Under OSHA regulations, employees have the right to a safe workplace, and employers have the responsibility to provide one. In some cases, employees will discover what they believe to be safety violations and report them to regulatory bodies, which can cause significant problems for their companies. These whistleblowers are generally protected by law, and it’s important for their employers to understand exactly what they can and can’t do.
When an employee discovers a safety hazard, he or she has a legal right to report it to the Occupational Safety and Health Administration. Employers are prohibited from engaging in any retaliatory measures against workers who filed a complaint, spoke to an OSHA investigator, assisted in an investigation, or reported an injury. This means an employee cannot be punished for speaking up.
Types of Retaliation
Although most employers are aware they shouldn’t fire employees for reasons such as these, retaliation may also take forms such as denial of promotions or benefits, reassignment to a different position, suspension, or reduction in pay or hours. Even unofficial actions such as verbal harassment or threats can be considered retaliation.
Retaliation against whistleblowers can also take less obvious forms, since it isn’t always motivated by animus towards the whistleblower. For example, some employees who report an injury are punished on the grounds that they violated safety procedures. Although situations will vary—depending on the severity of the injury and severity of the rule violation—this can result in a retaliation claim. Generally, any discipline imposed should be proportionate to the violation of the rule; excessive discipline is generally considered inappropriate. In addition, vague safety requirements such as “employees must work carefully” might end up getting an employer in trouble if those rules could be or have been twisted to punish whistleblowers.
Some employers might not even realize their policies are retaliatory. For example, many employers have programs designed to encourage safety that offer bonuses, entries into prize drawings, or other incentives to employees who do not report an injury. Since those who do end up reporting a violation will miss out on the incentive, these programs actually act as a deterrent to whistleblowers and can be used against a company in a complaint that deals with OSHA. A better strategy is to reward employees for completing safety training or suggesting ways to improve safety procedures.
What happens if an employer retaliates in a way deemed illegal? An employee who believes she or he has been retaliated against has the option of filing a complaint with OSHA within 30 days of the retaliation. The employee has to prove the action was a result of whistleblowing. This proof might consist of timing (for example, they were fired immediately after reporting a violation), statements made by the employer (such as anger about the whistleblowing), or even deviation from standard procedure (the employee was punished unusually quick or in a strange manner).
What Retaliation Is Not
However, there are cases in which an employee might not be able to prove this. For example, if the company can conclusively demonstrate a worker was fired from incompetence, this is not generally considered retaliation. Additionally, not all behavior is protected behavior; poor conduct on the part of reporting employee is generally considered a legitimate reason for discipline even if the individual is reporting a violation.
When OSHA receives a complaint, they must respond within 90 days. Should an investigation determine the employer’s behavior constituted illegal retaliation, remedial measures such as reinstatement of the employee or presentation of back pay might be sought. If the employer refuses, OSHA will generally file a federal lawsuit.It is important for managers and business owners to understand their rights and responsibilities when it comes to worker safety. Employers should be careful not to retaliate against employees with safety concerns.
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