A whistleblower is someone who informs or reports on a person or organization’s waste, fraud, abuse, corruption, illicit activity or dangers to public health. In doing so, they expose themselves to potential retaliatory behavior. However, the Occupational Safety and Health Administration has a Whistleblower Protection Program in place to protect those individuals. The program was codified by the Occupational Safety and Health (OSH) Act, Section 11(c).
When an employee engages in whistleblowing, retaliation can occur in the form of adverse action, one that would dissuade a reasonable employee from raising a concern about a possible infraction committed by a superior. Retaliation can be harmful to the individual and company morale.
Employers engaging in retaliatory behavior can face severe consequences and pay a very steep price. In 2019, a U.S. District Court awarded $1 million in punitive damages and lost wages to two employees after they were fired for cooperating with an OSHA investigation.
According to the law firm Greenberg Traurig LLP: “The judge’s large monetary award to the former employees demonstrates the potentially significant economic consequences of violating the anti-retaliation provision of the OSH Act. Accordingly, employers should proceed with caution when considering disciplining or terminating an employee who has recently participated in an OSHA safety and health inspection or has raised workplace safety and health concerns.”
OSHA recently updated its Whistleblower Investigations Manual, which was created to provide guidance on internal OSHA operations. It outlines procedures, legal concepts and other information about how to handle retaliation complaints under whistleblower statutes that OSHA enforces. The revisions mark the first time the document has been modified since January 2016.
Protections for whistleblowers
According to OSHA’s Whistleblower Protection Program, the administration “enforces the whistleblower provisions of 25 statutes protecting employees from retaliation for reporting violations of various workplace safety and health, airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health insurance reform, motor vehicle safety, nuclear, pipeline, public transportation agency, railroad, maritime, securities, tax, antitrust, and anti-money laundering laws and for engaging in other related protected activities.”
Defining adverse actions
It might be difficult to recognize an adverse action because it may be subtle. Adverse actions can include termination or layoff, demotion, denial of overtime or promotion, blacklisting, disciplining, denying various benefits, failing to hire or rehire, intimidation or harassment and threats.
It also can include reassignment to a less desirable position, limiting prospects for promotion, reducing or changing pay or hours, reporting or threatening to report an employee to the police or immigration, or more subtle actions, such as isolating, ostracizing, mocking or falsely accusing the employee of poor performance.
Whistleblower protections and regulations extend to full-time and temporary employees. In the event a temporary employee engages in protected behavior, the staffing agency and its host employer may be held liable for retaliating against workers. This also applies to contractors and subcontractors.
Key updates to this manual include incorporating past policy memoranda and procedures piloted by OSHA field offices; clarifying and streamlining procedures that lacked sufficient guidance or were unclear in the 2016 version; removing statute-specific chapters and converting them into statute-specific desk aids; and restructuring the manual so Chapter 2 now collects and explains the legal concepts and principles that guide whistleblower investigations.
In a news release announcing the updates, Doug Parker, assistant secretary of labor for occupational safety and health, stated, “We are working to improve our whistleblower program to help ensure workers have a voice on the job, free of retaliation.”
If a worker thinks they have been subject to retaliatory behavior for engaging in protected activity, they should contact OSHA immediately. There is a 180-day statute of limitations from the date the action occurred to when it can be reported.
There are no specific complaint forms. Workers can file a complaint in any language with OSHA by visiting a local office, submitting a written complaint to the closest OSHA office (by fax, email, certified U.S. mail, third-party commercial carrier or hand-delivered during regular business hours) or filing a complaint online.
About The Author
O’CONNOR is safety and regulatory affairs manager for Intec, a safety consulting, training and publishing firm. Reach him at [email protected].