The Occupational Safety and Health Act prohibits employers from taking adverse action against employees for complaining about unsafe workplace conditions. But what does that really mean?
The original writers of the Occupational Safety and Health Act knew that they couldn’t police every workplace everyday. They knew that, to a great degree, compliance officers would be counting on employees to be their eyes and ears in the field.
But to make that work, legislators also realized that they would have to guarantee employees that they wouldn’t be retaliated against for exercising rights and complaining about OSHA violations. So they added a “whistleblower” provision to the Act.
Section 11(c) of the Act prohibits employers from discharging or in any manner retaliating against any employee because the employee has exercised rights under the Act.
In addition, OSHA administers whistleblower provisions of 18 other statutes, protecting employees who report violations of certain trucking, airline, nuclear power, pipeline, environmental, rail, consumer product, and securities laws.
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What’s an Adverse Action?
The law prohibits employers from taking adverse action against whistleblowers. “Adverse employment action” is generally defined as a material change in the terms of conditions of employment. Depending on the circumstances, retaliation could include:
- Firing or lay off
- Blacklisting
- Demoting
- Denying overtime or promotion
- Disciplining
- Denial of benefits
- Failure to hire or rehire
- Intimidation
- Reassignment affecting prospects for promotion
- Reducing pay or hours
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Retaliation Complaints
In the event retaliation is alleged, OSHA conducts an interview with each complainant to determine the need for an investigation. If the evidence supports the employee’s allegation of retaliation and a settlement cannot be reached, OSHA will issue an order requiring the employer to reinstate the employee, pay back wages, restore benefits, or take other steps to make the employee whole. If the employer objects, OSHA may take the employer to court to seek relief for the whistleblower.
If retaliation for protected activity related to occupational safety and health issues takes place in a state that operates an OSHA-approved state plan, the complaint is filed with the state agency, although employees in those states may file with federal OSHA at the same time.
Safety Complaints
Employees have the right to contact OSHA or a state agency at any time without fear of retaliation. They may file complaints online, by telephone, in person at an OSHA area office, or in writing. Despite whistleblower protection, employees who complaint to OSHA can request that OSHA withhold their name from their employer.
In addition to complaining to OSHA, employees have the right to complain about unsafe conditions directly to their employers and request correction of hazards without fear of retaliation. If the employer does not take action, employees will usually proceed to the next step and file a complaint with OSHA.
Paying attention to employee safety and health concerns not only makes good business sense, it also creates a safety culture of inclusion, in which employees are active participants in workplace safety. With that kind of culture, you don’t have much need to worry about whistleblower provisions or the consequences of OSHA complaints filed by employees.
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