by Rod Smith, Pat Miller and Matt Morrison
As part of its increased emphasis on enforcement, OSHA is taking steps to strengthen employee whistleblower rights, including taking a critical look at employer safety incentive programs which have the potential to discourage employees from reporting injuries or safety complaints.
OSHA not only requires employers to comply with a wide variety of safety and health standards, but also prohibits employers from retaliating against employees for exercising their rights under Section 11(c) the OSHA Act. Those rights include: filing a complaint with OSHA, reporting unsafe work conditions or injuries to the employer or participating in an OSHA inspection. Discrimination or retaliation can take many forms including termination, discipline, reassignment or threats. OSHA enforces the whistleblower protections of the law through a complaint and investigation process separate from that involving safety and health violations. OSHA also enforces the whistleblower protection provisions of 20 other federal laws including environmental, transportation, consumer, and investor protection laws.
OSHA's push for greater whistleblower participation and protection is evident from several recent developments:
- OSHA's revised job site poster - required of all employers - now prominently advises employees of their rights to file safety complaints, request OSHA inspections and make whistleblower claims.
- The training requirements for OSHA's approved 10 and 30 hour safety courses - used by thousands of employers in construction and general industry - have been revised to mandate more instruction on the exercise of employee rights in the workplace, including step-by-step instructions for filing an OSHA complaint.
- An increase in the number of OSHA retaliation complaints. In June 2012, OSHA found the Norfolk Southern Railway in violation of similar anti-retaliation provisions found in the federal Railroad Safety Act when it terminated three employees who reported injuries. Damages of more than $800,000 were assessed.
One of the more controversial and little-noticed whistleblower developments is a March 2012 OSHA Memorandum addressing employer safety incentive and disincentive policies, and how they might violate OSHA's retaliation protections. In the Memorandum, OSHA lists several scenarios where safety incentive and disincentive programs should be carefully scrutinized:
- Taking disciplinary action against all employees who are injured on the job regardless of fault.
- Disciplining employees who report an injury or illness in an untimely manner where the reporting requirements or discipline are unduly harsh.
- Taking disciplinary action against employees injured as the result of safety rule violations where the reporting requirements or discipline are unreasonable or unduly harsh.
- Safety award programs that directly or indirectly provide employees with an incentive not to report injuries and illnesses, such as paying a bonus to a team of employees who work a set period of time without a reportable injury, or supervisory bonuses linked to lower injury rates. Instead, OSHA recommends some form of recognition not tied to injury and illness reporting such as giving T-shirts to employees working on safety and health committees or throwing a party following the completion of safety and health training.
The Memorandum notes that some of the scenarios not only have the potential to inhibit the exercise of employee rights under Section 11(c) of the OSHA Act, but are also inconsistent with the employer's obligation to make certain that all workplace injuries and illnesses are reported on the OSHA 300 Log. The Memorandum advises that such cases may be investigated for recordkeeping violations.
Some of OSHA's scenarios may reflect violations - such as disciplining all employees injured on the job regardless of fault - but others, in our opinion, do not. Requiring employees to promptly report all work-related injuries and illnesses or taking disciplinary action against employees who violate safety rules are standard elements of an effective safety program, which OSHA itself often advocates. Indeed, many state workers' compensation laws require employees to promptly report work-related injuries. Safety incentives are designed to reward safe behaviors (or penalize unsafe behaviors) and have been part and parcel of many safety and heath programs for years. OSHA's intrusion into policies best left to human resource management or collective bargaining is unwarranted and, in our view, there is no reason why an employer cannot fully protect and promote employee rights under the law while at the same time implementing effective safety incentive programs.
It is important to recognize that OSHA's Memorandum is only informal guidance to its inspectors and investigators, not new legal requirements for employers. To date, we have seen very few OSHA investigations where safety incentive programs are called into question. No court has ruled that safety incentive programs, standing alone, violate employee rights under the OSHA Act. In our view, the Memorandum reflects a new enforcement direction in support of OSHA's increased emphasis on whistleblower protection. Several cases testing this novel theory of liability may be required before the dust settles.
Nonetheless, employers are well advised to keep an eye on OSHA's whistleblower developments, and to take steps to avoid unnecessary retaliation claims or investigations. Here are some tips:
- Any employee policy, including safety incentive programs, can become legally suspect when it is enforced in a discriminatory or arbitrary manner or when the policy becomes a "pretext" or sham excuse for retaliation against the employee. Make sure all safety incentive programs are administered in a fair and consistent manner.
- Be alert to any situation where employees are in fact discouraged or prohibited from reporting workplace injuries and illnesses and take appropriate action. These situations could include simple employee misunderstandings about injury reporting requirements or, at the other extreme, supervisors not allowing employees to report injuries. If a paid safety bonus is causing employees to avoid reporting, then that bonus program should be reevaluated.
- Make certain your company's safety and health program, employee handbook or training materials clearly spell out the employee's obligation to report work-related injuries in a timely manner. Clearly spell out the company's disciplinary policy for safety infractions. Also make clear that, by law, no employee will be retaliated or discriminated against for reporting injuries or illnesses or making safety complaints. Repeat this message as necessary through periodic safety meetings or tool box talks.
- Remember that OSHA's recordkeeping rules require employers to set up a procedure for employees to report work-related injuries and illnesses. 29 C.F.R. §1904.35(b). Make sure this procedure is in place, communicated to employees, and that all recordable injuries are correctly and timely logged on the OSHA 300 form.
- Although employees always have the legal right to call OSHA, employee safety concerns are better addressed through direct contact with management. Encourage your employees to promptly report any safety and health concerns to their immediate supervisors or, as applicable, safety personnel and upper management.
Make certain supervisors are properly trained on OSHA's whistleblower requirements including the various forms of "protected activity," the various types of illegal retaliation under the law, and what to do when faced with an OSHA whistleblowing complaint or investigation.
Rodney Smith, Pat Miller, Chuck Newcom and Matt Morrison are part of Sherman & Howard's Labor & Employment Law Department, practicing in the areas of occupational safety and health law. They routinely appear before the federal Occupational Safety and Health Review Commission, the federal Mine Safety and Health Review Commission, and state occupational safety and health boards.
For more information please contact one of the members of the OSHA Practice Group.
Sherman & Howard has prepared this advisory to provide general information on recent legal developments that may be of interest. This advisory does not provide legal advice for any specific situation and does not create an attorney-client relationship between any reader and the Firm.
©2012 Sherman & Howard L.L.C. June 22, 2012