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Whistleblower Protection Under OSHA: Increased Focus on Whistleblower Enforcement Will Lead to More Investigations

Labor and Employment Newsletter | March 18, 2014
By: Tanya A. Salgado

Most human resources professionals are familiar with their obligations to provide a workplace free of illegal discrimination under the federal and state discrimination laws, such as Title VII of the Civil Rights Act, as well as the non-retaliation provisions contained in these laws.  Many are less familiar with the whistleblower protections enforced by the Occupational Safety and Health Administration (OSHA).  However, with an increased budget allotment for whistleblower protection and an increased focus by OSHA on enforcement of whistleblower protections, ignorance does not spell bliss.  In 2012, OSHA received more than 1,700 retaliation complaints under Section 11(c), and the number is growing.  The current administration has made OSHA’s Whistleblower Protection Program a priority.  OSHA’s 2014 budget has allocated increased resources for federal enforcement activities and added additional positions for whistleblower field staff nationwide to tackle the backlog of complaints.  OSHA’s stated goal is to change employer attitudes and behavior toward whistleblowers, such that more employers will listen and respond appropriately to employees who complain of safety issues internally, leading to a reduction in the number of OSHA complaints. 

The Occupational Safety and Health Act of 1970 (the “Act”) requires employers to provide a safe and healthful workplace for their employees.  Section 11(c) of the Act prohibits retaliation against an employee because the employee engaged in protected activity related to safety or health in the workplace.  If an employee’s protected activity was a contributing or motivating factor in an employer’s decision to take an unfavorable action against the employee, this is deemed unlawful retaliation.  Employees who complain to their employer, OSHA, or other government agencies about unsafe or unhealthful working conditions in the workplace, or environmental problems, have engaged in protected activity.  Illegal actions include blacklisting, demotion, denial of overtime or promotion, denial of a raise, reduction in hours, termination, intimidation or threats, or other punishment.  Employees must file a complaint of discrimination or retaliation under the Act within 30 days of the alleged reprisal.  The time frame for filing complaints under other whistleblower statutes enforced by OSHA vary by statute.

OSHA’s whistleblower budget for Fiscal Year 2014 was increased by $2 million to $17 million, and OSHA requested funding to pay for 47 new positions to investigate whistleblower complaints.  The stated goal of the increased funding is (1) improved administration of the various whistleblower statutes under its jurisdiction and (2) decreased backlog of whistleblower complaints.  OSHA’s Whistleblower Protection Program enforces the whistleblower provisions of 21 whistleblower statues, including Section 11(c) of the Occupational Safety and Health Act.  Other laws enforced by the OSHA Whistleblower Protection Program include various workplace safety, airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health insurance reform, motor vehicle safety, nuclear, pipeline, public transportation agency, railroad, maritime, and securities laws.  The overall message from OSHA is an increased commitment to the enforcement of whistleblower laws.

In addition to increased enforcement efforts, OSHA has articulated a commitment to addressing retaliation by employers against employees who report workplace injuries.  On March 12, 2012, OSHA published a memorandum by Deputy Assistant Secretary Richard E. Fairfax addressing discrimination against employees because the employee reports an injury or illness, a practice prohibited by Section 11(c) of the Act.  OSHA is focusing on employer policies and practices that could discourage employees from reporting work-related injuries or illnesses.  The memorandum addresses specific types of discriminatory practices for which OSHA is on the watch.  It also discusses employer disciplinary actions of employees who have been injured, as well as unreasonable employer policies governing the time and manner for reporting injuries.  Employer rules and policies that provide for disciplinary action of all employees who are injured on the job will be considered a violation of Section 11(c), per the Fairfax memorandum.  In addition, employers who discipline employees who report injuries on the basis of violation of a safety rule can expect scrutiny from OSHA.  The agency takes the position that discipline for violation of a safety rule can be a pretext for retaliation for reporting an injury, and will look for evidence that the safety rule is consistently enforced.  The final category addresses workplace programs that ostensibly encourage safety, but that have the unintended consequence of discouraging employees from reporting workplace injuries. The OSHA memorandum identifies as potentially suspect employer programs that reward employees who are injury-free with prizes and bonuses.  As well-intentioned as such programs may be, OSHA prefers other types of practices, such as promoting employee participation in safety programs, and incentives for employee participation on safety and health committees.

Employers would do well to take note of OSHA’s increased focus on whistleblower protection and to use this as a opportunity to ensure that their practices and policies are up to date.  Encouraging a safe and healthy workplace is a goal that employees and management can all agree upon.

This correspondence should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation and legal questions.
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