Have an Occupationally Safe and Retaliation-Free New Year
Whistleblower complaints under the Occupational Safety and Health Act are up 45% since 2005, according to statistics released by the Occupational Safety and Health Administration (“OSHA”). So employers should be aware of what constitutes legally protected activity under the OSH Act when deciding whether to take an adverse action against an employee.
Section 11(c) of the OSH Act provides that no person shall discharge or discriminate against any employee because the employee has: (a) filed any complaint under or related to the Act; (b) instituted or caused to be instituted any proceeding under or related to the Act; (c) testified or is about to testify in any proceeding under the Act or related to the Act; or (d) exercised on his own behalf or on behalf of others any right afforded by the Act.
In practical terms, this means that protected activity includes any complaint or inquiry regarding occupational health or safety that an employee makes to OSHA or to any other federal or state agency that regulates occupational safety and health. Protected activity also includes oral or written complaints regarding occupational safety or health made in good faith to a supervisory or management-level employee. Participating in an OSHA investigation – being the subject of an OSHA investigator’s interview, for example – is also protected activity.
Protected activity does not include complaints or inquiries regarding only public safety and health. To be protected, the activity must be related to conditions in the workplace. Of course, a complaint can be related to both public and workplace safety and still be protected under the OSH Act.
Protected activity also does not include walking off the job in most cases. OSHA’s regulations state that an employee’s refusal to perform normal job activities because of alleged safety or health hazards is not ordinarily protected activity. The exception to this general rule is when the employee, by performing his assigned tasks, would be subjecting himself to serious injury or death arising from a hazardous condition at the workplace.
An employee’s refusal to comply with occupational safety and health standards or valid safety rules implemented by the employer in furtherance of the OSH Act is also not protected activity.
Under section 11(c) of the OSH Act, employers may not fire or otherwise discriminate against an employee because the employee has engaged in protected activity. Of course, an employer may take action against an employee for other reasons without running afoul of the OSH Act. But when an employee has recently engaged in protected activity, the question of what motivated the adverse employment action is often in dispute and can be the subject of costly litigation. Knowing what constitutes protected activity is therefore essential to a proper assessment of risk.