In recent years, the number of whistleblower complaints filed by employees under Section 11(c) of the Occupational Safety and Health Act of 1970 (OSH Act) and the 21 other whistleblower provisions enforced by the Occupational Safety and Health Administration (OSHA) has increased exponentially, with more than 3,000 complaints filed each year.
The number of complaints is expected to rise in the years to come as OSHA spends more of its resources educating employees about their rights, investigating all employee complaints and administrating the provisions of these statutes. In fact, OSHA recently changed its website so that information on the filing of an employee complaint is prominent and easy to perform. In its FY 2015 budget to Congress, OSHA requested an additional $4 million and 27 full-time employees for the Office of Whistleblower Protection Programs to investigate and enforce the 22 whistleblower provisions under its jurisdiction.
With increased resources dedicated to these programs, in recent months OSHA has filed a number of lawsuits on behalf of workers for raising safety and health complaints or reporting workplace injuries under the OSH Act. OSHA also has increased the number of cases where merit findings have been issued after completing investigations of these employee complaints. As a result of additional resources and increased enforcement of these provisions, it is highly likely that more employers than ever before will find themselves responding to a whistleblower and OSHA’s subsequent investigation. To successfully respond to an employee whistleblower complaint, it is important to understand what types of complaints may be protected, what is considered to be an adverse action and how to effectively respond to an OSHA investigation.
To prevail, the employee must prove that:
- he or she engaged in protected activity;
- the employer was aware of the protected activity;
- the employer took unfavorable personnel action (adverse action); and
- there was a causal link between the protected activity and the adverse action.
Nearly half of all whistleblower complaints are filed under Section 11(c) of the OSH Act. Section 11(c) prohibits employers from discriminating or retaliating against employees for engaging in protected activities related to workplace safety or health. Protected activities may include filing an OSHA complaint, participating in an inspection or talking to an inspector, seeking access to exposure and injury records, raising a safety or health complaint with the employer or reporting a workplace injury. Any employee who believes that he or she has been discharged or retaliated against as a result of engaging in such activities may file a whistleblower complaint with OSHA. The complaint must be filed within 30 days of the discharge or other retaliatory conduct under the OSH Act.
Employers are prohibited from taking “adverse action” against workers on account of their protected activity. OSHA and the courts have concluded that adverse action may include:
- firing or laying off;
- denying overtime or promotion;
- denying benefits;
- failing to hire or rehire;
- making threats;
- reassigning job duties or job position; and
- reducing pay or hours.
OSHA investigates all complaints under its jurisdiction. These investigations can take months to complete, requiring the employer to spend a significant amount of time responding to OSHA’s request for information and documents. While the employee has the burden to show that he or she was retaliated against for raising safety and health complaints or engaging in other protected activity, OSHA often requires the employer to prove its innocence. It typically requests that the employer draft a position statement, provide supporting documentation to support its actions, and make managers and employees available for interviews with the investigator. How an employer responds to such requests can make all the difference in the world in whether OSHA concludes that the employee’s complaint has merit.
Once the investigation is complete, OSHA will determine whether retaliation occurred. If OSHA concludes that retaliation did take place, it can order the employer to:
- reinstate the employee;
- promote the employee;
- pay back wages and lost benefits;
- pay compensatory damages for emotional distress;
- post notices regarding retaliation;
- provide training to employees or managers;
- pay attorney’s fees and costs;
- pay punitive damages under certain provisions; and
- perform other remedial measures that it may find necessary to make the complainant whole.
For complaints brought under Section 11(c) of the OSH Act, employees do not have a private right of action (i.e., they cannot bring their own lawsuit) like they do under the majority of other whistleblower provisions. As a result, OSHA is required to bring a lawsuit in district court on the worker’s behalf or attempt to settle the matter informally.
Because of the amount of time and resources an employer may spend in defending against a whistleblower complaint and the high stakes if the employer is found to have violated the law, these cases can have a significant impact on an employer’s business. Here’s what employers should do when responding to OSHA’s requests for information.
- Thoroughly and thoughtfully explain the basis for taking the alleged adverse action against the employee, including the rationale behind the decision. It is important to be consistent throughout the process and not add additional bases and claims later because this can undermine the company’s credibility.
- Provide documentation that supports the decision and confirms the company’s rationale, including any internal policies and procedures, pictures, videos, disciplinary notices and witness statements.
- Identify similarly situated employees who have raised safety complaints and were not subject to an adverse action. This evidence can show that the company had no motivation for retaliating against the employee for raising a complaint.
- Consider whether the employee actually engaged in protected activity and address a failure to do so in the response. While OSHA takes a broad approach to protected activity and will rarely conclude that the employee did not engage in protected activity, it is an issue that should be addressed in the response if the employee did not raise any internal safety complaints before filing the OSHA complaint.
- Consider whether the decision-makers knew of the alleged protected activity and address their lack of knowledge in the response. If the decision-makers were not aware of the protected activity, then such activity could not have played a role in taking the adverse action against the employee.
- Consider whether the complaint is timely filed. Under the OSH Act, the complaint must be filed within 30 days after the employee is notified of the adverse action. If an employee fails to file his or her complaint in a timely manner, OSHA does not have jurisdiction to investigate such complaints and they should be dismissed.
By addressing these factors in the response or engaging an attorney at the first possible stage of the process, construction companies can significantly increase their chances for a successful outcome.