At a time when whistleblower complaints are dominating news cycles, it’s not surprising that the number of employee whistleblower complaints filed with OSHA (Occupational Safety and Health Administration) is also on the rise.
Since 2012, the number of such complaints has risen by 74% – with a sharp increase seen of late.
The federal Occupational Safety and Health Administration relies on 23 separate statutes when investigating complaints. Claims filed under Section 11(c) of the Occupational Safety and Health Act (https://www.osha.gov/Publications/OSHA3812.pdf ) represent the vast majority of these.
Others involve statutes addressing industries such as trucking, heavy equipment, barges, aviation, and railroads.
OSHA manages the process with a two-pronged structure. The first involves compliance safety and health officers investigating complaints and issuing safety and health citations. The second involves employment investigators receiving and investigating a growing number of whistleblower complaints.
Claims of retaliation on the rise…
As whistleblower complaints rise, so are suits claiming retaliatory actions by employers. Federal law protects employees who have filed complaints with federal agencies, participated in federal investigations, or filed internal safety complaints.
Employers who receive a whistleblower complaint can expect a length investigatory process and possible enforcement actions by OSHA.
Once an employer receives a complaint, they have 20 days to respond unless an extension for responding is requested and granted. Employers should always seek to be fully transparent and persuasive in their response to the agency. Management should never investigate who filed the complaint that led to an inspection. It’s also advisable to seek help from legal counsel when responding to OSHA.
Once the agency has received an employer’s response, they will send it to the employee who filed the initial complaint, seeking a response. In some cases, the complainant will not respond and the agency will drop the case. In other instances, the agency may seek to arrange a settlement between the parties. If the case proceeds, OSHA will conduct a more formal investigation.
Now, while it is important to know that OSHA dismisses approximately 95% of the cases filed – the process can still be, and often is, expensive and disruptive for employers.
Earlier in 2019, OSHA released what they call the Investigator’s Desk Aid to the Occupational Safety and Health Act (OSH Act) Whistleblower Protection Provision.
This document is instructive in part because it addresses whistleblower claims when an employer takes action against any employee who refuses to perform his or her duties in the belief that the requested duty represents a safety hazard.
Again – if an employer finds themselves the subject of a whistleblower complaint to OSHA, they should seek legal counsel immediately.
If you’re an employer and have questions about labor and employment law, including any actions taken by OSHA, consider calling on the attorneys at Kainen, Escalera & McHale in Connecticut. We do one thing and one thing only – we are an employer defense law firm – in fact, we are one of the largest employer defense law firms in the region. What’s more, each of our attorneys has over 25 years of experience in employment and labor law matters and can provide your business with comprehensive legal counsel ranging from assistance with necessary preventive measures to trial advocacy. Please call us if we can help you.
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