On April 16, 2019, Kate M. McMahon and Lindsay A. DiSalvo of Conn Maciel Carey’s national OSHA • Workplace Safety Group presented a webinar regarding Responding to 11(c) Safety Retaliation Complaints and Notices of Alleged Hazards / Employee Safety Complaints.
When OSHA receives a complaint related to employee safety and health or a severe injury report, OSHA often gives the employer an opportunity to respond before it takes the more extreme action of opening an inspection. In addition, when OSHA receives an allegation of retaliation, it must provide the employer a chance to explain why the action of which it is accused was legitimate or did not occur as alleged. These responses are an opportunity for the employer to provide sufficient information to avoid a full-blown OSHA inspection or becoming enmeshed in the litigation of a retaliation claim. A strong and thorough response could resolve OSHA’s concerns and resolve the retaliation complaint in a favorable manner for the employer.
However, these responses could also create a written record of admissions to which OSHA can hold the employer accountable, and any supporting documentation may be closely scrutinized and potentially used to create liability. Thus, employers must be strategic about the information they share at this early stage and should ensure there is a procedure in place for managing and developing these responses.