Not long after it was founded, the Department of Homeland Security began its campaign called, “If You See Something, Say Something.” Based on the idea that members of a community are far more acquainted with routines that happen on a given day than law enforcement officials, ordinary citizens are encouraged to report things that are out of the ordinary to the proper authorities so they can investigate before an incident happens. While the program is relatively new, the concept has been around for many years in occupational settings for more than 40 years. When the Occupational Safety and Health Act (OSH Act) of 1970 was passed, and the Occupational Safety and Health Administration was formed, the federal government understood that they could not enforce health and safety protections for workers in every business across the country without the help of existing employees.
What is a Whistleblower?
Any employee of a company who reports what they believe to be evidence of illegal activity, waste or fraud, abuse of power, or danger to the health and safety of its employees or the general public is considered a whistleblower. They can report health and safety violations directly to OSHA or request an OSHA inspector to visit their place of employment at any time without having to inform their employer. In states with State OSH Plans, alleged violations can be reported to both the state and federal agencies.
Are Whistleblowers protected?
Section 11 (c) of the OSH Act makes it illegal for employers to discriminate against or retaliate against employees who file an OSHA complaint, participate in an inspection, talk with an OSHA inspector, gain access to injury reports, report an injury themselves, or raise a health and safety complaint with their employer. While the word “retaliation” is often used when it comes to whistleblowers, many people think that only means being fired. While it is not an inclusive list, retaliation can mean any of the following.
- Issuing a company policy that allows the company to take unfavorable action against an employee when they engage in activity protected by Whistleblower laws.
- Blacklisting an employee.
- Demoting an employee without cause.
- Denying overtime or promotion to an employee.
- Disciplining an employee in written form or forced unpaid time off.
- Denying benefits to an otherwise eligible employee.
- Failing to hire or rehire a person who has reported the company to OSHA.
- Firing the employee.
- Intimidating the employee in any way.
- Making threats against the employee’s job, property, family, or benefits.
- Reassigning the person to a less desirable position that would prevent them from promotion or reassign the person to shift or location that causes hardship.
- Reducing the employee’s pay or the number of hours they can work.
- Suspending the employee from work without pay.
There is a limited protection under the OSH Act to refuse to do your job due to hazardous conditions. This protection only applies when you believe that you are facing death or serious injury in doing your job and the situation is so clearly hazardous that another reasonable person would think the same thing. Or, you can refuse to do your job if you have tried to have your employer correct the hazardous condition only to have them ignore the complaint, and there is a way to do the job without it safely. Or you can refuse if the situation is so urgent that you do not have time to mitigate the problem by going through regulatory channels, such as calling OSHA and waiting for a response. If you are a union employee, OSHA cannot enforce union contracts when there is an obvious hazard that could endanger your life or health.
How To File a Whistleblower Complaint
If you suspect that your employer has retaliated against you because of your involvement with OSHA, it is important to file a complaint as soon as possible. The statute of limitations for whistleblower retaliation complaints is just 30 days. Fortunately, the date of the postmark, fax, email, phone call, or in-person filing is considered to be the date the complaint was filed. Complaints can be filed by calling or visiting the OSHA office in your area, sending a written complaint to the OSHA regional or area offices, or emailing OSHA directly. Fortunately, the complaint does not require a particular form be filled out and may be submitted in any language.
However, where you file your whistleblower complaint will depend on your employer. Local, state, and federal government employees are not covered by the OSH Act. Public sector (government) employees who do not work for the federal government are covered by their State Plans offices that operate their own OSHA-approved health and safety programs. An employee of the federal government who wishes to file a complaint of retaliation must do so with the Office of Special Counsel and OSHA’s Office of Federal Agency Programs.
What Happens Next?
Once OSHA receives the complaint, it will begin to review it to ensure it is valid and to make sure OSHA has jurisdiction to enforce the whistleblower violation. At that time, an investigator will be assigned to the case. The investigator will be assigned within 90 days depending on the jurisdiction, the investigator’s workload, the severity of the situation, and the timeliness of the violation. The investigator then begins to gather evidence from both the person alleging retaliation and the employer to determine whether retaliation happened or not. At every stage, OSHA will try to seek an early resolution to the complaint to avoid long, drawn-out investigations.
Do I Need an Attorney?
While whistleblower laws are straightforward, the process of investigating alleged retaliation is not. Not only do employers retain the counsel of attorneys to help them avoid OSHA fines and other penalties, but they will also try to avoid compensating the employee for the time, wages and benefits lost in the process of lodging a formal OSHA complaint. If you suspect you have been the victim of a whistleblower violation, it is important that you discuss your case with an attorney within 30 days of the retaliation. The Elan Law Firm stands at the ready to fight for your right to a safe and healthy workplace. For more information on whistleblower protections or to discuss your case, contact our office for a free consultation.
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