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 22 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
• Demoting
• Denying overtime or promotion
• Disciplining
• Denial of benefits
• Failure to hire or rehire
• Intimidation/harassment
• Making threats
• Reassignment affecting prospects for promotion
• Reducing pay or hours

• 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 acts prohibit employers from discharging or otherwise discriminating against employees in retaliation for their disclosure to the employer or to the appropriate federal agency of safety and health hazards. They also protect employee participation in formal government proceedings in connection with safety and health hazards. The acts specifically exclude from protection the disclosure of hazards deliberately caused by an employee. Additionally, the statutes do not protect frivolous complaints. Employees have the right under the acts to refuse to work in hazardous or unsafe situations.

Since the passage of the Occupational Safety and Health (OSH) Act in 1970, Congress has expanded the Occupational Safety and Health Administration (OSHA)’s whistleblower protection authority to protect workers from discrimination under 14 federal statutes. These statutes, and the number of days employees have to file a complaint, are:

Occupational Safety and Health Act of 1970

(30 days) Provides discrimination protection for employees who exercise rights guaranteed under the act, such as filing a safety and health complaint with OSHA and participating in an inspection.

Surface Transportation Assistance Act

(180 days) Provides discrimination protections for truck drivers and other employees relating to the safety of commercial motor vehicles. Coverage includes all buses for hire and freight trucks with a gross vehicle weight greater than 10,001 pounds.

Asbestos Hazard Emergency Response Act

(90 days) Provides discrimination protection for individuals who report violations of environmental laws relating to asbestos in elementary and secondary school systems.

International Safety Container Act

(60 days) Provides discrimination protection for employees who report violations of the act, which regulates shipping containers.

Energy Reorganization Act

(180 days) Provides discrimination protection for employees of operators and subcontractors of nuclear power plants licensed by the Nuclear Regulatory Commission and for employees of contractors working under contract with the Department of Energy.

Clean Air Act

(30 days) Provides discrimination protection for employees who report violations of the act, which provides for the development and enforcement of standards regarding air quality and air pollution.

Safe Drinking Water Act

(30 days) Provides discrimination protection for employees who report violations of the act, which requires that all drinking water systems in public buildings and in new construction be lead free.

Federal Water Pollution Control Act

(30 days) Provides discrimination protection for employees who report hazardous pollution of waters that provide a natural habitat for living things. Also called the Clean Water Act.

Toxic Substances Control Act

(30 days) Provides discrimination protection for employees who report violations of regulations involving the manufacture, distribution, and use of certain toxic substances.

Solid Waste Disposal Act

(30 days) Provides discrimination protection for employees who exercise certain rights under the act, which provides assistance for the development of facilities for the recovery of energy and other resources from discarded materials and regulates hazardous waste management. Also called the Resource Conservation and Recovery Act.

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)

(30 days) Provides discrimination protection for employees who exercise rights under the act, which provides liability, compensation, cleanup, and emergency response for hazardous substances released into the environment and for the cleanup of inactive hazardous waste disposal sites.

Wendell H. Ford Aviation Investment and Reform Act for the 21st Century

(90 days) Provides discrimination protection for employees of air carriers, contractors, or subcontractors of air carriers who raise safety concerns.

Corporate and Criminal Fraud Accountability Act of 2002

(90 days) Provides discrimination protection for employees or contractors of publicly traded companies or brokerage firms who report mail, wire, bank, or securities fraud or violations of laws related to stockholder fraud. Also called the Sarbanes-Oxley Act.

Pipeline Safety Improvement Act of 2002

(180 days) Provides discrimination protection for employees who report violations of the federal law regarding pipeline safety and security or who refuse to violate such provisions.

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).

Federal law entitles employees to a safe workplace. Employers must keep the workplace free of known health and safety hazards. 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.

Training tips for employers

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

• Training should 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 should contact the Occupational Safety and Health Administration (OSHA) as soon as possible because complaints must be filed within the legal time limits.

An employee can file a complaint with OSHA by visiting or calling the local OSHA office, sending a written complaint to the closest OSHA office, or filing a complaint online. No particular form is required and complaints may be submitted in any language. Employees who wish to file a complaint electronically can visit: www.osha.gov/whistleblower/WBComplaint.html. To contact an OSHA area office, employees should call (800) 321-OSHA (6742) to be connected to the closest area office or visit www.osha.gov/html/RAmap.html to find local OSHA office address and contact information.

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. OSHA may also attempt to assist the employer and employee in reaching a settlement of the case.

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 also covered by laws in states which operate their own comprehensive occupational safety and health programs approved by federal OSHA (“State Plans”).

Federal 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-OSHA (6742) for assistance, or visit www.whistleblowers.gov.

State plans

For information on the whistleblower provisions of the 22 State Plan states that cover private-sector employees, employees should visit www.osha.gov/dcsp/osp. 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 six states which cover only state and local government employees.

• 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 the Occupational Safety and Health Administration (OSHA) determines that retaliation in violation of the Occupational Safety and Health (OSH) Act, Asbestos Hazard Emergency Response Act, or the International Safe Container Act 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. Under the remaining 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.

Employers penalties

When a violation has occurred, the employer is notified of the violation determination and efforts are made to conciliate the situation. The employer may appeal a violation determination to an administrative law judge, if done within five calendar days of the notification of the determination. The administrative law judge’s decision is referred to the Secretary of Labor for a final order.

The Secretary may affirm or set aside the administrative law judge’s decision. Where the Secretary concludes that a violation has occurred, the final order may instruct the employer to take affirmative action to abate the violation and provide for appropriate relief, which may include restoration of back pay, employment status, and benefits. The Secretary may also order the employer to provide compensatory damages to the employee.

Appeals

If dissatisfied with the Secretary’s decision, the employer may appeal in federal court. Final determinations on violations are enforceable through the courts.

The employee is entitled to similar appeal rights under the Acts. Under some of the laws, an employee may file the retaliation complaint in the federal district court if the Department of Labor has not issued a final decision within a specified number of days (180, 210 or 365 depending on the law).