1. What laws protect workers who complain about dangers to health and safety?
In 1970, President Richard M. Nixon signed the Occupational Safety and Health Act (the OSHA Act). This law created the federal Occupational Safety and Health Administration (OSHA), and set workplace rules designed to reduce the number of workplace injuries, death and disease. Section 11(c) of the OSHA Act, 29 U.S.C. § 660(c), states that it is unlawful for employers to discharge or discriminate against an employee, "because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this Act."
Unfortunately, OSHA's record of protecting the victims of retaliation has been less than encouraging. If OSHA decides that a retaliation claim has no merit, the OSHA Act provides for no hearing, no appeal, and no right to file your own lawsuit. Sometimes the employee's action that provoked the retaliation may also be protected by an environmental law. Indeed, the Administrative Review Board (ARB) recently approved of such claims. Tomlinson v. EG&G Defense Materials, Inc., ARB Nos. 11-024, 11-027, ALJ No. 2009-CAA-8 (ARB Jan. 31, 2013), Decision and Order of Remand. If so, the employee will have a right to request a hearing, no matter what OSHA decides. Tate & Renner and Workplace Fairness web pages describe these rights.
Many states also recognize that a discharge for making safety complaints violates public policy. In these states, victims of retaliation can bring an independent lawsuit in their state courts. Check out your state here.
2. Who is protected by the OSHA Act?
The definition of "employee" is broad. It defines "employee" to include "an employee . . . who is employed in a business of his employer which affects commerce." OSHA Act Section 3(6), 29 U.S.C. 653(6). Many government employees are not covered, but may be protected by civil service, whistleblower, or union protections. The Postal Service is covered. Before an employee can win a case, that employee must be able to convince OSHA that there was
3. What conduct is considered to be 'protected activity'?
The Department of Labor and the courts interpret "protected activity" broadly. "Protected activity" describes the actions an employee can take, and be protected by the law from retaliation.
For example, calling OSHA is protected activity. So, if the boss gets mad and fires you for calling OSHA, you can make a complaint against that unlawful retaliation.
You can call OSHA toll-free by dialing 1-800-321-OSHA. You will be prompted to press "1" to file a complaint. You will be prompted to press the ZIP code of your location. You will be connected to the local OSHA office.
The law goes further, however, in protecting any activity that identifies who would be a witness against the employer in enforcement proceedings. So, if you object to the boss that management has caused an safety violation, you are still protected even though you have not yet called OSHA about the violation. Your objection disclosed to the boss that you would be a witness for the government in legal action to enforce the environmental laws. That is enough to provide legal protection from retaliation. Unfortunately, OSHA does not consider a threat to call OSHA to be protected. So, if you are going to call OSHA just do it. If you want to complain to management, do that too. But don't expect OSHA to protect you if you threaten to call OSHA before you have actually called them.
The OSHA Act also protect workers who have commenced a proceeding for enforcement of the OSHA Act. So, if you have filed a written complaint with OSHA about past retaliation, you are also protected from retaliation for filing that complaint.
Protection can begin as soon as the evidence suggests that management thought the worker might have complained or might be a witness in a future enforcement proceeding. Similarly, filing a grievance, contacting the media, refusing to perform illegal assignments, and other forms of standing up against violations can be protected. Even complaints that are indirect or misdirected may result in protection if they reveal to management the intention to enforce the law. For employees assigned to safety, quality control or enforcement work, doing that work too well can also protected.
4. Can an employee go too far: is some conduct not protected activity?
Yes. If you get into an argument with a supervisor about what is or is not legal on the job, and you punch the supervisor, you are not protected from being fired for punching the supervisor.
The Secretary of Labor has recognized that protected activity may be associated with "impulsive behavior." Employees cannot be disciplined for protected activity so long as it "is lawful and the character of the conduct is not indefensible in its context." A key inquiry is whether the employee has upset the balance that must be maintained between protected activity and ship discipline. If the employee's behavior oversteps the defensible bounds of conduct, the employee can lose the protections of the law. For example, one employee lost after swearing at a supervisor, refusing to change conduct, and daring employer to fire the employee.
5. What if the employer makes a mistake and retaliates against someone who engaged in no protected activity?
The victim of mistaken identification as a whistleblower has just as much right to a remedy as the real whistleblower. Otherwise, an employer can chill employee reporting by firing every tenth employee whenever a thought of whistleblowing appears. A complainant only needs to show that the employer thought the employee engaged in protected activity when respondent decided on the retaliation.
6. What is an adverse employment action?
Any action that materially affects the value of your job is an adverse employment action. A discharge is clearly adverse. A demotion, cut in pay, denial of promotion (if someone else gets that promotion), or denial of benefits would also be considered adverse. The Department of Labor will also recognize a claim against a "hostile work environment," although courts still disagree about what employer actions would make the workplace sufficiently "hostile." Other employer actions that have been held to be adverse and therefore against the law, include a refusal to hire or rehire, blacklisting, reduction in work hours, reassigning work, transfer, denial of overtime, assignment to undesirable shifts, reprimands, threats to discharge or blacklist, providing unfavorable reference, damaging financial credit, close supervision, unpleasant assignments, eviction from company housing, and a sudden drop in evaluation scores after the protected activity.
7. How do I prove that the protected activity caused the adverse action?
Causation can be proved either by direct evidence or by an inference.
Direct evidence is evidence that the employer was mad at the protected activity. If you or another witness saw a supervisor spout off about someone reporting a violation, that is direct evidence of the employer's "animus" against protected activity. Similarly, if the employer announces that whoever calls OSHA will be fired, or warns employees against reporting violations, that is direct evidence of retaliation.
However, the Department of Labor recognizes that more employers are smart enough to suppress direct admissions of their illegal motives. So, the Department can find causation based on inferences. For example, if the worker calls OSHA, and you can prove that the employer had an idea about who called, and that worker is fired shortly thereafter, the timing can support an inference that the protected activity caused the discharge. The timing can support an inference of retaliation when it is as long as six months or a year from the employer's discovery of the protected activity.
An inference of causation can also be drawn from an employer's failure to follow normal procedures, use of false evidence, changing explanations, the manner of discharge (such as using an armed security officer to escort you off the premises) or a pattern of adverse actions after employees engage in protected activity.
8. When must the complaint be filed?
The time limit to get your complaint to OSHA is thirty (30) calendar days from the date you first learned about management's final decision to impose the adverse action. If a disciplinary letter is issued and the employee files a grievance over the letter, the 30-day time limit runs from the date the employee receives the letter, not from the day an arbitrator or union grievance panel issues its decision on the grievance. Say the employer gives the employee a letter saying that the employee will be laid-off for economic reasons some months in the future. The employee believes the real reason is retaliation for reporting violations. That employee's complaint must be filed within 30 days of the notice, while the employee is still employed. If the employee waits until the discharge is completed, the employer can move to dismiss on grounds of untimeliness. Delaware State College v. Ricks, 449 U.S. 250, 259 (1980). If the employer's notice is equivocal, the employee may wait for a final decision from the employer. Flor v. U.S. Department of Energy, 93-TSC-1, D&O of Remand by SOL, at 8 (12-9-1994). However, pursuing internal or union grievance proceedings does not make the decision equivocal.
The 30 day time limit may be met by the postmark of the complaint, or by fax transmission. In counting the 30 day limit, if the 30th day falls on a Sunday, the complaint must be postmarked or filed by that Sunday. A complaint filed on Monday will be dismissed as untimely. If OSHA has a log entry of a telephone complaint, OSHA can accept that call as meeting the time limit.
Some equitable doctrines of tolling may also apply. For example, if you were planning to file the complaint, but you were in the hospital on the 30th day, OSHA can accept your complaint if you file it promptly after getting out of the hospital. Also, if you made a good faith attempt to file on time, but you filed in the wrong place, you may be able to file in the right place if you do so with reasonable diligence. Tolling may also apply if the employer concealed its true motive for the adverse action. Equitable tolling does not benefit the worker who simply did not know what the law provided or required until after the time limit was passed. Only on rare occasions does the Department of Labor allow "equitable tolling" of the 30-day time limit to file a complaint so it is important to act quickly.
9. How do I file a complaint?
The complaint should be filed in writing. OSHA does accept some complaints by telephone, but you cannot get evidence that you met the thirty (30) day time limit from a telephone call. The Department of Labor does not require any particular form. Still, you can find one here. In drafting the complaint, you need to identify the responsible employer or employers, the adverse actions and the names of individuals who have participated in the retaliation. An attorney or union representative may file the complaint on behalf of the employee, so long as it is with the employee's permission. The complaint does not have to include the evidence in support of your claim. You can provide the evidence during the private interview with the OSHA investigator. You will need to explain what OSHA right you exercises before your employer retaliated against you, and when you discovered that the employer was retaliating against you.
10. Where do I file the complaint?
The complaint may be filed with any office of the Occupational Safety and Health Administration of the U.S. Department of Labor. OSHA prefers to receive complaints at the local office. You can find the address and fax number for the local OSHA office at http://www.osha.gov/html/RAmap.html. The Administrator's office is at:
Occupational Safety & Health Administration
200 Constitution Ave NW, Rm N3647
Washington, DC 20210
Compliance Programs Fax: 202-219-9187 Fax: 202-219-4761
11. What happens after I file the complaint?
OSHA makes the initial investigation and decision. They interview witnesses on both sides and may prompt the parties to discuss settlement. This procedure makes it difficult to prevail in cases involving credibility disputes. The initial decision is usually made in a few months, but can stretch to the better part of a year or more. The OSHA Act requires a decision in 90 days. However, if OSHA misses that time limit, it can still enforce the law if it chooses to do so.
12. Is the OSHA complaint worth filing?
One study found that OSHA ruled in favor of the truck driver only 15% of the time, however in most of these cases the employee chose to proceed without an attorney experienced in employment law.
The Missouri Court of Appeals in Shawcross v. Pyro Products, Inc., 916 S.W. 2d 342 (1995), a retaliatory discharge preemption case, has analyzed the inadequacy of OSHA's remedy:
"OSHA only allows an employee to file a complaint with the Secretary of Labor who then decides whether to bring an action on the employee's behalf. 29 U.S.C. § 660(c)(2) (1985). The employee's right to relief is even further restricted in that the complaint must be filed within thirty days of the discrimination or discharge. Id. The decision to assert a cause of action is in the sole discretion of the Secretary of Labor and the statute affords the employee no appeal if the Secretary declines to file suit. Id. It is obvious from the language of the two statutes that although an employee may obtain any type of relief possible under FLSA [Fair Labor Standards Act] through the employee's own actions, the relief available under OSHA is limited to what the Secretary of Labor deems appropriate. It should also be noted that unless an employee acts immediately and files a complaint with the Secretary of Labor, there is no remedy available without the public policy exception." 916 S.W. 2d at 345.
The OSHA complaint is definitely worth filing if your state does not provide any other remedy. Your OSHA complaint might also be covered by an environmental law, or some other law. If you cannot get a lawyer to file a court case, then filing the OSHA complaint will not cost anything. If you can get a lawyer to take your case to court, and you are still within the 30-day time limit, then your lawyer may want to consider if filing the OSHA complaint is worthwhile, either as an opportunity to settle, or to collect information. However, some OSHA investigators disfavor cases where the victim has a lawyer, and they may not investigate the case thoroughly. Of course, those investigators might not have investigated the case well anyway.
13. Can I go somewhere other than OSHA?
That depends on the facts and issues in your case, and on which state law applies. As described above, if you can show that your protected activity touches on an environmental concern, then you can file a complaint with OSHA under those laws. Then, if OSHA makes a finding against you, you can appeal. Sometimes other laws might also protect you, such as the law protecting union or concerted activities.
Most states have also recognized a claim for wrongful discharge in violation of public policy. Click here for a chart of such claims by state. This claim usually applies only to discharges, so it will not protect those who faced only harassment, demotion, reassignment, loss of pay, or other adverse actions. Each state may have different doctrines that apply, for example, requiring proof of an actual violation. Still, it is best to consult an attorney in the relevant state to check on the available claims for your case and the latest developments in your state.
14. What remedies can the Department of Labor award?
Successful claimants are entitled to "make whole" remedies. These include reinstatement, back pay, and reimbursement for litigation costs and lost benefits. OSHA can also ask for punitive damages, but it rarely does so. Other remedies including equitable remedies including purging of adverse information from personnel records, and posting of information about the case at the employer's work sites.
Complainants have a duty to mitigate damages, for example, by looking for substitute employment. The employee has no obligation to accept substitute employment that is not substantially equivalent in terms of pay, benefits and working conditions to the former job. See
15. Should I get a lawyer?
It is difficult for most lay people to collect all the useful evidence, organize it into a persuasive story, and comply with all the procedural rules to win a retaliation case. Some lawyers with experience in whistleblower cases will accept cases even when the client cannot afford to pay regular fees. If the lawyer has enough confidence in the client and in winning the case, the lawyer may accept the case on a contingent basis. The lawyer will be trusting the judge to award fair attorney fees after the client has won a favorable decision. Clients will benefit from shopping around for a lawyer as soon as possible after the employer's first adverse action. Then the lawyer can help make sure the complaint gets filed on time and at the right place. The lawyer can also help make sure that the most important facts are disclosed in the first statement to the OSHA investigator.
When you shop around for an attorney, look for attorneys who have experience in employment matters, such as the members of the National Employment Lawyers Association (NELA).
The Truckers Justice Center handles cases for truckers nationwide. It may be contacted at: 900 West 128th Street, Suite 101, Burnsville, MN 55337, 651-454-5800, Fax 775.402.7561, http://www.truckersjustice.com/Trucking.shtml
Still, having a lawyer is not required. You can be represented by a union official, a paralegal, or anyone else of your choosing. Some whistleblowers have won cases representing themselves. Until you have a written agreement with a lawyer for representation, it is your responsibility to make sure the time limits are met in your case.
16. Where can I get more information?
The OSHA Act is available at:
Section 11(c) is at the end of this page:
Researchers can access OALJ decisions in an excellent database at http://www.oalj.dol.gov/.
Other helpful resources include
- the OSHA web page: http://www.osha.gov/
- Local COSH groups (Committee on Safety and Health)
17. Is there hope for improvements in the law?
Senator Edward Kennedy proposed an amendment to OSHA Sec. 11(c) that would give it teeth. S. 944 (posted at http://thomas.loc.gov/cgi-bin/query/z?c109:S.944:) provides a private right of action, extends the statute of limitations to 180 days, and provides for reinstatement, backpay, and compensatory damages. The proposed legislation could be improved in a few areas, but if enacted, it would be a substantial improvement over the current Sec. 11(c). Several representatives have introduced similar proposals. One is called the Protecting America's Workers Act (PAWA).