Your employees have a right to report to OSHA if they feel there is a violation or lapse in workplace health/safety, pipeline safety, commercial motor carrier safety, nuclear safety, air carrier safety, or a number of other commercial environment health or safety standards. As an employer, you should make yourself aware of how your employees are protected so you don’t retaliate in a way considered to be a violation of OSHA whistleblower protection laws.
The first thing you should be aware of is your employees have a specific number of days in which they are allowed to file a complaint after experiencing retaliation. Such complaints can be made in writing or by phone, and employees have between 30 and 180 days to file. The specific number of days is determined by the act under which the complaint is filed. Examples of such acts include:
● Energy Reorganization Act
● Surface Transportation Assistance Act
● Toxic Substances Control Act
● Federal Water Pollution Control Act
● National Transit Systems Security Act
There are a number of actions you might take against an employee for informing OSHA of a perceived violation of workplace safety or health standards. Such actions consist of:
● Cutting pay or hours
● Terminating or laying off the employee
● Denying a promotion or overtime
● Refusing to hire or rehire the employee
● Reassigning employment that alters promotional opportunities
● Intimidating the employee
As you can see, retaliatory actions are both major and minor. This makes it necessary for you and your management team to tread carefully when you learn of an employee reporting you to OSHA. If you do need to discipline an employee, make sure the employee understands your reasons for disciplining him or her. You shouldn’t be afraid to discipline employees when they need it, but you should be aware of how your actions might be perceived and the response they might elicit. For instance, an employee who is constantly late might feel the disciplinary action was for her or him reporting you to OSHA rather than for underperformance.
The OSHA Investigation
Knowing how OSHA will conduct its investigation into whether retaliatory action was taken can also prove useful. Items the investigation must yield include:
● The employee committed a protected act.
● You were aware of the protected act.
● You took adverse action.
● The protected action was the basis or contributing factor for the adverse action.
In the event that a settlement cannot be reached, OSHA can stipulate that you have to rehire the employee, restore her or his benefits, pay back lost wages, and any other actions deemed necessary to make the employee whole.
Employees Who Refuse to Work
In addition to filing a complaint with OSHA, you might have employees who refuse to work under what they perceive to be hazardous workplace conditions. This option is only available when all of the following are true:
● The employee feels she or he faces death or critical injury.
● A reasonable person would perceive the situation as dangerous.
● The situation is so dire you don’t have the time to take care of the perceived hazard through regulatory means.
● The employee has attempted to have you rectify the situation or condition in the past.
One thing both you and your employees should know is that they are not able to simply walk off of the job if they feel they are working in unsafe conditions. What’s more is that OSHA does not have the authority to enforce union contracts or state laws that allow employees to refuse to work.
The best way to avoid an employee filing a complaint with OSHA is to make sure you’re always compliant with the latest regulations. Your workforce is sure to be safer and happier.
The content on our website is only meant to provide general information and is not legal advice. We make our best efforts to make sure the information is accurate, but we cannot guarantee it. Do not rely on the content as legal advice. For assistance with legal problems or for a legal inquiry please contact you attorney.