Employees are put in an awkward position when their organizations knowingly violate safety laws and regulations. On the one hand, they have the right to a safe work environment wherein all potential hazards are eliminated or minimized, but many are uncomfortable with bringing up safety issues with management for fear of retaliation or appearing disloyal to the company. To combat this fear, OSHA’s whistleblower protection programs provide employees with an avenue for reporting safety violations, while prohibiting their supervisors or organizations from responding with adverse actions against the whistleblower. These retaliations, which are covered under 22 Federal laws spanning a variety of industries, include:
- Denying overtime or promotion
- Denying benefits
- Failing to hire or rehire
- Intimidation and threats
- Reassignment to less desirable positions
- Reducing pay or hours
Individuals who believe that their employers have discriminated against them because they exercised their right to report a violation can file a complaint with OSHA within specified legal time limits. OSHA will then investigate the validity of the claim and take appropriate action. In order to determine that a retaliatory action occurred, the investigation must reveal that:
- The employee engaged in protected activity
- The employer knew about or suspected the protected activity
- The employer took an adverse action
- The protected activity motivated or contributed to the adverse action
Should the evidence support the employee’s claim, the first course of action is an attempt to settle the matter between the organization and the employee. If a settlement cannot be reached, OSHA will issue an order which may involve reinstatement, paying back wages, restoring benefits, and other reparations. Employers who fail to immediately adhere to an order can be hit with further legal action.
Although these programs are critical for maintaining employee rights and safety, they do have their pitfalls; not with the programs themselves, but with the whistleblowers. I applaud whistleblowers’ courage for being a voice against workplace safety negligence, as this is at times a necessary means for exposing violations and keeping themselves and their coworkers safe. However, it does appear that some are overstepping their rights by making false or inaccurate claims about retaliatory actions by the organization.
For the 2014 fiscal year, OSHA received 3,060 whistleblower complaints, a number that has steadily risen every year since 2005, during which there were 1,934 complaints. Concerning completed investigations, OSHA reports 3,271 complaint determinations in 2014. This is where things become interesting. Among these:
- 746 cases (22.8%) were settled between the employer and employee or via use of a third party authority
- 64 cases (2.0%) were found to be merited
- 99 cases (3.0%) were “kick-outs,” in which the complainant requests a de novo review of the complaint, which is forwarded to a Federal district court
- 710 cases (21.7%) were withdrawn by the employee
- 1,652 cases (50.5%) were dismissed by OSHA
Two key points come out of these statistics. First, over 72% of cases were either withdrawn or dismissed, meaning nearly three out of every four complaints is unmerited. However, OSHA investigates every complaint because they must assume that the potential for merit exists. Thus, a great deal of time and money is spent just to determine that there was no wrongdoing by the organization. That said, the percentage of unmerited claims has remained stable since 2005. Although the minority of claims are merited, the number of complaints has gone up every year, meaning that the actual number of merited cases of adverse actions is going up as well.
There is plenty of room for improvement on both sides of this issue. We are interested to hear what our readers think about this controversial issue, so we encourage you to share your experiences in the comment section.