A Pot of Gold at the End of the Rainbow: An Economic Incentives-Based Approach to OSHA Whistleblowing

Abstract

Jarod S. Gonzalez

 Labor and employment law whistleblower statutes focus on protecting employees who complain about workplace violations by prohibiting the employer from taking an adverse employment action against the whistleblower because of his or her complaint. It is an open question whether even the strongest of anti-retaliation protections in whistleblower statutes do enough to encourage employees to report wrongdoing. If more of the right kind of whistleblowing is beneficial from a policy perspective, it is important to consider other models for encouraging potential whistleblowers to act. In the workplace safety and health arena, OSHA-enforced whistleblower statutes follow the traditional anti-retaliation model and have often failed to motivate the right type of whistleblowing and protect those who do make complaints. This piece entitled, A Pot of Gold at the End of the Rainbow: An Economic Incentives-Based Approach to OSHA Whistleblowing, proposes tweaks to the traditional anti-retaliation model to make it more effective, but also outlines an "economic rewards" approach to OSHA whistleblowing. Under the "economic rewards" approach, an employee who complains to the Department of Labor about a federal workplace safety and health violation would receive a monetary reward for the tip if a workplace safety and health violation occurred and the employer is penalized. While this type of approach is a novel one in the workplace health and safety area, it has worked well in the context of fraud against the government. Transporting this model to workplace safety and health has some appeal even though there are a variety of technical issues that would have to be overcome for such an approach to have a shot at implementation and success.