[author: Heather L. MacDougall]

As part of the U.S. Occupational Safety and Health Administration's (OSHA) increased emphasis on enforcement, all employers should know that whistleblower complaints have been on the rise in recent years — as well as the rewards and protections provided to employees who act as whistleblowers. The OSH Act not only requires employers to comply with a wide variety of safety and health standards, but it also prohibits employers from retaliating against employees for exercising their rights under Section 11(c). These rights include filing an OSHA complaint, participating in an inspection or talking to an inspector, seeking access to employer exposure and injury records, and raising a safety or health complaint with the employer. The anti-retaliation provision applies to all employers, including those that don't think of their business as typically landing on OSHA's inspection radar.

OSHA's increased focus on whistleblower complaints is evident not only from the rising number of complaints filed and the increased agency resources devoted to investigating these complaints, but also in OSHA's revised job site poster — required of all employers — which now prominently advises employees of their rights to file safety complaints, request OSHA inspections, and make whistleblower claims. Moreover, the damages awarded under OSHA whistleblower complaints are often greater than the penalties assessed in the agency's citations for violations for other safety and health standards. For example, on November 7, 2012, as a result of OSHA's findings in the investigation of a recent whistleblower complaint, OSHA ordered an aviation company to immediately reinstate an employee and pay more than $500,000 in back wages, benefits, and damages.

Overview of OSHA Whistleblower Protection Program

OSHA's Whistleblower Protection Program enforces the whistleblower provisions of twenty-one whistleblower statutes protecting employees who report violations of various workplace safety, airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health care reform, nuclear, pipeline, public transportation agency, railroad, maritime, and securities laws. Rights afforded by these whistleblower acts include, but are not limited to, worker participation in safety and health activities, reporting a work-related injury, illness or fatality, or reporting a violation of the statute.

Protection from discrimination means that an employer cannot retaliate by taking "adverse action" against workers, such as: firing or laying off; blacklisting; demoting; denying overtime or promotion; disciplining; denial of benefits; failure to hire or rehire; intimidation; making threats; reassignment affecting prospects for promotion; or reducing pay or hours.

Complaints must be reported to OSHA within set timeframes following the discriminatory action, as prescribed by each law (typically within 30 days of the alleged adverse action). In states with approved state plans, employees may file a complaint under the OSH Act with both the State and Federal OSHA. In July, OSHA clarified that complainants can make a whistleblower complaint to OSHA either verbally or in writing.

After the filing of a complaint, OSHA interviews the complaint to determine whether to conduct an investigation. OSHA's Regional Administrators have overall responsibility for the investigation of retaliation complaints under Section 11(c). They have authority to dismiss non-meritorious complaints (absent withdrawal), approve acceptable withdrawals, and negotiate settlement of meritorious complaints or recommend litigation to the Solicitor of Labor in such cases.

OSHA'S Whistleblower Protection Program Is Taking a Hard Look at Employer Safety Incentive Programs

One of the more controversial whistleblower developments is a March 2012 OSHA Memorandum addressing employer safety incentive and disincentive policies, and how they might violate OSHA's retaliation protections. In the Memorandum, OSHA lists several scenarios where safety incentive and disincentive programs will be carefully scrutinized:

• Taking disciplinary action against employees who are injured on the job regardless of fault.
• Disciplining employees who report an injury or illness in an untimely manner where the reporting requirements or discipline are unduly harsh and burden the employee’s right and duty to report.
• Taking disciplinary action against employees injured as the result of safety rule violations where the reporting requirements or discipline are unreasonable or unduly harsh. OSHA warns that employers may attempt to use a work rule as a pretext for discrimination against a worker who reports an injury.
• Safety award programs that directly or indirectly provide employees with an incentive not to report injuries and illnesses, such as paying a bonus to a team of employees who work a set period of time without a reportable injury, or supervisory bonuses linked to lower injury rates.

The OSHA Memorandum warns employers that the above situations may be investigated. Instead, OSHA recommends some form of recognition not tied to injury and illness reporting such as providing tee shirts to workers serving on safety and health committees; offering modest rewards for suggesting ways to strengthen safety and health; or throwing a recognition party at the successful completion of company-wide safety and health training.

Tips to Avoiding Whistleblower Complaints

Employers are advised to keep an eye on OSHA's whistleblower developments and to take steps to avoid unnecessary retaliation claims. First and foremost, employers should be vigilant in assessing their workplace for compliance with workplace safety and health standards. Here are some additional tips:

• Employers should already have anti-discrimination and anti-harassment policies in place. Employers should also have and disseminate to every employee a written internal procedure setting forth how employees can bring safety complaints to their employer. These policies should contain provisions to encourage employees to come forward with complaints about health and safety and a non-retaliation statement.
• Any employee policy, including safety incentive programs, can become legally suspect when it is enforced in a discriminatory or arbitrary manner or when the policy becomes a "pretext" or sham excuse for retaliation against the employee. Make sure all safety incentive programs are administered in a fair and consistent manner.
• Be alert to any situation where employees are in fact discouraged or prohibited from reporting workplace injuries and illnesses and take appropriate action to stop it. 
• Make certain your company's safety and health program, including your employee handbook and training materials, clearly spells out an employee's obligation to report work-related injuries in a timely manner. Set forth the company's disciplinary policy for safety infractions. Repeat this message through periodic safety meetings. 
• Remember that OSHA's recordkeeping rules require employers to set up a procedure for employees to report work-related injuries and illnesses. Make sure this procedure is in place, communicated to employees, and that all recordable injuries are correctly and timely logged on the OSHA 300 form. 
• Although employees always have the legal right to call OSHA, employee safety concerns are better addressed through direct contact with management. Encourage your employees to promptly report any safety and health concerns to their immediate supervisors or, as applicable, safety personnel and management. 
• In addition to meeting the responsibility to investigate complaints of health and safety violations, properly document all complaints and the investigation of complaints. 
• An employee who makes a complaint should not be ignored or ostracized, and the employee should be reminded to seek assistance if he or she experiences problems as a result of his or her complaint.
• Document all employee performance issues so that subsequent disciplinary action is justified and does not form the basis of alleged retaliation.
• Make certain supervisors are properly trained on handling an injury, filing an internal injury report, and on OSHA's whistleblower requirements including the various forms of "protected activity," the various types of illegal retaliation, and what to do when faced with an OSHA whistleblowing complaint.

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