In the last blog, we took a look data showing a decrease in OSHA workplace safety and health inspections in 2016. Although this may be true for safety and health inspections, it is certainly not for whistle-blower investigations which continue to rise. Some may not be aware that OSHA enforces and investigates claims under 22 different federal whistleblowing laws including, among others, Section 11(c) of the OSH Act, the Safe Drinking Water Act, Sarbanes-Oxley, the Surface Transportation Assistance Act and the Consumer Financial Protection Act of 2010.
OSHA continues to be very active in whistle-blowing prosecution including anti-retaliation cases. Some of these activities include the following press releases:
- January 14, 2017 – OSHA issues recommended practices to promote workplace anti-retaliation programs
- December 14, 2016 – OSHA issues final rule establishing procedures for handling retaliation complaints from workers in the automotive industry
- October 12, 2016 – OSHA issues final rule establishing procedures for handling retaliation complaints under the Affordable Care Act
- September 16, 2016 – OSHA issues final rule establishing procedures for handling retaliation complaints under the Seaman’s Protection Act
- September 15, 2016 – OSHA issues new guidance in settlement approval in whistleblower cases
- August 16, 2016 – OSHA pilots new, expedited whistleblower review process
- April 18, 2016 – OSHA issues final rule establishing procedures for handling retaliation complaints under the Food Safety Modernization Act
OSHA’s website also shows aggressive prosecution of retaliation cases affecting many different industries.
OSHA’s new anti-retaliation rule took effect December 1, 2016. The rule prohibits employers from discouraging workers from reporting an injury or illness, requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation (which can be satisfied by posting the already-required OSHA workplace poster) and clarifies the existing implicit requirement that an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not discourage reporting. The rule also incorporates the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses.
Although the rule has been challenged by a group consisting of several trade associations, a Texas court recently denied a request to temporarily enjoin the rule. The possibility still remains though that the rule may ultimately be struck down.
In fact, on January 19, 2017, OSHA filed a whistle-blower case against a television ministry and its pastor alleging that two workers who were married to each other were wrongly dismissed because, in part, of Facebook posts raising on-the-job concerns. It appears to be the first time OSHA has used Facebook as a basis for retaliation.
Regardless of whether safety and health inspections will continue to shrink under the new administration, it seems unlikely that these complaints decrease or that OSHA would limit prosecution of these cases although staffing issues may cause delays in certain investigations.
Employers would be wise to ensure that they have properly drafted anti-retaliation provisions in place and that they comply with the new rule.