In an unusual move, OSHA announced recently that it is seeking comments on proposed rules that would allow it to issue citations to employers who retaliate against employees who report injuries. The announcement comes in the wake of comments that the Agency received after it published other proposed rules that would require employers to submit their injury and illness information (OSHA 300 and 301 Forms) electronically. Some commentators expressed a concern that because electronically-filed injury and illness information would become public, employers might discourage employees from reporting injuries. In an attempt to prevent this, OSHA is now proposing another regulation that would: (1) require that employers inform their employees of their right to report injuries and illnesses “free from discrimination or retaliation;” (2) require that any injury and illness reporting requirements established by employers be “reasonable and not unduly burdensome;” and (3) prohibit discipline against employees for reporting injuries and illnesses.
Employers should be most concerned about this third proposed requirement. Traditionally, complaints of safety and health-based retaliation have been made under Section 11(c) of the Occupational Safety and Health Act. Under Section 11(c), an employee who believes he has been discriminated against may file a complaint with OSHA, who then investigates the case. If OSHA believes that the case has merit, it passes the matter along to the Department of Labor’s attorneys, who decide whether or not to file a lawsuit on the employee’s behalf in federal court. Under this new proposal, however, OSHA would have the authority to cite employers who it believes have retaliated against employees for reporting injuries or illnesses, even in cases where the employee does not file his or her own complaint. And, most notably, OSHA’s proposed regulation would allow for reinstatement and back pay as the abatement for such a violation. A back pay order would not be limited to the typical $7,000 cap for a “serious” or “other-than-serious” violation. Rather, employers might soon see proposed penalties in amounts equal to what discharged employees would have been making had their employment not been terminated.
If promulgated, this regulation would mean that OSHA’s Compliance Safety and Health Officers would have the power to second-guess any personnel decisions that he or she believes to be discriminatory. Because the notice of proposed rulemaking makes it clear that among the prohibited acts would be “pre-textual disciplinary actions – that is, where an employer disciplines an employee for violating a safety rule, but the real reason for the action is the employee’s injury or illness report,” OSHA proposes giving itself the authority to determine when an employer’s reasons for discipline are genuine and when they are not. While the employer would have the opportunity to contest any such citation just as it would a citation based upon the violation of a safety and health standard, cases such as these will take on a much different look. If this regulation is adopted, Review Commission Judges will be making determinations normally left for juries, i.e. whether the employer’s reasons for disciplining an employee are accurate or, rather, are a pretext for retaliation. OSHA’s proposal is especially troubling in light of its prior announcement that it will be scrutinizing employers’ safety incentive plans as potentially retaliatory if they discourage the reporting of injuries and illnesses.
We believe that this proposed regulation represents a radical departure from OSHA’s traditional role of ensuring a safe work environment to a more “human resources watchdog,” a function for which it is ill-equipped. Section 11(c) of the Act already provides employees with a remedy for retaliation. Allowing OSHA the power to enforce anti-retaliation provisions through the citation process is a burdensome and unnecessary measure that could result in a sharp increase in penalties for employers.
