even more employees will not speak up when observing wrongdoing.
The cost is often too prohibitive.
*Reproduced with permission. Published in Bloomberg Law, February 20, 2019. Copyright 2019 by The Bureau of National Affairs, Inc. (800-372-1033) <http://www.bna.com>
Richard Bowen is widely known as the Citigroup whistleblower. As Business Chief Underwriter for Citigroup during the housing bubble financial crisis meltdown, he repeatedly warned Citi executive management and the board about fraudulent behavior within the organization. The company certified poor mortgages as quality mortgages and sold them to Fannie Mae, Freddie Mac and other investors.
