Retaliation Claims During OSHA Investigations Can Add Scrutiny to Employment Practices

The Occupational Safety and Health Act (OSH Act) prohibits employers from retaliating against employees for participating in Occupational Safety and Health Administration (OSHA) investigations or reporting safety concerns. Employees who suffer unfavorable employment consequences because of their involvement in an OSHA investigation can sue their employer for reinstatement and monetary damages. Worse yet, retaliation claims typically happen simultaneously with OSHA investigations into workplace safety. Employers can take preventive steps, however, to minimize the risk of a retaliation claim arising during an OSHA investigation.

Picture This . . .

You own a construction company. One of your employees falls from a scaffold and is severely injured. You report the injury to OSHA, and field representatives come to the site. The field representatives interview employees, including a known troublemaker, about workplace safety. The interviews conclude without any issues, and you wait to see whether OSHA will issue citations for violations of workplace safety rules.

In the meantime, you decide to fire the troublemaker for violating company rules unrelated to OSHA’s investigation. The employee files a retaliation claim against you claiming he was fired because he participated in OSHA’s investigation. And the retaliation claim is filed with OSHA, the same government agency that will decide whether to issue citations to your company for violating workplace safety rules.

Retaliation claims related to OSHA investigations are all the more frustrating because they typically occur simultaneously with the investigation and are made to the same agency responsible for determining whether you run a safe workplace. This article takes a look at retaliation claims in the context of an OSHA investigation and provides easy steps to help minimize the risk of claims arising during an investigation.

Retaliation Claims Under Section 11(c)

Section 11(c) of the OSH Act prohibits employers from taking unfavorable employment action against employees for exercising rights provided by the Act, including:

• The right to file a complaint or initiate an investigation;
• The right to report safety concerns to the employer or OSHA;
• The right to report work-related injuries or illnesses to the employer or OSHA; and
• The right to participate in an OSHA investigation.

OSHA may determine that an employer violated Section 11(c) if an employee’s protected activity was “a motivating factor” in the employer’s decision to take an unfavorable employment action against her. Unfavorable employment actions include:

•  Firing, laying off, or failing to rehire an employee;
•  Demoting, reassigning, disciplining, or denying benefits to an employee; and
•  Intimidating or threatening an employee.

If OSHA determines that an employer retaliated against an employee for engaging in protected activity, the solicitor general’s office may file a claim against the employer in federal court. It is important to note that the lawsuit won’t be filed by the employee; instead, it will be filed by OSHA on the employee’s behalf. That means an employer could be subject to two separate lawsuits from OSHA because of one investigation. OSHA will seek relief to make the employee whole, including potential reinstatement, back pay, compensatory damages, and punitive damages. OSHA may also seek an injunction prohibiting the employer from taking certain types of actions in the future.

Minimize the Risk of Retaliation Claims

You can take easy, commonsense steps to minimize the risk of a retaliation claim arising from an OSHA investigation. Here are a few tips:

• Do not prohibit or discourage employees from reporting workplace injuries or illnesses. OSHA has determined that safety programs that discourage employees from reporting workplace injuries violate Section 11(c). Instead of discouraging employees from reporting injuries, take steps to create and maintain a positive culture around workplace injuries. The culture should include making sure employees are comfortable reporting workplace injuries or unsafe conditions and instilling a general sense that safety is everyone’s responsibility.
• Thoroughly investigate employee complaints about unsafe conditions to help create and maintain a positive safety culture. Employees believe what they see. They are more likely to believe you take workplace safety seriously if they see you investigate and address unsafe conditions when they are reported.
• Prepare a written statement to give to employees in case OSHA conducts a site investigation. The statement should encourage employees to be truthful in speaking with OSHA and assure them that you will not take retaliatory action against them for participating in the investigation. The statement should be read to and provided to employees. Although the statement should only repeat the law under Section 11(c), it can later be used as circumstantial evidence that you did not take an unfavorable employment action against an employee because of his participation in an investigation. The statement can also help build credibility with OSHA during the investigation.
• Be careful when making employment decisions during a pending OSHA investigation. Continue to enforce your workplace rules during the investigation, but be mindful of how your actions may be perceived by OSHA or spun by an angry employee.
• Document, document, document the circumstances and events leading to an unfavorable employment action. In addition, try to get statements from witnesses about the conduct leading to the unfavorable employment action so that it will not be your word against the fired employee’s word. OSHA may quickly decide not to pursue a retaliation claim if you have clear and objective evidence that an employee was fired for violating a work rule.
• If you make mistakes and are exposed to a retaliation claim, acknowledge the mistakes and deal with them quickly in order to settle the claim. An acknowledgment should help you maintain credibility, reduce exposure, and minimize litigation costs.

Bottom Line

A retaliation claim arising during an OSHA investigation can put additional scrutiny on your employment practices and workplace safety culture. A claim can also affect your credibility with OSHA during a pending workplace safety investigation. You likely will never be able to completely prevent an OSHA workplace investigation or a retaliation claim, but you can minimize the risk of both with common sense.

This article, slightly modified to note recent updates, was featured in the October 2017 issue of the Wisconsin Employment Law Letter, which is co-edited by Axley Brynelson Attorneys Saul Glazer and Michael Modl and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.