Executive Summary: The U.S. Occupational Safety and Health Administration ("OSHA") recently made it easier for disgruntled employees to file whistleblower complaints against their current or former employers. Going forward, employees who believe they have been subjected to retaliation for complaining about an alleged violation of one of the 22 statutes for which OSHA enforces whistleblower protections can file complaints on-line on the OSHA website.
Generally speaking, an employee may have a claim for reprisal against her employer if she has engaged in protected conduct by refusing to engage in an unlawful or unsafe work activity or complaining about a work activity she reasonably believes violates the law and is subsequently discharged or subjected to some other adverse employment action. Adverse employment actions may include, but are not limited to, demotion, discipline, suspension, or a reduction in pay or hours. To establish a claim, the complaining party must show that she engaged in protected conduct, that her employer knew of her conduct, that an adverse action was imposed, and that the adverse action was causally related to her protected conduct.
Importantly, depending on the statute pursuant to which a reprisal claim is made, an employee may have as little as 30 or as many as 180 days to file a complaint. The new online form will provide workers who have been retaliated against an additional way to reach out to OSHA for assistance (employees can also file complaints in person, over the phone, or in writing). The online form consists of several pages, and includes prompts that guide complaining employees to include basic whistleblower complaint information. For example, employees are asked to describe their protected conduct, the adverse action imposed, the employer's stated justification for the adverse action, and the employee's grounds for believing the adverse action was retaliatory.
The complaints are then followed up by investigators, who contact the whistleblowers to flesh out the complaint and gather information necessary for the agency to reach an initial determination as to its merit. If the evidence supports the employee's allegation and a settlement cannot be reached, OSHA generally will issue an order, which the employer may contest, requiring the employer to reinstate the employee, pay back wages, and restore benefits, and imposing other possible remedies to make the employee whole. Under some of the statutes, the employer must comply with the reinstatement order immediately. In cases under the Occupational Safety and Health Act, Asbestos Hazard Emergency Response Act, and the International Safe Container Act, the Secretary of Labor will file suit in federal district court to obtain relief.