Federal laws designed to protect private-sector whistle-blowers are confusing, inconsistent and fail to cover many industries that affect public health and safety, according to a draft report prepared for the Administrative Conference of the United States.
The report, which is to be presented at a plenary session of the conference today, recommended that Congress consolidate more than a dozen federal whistle-blower laws into a single law that would be enforced by the Labor Department's Occupational Safety and Health Administration.
The Administrative Conference is an independent federal agency that advises Congress on how to improve administrative procedures.
The draft report addresses only private-sector whistle-blowers, who it said are more likely to raise questions involving health and safety matters. Public employes are more likely to disclose information involving waste and fraud, and are protected by provisions in the Civil Service Reform Act.
Over the years, Congress has written similar provisions in numerous laws to protect private-sector workers who disclose adverse information about their employers, such as violations of environmental law or evidence of unsafe products.
The issue received wide publicity recently in the case of two engineers for Morton Thiokol Inc., manufacturer of the O-rings that failed in the Challenger shuttle accident that killed seven astronauts. The engineers testified before a special investigative panel about internal questions involving the O-rings, and later said that the testimony affected their careers at Morton Thiokol.
Authorities in the field believe such retaliation to be common, the report said, quoting one as saying: "With few exceptions, they are driven out of not just their jobs, but their professions, too."
Congress has repeatedly affirmed its interest in protecting whistle- blowers, the report said, but the resulting patchwork of laws has "created a crazy quilt" of investigative and judicial responsibilities and left workers in many critical industries with no protection at all.
For example, it said, no law shields whistle-blowers in the aviation, aerospace, shipbuilding, pharmaceutical or food industries, although the performance of those industries has major implications for public safety and health.
For other workers, the level of protection may depend on the industry in which they are employed and which law is used in seeking protection. Statutes of limitations under various laws vary from 30 days to six months, the report said, and some laws allow adjudication in federal courts while others permit administrative law judges or agency officials to decide whistle-blowing cases.
Remedies vary as well. While all the laws provide for reinstatement, back pay and attorney fees, few permit wronged workers to collect damages, such as job-search expenses. Workers who successfully seek protection under provisions in the Safe Drinking Water Act or Toxic Substances Control Act may obtain punitive damages.
"The institutional hodge-podge . . . transcends mere untidiness or asymmetry," the report said. "At a certain point, divergent approaches can overwhelm the law by eroding public confidence in the fundamental coherence of the government process. That point has unquestionably been reached in Congress' efforts to protect those who suffer employe retaliation for calling attention to health and safety violations."
The report recommended that central authority be given to OSHA because "that agency currently investigates by far the largest number of private-sector health and safety whistle-blower complaints."
In recent years, OSHA has received between 2,500 and 3,000 employe complaints a year under the Occupational Safety and Health Act, it said, and several hundred a year under other laws.