When OSHA receives a complaint related to worker safety and health or a severe injury report, one action by OSHA is to give 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 adverse employment action of which it is accused was legitimate or did not occur as alleged. These responses are an opportunity for the employer to avoid an inspection or litigation of a retaliation claim. A strong response could assuage OSHA’s concerns and resolve the complaint in a favorable manner for the employer. However, these responses can also create a written record of admissions to which OSHA can hold the employer accountable, and any supporting documentation may be closely scrutinized and used to create liability.
Thus, employers must ensure there is a procedure in place for managing and developing the responses to these situations, and be strategic about the information they share with OSHA in the response. We are pleased to share the following tips and strategies for how to effectively address such complaints.
To start, although OSHA enforces whistleblower standards under 22 different statutes, the agency receives most of its retaliation claims (over 62%) under Section 11(c) of the Occupational Safety and Health (OSH) Act. Section 11(c) prohibits employers from retaliating against workers who in good faith attempt to exercise a worker safety-related protected right under the law.
While the vast majority – about 71% – are either dismissed by OSHA or withdrawn by the employee, the sheer number of complaints OSHA receives, and the fact that nearly 30% of them do end in favor of the employee, should be more than motivation for employers to thoroughly address each one filed against them. This is particularly true because, under Section 11(c), employees can be entitled to substantial remedies, such as Continue reading