A “whistleblower” is someone, usually an employee, who brings to the attention of senior management, outside authorities, media, or the public at large assertions of wrongdoing by his employer. Under the OSH Act, as well as many other federal and state statutes, there are prohibitions against firing, or otherwise retaliating against, employees who “blow the whistle” on their employer’s acts, or who assert their rights under any of the relevant statutes.
Employers cited under OSHA often believe, sometimes correctly, that the inspection leading to the citation was triggered by an employee complaint. While seldom will such suspicions be susceptible of proof, the employer may be tempted to discharge or otherwise retaliate against an employee suspected of making a report to OSHA.
That’s a temptation you ought always to resist.
For one thing, the construction industry is one of the top producers of workplace injuries and fatalities. As such, it is perennially targeted by OSHA for enhanced enforcement. Thus, even assuming that your employee did report a violative condition, leading to an OSHA inspection and a citation, chances are good that — even in the absence of a report — you would have seen an OSHA Compliance Officer sooner rather than later anyway.
Second, the definition of a “Serious” OSHA violation is one likely to cause serious injury or death. As unpleasant as it may be to be cited by OSHA for such a violation, your employee, by calling OSHA before a fatality or serious injury occurred, has actually done you a favor (even if his motives may not have been completely pure). You really need to correct any “Serious” violation before a serious or fatal accident occurs.
Third, from an employee relations viewpoint, punishing an employee for exercising his or her legal rights is terrible policy.
Fourth, retaliating against an OSHA “whistleblower” is unlawful.
The OSH Act prohibits employers from discharging employees because they file complaints or otherwise exercise rights afforded by the Act, including, but not limited to, informing OSHA of unsafe conditions, and requesting a federal inspection. 29 U.S.C. § 660(c)(1) provides in part that:
No employer shall discharge or in any manner discriminate against any employee because [he] has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter . . . or because of [his] exercise . . . of any right afforded by this chapter.
The OSH Act further provides, in 29 U.S.C. § 660(c)(2):
Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of this subsection may, within thirty days after such violation occurs, file a complaint with the [U.S.] Secretary [of Labor] alleging such discrimination. Upon receipt of such complaint, the Secretary shall cause such investigation to be made as he deems appropriate. If upon such investigation, the Secretary determines that the provisions of this subsection have been violated, he shall bring an action in any appropriate United States district court against such person. In any such action the United States district courts shall have jurisdiction, for cause shown to restrain violations of paragraph (1) of this subsection and order all appropriate relief including rehiring or reinstatement of the employee to his former position with back pay.
It is therefore the Secretary of Labor, to the exclusion of the aggrieved employee, whom the statute authorizes to initiate a civil action in a federal district court based on an employer’s allegedly having violated the OSH Act by discharging or otherwise discriminating against the employee for reporting a safety or health matter. Courts have held the statutory remedies to be exclusive: they provide for the filing of a complaint with the Secretary of Labor, but not for the filing of a federal court action by the employee.
While the federal OSHA agency’s mandate is essentially to enforce standards, and promote workplace safety and health in those states that have not established analogue “Little OSHA” (state-run) agencies, interestingly Congress has put OSHA in charge of administering a total of some 21 federal “whistleblower protection” statutes. These statutes, and administrative and case law rules construing them, generally protect employees engaging in “protected activity” from “adverse employment actions,” typically including firing or layoffs, blacklisting, demotion, denial of overtime or promotion, disciplining, denial of benefits, failure to hire or to rehire, intimidation, being threatened, reassignment affecting prospects for promotion, or reduction in pay or hours.
The whistleblower statutes administered by OSHA include, in addition to § 11(c) of the OSH Act itself, a panoply of environmental and nuclear safety laws, transportation industry laws, and consumer and investor protection laws. Many of the transportation industry laws relate to employee safety per se (for example, the Federal Railroad Safety Act, the Seaman’s Protection Act, and the Surface Transportation Assistance Act, among others) while most of the others do not.
The statutes falling within OSHA’s authority have not been rewritten to make uniform what constitutes “protected activity,” or proscribed “adverse employment actions,” or what substantive remedies are available. The time frames within which the administrative complaints must be filed range from 30 days to 180 days, according to which statute is claimed to have been violated, and some statutes allow for private lawsuits, whereas others do not.
One recent case that has garnered some attention involves a retaliation case under the Federal Railroad Safety Act. A coach cleaner for Metro-North was retaliated against after he reported a knee injury he suffered in 2011. While driving the injured employee to the hospital, a Metro-North supervisor reportedly told the worker that railroad employees injured on the job were written up for safety, and not considered for advancement or promotions within the company.
OSHA’s investigation found that the employee engaged in protected activity when he reported his injury and filed his complaints with OSHA; that Metro-North knew these were protected activities; and that these protected activities were contributing factors in Metro-North’s disciplining of the employee.
OSHA ordered Metro-North to pay the aggrieved employee $10,000 in compensatory damages, a whopping $250,000 in punitive damages (the largest punitive award ever in a FRSA case) and to expunge the employee’s record of all charges and disciplinary action.
While this award is subject to a possible appeal, its severity should tell you all you need to know about the inadvisability of retaliating against employees who assert statutorily-protected rights under the OSH Act or other laws.
Thomas H. Welby is a licensed professional engineer and an attorney, and managing partner at Welby, Brady & Greenblatt, LLP, a construction law firm with its main office in White Plains. Geoffrey S. Pope, an attorney and counsel to the firm, collaborates in the preparation of this series. Articles in this series are for general guidance only, and do not provide all information necessary to comply with OSHA, the N.Y. Labor Law and Industrial Code, and other legal requirements.