This week in my PHR certification class I am presenting on risk management and safety. Of course the primary law in this area is the Occupational Safety and Health Act (OSH Act) which is administered by the Occupational Safety and Health Administration (OSHA.) Within that law are protections for “whistleblowers”. This means that an employer cannot retaliate against workers. So what is protected and what does retaliation mean?
The basic premise of OSHA is that workers have a right to a workplace free of hazards that may cause injury or death. This is known as the general duty clause. But in addition to that clause employees have these following rights:
- Ask OSHA to inspect their workplace;
- Use their rights under the law without retaliation and discrimination;
- Receive information and training about hazards, methods to prevent harm, and the OSHA standards that apply to their workplace. The training must be in a language you can understand;
- Get copies of test results done to find hazards in the workplace;
- Review records of work-related injuries and illnesses;
- Get copies of their medical records.
In addition to that they have the right to refuse to perform work under what they consider to be circumstances that could lead to their injury or death. Specifically the guidance is “If the condition clearly presents a risk of death or serious physical harm, there is not sufficient time for OSHA to inspect, and, where possible, you have brought the condition to the attention of your employer, you may have a legal right to refuse to work in a situation in which you would be exposed to the hazard.” If an inspector arrives they have the right to speak to them privately, accompany them on the inspection and sit in on any conference the inspector holds with management.
In the past many employers have been unhappy when they have been reported to OSHA. An inspection usually means fines, even in some of the safest workplaces. As a result of being unhappy some employers may be tempted to “get back at the employee” in some way shape or form. That is generally a big mistake. OSHA has specifically defined retaliation as illegal and the following items are what they include in this definition. The guidance given is “You cannot be transferred, denied a raise, have your hours reduced, be fired, or punished in any other way because you used any right given to you under the OSHA Act.” Retaliation would also include blacklisting, demoting, transferring to a less desirable job, failing to rehire, intimidation, threats, denying benefits or any other act that would be seen as punishment. Employees have to file a complaint within 30 days of the retaliation and the remedies may include reinstatement, back pay and fines.
What is covered other than OSHA?
Due to the fact that OSHA has been dealing with whistleblowing investigations for a long time they are good at it and have been given the responsibility of investigating whistleblower violations for twenty-one other Federal laws. These include environmental laws, such as the Solid Waste Disposal Act; transportation laws, such as the National Transit Systems Security Act; and consumer and investor rights laws, such as the Affordable Care Act, the Consumer Financial Protection Act and Sarbanes-Oxley Act.
Guidance for Employers
What can an employer do given the breadth of OSHA’s power? Here are my suggestions:
- Follow the law, that may mean you have to educate yourself;
- Provide a safe and legal workplace;
- Have a safety “attitude”, don’t ignore hazards;
- Cooperate with inspectors and remedy situations they find;
- Lastly, DON’T RETALIATE!
If you don’t give employees reasons to complain in 99.9% of situations they won’t.