“The ability of workers to speak out and exercise their rights without fear of retaliation provides the backbone for some of American workers’ most essential legal protections,” said Assistant Secretary of Labor David Michaels, who heads OSHA and now oversees the whistleblower program. “OSHA’s internal improvement initiatives, including this realignment, demonstrate the agency’s steadfast commitment to strengthening a program that is critically important to the protection of worker rights.”

Any employer could find itself the target of a whistleblowing investigation. Employers need to understand what these changes mean and how they can respond to avoid potential investigations and ensure that they have defensible policies in place should an investigation arises.

OSHA Whistleblower Law

Under the Occupational Safety and Health Act of 1970 (OSH Act), employers must provide a “safe and healthful workplace.” Employers not only need to comply with all the relevant OSHA standards, but they are required to comply with the General Duty Clause of the OSH Act, which requires employers to make sure that their workplaces do not have any “serious recognized hazards.”

Employers must also alert workers about hazards, keep accurate records of work-related injuries and illnesses, and perform workplace tests and provide medical tests required by some OSHA standards. They must also post OSHA citations and the OSHA poster in the workplace where employees will see them, and they must notify the agency within eight hours of a death or when an accident sends three or more workers to the hospital.

Under the OSH Act, employers cannot discriminate against workers for exercising their rights, which include filing an OSHA complaint, taking part in an inspection or talking to an inspector, seeking access to records about exposure and injury, and raising a health or safety complaint.

According to OSHA, possible retaliations against employees can include firing or laying off, blacklisting, demoting, denying overtime or promotion, disciplining, denying benefits, failing to hire or rehire, intimidation, threats, hurting chances of promotion through reassignment, and reducing pay or hours.

Changes at OSHA

OSHA’s changes to its whistleblower program following critical reports from the GAO in 2009 and 2010. The changes OSHA announced in August 2011 include:

• Restructuring

Along with directly reporting to the Labor Department assistant secretary, OSHA is conducting pilot tests of changes to its field structure. With the fiscal 2012 budget, OSHA created a separate line item for the whistleblower program to create more visibility for whistleblowing activities and accomplishments. OSHA has also added 25 new investigators.

• Training

OSHA has changed how it trains investigators, including holding a national whistleblower training conference for all federal and state whistleblower investigators, along with DOL solicitors involved with whistleblower matters.

• Program Policy

OSHA has updated its Whistleblower Investigations Manual to reflect new case-handling procedures and information on new laws since the manual was last updated in 2003. Among the changes to the manual, investigators are now required to try to interview each complainant in every case. The manual also provides expanded guidance on how to deal with uncooperative respondents and issue administrative subpoenas.

• Internal Systems

OSHA has modified its data collection system and strengthened its audit program, to ensure that whistleblower complaints are handled correctly and in a timely way.

Along with the other changes to the whistleblower program, Labor Department Deputy Assistant Secretary Richard E. Fairfax released a memo about “Employer Safety Incentive and Disincentive Policies and Practices” in March 2012. The memo outlines how some common employer practices can discourage workers from reporting safety hazards. “Ensuring that employees can report injuries or illnesses without fear of retaliation is therefore crucial to protecting worker safety and health,” Fairfax stressed in the memo.

The Complaint Process

When OSHA receives a whistleblower complaint, it evaluates each one to see if it should be handled by an off-site investigation or on-site inspection. When workers file complaints, they can ask that their names not be released to employers. OSHA will consider a variety of factors when deciding whether to undertake an on-site inspection, including whether physical harm has been alleged, whether an imminent danger exists, whether the employer has failed to respond adequately to information about a hazard, and whether the employer has a “past history of egregious, willful or failure-to-abate OSHA citations within the past three years.”

When OSHA decides to conduct an on-site investigation, employees have the right to have a representative there. Employees or unions, not the employer, choose the representative.

If OSHA investigators decide that the complaint does not meet the criteria for an on-site inspection, they can conduct an off-site investigation. In that case, an investigator will call the employer, describe the supposed hazards and then follow up with a fax or letter. Employers have five days to respond and describe any problems they find. They must highlight which corrective actions have been taken or are planned. If investigators decide the employer’s response is adequate, they will not conduct a further investigation. The complainant will receive a copy of the employer’s response. If employees decide they are not satisfied with the employer’s response, they can request an on-site inspection.

After the investigation or inspection, OSHA sends a letter to the worker representative or the employee who filed the complaint. Employers also must posts copies of citations at or near where a violation occurred.

What to Do Now

Employers should not only expect an increase in OSHA investigations and inspections, but investigations and inspections will likely be more intensive and time-consuming. In order to minimize the chance of coming into OSHA investigators’ cross-hairs, employers should take several steps.

• Review and Update Health and Safety Programs

Employers should reconsider their safety program incentives in light of the Fairfax Memo and other OSHA changes. Common industry practices may now leave employers vulnerable to whistleblower claims. Companies should consult with counsel to determine whether their processes and procedures need to be revised. They should also look at best practices among their peers and customize their programs to match their specific needs.

Employers need to consider how they can promote a culture where employees feel comfortable raising concerns. Rather than a punitive approach to safety hazards, employers should consider incentive programs that encourage workers to raise concerns and report problems to the appropriate people.

Along with safety program incentives, employers should also review training procedures to see if any areas of weakness exist, and then address them.

• Educate Employees, Managers, and Supervisors

When workers have concerns, they should know who to contact. Employees should know exactly what steps to take in order to raise safety concerns without fear of reprisal. In some cases, a suggestion box, hotline, or anonymous email system that is managed by an independent third party may be the best approach. Human resources and legal advisors should be involved in this process as well.

Managers and supervisors should receive training about how to manage employee safety complaints. They should also be trained about how to escalate employee concerns up the chain of command when necessary.

• Put Everything in Writing

Thorough documentation can help employers minimize liability when workers file a whistleblower complaint with OSHA. Companies should be sure to carefully abide by all OSHA reporting requirements. And if an injured worker is ever disciplined for violating safety regulations, managers and supervisors should specifically record why the discipline occurred in order to ward off potential retaliation claims.

Employers need to understand the implications of OSHA’s new emphasis on whistleblower investigations and inspections. By taking appropriate steps, companies can minimize the number of potential whistleblower complaints that employees file, and lessen the impact and liability they face if OSHA targets them.

Publication date: 10/22/2012