Failing Our Truth-Tellers

Whistleblowers are the public’s first line of defense against corruption and abuse of power. And amid the coronavirus crisis, it’s particularly critical for public health and safety that truth-telling and whistleblowing are encouraged—both in and outside of government. As Dr. Anthony Fauci recently told a group of federal watchdogs, leaders must be transparent in order to gain and maintain the public’s trust during a public health crisis.

And yet, as we’ve noted before, some members of the administration have sought to silence experts and politicize information about the virus.

With this lack of transparency and the resulting distrust in government, we rely more than ever on whistleblowers to sound the alarm about misconduct and get the truth out.

But we’re seeing a disturbing number of instances in which witnesses to potentially unsafe, illegal, or unethical conduct by the federal government and private businesses during the pandemic are being ignored, pressured into keeping quiet, or punished for speaking out. And with this very real threat hanging over their heads, government employees and workers on the front lines may be less likely to speak up and share the truth with the public.

Just look at the case of Rick Bright, the former federal government scientist who alleges he was punished for raising concerns about how the administration was responding to the pandemic, such as promoting unproven or unsafe drugs as COVID-19 cures.

In a recent speech accepting the Ridenhour Prize for Truth-Telling, Bright recounted what he experienced after blowing the whistle. “My public disclosures were met with swift retaliation by the president and his senior political advisers. I was demoted, reassigned, and removed from my leadership role to help my nation respond to the pandemic,” he said.

“And we have seen this same reaction from this president and administration toward other whistleblowers far too many times.”

Attacking Truth-Tellers

The ranks of the truth-tellers under attack have grown in recent months.

Several other whistleblowers have made the news with claims of reckless or illegal conduct by the government or at federal facilities during the pandemic, alleging they have faced retaliation for raising concerns.

In February, the Washington Post reported that an anonymous whistleblower at the Department of Health and Human Services, said she was reassigned after raising concerns that personnel sent to assist the first Americans evacuated from Wuhan, China, lacked the proper training and protective gear.

Dawn Wooten, a former nurse at an immigration detention facility in Georgia, went public last month with explosive allegations that the facility was not properly reporting or testing for COVID-19 and was performing hysterectomies on detainees without their consent. Wooten’s whistleblower complaint states that her hours were reduced after she started “asking hard questions about testing detained immigrants for COVID-19 and warning officers when detained immigrants they are in contact with have tested positive for COVID-19.”

These are just a couple of examples we know about. The Office of Special Counsel, an agency charged with reviewing federal whistleblower complaints, saw an uptick in cases related to the pandemic. By May, the office had received 31 such complaints, as well as 15 complaints of retaliation for disclosing coronavirus-related concerns.

By the end of July, numbers were way up. According to Mother Jones, 73 whistleblower disclosures related to the coronavirus had been filed with the office, along with “92 complaints of prohibited personnel practices related to COVID-19.” (Retaliation for protected disclosures is a prohibited personnel practice.)

Failing Frontline Workers

In the private sector, whistleblowers are also claiming they were ignored or punished by their employers when they raised health and safety concerns.

Last week, a former McDonald’s employee, Maria E. Ruiz Bonilla, filed a whistleblower retaliation lawsuit against the fast food chain in California state court. She alleges that McDonald’s didn’t provide her with personal protective equipment and barred her from wearing a mask. The lack of precautions prompted Ruiz to lead strikes in late March and April and file complaints with health officials. Lo and behold, her hours were cut in April and she was fired in July.

Another McDonald’s employee in California, Lizzet Aguilar, accused the company of retaliating against her for asking for better protective equipment and stronger social distancing measures. Her union has filed an unfair labor practice charge with the federal National Labor Relations Board detailing her allegations, per the Los Angeles Times.

The LA Times also recounts the stories of Mary Mueller-Reiche, who alleges she was suspended from her job at a Ralphs grocery store for raising concerns about a lack of social distancing, and Domino’s delivery driver Carlos Contreras, whose work hours were cut after he and other employees demanded better protective equipment and virus exposure notification.

Online retail giant Amazon has been hit with multiple accusations of unsafe and whistleblower-unfriendly practices during the pandemic, including an October lawsuit from a former employee who alleged he was fired for reporting a fellow employee who was not following pandemic safety measures.

At the beginning of the month, Amazon admitted that nearly 20,000 employees have been infected or are presumed infected by the coronavirus. Amazon and McDonald’s are also among several major companies accused of imposing gag orders on employees to silence their concerns about COVID-19.

Where is Uncle Sam?

Meanwhile, the federal agency responsible for helping shield workers from health and safety risks and protecting private sector whistleblowers from retaliation for reporting concerns about their work environment seems to be missing in action.

In late March and early April, as a number of health workers across the country said they were fired for publicly complaining about a lack of protective gear, the Occupational Safety and Health Administration (OSHA) was oddly quiet. It wasn’t until after we called out OSHA for its silence that the agency issued a statement reminding employers that it is illegal to retaliate against their employees for reporting unsafe working conditions.

The agency’s statistics paint an alarming picture of employers’ compliance. As of October 20, OSHA has received 3,222 whistleblower complaints related to COVID-19. Yet the National Employment Law Project recently reported that through early August, OSHA had resolved just 35 of the complaints it had received, and had dismissed or closed more than half of the retaliation complaints it received without further review.

The report’s blunt assessment: “Resolving a mere two percent of OSHA retaliation complaints in six months is a dismal record under any circumstances.”

The Labor Department’s inspector general found that OSHA was struggling to handle the increase in whistleblower complaints related to the pandemic. The inspector general found that staffing deficiencies in the agency’s whistleblower program had meant that, on average, each investigator had to handle more complaints, potentially delaying the completion of investigations.

It’s hard to overstate how devastating this is. The inspector general warns, “When OSHA fails to respond in a timely manner, it could leave workers to suffer emotionally and financially, and may also lead to the erosion of key evidence and witnesses.”

And when workers have little reason to believe that they have any recourse when they’re put in unsafe positions, many may not speak out or contact OSHA at all, whether for fear of retaliation or for fear of inaction. As the National Employment Law Project noted, it has long “been clear that OSHA’s whistleblower legal protections are too weak.”

Meanwhile, American workers continue risking their lives every day in unreasonably dangerous conditions: not only fast food, grocery, and Amazon workers, but also meatpackers, hospital workers, home health aides, farmworkers, postal workers, and school teachers. Since the start of the pandemic, OSHA has cited 85 establishments nationwide for violating safety rules or failing to keep proper records. We can only imagine how many more companies maintained dangerous work environments.

Looking Ahead

It’s long past time to strengthen federal whistleblower protections.

As POGO Director of Public Policy Liz Hempowicz recently wrote, there are several reforms Congress should adopt immediately to help truth-tellers. A bill recently introduced in the House would grant whistleblowers the right to take retaliation claims to a jury trial and would bar retaliatory investigations against employees who blow the whistle, among other improvements. Another bill would offer additional protections for those who blow the whistle about the misuse of funds meant to combat the pandemic.

For whistleblowers in the private sector, OSHA should find ways to process complaints more efficiently—the inspector general offered several recommendations, including increasing staff. If employers don’t face consequences from OSHA, they may be more likely to continue to foster unsafe working conditions and retaliate against those who speak up.

For now, whistleblowers can probably expect little in the way of help from government. We urge whistleblowers to use our confidential COVID-19 tip line, through which you can safely come forward and tell your story. With your tips, we can bring attention to urgent public health and safety matters and increase pressure on the government to adopt reforms.