Defending Against OSHA Whistleblower Claims
The number of Occupational Safety and Health Administration (OSHA) whistleblower claims has increased substantially in the past few years. According to OSHA, there were 2,787 claims in 2012, compared with 1,934 claims in 2005. In addition, thousands of employees have brought claims under OSHA whistleblower protection laws, alleging that their employers retaliated against them for bringing forward safety concerns or participating in OSHA investigations.
Employers must be prepared for these claims, from handling internal complaints that could lead to federal whistleblower claims to responding appropriately to government inquiries.
Done correctly and with the right facts, it is possible to defend against OSHA whistleblower claims. In fact, the majority of claims in 2012 were dismissed (1,665 claims) or withdrawn (565 claims). Even if a claim is eventually dismissed, however, employers can still face harmful exposure caused by an OSHA whistleblower complaint.
What can your company do to protect itself when an employee makes a claim with OSHA?
Taking Proactive Steps To Protect Against Whistleblower Litigation
More than 20 whistleblower provisions in separate statutes protect employees who report workplace safety violations. The actions you take to defend against an OSHA whistleblower claim will vary depending on the law. In all cases, however, employers can benefit from developing effective, proactive procedures.
An experienced OSHA whistleblower claims defense attorney can help you establish procedures for handling employee complaints and:
- Develop whistleblower protection policies that encourage employees to lodge internal complaints
- Audit compliance programs and implement procedures focused on minimizing whistleblower claim risks
- Respond to employee complaints
- Conduct internal investigations
- Protect your business's interests during whistleblower litigation or administrative proceedings
- Proactively review proposed actions against an employee to ensure they do not violate whistleblower laws
Retaliation Claims Under The Whistleblower Protection Program
Under the OSHA whistleblower protection program, it is illegal for an employer to take adverse action against employee whistleblowers for the following:
- Raising a health or safety concern with the employer
- Filing a complaint with OSHA
- Participating in an OSHA inspection
- Accessing employer injury and exposure records
Illegal adverse actions include firing, laying off, demoting, disciplining or threatening an employee, denying overtime or benefits to an employee, reducing promotion prospects, and reducing an employee's pay. (See whistleblowers.gov for more information).
In many cases, however, the adverse actions do not result from the employee's protected contact with OSHA, but instead are related to employee performance or business needs. If an employer can show by clear and convincing evidence that it would have taken the adverse action regardless of the employee's OSHA whistleblower activity, the employee's claim should be dismissed.