As OSHA beefs up its whistleblower program, employers should brace themselves for more claims and investigations.
Over the last year, OSHA has been developing a “multifaceted plan for strengthening the enforcement of 21 whistleblower laws under its jurisdiction,” according to the agency, which is part of the U.S. Department of Labor. As the figure below demonstrates, the number of cases that OSHA has received is at an all-time high.
As part of its multifaceted plan, OSHA has restructured the whistleblower program and has made changes to its program policy, training, and internal systems. For example, in July 2012, OSHA cited Newark, N.J., demolition and concrete recycling company T. Fiore Demolition with 11 serious safety violations and proposed penalties totaling $47,600. In this case, the investigation was launched after the death of a worker, but more and more frequently, these actions are started by employees reporting some perceived unsafe condition to OSHA.
In addition to complaints to OSHA about unsafe working conditions, any employer could also find itself the target of an OSHA whistleblowing investigation. Employers must understand what the changes in this area mean and how to take proactive steps to avoid potential investigations and create defensible policies in case an investigation arises.
OSHA whistleblower law
OSHA requires employers to provide a “safe and healthful workplace.” Employers can’t discriminate or retaliate 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. Improper retaliation against employees can include firing or laying off, blacklisting, demoting, denying overtime or promotion, disciplining, denying benefits, failing to hire or rehire, intimidation, threats, harassment, hurting chances of promotion through reassignment, and reducing pay or hours.
What to do now
Employers should not only expect an increase in OSHA investigations and inspections, but investigations and inspections will probably be more intensive and time-consuming. As Figure 2 illustrates, the number of cases that OSHA has completed is at an all-time high. To minimize the chance of coming into OSHA investigators’ crosshairs, employers should take several steps:
Review and update health and safety programs: Employers need to consider how best to 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 review training procedures and implement any needed changes.
Educate employers, 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 someone other than a person in their direct line of reporting may be the best approach. HR and legal advisors should be involved in this process as well. Managers and supervisors should receive training about how to manage employee safety complaints, including preventing any retaliatory conduct. 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 to ward off potential retaliation claims.
Employers must 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.
