Responding to OSHA 11(c) Retaliation Charges, Employee Safety Complaints, and Rapid Response Investigations

By Lindsay A. DiSalvo and Beeta B. Lashkari

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.

Whistleblower 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While the vast majority – about 71% – are either dismissed by OSHA or withdrawn by the employee, the sheer number of complaints OSHA receives, and the fact that nearly 30% of them do end in favor of the employee, should be more than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

Responding to 11(c) Safety Retaliation Complaints and Notices of Alleged Hazards / Employee Safety Complaints [Webinar Recording]

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 thumbnail-1takes 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.

​Participants in this webinar learned about the following:​ Continue reading

[Webinar] Addressing Employee Complaints: Whistleblower Claims and OSHA Notices of Hazards

On Tuesday, October 17, 2017 at 1:00 PM Eastern, join Kara Maciel, Amanda Walker, and Dan Deacon of Conn Maciel Carey’s national Labor & Employment Practice and OSHA Practice, for a complimentary webinar regarding “Addressing Employee Complaints: Whistleblower / Retaliation Claims and OSHA Notices of Alleged Hazards.”

OSHA whistleblower complaints have been on the rise, and the Equal Employment Opportunity Commission receives more charges of retaliation than any other type of claim for the statutes they regulate, including Title VII discrimination.

It is essential for employers to develop, maintain, and evaluate their employee complaint policy and procedure to foster a supportive work environment and address employee issues before they turn into a regulatory issue or the basis for litigation.  As part of this complaint policy, employers must also ensure their management representatives understand how to effectively interact with a complaining employee after a grievance has been communicated, including dealing with performance issues in a manner that makes clear any adverse employment action is distinct from the employee’s complaint.

During this webinar, participants will learn:

Continue reading

“Whistleblower Investigations – OSHA’s 11(c), Title VII, and other Statutes” [Webinar Recording]

On Wednesday, April 19, 2016, Kara M. Maciel and Jordan B. Schwartz delivered a webinar regarding OSHA Whistleblower Investigations as part of the Firm’s 2016 OSHA Webinar Series.

A host of federal and state laws include provisions prohibiting employers from retaliating against whistleblowers who engage in activities protected by the statute.  The Occupational Safety and Health Act, Title VII of the Civil Rights Act, and several other laws that regulate the relationship between employers and employees, contain such whistleblower protections.  Pursuant to these protections, the laws also provide a mechanism through which employees can report incidents of retaliation to the government to investigate and potentially bring an enforcement action against the employer.  With the number of whistleblower claims continuing to rise in 2015, it is imperative for employers to understand what types of actions could be the impetus for a whistleblower investigation and the potential consequences.

Participants in the webinar learned the following: Continue reading