Section 11 (C) of the Occupational Safety and Health Act (OSH Act) states "no person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this Act." This section sometimes is referred to as the whistleblower section of the OSH Act and affords protections to so-called whistleblowers.
Over the past several years, OSHA has stepped-up its efforts to enforce the whistleblower provision and has engaged in a number of enforcement actions against employers alleged to have taken action against whistleblowers. Though it is unclear why, the focus of those efforts appear focused on transportation industry employers, but have included employers in all industry sectors.
The typical subject of a whistleblower enforcement action was accused of either terminating an employee who refused to work under unsafe conditions (even conditions the employee actually created) or who reported an injury due to an unsafe work condition. Examples of the sort of actions that have resulted in whistleblower actions include an employee terminated for refusing to drive a commercial truck while taking prescription pain medication and an employee terminated for reporting he was injured due to a broken chair. The results of whistleblower enforcement actions have been settlements in the middle and upper middle six-figure range and orders to reinstate the disciplined or terminated employee.
One significantly limiting factor on the number of these claims, and the resultant number of enforcement actions, was the OSH Act's 30 day limitations period. If an employee fails to report a violation within 30 days, it is time-barred under the OSH Act. OSHA estimates that some 300 to 600 cases annually cannot be prosecuted because they were not filed in a timely manner.
On March 6, 2014, OSHA Assistant Secretary Dr. David Michaels issued a Decision indicated that some whistleblower claims could constitute claims of unfair labor practices that could be filed under the National Labor Relations Act and could be filed with the National Labor Relations Board (NLRB). In a May 21, 2014, memorandum, Anne G. Purcell, associate general counsel for the NLRB, announced a referral program between OSHA and the NLRB for whistleblower claims that are filed with OSHA outside the 30 day limitations period.
Before taking any action against an employee who reports an unsafe condition, even if the employee is reporting the unsafe condition to deflect from a legitimate performance issue, consider whether you will violate Section 11(C). Likewise, before terminating or disciplining an employee who reports an injury on the job because of an allegedly unsafe working condition, consider whether the termination or discipline will prompt that employee to file a whistleblower complaint.