OSHA Whistleblower Retaliation Complaints Are on the Rise – Is Your Company Ready?
A version of this article was originally published in the October 2015 issue of The HR Specialist. It is reprinted here with permission.
Many employers are surprised to learn that the Occupational Safety and Health Administration (OSHA) is responsible for investigating whistleblower retaliation complaints under 22 separate federal statutes, not just the Occupational Safety and Health Act (OSH ACT). These statutes involve a wide range of subjects, including asbestos in schools, commercial motor and carrier safety, corporate fraud, environmental safeguards and more. Generally speaking, they all contain provisions that prohibit an employer from taking adverse employment action against an employee for engaging in “protected activity” under the particular statute.
In 2014, OSHA received 3,050 whistleblower retaliation complaints — a dramatic increase of more than 58 percent since 2005. And, in light of the following recent OSHA initiatives and judicial trends, these numbers will only continue to rise in the future:
- In 2010, OSHA unveiled www.whistleblowers.gov, a website designed to inform employees about their rights under each of the 22 whistleblower statutes enforced by OSHA. As of late 2013, retaliation complaints can be filed directly online using the website, making it easier and more convenient for employees to assert retaliation claims against their employers.
- On April 20, 2015, OSHA issued a memo emphasizing that it only needs “reasonable cause” to find merit in a retaliation complaint and that it does not have to determine that a violation, in fact, occurred. The memo also states that OSHA does not have to resolve all possible conflicts in the evidence or make credibility determinations; it only has to determine that a reasonable judge could believe that a violation occurred.
- OSHA and certain courts are broadening their view of what constitutes “protected activity” under the various whistleblower protection statutes. For example, on May 7, 2015, a federal district court in Alabama entered a sweeping preliminary injunction against Lear Corp., holding that it unlawfully disciplined an employee in retaliation for exercising her rights under the OSH Act. The court determined that the employee engaged in protected activity when she posted a YouTube video, and approached the media, claiming that toluene diisocyanate (TDI) exposure at Lear’s facility was causing her health issues, even after OSHA and an independent testing facility both confirmed that the TDI levels at the facility were below legal limits. This appears to be an expanded view of what constitutes protected activity under the OSH Act. Historically, protected activity was limited to the filing of complaints under the OSH Act, testifying in an OSHA matter or exercising rights afforded by the OSH Act. See 29 U.S.C. § 660(c).
In April 2015, OSHA’s Whistleblower Protection Advisory Committee, composed of both labor and management representatives, recommended “Best Practices for Protecting Whistleblowers and Preventing and Addressing Retaliation.” The best practices (http://www.regulations.gov/#!documentDetail;D=OSHA-2014-0028-0018) are aimed at preventing whistleblower retaliation complaints in the first instance and emphasize that a whistleblower protection system should include the following elements: (1) leadership commitment; (2) a “speak up” culture that encourages raising issues and fair resolutions; (3) independent, protective resolution systems for allegations of retaliation; (4) anti-retaliation training; (5) a monitoring program; and (6) independent auditing to determine if the protection program is actually working.
In light of the growing popularity of whistleblower complaints, it is more important now than ever for employers to be proactive and to take steps to protecti themselves against potential retaliation complaints.Like any other administrative investigation, an OSHA whistleblower investigation can be costly, time-consuming and extremely disruptive to business.
An employer should take measures to be in the best possible position to defend against a whistleblower retaliation complaint when taking any adverse employment action against a whistleblower employee. Most important is conducting a fair, consistent and documented disciplinary and evaluation process so the employer can demonstrate that it had legitimate, independent grounds for an adverse employment action and that any protected whistleblower activity was not a factor in that decision. These measures should include the following:
- consistent, brutally honest and accurate performance evaluations
- uniform enforcement of safety and work rules
- consistent and timely documentation of all instances of discipline, even “verbal” warnings or counseling
- ensuring that similarly situated employees are treated the same with respect to disciplinary and other employment actions.
Finally, employers that are faced with an OSHA whistleblower retaliation complaint should consider using OSHA’s new alternative dispute resolution program, which was announced in August 2015. The program offers whistleblower parties the opportunity to negotiate a settlement with the assistance of a neutral, confidential OSHA representative with expertise in whistleblower investigations. According to OSHA, the new program “can be a valuable alternative to the expensive and time consuming process of an investigation and litigation. It will provide whistleblower complainants and respondents the option of exploring voluntary resolutions of their disputes outside the traditional investigative process.”