From 2012 to 2018, the number of whistleblower complaints filed with the federal Occupational Safety and Health Administration (OSHA) increased by 74 percent. In 2019, as news coverage of anonymous government whistleblowers saturated the 24-hour news cycle, the agency saw more safety-related whistleblower complaints filed against employers across the country. By the end of 2019, OSHA had investigated employee complaints brought under 23 separate statutes. About 62 percent of these claims were filed under Section 11(c) of the Occupational Safety and Health Act. Other whistleblower statutes address industries such as aviation, trucking, heavy equipment, railroads, pipelines and barges. OSHA operates a dual structure under which compliance safety and health officers investigate complaints and issue safety and health citations and employment investigators receive and investigate a growing number of whistleblower statutes.
Prima Facie Case of Retaliation
The federal whistleblower statutes protect employees who have filed complaints with federal agencies, participated in federal investigations or filed internal safety complaints. These employees then allege that their employer issued them an adverse or negative employment action, such as a discharge or suspension, stemming from the alleged protected activity. Accordingly, a prima facie case of employment retaliation generally requires protected activity, an adverse employment action, and a causal connection between the protected activity and the retaliation.
Employers who receive a whistleblower complaint will face a potentially disruptive and years-long investigation and enforcement process, regardless of the merits of the complaint. After receiving a complaint from a complaining employee, the OSHA retaliation investigator will first send a letter to the employer outlining that a complaint has been filed and providing a written summary of the online complaint or written transcription of a telephonic complaint. The letter will request a response letter to be filed within 20 days of the date of the letter. However, the agency is almost always amendable to reasonable extensions of time. Employers should strive to be truthful, complete and persuasive in their response to the agency — employers may need to engage outside counsel and take more than 20 days to perform a competent investigation and draft a persuasive response.
After receiving the employer’s response letter, OSHA will forward the letter to the complainant and ask for a response. Many complainants do not respond to OSHA’s follow-up inquiry, and if so, the complaint will be summarily dismissed. In other cases, OSHA investigators read the response letter and convince complainants to voluntarily dismiss meritless complaints. Because of the backlog and limited resources to investigate and try retaliation cases, OSHA will make an effort to negotiate settlements with complainants. If the case proceeds, OSHA will conduct an investigation, request additional documents and interview witnesses. Due to a large backlog in retaliation complaints, employers may not hear from OSHA for 18 months or more after filing their response letter. OSHA dismisses more than 95 percent of complaints. There is no private cause of action for employees to bring a claim under OSHA Section 11(c); OSHA’s attorney, the solicitor of labor, would bring any litigation in U.S. District Court.
OSHA’s Desk Aid
In 2019, OSHA released an updated Investigator’s Desk Aid to the Occupational Safety and Health Act’s Whistleblower Protection Provision, intended as the agency’s “summary of the scope of coverage and protected activity and procedures for handling investigations under Section 11(c) of the Occupational Safety and Health Act.” The desk aid is notable, because it reflects OSHA’s views on numerous hot-button issues involving whistleblower complaints.
The broad, catch-all form of protected activity is “Exercising any right afforded by the Occupational Safety and Health Act.” OSHA understands this to include reporting an injury, requesting a safety data sheet (SDS) and communicating about safety and health issues included as part of the employee’s duties. Without citation to a recognized statutory section, OSHA takes the position that communication about health and safety matters with coworkers is protected activity. This means that an employee could file an OSHA claim premised only on complaints made to coworkers, of which no supervisor or manager was made aware. This is not a right afforded by the OSH Act and is contrary to the requirement of employer knowledge necessary for alleged intentional retaliation. We believe this interpretation is not legally supported.
Refusal to Perform
OSHA’s desk aid importantly addresses whistleblower claims founded on an employer’s action against an employee who refuses to perform his job because of an alleged safety concern. An employee’s right to refuse to perform is a limited and specific — it must be founded on an objectively reasonable belief that the action the employee refuses to perform represents a safety hazard. The desk aid further articulates necessary elements laid out in 29 C.F.R. § 1977.12(b)(2). The section says that an employee has the right to refuse to perform an assigned task if he or she has a reasonable apprehension of death or serious injury, refuses in good faith, has no reasonable alternative, has insufficient time to eliminate the condition through regular statutory enforcement channels (i.e., contacting OSHA or a State OSHA), and where possible, sought from his or her employer — and was unable to obtain — a correction of the dangerous condition.
All elements listed above must be satisfied. In practice, few employees who refuse to perform satisfy each of these elements and, thus, do not have the basis for a whistleblower claim.
Right to File Complaint or Participate in OSHA Investigations
The agency rightly includes in its list of protected activities the employee’s rights to file complaints and to participate in OSHA inspections, typically through on-site interviews. Employees have a right to file complaints and, for this reason, the company management should not investigate who filed the complaint that led to the inspection and should not make comments that give an appearance of impropriety with regard to an OSHA complainant. In preparation for an interview during an OSHA inspection, employees should be reminded during preparation of their right to communicate with OSHA and that no negative outcome will occur as a result of their interview.
As with many other employment claims, OSHA retaliation claims are normally brought by employees and former employees who are disgruntled by an adverse employment action. To minimize OSHA retaliation liability, as with all other employment claims, employers must address and confront an employee’s grounds to allege pretexts. To do so, employers should document the bases for a disciplinary action or discharge decision. If faced with retaliation complaints, employers should consider promptly contacting counsel to prepare a response to properly assert their defenses.
Mark A. Lies, II is an attorney in the Workplace Safety and Environmental Group in the Chicago office of Seyfarth Shaw. He is a partner who focuses his practice in the areas of products liability, occupational safety and health, workplace violence, construction litigation and related employment litigation. His email address is firstname.lastname@example.org.
Adam R. Young is an associate attorney in the Chicago office who focuses his practice in the areas of occupational safety and health, employment law and associated commercial litigation. His email address is email@example.com.