Minimizing Liability Exposure to OSHA Whistleblower Claims

Construction employers should take notice of a steady increase in OSHA whistleblower claims over the last several years. The U.S. Department of Labor has directed significant resources toward protection of employee rights. Therefore, the growth in claims is likely to continue as employees become increasingly aware of this additional forum through which to challenge adverse job actions.

Section 11(c) of the OSH Act protects employees against retaliation for engaging in protected activity. Protected activity generally falls into four broad categories: providing information to a government agency or the employer; filing a complaint with OSHA; testifying in a legal proceeding; and refusing to perform an assigned task. The Act makes it unlawful for an employer to take adverse action against an employee because the employee engaged in protected activity. Adverse action includes discipline, discharge, layoff, demotion, transfer, reduction in hours, denial of a raise or recall, or other punishment because the employee exercised any right under the Act or any of the other whistleblower laws enforced by OSHA.

In order to prevail on a whistleblower claim, an employee must establish: (1) s/he engaged in protected activity; (2) the employer was aware, or suspected, the activity; (3) the employer took adverse action against the employee; and (4) a causal connection exists between the protected activity and the adverse action. The burden then shifts to the employer to provide a legitimate, non-retaliatory reason for its adverse action against the employee.

An employer can dramatically increase its likelihood of success by producing evidence of documented performance and/or disciplinary issues that pre-existed the protected activity. In the absence of such documentation, an employer can still successfully defend a claim. However, it is generally more difficult and costly to defend cases with “credibility” disputes. Take, for example, an employee who has been counseled repeatedly about his poor performance over the course of the construction season but who complains about a safety issue one week before the winter layoff. The employee then files an OSHA whistleblower complaint after he is not recalled the next season even though the employer recalls others with less education, training, or work experience. If the employer can point to undisputed evidence of its counseling efforts with the employee, it will be in a strong position to obtain a prompt dismissal of the claim.  In the absence of such evidence, the employee can claim the counseling never occurred.

In evaluating these cases, OSHA will consider any employer animus toward the protected activity, the proximity in time between the protected activity and the adverse action, and any difference in treatment of the whistleblower in comparison to other employees. OSHA will likely conduct on-site interviews of management and other fact witnesses and request copies of performance evaluations, disciplinary warnings, earnings and benefits statements, job descriptions, employee handbooks, unemployment claims and determinations, etc. OSHA may seek similar information relating to other employees who have not engaged in protected activity to test whether the employer has treated the whistleblower any less favorably than others.

Bottom Line

Although an employer is not required to engage its at-will employees in a formal performance management process, an employer who properly does so can put in place some very good defenses to the most common types of employment claims that arise from time to time. It is also a good way to help troubled employees be successful.

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