OSHA Safety Retaliation – What Is It?

Virtually every employee protection law, federal or state, has some sort of anti-retaliation provision. The federal Occupational Safety and Health Act is no exception. The Occupational Safety and Health Administration (OSHA) enforces the anti-retaliation provision in this federal law and also the anti-retaliation provisions contained in many other “whistleblower-type” federal laws. This post touches on the anti-retaliation cause of action in the Occupational Safety and Health Act, called a Section 11(c) claim, named after the section of the 1970 act in which it is found.

What’s Covered

Section 11(c) applies to many forms of employee “protected activity.” Protected activity includes filing a complaint with OSHA, raising a safety complaint with the company, reporting a workers’ compensation injury, or participating in any way in an OSHA safety inspection. Notably, protected activity also includes refusing to follow a work order if an employee believes in good faith that following the order could cause death or serious injury. This type of refusal sometimes is referred to as “invoking safety rights” under the act.

What You Can’t Do

What constitutes retaliation according to OSHA? It is very broad. Any sort of negative employment decision close in time to employee-protected activity can be the basis for a Section 11(c) claim. Discipline and discharge are obvious examples. Prohibited employer conduct under 11(c) is much broader though. Any employer conduct that discourages safety or accident (or “near miss”) reporting is prohibited by 11(c). Thus, for example, OSHA has taken the position that employer safety programs that discourage the reporting of accidents or injuries can violate Section 11(c). An example would be a bonus policy that effectively rewards employees for not reporting workplace accidents without any sort of clear statement in the policy (or through training) that retaliation will not occur for accidents that are reported.

What Employees Can Get

Employers need to take potential Section 11(c) claims seriously. We have been seeing more and more of these claims recently, which is consistent with the trend of more retaliation claims generally. An employee must make a Section 11(c) claim very quickly, within 30 days of an alleged retaliatory act, and, once the claim is made, OSHA investigators should act very quickly, usually in just a matter of days. After OSHA completes its investigation, DOL lawyers will decide whether to bring a lawsuit against the company. These lawsuits are filed in federal court and proceed like many other federal discrimination lawsuits. While an individual employee cannot file the lawsuit by him or herself, these cases otherwise are similar to other discrimination cases. The complainant will have to show protected activity, an adverse action, and a causal connection between the two. If DOL is successful, remedies include back pay and back benefits, compensatory and punitive damages, reinstatement (or other remedial employment actions), notice posting and training, and an award of fees and costs. Settlement and mediation options exist as in other employment cases.

What’s Been Going on Recently

During the latter part of President Obama’s administration, OSHA issued administrative guidance related to Section 11(c). Specifically, OSHA took the position in 2016 that mandatory post-accident drug testing violated Section 11(c) unless an employer could show that drug use likely contributed to a specific accident. OSHA also attacked employer safety incentive programs that discouraged accident reporting, especially if some sort of employee benefit was withheld if accidents in fact were reported. Another aspect of the 2016 revision included a procedure by which an OSHA inspector could issue a retaliation citation even if an employee had never made a retaliation complaint to OSHA.

In the last few months under President Trump’s administration, OSHA has back tracked on some of the restrictions added by the last administration:

• Post-incident drug testing is allowed if it is done consistently and if all persons who could have contributed to the incident are tested. In other words, testing is okay if it is not just limited to the employee who reported an injury.
• Safety programs are allowed in many forms, including those that provide “accident-free” bonuses. Such programs should include policy statements, training, and related precautions that make clear that accidents and injuries still should be reported and that employees will not be retaliated against for doing so.

In conclusion, keep safety activities in mind when disciplining employees or implementing safety-related rules and policies. Employer intent matters. If an employment decision follows closely on the heels of protected activity or cannot be justified by legitimate non-retaliatory motivation of the decision maker, a Section 11(c) claim could be very unsafe for the company.