The Washington PostDemocracy Dies in Darkness

Labor agency closes more than half of workers’ coronavirus retaliation complaints without investigating

A closed Smithfield Foods plant in Sioux Falls, S.D., in April. (Dan Brouillette/Bloomberg News)

The federal agency charged with upholding workplace safety has dismissed more than half of the complaints from workers who say they were retaliated against for raising coronavirus safety concerns, according to a new report.

Data given to The Washington Post on Thursday showed that through the beginning of August, the Occupational Safety and Health Administration had opened up investigations for 348 of 1,744 complaints from workers who said their companies retaliated against them during the pandemic. Fifty-four percent of the complaints were dismissed or closed without investigation, according to the report from the National Employment Law Project (NELP), a worker advocacy group. And just 2 percent of the total were investigated and resolved.

Advocates and former OSHA officials say the agency’s lack of response to retaliation complaints is just the latest example of it favoring companies over the workers it is tasked with safeguarding. Plus, they say, the stakes are much higher in the middle of a pandemic that has made so many workplaces more dangerous.

“This is just one more piece of evidence that OSHA is refusing to step up activities in the face of a pandemic which has killed so many workers,” said David Michaels, who ran OSHA under President Barack Obama and now is a public health professor at George Washington University. “It can no longer be business as usual where OSHA is not making the efforts needed to make sure workers are safe in the face of this terrible pandemic. Protecting the voice of workers should be an important component of that effort.”

In a statement, OSHA said it is fielding and investigating every complaint.

“OSHA is committed to conducting whistleblower investigations in a timely and efficient manner,” the statement said. “Those related to covid-19 have been consistent with previous investigations, which traditionally are closed within nine months. On average, about 65 to 70 percent of all whistleblower complaints are closed by OSHA for legal reasons. Those related to covid-19 have been consistent with this average.”

Complaints about firings and other types of retaliation against workers have made for a consistent drumbeat during the pandemic, particularly in front-line industries such as health care, warehousing and restaurants.

The Occupational Safety and Health Act, which OSHA was created to enforce, gives workers the legal right to a safe workplace. That law also prohibits retaliating against workers for raising safety concerns.

Labor Secretary Eugene Scalia and Principal Deputy Assistant Secretary Loren Sweatt have said that they take retaliation seriously.

But the data suggests otherwise, according to the report’s authors, Debbie Berkowitz, a senior OSHA official in the Obama administration who is now director of the NELP Worker Health and Safety Program, and Shayla Thompson, government-affairs manager with the group.

“Resolving a mere two percent of OSHA retaliation complaints in six months is a dismal record under any circumstances,” they wrote. “It undermines workers’ confidence that they’ll be protected when reporting unsafe working conditions. But it is especially egregious during a pandemic.”

Michaels said the Labor Department and the Trump administration in general should have done more during the pandemic to publicize the rights workers have to a safe workplace. During his time at OSHA, the agency developed a set of recommended practices for employers around anti-retaliation, but Michaels said they are being ignored by the Trump administration.

“If you were a worker and you got your news from normal media and you listened to what the president said, you would never know that it’s illegal to be retaliated against about raising a concern about your exposure,” he said.

The lack of progress investigating retaliation complaints follows other moves by the Trump administration to slow or weaken measures intended to protect workers. Worker advocates and former officials have been particularly aghast at the low number of citations OSHA has issued for coronavirus safety violations. It has received more than 9,300 complaints since the pandemic began and has closed the vast majority of them without citations.

When OSHA has issued citations, the penalties have been modest, such as the $13,494 fine given to Smithfield Foods, which operates a South Dakota meatpacking facility where four workers died of covid-19, 43 were hospitalized and at least 1,294 were infected by the coronavirus. Smithfield has said it will contest the complaint, calling it “wholly without merit.”

The agency has also declined to issue a new safety standards that workplaces would be required to implement to keep workers safe from the virus, opting instead for recommendations and other guidance, meaning there is no risk of a penalty if they are not enforced.

An August report by the Labor Department inspector general’s office found that though the pandemic had significantly increased the number of retaliation complaints, the number of full-time staffing in the whistleblower program had decreased, raising the potential for investigations to be delayed.

The weakening of labor protections for workers during the pandemic was the subject of a complaint filed Wednesday with the International Labor Organization, the U.N. labor agency, that charged that the United States’ labor practices violate international labor law.