The Occupational Safety and Health Administration (OSHA) has been struggling to deal with a notable increase in whistleblower complaints filed in recent years, and employers can only expect the number to grow. For that reason and others, employers need to know more about how the process works.
For one thing, remember that OSHA isn’t just responsible for handling whistleblower filings involving federal workplace safety and health regulations. It may surprise you to learn that no fewer than 23 federal statutes call for OSHA and its staff to handle complaints of retaliation arising from employees reporting such matters as securities and tax law violations as well as violations of consumer products, food, nuclear industry, motor carrier, pipeline and maritime safety laws, and health insurance reform laws.
Just last year, the new Taxpayer First Act assigned OSHA responsibility for investigating retaliation complaints filed by employees who provide information regarding their employers’ alleged underpayment of taxes, violations of internal revenue laws or any other violations of federal laws relating to tax fraud.
About 62% of the claims OSHA investigates deal with violations of the Occupational Safety and Health Act (OSH Act). Keep in mind that when the agency’s investigators show up at your door, the chances are that they’ve seen it all before—the evasions, excuses and other familiar defenses. You are much better off taking the right steps to avoid having to face a retaliation claim to begin with.
And if you come to their attention because of enforcement of any of those laws other than the OSH Act, what is to stop them from taking a glance around at possible safety violations while they are at it and phone that back into headquarters?
Between 2012 and 2018, the number of whistleblower complaints filed with OSHA increased by 74%. (OSH Act whistleblower complaints grew 29% during the same period). “Employees have filed more safety-related whistleblower complaints against employers as news coverage of anonymous government whistleblowers saturates the 24-hour news cycle,” according to attorneys Mark A. Lies, II and Adam R. Young of the Seyfarth Shaw law firm.
Employees claiming protection under federal whistleblower laws allege that their employers engaged in adverse or negative employment actions against them, such as discharge or suspension, because they had engaged in legally protected whistleblower activity. Making a finding of employment retaliation generally requires a causal connection between the protected activity and the retaliation, but they can still be hard to defend against.
Another problem stems from the fact that these charges also take time for OSHA to investigate, and budget cuts have prolonged the misery for employers and made it more difficult to mount a defense, says attorney Brodie D. Erwin of the Ogletree Deakins law firm.
“While the number of complaints has gone up, the number of OSHA investigators has declined,” he points out. “OSHA had 76 investigators at the end of 2018, down from 100 in 2014. OSHA’s increased workload, combined with the loss of investigators, has led to it being unable to timely complete its investigation process.”
Under its governing law, OSHA has 90 days to complete its whistleblower investigations, but last year it took OSHA on average 272 days to make a determination on a complaint. “The backlog has gotten so bad that in some cases OSHA may be aware of a complaint for months before an employer is contacted,” Erwin adds.
One impact is that because of the backlog employers may not hear back from the agency for 18 months or more after receiving a response letter. With its limited resources for investigating and trying retaliation cases, OSHA will be inclined to make efforts to negotiate settlements with complainants, note Lies and Young.
The delays have led to employees pursuing their claims in federal court rather than at the administrative level, which they can do after the 90-day deadline has passed, Erwin says. This devalues the administrative exhaustion requirements of many of the statutes containing whistleblower provisions, he argues. Delays in the process have also have created issues for employers who then have had problems locating witnesses months after the fact to help them disprove a complainant’s “stale” allegations.
“Employers will want to prepare themselves for these types of claims and the agency delays associated with increased whistleblower activity nationwide,” Erwin counsels. “Establishing policies and procedures regarding how to log, track and handle internal complaints that could lead to federal whistleblower claims are one way. “
OSHA Offers Good Advice
Fortunately for employers, OSHA actually offers some good information that can help employers both prevent and deal with retaliation claims.
This information and advice can apply equally well to circumstances in which a disgruntled employee uses protected whistleblower status as a pretext for attacking the employer, as it does in cases where it is necessary to avoid being put in a position where you could face genuine retaliation claims that could arise from a sincere whistleblower report.
Early in 2019, OSHA issued updated instructions to its investigators about how to handle these kinds of probes. Called “The Investigator’s Desk Aid” by the agency, it is something that employers should be aware of, according to Lies and Young.
The Desk Aid supplies a checklist for retaliation investigators that concentrates on the various forms of protected activity under the OSH Act, including:
● Filing occupational safety or health complaints with OSHA or other agencies.
● Filing occupational safety or health complaints with management.
● Instituting or causing to be instituted any proceeding under or related to the OSH Act.
● Providing testimony relating to occupational safety or health.
● Exercising any right afforded by the OSH Act.
● Refusing to perform a dangerous assigned task under certain circumstances.
● Complying with and obtaining benefits of OSHA standards and regulations.
● Participating in an OSHA inspection.
● Requesting information from OSHA.
● Refusing to inform an employer of the identity of the person who complained to or contacted OSHA.
The broad, catch-all form of protected activity is, “Exercising any right afforded by the OSH Act.” Lies and Young explain that OSHA understands this to include reporting an injury, requesting a safety data sheet (SDS), and communicating about safety and health issues when included as part of the employee’s duties.
Weapon for Unhappy Employees
“OSHA retaliation claims are typically brought by employees and former employees disgruntled by an adverse employment action,” Lies and Young observe. “To minimize OSHA retaliation liability, as with all other employment claims, employers must address and confront an employee’s grounds to allege pretexts.”
As is so often true when it comes to most lawsuits involving employment law, documentation is the employer’s first line of defense. Employers should make sure that they document everything having to do with a discipline or discharge decision. “If faced with retaliation complaints, employers should consider promptly contacting counsel to prepare a response to properly assert their defenses.”
Courtney M. Malveaux, an attorney with the law firm of Jackson Lewis, suggests that employers take a look at OSHA’s “Recommended Practices for Anti-Retaliation Programs,” which offers detailed advice on how to set up company internal programs designed to help avoid the filing of retaliation claims.
OSHA says these programs should be designed so that the employer can effectively receive and respond to employee reports of noncompliance with safety and health or other laws. The program should also be constructed in such a way to prevent and address retaliation against employees who voice concern.
(Also keep in mind that retaliation also is considered illegal when it happens to temporary employees, leased workers and independent contractors, especially when it occurs to those workers who are controlled by the host employers.)
Also seen as a key best practice is training employees about their right to report issues without delay to OSHA or an appropriate agency. “The agency may be well aware that a report was filed by a disgruntled current or former employee, but OSHA must still follow up on a complaint without regard to the aims of the complaining employee,” Malveaux explains. “Showing the agency a training regimen that reinforces employee rights can send a positive signal to an investigator who may be unsure of your workplace culture.”
OSHA suggests that a successful anti-retaliation program will include five key elements:
1. Committed managers who lead by example, encourage employees to report concerns and respect confidentiality.
2. A clearly communicated system for resolving employees’ reported concerns.
3. A system for receiving and responding to reports of retaliation.
4. Anti-retaliation for employees and managers.
5. Program oversight, which may include regular monitoring or audits that identify your program’s strengths and weaknesses.
OSHA suggests a few different ways to accomplish these objectives, such as multiple confidential or anonymous channels for complaints, follow up interviews with complaining employees and anonymous surveys of employees to assess your program. Incentive programs that reward employees for reporting concerns also are recommended by the agency.
“Top-level managers should be in the know on the results of these measures and engage employees to find ways to improve whistleblower programs,” Malveaux advises.
Erwin believes that a good internal program can help in another important way, by helping employers deal with the issues that inevitably arise from delays caused by short staffing at the agency level. “With the right strategy, it is possible to successfully defend against OSHA whistleblower claims even in this era of increased complaints,” he says.