Keep Communication Lines Open to Resolve OSHA Safety Violations

Nobody wants to blow the whistle on a dangerous workplace situation. But when it happens, work to get into compliance rather than punish the reporting employee.

Everyone in the industry has heard at least one horror story about someone getting fired or demoted for reporting a safety violation.

In fact, OSHA’s whistleblower department investigates approximately 3,000 such cases a year. Reporting a safety violation is rarely easy. Employees don’t want to get their company in trouble and may be afraid of bringing the issue to superiors.

When employees notice a safety concern, it’s not uncommon that the fear of blowback results in a reluctance to bring it to the attention of their supervisors. But repressive atmospheres that discourage employees from reporting can lead to much bigger problems for employers and their employees.

If an employer takes what could be considered a retaliatory action against an employee for protected activity like reporting safety issues, the best-case scenario is months of investigation, most likely legal fees and headaches, without even taking into account the potential penalties if an employer is found to be at fault. This can also result in decreased productivity for the organization.

That’s why the Occupational Safety and Health Administration requires an anti-retaliation culture among employers to reduce these instances. The agency recently issued recommended practices to help employers establish anti-retaliation programs in their workplaces.

“The idea is that if we educate an employer about its responsibilities under the law and the benefits of having an effective program that allows employees to raise concerns without fear of retaliation, there’s less likelihood of having to hire an attorney or legal team to defend itself against an allegation of retaliation or an unreported hazard that causes a serious injury or death,” says Anthony Rosa, deputy director of OSHA’s Directorate of Whistleblower Protection Programs.  

Though employers often feel compelled to do everything they can to suppress reports of safety violations, creating an atmosphere that supports employees in raising those concerns can make them feel more comfortable to deal with the problem in-house, potentially avoiding OSHA involvement altogether. Moreover, it allows the employer to address the safety or health concern before an incident occurs, which could result in greater loss to the company.

The most important component for developing a safety-first culture is making sure employees understand their right to a safe workplace and their right to report any violations without repercussions.

SAFETY AND HEALTH VS. WHISTLEBLOWING

There are two relevant offices within OSHA that come into play in these circumstances.

The safety and health program is actually separate from the whistleblower protection program. If an employee notices a safety issue on a work site that their employer cannot or will not resolve, they have an absolute right to report that violation.

In that instance, you would call the nearest OSHA area office.

If, after reporting that violation, an employer or superior within the company finds out that a particular employee was involved and takes retaliatory action against them, the whistleblower protection program in the nearest OSHA regional office gets the call.

When OSHA’s Whistleblower Protection Program receives a report of retaliation, an initial review decides whether the case meets the minimum investigative requirements to proceed through the system. This is known as a prima-facie allegation.

Over half of the complaints are administratively closed without investigation based on the initial evaluation, such as being filed late, lack of jurisdiction, or lack of a prima-facie case. About 7,000 reports are filed with the whistleblower protection program each year, and only 3,000 are docketed for investigation.

“One of the things I ask employees, and it’s probably the hardest thing, is to have patience with us,” Rosa says. “I have a lot of empathy for people that bravely come forward because they’re going through some strife, they’re going through economic hardship, and our investigations can take a long time.”

Patience and cooperation are important, as many cases are dropped simply because the employee gives up or doesn’t respond by the time OSHA is able to reach out to them.

“In many instances, we end up dismissing the case because the employee never got back to the investigator, and there’s a missed opportunity there,” Rosa says.

MANY TECHNICALITIES

First and foremost, all workers have a right to contact OSHA at any time to report a safety violation without being subjected to retaliation from their employer.

OSHA has many resources available on the website, by contacting an OSHA office, or by calling OSHA at 800-321-6742. If you are unsure whether there is a safety issue or have questions about your rights or about the limits on the reporting process, it’s always best to check.

Timing can be a factor. For example, with environmental complaints, there is a 30-day window to file a report with the whistleblower protection program after the retaliation.

Employees should also be aware that the circumstances around suspected retaliation can have an impact.

Say an employee notices an unshored trench on a work site. If they simply walk off the job site and are fired, that will most likely not be considered a protected work refusal. There are precipitating factors that OSHA looks for in determining valid work refusals.

Work refusal requirements:

• Imminent Danger: In order for OSHA to consider a protected work refusal, the urgency of the situation must be so unsafe that serious injury or death could occur and there is not enough time to call OSHA.

• Notify Employer: The field supervisor or other relevant management must be aware of the danger before work can be refused. Where possible, the employee must have sought the employer but have been unable to obtain correction of the dangerous condition.

• Good Faith: Refusals must be made in good faith, which OSHA defines as “a reasonable person would agree that there was imminent danger.”

• Alternative Work: Employees who believe a situation is too unsafe to proceed should ask the employer if there is another job or work duty they could perform while the issue is addressed.

When all of these boxes are checked, the employee should still not leave the work site until directed to by his or her employer. If that is the case, it is possible that OSHA will find merit to the complaint, especially if the employee is subsequently disciplined or fired after the work refusal.

POST-INVESTIGATION

After the whistleblower protection program investigates a complaint and finds it to have merit, they will forward it to the court system for litigation or issue a merit determination, depending on the whistleblower statute. Most merit cases are settled, but if not, then the court or the Secretary’s Findings can order a number of compensatory and punitive damages, again depending on the whistleblower statute.

In the case of an investigation, it is important for both employer and employee to keep records, as these are crucial pieces of evidence in OSHA’s evaluation and determination.

“Our job is to investigate whether the allegations hold water. If the parties want to get together and settle, we absolutely entertain the settlement. In fact, we have an Alternative Dispute Resolution program that actually can halt the investigation while the parties try to settle the case,” Rosa says. “That’s our goal — that we always look for opportunities to settle the case.” 



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