OSHA Steps Up Enforcement of Whistleblower Retaliation Claims

Nicholas Fortuna, January 29, 2015

U.S. Occupational Safety and Health Administration (OSHA) is ramping up its whistleblower program by making it easier for employees to prove retaliation and issuing larger damage awards. These lower standards, higher damage awards, and increased cooperation between OSHA and other federal agencies will make it more difficult for employers to defend charges of retaliation from employee whistleblowers.

Whistleblower statutes protect employees from retaliation for reporting or preventing wrongdoing in specified circumstances. OSHA’s program covers 22 federal whistleblower statutes, including a myriad of workplace, transportation, environmental, and consumer product laws as well as the Affordable Care Act and Sarbanes-Oxley.

The whistleblower statutes generally protect employee activities and fall into four broad categories:

(1) Providing information to an employer or a government agency regarding any act or omission regarding that the complainant reasonably believes to be a violation of law;

(2) Filing a complaint or instituting a proceeding or investigation concerning an alleged violation of law;

(3) Testifying, assisting or participating in a proceeding or investigation concerning an alleged violation of law; and

(4) Objecting to or refusing to participate in an activity that the employee reasonably believes to be in violation of law.

The whistleblower statutes enforced by OSHA allow for wide-ranging remedies, such as back pay, compensatory damages, voiding discipline imposed, and in some cases, punitive damages, attorney’s fees, and preliminary reinstatement (if previously fired). Some of the statutes even allow the complainant, under certain circumstances, to file an action against the employer directly in federal court.

Now OSHA is seeking to make it easier to bring a claim of retaliation. OSHA’s Whistleblower Advisory Committee recommended a number of changes, which OSHA is currently working to implement. The changes sought are:

(1) Lowering the standard of proof for proving retaliation from a “preponderance of evidence” to ”reasonable cause;” (Said another way, OSHA is seeking to move from a standard of “more likely than not” to “a reason to believe.”)

(2) Extending the deadline for filing retaliation claims from 30 days to 180 days;

(3) Permitting appeals of OSHA’s decisions directly to the Department of Labor’s administrative law judges;

(4) Temporary reinstatement following an initial finding in favor of an employee;

(5) Expanding the opportunities for complainants to take their cases directly to federal court;

(6) Increasing the circumstances for employees to obtain punitive damages and attorneys’ fees;

(7) Prohibiting pre-dispute arbitration agreements that limit employees’ rights to file a retaliation complaint.

In 2014, OHSA and the National Labor Relations Board (NLRB) began coordinating their enforcement activities. OSHA started advising complainants that had untimely complaints to bring them before the NLRB which has a more generous statute of limitations of six months.  In turn, the NLRB is educating OSHA agents on the best way to steer retaliation complaints to the NLRB.

Recently, OSHA has resorted to issuing significant damage awards to try to curb retaliation in the workplace: $200,000 for a railway employee who was fired for reporting a workplace injury and $160,000 in back pay to a pilot who was fired for refusing to fly an aircraft he considered unsafe. The damage awards issued by OSHA in 2014 totaled $21.5 million.

In all, employers will see stepped up enforcement of retaliation claims by OSHA, standards that make it easier for the employee to win, larger awards to the employees, and coordinated efforts between OSHA and the NLRB. To minimize the consequences of these changes, employers should implement an internal reporting system that allows employees to raise the specter of wrongdoing in the workplace without fear of retaliation. An employer should act quickly to address and remedy legitimate complaints before they are brought before OSHA or another outside agency.   Finally, and perhaps most importantly, employers should train management on what conduct is considered retaliation and the protections afforded employees who bring complaints.


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