A helicopter pilot for a medical transport company refused to fly over mountainous terrain because his emergency locator device wasn’t working. Government investigators helped him prove that he was fired for blowing the whistle on his company. The Ohio-based pilot, whose name was not released publicly, got his job back at Air Methods Corp. and more than $165,000 in back wages and damages.
The Occupational Safety and Health Administration hailed the case as a success.
“Whistleblower protections are critical to keeping workplaces safe,” according to a statement issued earlier this month by Nick Walters, the federal agency’s regional administrator in Chicago. “Disciplining an employee for following safety procedures is illegal and puts everyone at risk.”
If only it were that simple. The pilot is among a small group of successful whistleblowers, according to a trove of data recently released by the agency, covering everyone from railroad workers to food processing employees.
The takeaway? In the decade wrapping up in 2014, only 439 out of more than 23,000 whistleblower complaints were found to have merit. That means only 2 percent of whistleblowers win their cases. Seniors on NCAA football teams face similar odds of being drafted by the NFL.
To be fair, though, 22 percent of cases were settled in some manner. And it’s clear that David Michaels, assistant secretary of labor for OSHA, counts those as victories as well. He referred to payouts to workers under both merit and settlement cases in a speech to his agency’s Whistleblower Protection Advisory Committee in September.
Combined, the settled and merit cases put about $25 million into workers’ pockets in 2013, almost double the $13.25 million awarded to workers in 2009.
Michaels also described plans to help workers even more by lowering the bar they have to clear to prove their case. The change would mean that workers would need to establish “reasonable cause” that a violation occurred, rather than a “preponderance of evidence.” The new standard was in play in the pilot’s case, in which OSHA determined that there was cause to believe a violation took place.
In an even more recent whistleblower case, the U.S. Supreme Court sided with air marshal Robert MacLean for exposing that air marshals were being pulled off planes due to budget cuts amid an imminent terrorist threat in 2003.
MacLean’s victory hinged on the difference between a regulation and a law, a seemingly minor technicality that can make or break a whistleblower’s case. That case went through a whistleblower law especially for federal employees – one that’s not under OSHA’s purview.
Exactly what the latest change for OSHA cases looks like for other workers remains unclear. But the statement about lowering the bar for workers set the legal and human resources worlds ablaze with predictions of a “flood of frivolous claims.”
Frivolous or not, the flood appears to have started before the policy change. More people are stepping forward to report workplace misconduct. In 2008, the number of complaints filed surpassed 2,000 for the first time and last year peaked at 3,060.
Over that time, the odds of striking the “merit” finding jackpot have not really improved. And the cases that OSHA investigates, of course, don’t count the types of whistleblowers who take their grievances straight to the courthouse, to another government agency or to the media. Edward Snowden – the most notable whistleblower of late, who insists that exile in Russia is just fine – can hardly be considered part of the triumphant 2 percent.