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Retaliation Under the Occupational Safety and Health Act of 1970

Occupational Safety and Health Act of 1970 and the Occupational Safety and Health Administration

The Occupational Safety and Health Act of 1970 (“OSH Act”) is a federal law that works to ensure “so far as possible [that] every working man and woman in the Nation [has] safe and healthful working conditions. . .” The OSH Act created the U.S. Department of Labor, Occupational Safety and Health Administration (“OSHA”), which enforces the OSH Act, in addition to other federal laws relating to work-place related health and safety issues. OSHA’s mission is to “assure safe and healthy working conditions for working men and women by setting and enforcing standards and by providing training, outreach, education, and assistance.”

In addition to regulating work-place health and safety through setting and enforcing standards and providing training, outreach, education, and assistance, the OSH Act provides, and OSHA enforces, certain provisions relating to protections for whistleblowers. Similar to other federal laws relating to individual employment, the OSH Act protects individuals who report violations under the OSH Act from employer retaliation.

Retaliation is prohibited under the OSH Act

Pursuant to the OSH Act, an employer shall not discharge or in any manner discriminate against any employee because such employee has engaged in one (1) or more of the following: (i) filed a complaint; (ii) instituted or caused to be instituted a proceeding relating to the OSH Act; (iii) has testified or is about to testify in any such proceeding; and/or (iv) because the employee, on his or another’s behalf, exercised any right provided by the OSH Act.

Further clarification for each type of protected activity is provided in the OSH Act regulations. A “complaint” can include, but is not limited to, requesting inspection; complaints submitted to certain other federal, state, or local agencies; complaints submitted to the employer if made in good faith; and a range of additional types that fall in line with the broad interpretation afforded to this provision. Examples of types of “proceedings” that an employee could be protected for instituting or causing to be instituted, whether directly or indirectly, include but are not limited to worksite inspections, contesting abatement date, initiation of proceedings for promulgation of an occupational safety and health standard, application for modification of revocation of a variance, judicial challenge to a standard of the OSH Act, and/or an appeal of an Occupational Safety and Health Review Commission order.

“Testimony” that would be protected under the OSH Act is not limited to testimony given in proceedings that were instituted or caused to be instituted by an employee. Rather, statements given in the course of judicial, quasi-judicial, and/or administrative proceedings, including inspections, investigations, and administrate rule making or adjudicative functions are also protected. This applies even if the employee is about to give testimony, but has not yet done so. Finally, the OSH Act protects an employee who exercises any other right provided thereunder. As such, protection is afforded to employees for exercising rights that are articulated in other sections of the OSH Act.

Seeking Redress for Retaliation

If an employer discharges or otherwise discriminates against an employee for exercising his/her rights under the OSH Act, an employee can seek redress for such actions. Within thirty (30) days of the employer engaging in retaliatory conduct, an employee can file a complaint for the Secretary of Labor’s review and investigation. A complaint does not have to be in any specific format and can be submitted either verbally or in writing. However, OSHA does provide certain resources for submission of a complaint, including contact information and a complaint form. Once completed, the complaint should be filed with the OSHA Area Director who is responsible for enforcement activities in the geographical area where the employee resides and/or was employed.

The Secretary of Labor will then investigate the complaint and, within ninety (90) days of receipt, should, but is not necessarily required to, notify the employee of the determination. If the Secretary of Labor determines certain OSH Act provisions have been violated, the Secretary of Labor can then file a lawsuit in a U.S. District Court. The Court can thereafter restrain any such violations and order appropriate relief including rehiring or reinstatement with back pay. Out-of-court resolutions through mediation may also be available.

Can an employee file a lawsuit without OSHA and the Secretary of Labor?

Although an employee can submit a complaint for the Secretary of Labor’s review and the Secretary of Labor can file a lawsuit on the employee’s behalf if a violation(s) is discovered, an employee cannot file a lawsuit independently. Otherwise stated, there is no private right of action for an employee under the OSH Act. However, other federal laws administered and enforced by OSHA may permit a private right of action where the OSH Act does not.

If you feel your rights have been violated, you are not safe in your work environment, or if you have any other questions regarding your employment rights, please contact the experienced Birmingham employment law attorneys at Wrady Michel & King. You can contact us either online or by calling us at (205) 319-9724. We are here to serve you.