Whistleblower protection laws prohibit discrimination against workers who complain about safety violations in certain industries (e.g., nuclear plants, water treatment plants, waste disposal plants, etc.). These laws protect workers who alert the proper authorities of dangers to the public safety.

Employees who believe they have been discriminated against in violation of these protective provisions may file a complaint within 30 days of the alleged violation with the Occupational Safety and Health Administration (OSHA). The Occupational Safety and Health Act of 1970 (OSH Act) and other laws protect workers who complain to their employers, unions, OSHA or other government agencies about unsafe or unhealthful conditions or environmental problems in the workplace. The laws apply to general industry and construction employers. Employers may not punish or retaliate against workers for exercising their rights under the OSH Act.

Section 11(c) of the OSH Act authorizes OSHA to investigate employee complaints of employer discrimination against employees who are involved in safety and health activities protected under the Act. State and local government workers in the 29 OSHA state-plan states may file complaints of employer discrimination with the state plan as well.

Protection from workplace retaliation means that an employer cannot take adverse action against workers who file complaints, including actions like:

• Firing or laying off;
• Blacklisting (intentionally interfering with an employee's ability to obtain future employment);
• Demoting;
• Denying overtime or promotion;
• Disciplining;
• Denial of benefits;
• Failure to hire or rehire;
• Intimidation or harassment;
• Making threats;
• Reassignment to a less desirable position or affecting promotion prospects;
• Reducing pay or hours;
• More subtle actions, such as isolating, ostracizing, mocking, or falsely accusing the employee of poor performance;
• Constructive discharge (quitting when an employer makes working conditions intolerable due to the employee’s protected activity);
• Reporting the employee to the police or immigration authorities; and/or
• Application of an employer policy which discourages reporting.
  

• In addition to the OSH Act, several other federal statutes protect a worker’s right to report workplace safety and health hazards free from retaliation.

The whistleblower protection provisions of various statutes prohibit employers from discharging or otherwise discriminating against employees in retaliation for their disclosure about hazards or violations of various workplace safety and health, aviation safety, commercial motor carrier, consumer product, environmental, food safety, and other laws. Employees who believe that they have experienced retaliation in violation of one of these laws may file a complaint with Occupational Safety and Health Administration (OSHA).

Since the passage of the Occupational Safety and Health (OSH) Act in 1970, Congress has expanded the OSHA’s whistleblower protection authority to protect workers from retaliation under 25 federal statutes:

Whistleblower relation to state laws

The whistleblower programs do not preempt existing state statutes and common law claims. All provisions contained in the programs are in addition to protection provided by state laws.

• Under federal law, employees have the right to a safe workplace, and have the right to report health and safety hazards without fear of retaliation by their employers.
• Employees also have the right to receive proper training, receive proper safety equipment, review records of workplace illnesses and injuries, and more.

The Wage and Hour Division of the Employment Standards Administration (ESA) had the authority to investigate and resolve complaints of on-the-job discrimination against workers (called whistleblowers) who call attention to violations of seven federal laws that protect the nation’s air, water, environment and nuclear facilities. However, in February 1997 that responsibility was assumed by the Occupational Safety and Health Administration (OSHA).

The Occupational Safety and Health Act entitles employees to a safe workplace. Employers must keep the workplace free of recognized health and safety hazards that may cause death or serious physical harm. Employees have the right to speak up about hazards without fear of retaliation. They also have the right to:

• Receive workplace safety and health training in a language they understand;
• Work on machines that are safe;
• Receive required safety equipment, such as gloves or a harness and lifeline for falls;
• Be protected from toxic chemicals;
• Request an OSHA inspection and speak to the compliance officer;
• Report an injury or illness and get copies of medical records;
• Review records of work-related injuries and illnesses; and
• See results of tests taken to find workplace hazards.

Section 11(c) of the OSH Act specifically protects employees from retaliation for exercising their rights under the Act. Examples of protected actions include, but are not limited to:

• Communicating about safety or health matters to management personnel;
• Asking questions, expressing concerns, or requesting copies of safety data sheets;
• Reporting a work-related injury or illness;
• Requesting copies of OSHA standards or regulations;
• Filing a safety or health complaint with OSHA;
• Participating in an OSHA inspection; and
• Refusing or complaining about requirements to reimburse an employer for OSHA penalties.

Of course, all 25 whisteblower statutes prohibit employers from discharging or otherwise discriminating against employees in retaliation for their disclosure about hazards or violations of the covered laws.

Training tips for employers

Employers should keep the following in mind when designing safety and health training programs for employees:

• Training must be delivered in a language that trainees understand. If a trainee’s vocabulary is limited, employers must account for that limitation. Translators may be needed.
• Training should review employee rights under the OSH Act.
• Training should include information about how employees should report dangerous or hazardous conditions in the workplace.

• Employees who believe they have been retaliated against by their employers for reporting hazards should file a complaint with OSHA as soon as possible.
• Private-sector and USPS employees are covered under the OSH Act and in some cases, state law. Other federal employees are covered by their agencies’ procedures.

Employees who believe that their employers retaliated against them because they engaged in protected activity may contact the Occupational Safety and Health Administration (OSHA). Complaints can be filed verbally in any language by visiting the nearest OSHA office, calling 1-800-321-6742, mailing a written complaint to the closest OSHA office, or by filing a complaint online at www.osha.gov/whistleblower/WBComplaint. Learn more about how to file a complaint at www.whistleblowers.gov/complaint_page.

However, they must file any complaint within the legal time limits, and each statute may have a different time limit. The date of the postmark, fax, electronic communication, telephone call, hand delivery, delivery to a third-party commercial carrier, or in-person filing at an OSHA office is considered the date filed.

Note that whistleblower complaints under section 11(c) of the Occupational Safety and Health Act, for example, must be filed within 30 days after the alleged retaliation occurs (when the employee is notified of the retaliatory action). Complaints filed with OSHA after 30 days may be referred to the National Labor Relations Board (NLRB) for possible further action. Complaints regarding retaliation for reporting an injury or illness to an employer may also be considered for OSHA safety and health enforcement action.

When OSHA receives a complaint, the agency will first review it to determine whether certain basic requirements are met, such as whether the complaint was filed on time. If so, the complaint will be investigated in order to determine whether the employer retaliated against the employee for engaging in activity protected under one of OSHA’s whistleblower laws. The agency may also attempt to assist the employer and employee in reaching a settlement of the case.

Publication OSHA 4487, "Elements of a Whistleblower Complaint," explains that OSHA investigates complaints sharing four elements:

• Protected activity — Actions by an employee that are statutorily protected, such as reporting a potential violation, hazard, or work-related injury or illness; cooperating with a government agency; filing a complaint; or refusing to perform unsafe or illegal work.
• Employer knowledge — This exists when a person involved in or influencing the adverse action decision knows or suspects the employee engaged in protected activity, and in some cases, this can be inferred.
• Adverse action — An employer’s action that would discourage a reasonable employee from engaging in protected activity, including but not limited to: termination, lay off, demotion, overtime denial, discipline, reassignment, pay or hour reduction, and blacklisting.
• Nexus — The connection between the protected activity and adverse action.

Publication OSHA 4488, "OSHA Explains: How We Investigate Whistleblower Complaints under the OSH Act," offers a flowchart for the investigative process.

Private-sector and USPS employees

Private-sector employees throughout the United States and its territories and employees of the United States Postal Service (USPS) who suffer retaliation because of occupational safety or health activity are covered by section 11(c) of the OSH Act. In addition, private-sector employees are covered by laws in states which operate their own comprehensive occupational safety and health programs approved by federal OSHA (“state plans”). For information on the whistleblower provisions of the 29 state-plan states that cover private-sector employees, employees should visit www.osha.gov/stateplans.

Public-sector employees

With the exception of employees of the USPS, public-sector employees (those employed as municipal, county, state, territorial, or federal workers) are not covered by the OSH Act. State and local government employees are covered by the whistleblower provisions of all the states with state plans, including seven states which cover only state and local government employees.

A federal employee who is not a USPS employee and who wishes to file a complaint alleging retaliation due to disclosure of a substantial and specific danger to public health or safety or involving a violation of an occupational safety or health standard or regulation should contact the Office of Special Counsel (www.osc.gov). Such federal employees are also covered by their own agency’s procedures for remedying such retaliation.

Public-sector employees who are unsure whether they are covered under a whistleblower law should call (800) 321-6742 for assistance, or visit www.whistleblowers.gov.

• If OSHA determines an employer has retaliated against an employee in violation of the OSH Act, the Secretary of Labor may sue in federal court. If no retaliation has occurred, the complaint will be dismissed.
• If evidence supports the employee’s complaint, the employers may be required to reinstate the employee, pay lost wages, or provide other forms of relief.

If OSHA determines that retaliation in violation of the Occupational Safety and Health (OSH) Act or certain other statutes has occurred, the Secretary of Labor may sue in federal district court to obtain relief. If OSHA determines that no retaliation has occurred, it will dismiss the complaint.

However, under certain other whistleblower laws, if the evidence supports an employee’s complaint of retaliation, OSHA will issue an order requiring the employer, as appropriate, to put the employee back to work, pay lost wages, and provide other possible relief. If the evidence does not support the employee’s complaint, OSHA will dismiss the complaint.

After OSHA issues a decision, the employer and/or the employee may request a full hearing before an administrative law judge of the Department of Labor (DOL).

Appeals

The administrative law judge’s decision may be appealed to the DOL’s Administrative Review Board (ARB); in significant cases the Secretary of Labor may review the ARB decision. Aggrieved parties may seek review of final DOL decisions by the courts of appeals.

Under some of the laws, an employee may file the retaliation complaint in federal district court if the DOL has not issued a final decision within a specified number of days (180, 210 or 365 depending on the law).