In 2007, an employee of an Alaska-based contractor filed a complaint alleging retaliation by the contractor in violation of Section 11(c) of the Occupational Safety and Health (OSH) Act. Section 11(c), in part, says “No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act …” Here’s the scenario before that: The employee expressed safety concerns to the upper management after observing two dangerous on-the-job explosions. Shortly after that, reports say that the employee was laid off and barred from re-hire. OSHA did an investigation on it and deemed that the worker’s complaint had merit. OSHA then notified the employer, Bering Sea Eccotech. However, the employer refused to reinstate the worker and even refused to pay back wages or other benefits.
Two years after, specifically early this month, OSHA has filed a whistleblower suit on behalf of the former employee. Aside from reinstating the employee and securing compensatory damages and lost wages, the suit is also requiring the contractor to post a notice that explains employee rights under Section 11(c) of the OSH Act. The notice is supposed to be posted for 60 days.
If you are a worker trying to make your workplace safer, how can you protect yourself from experiencing such discrimination?
If you are wondering how you could ever point out safety concerns without being terminated, OSHA has a program just for you. It is called The Whistleblower Protection Program.
As mentioned in Section 11(c) of the OHS Act, no employee is to be discharged by his employer just because he is exercising his right as specified in the Act. Two of these rights are to complain to OSHA and to seek an OSHA inspection. Others are to participate in an OSHA inspection and to testify in any proceeding related to an OSHA inspection. There are whistleblowing provisions in 16 statutes that will protect you in case you report violations of various trucking airline, nuclear power, pipeline, environmental, rail, consumer product and securities law.
In the San Diego whistleblower case, the worker reported safety concerns after he had observed two dangerous explosions. As a concerned employee, his response was to report the incidents to the management. Having probably been disappointed with the response of his employer, he sought and had the right to COMPLAIN to OSHA. If you are also to do a similar action, be aware that you are required to show that
- you are engaged in protected activity
- the employer knew about that activity
- the employer subjected you to an adverse employment action, meaning a material change in the terms or conditions of employment and
- the protected activity contributed to the adverse action
How do I know if I’m already discriminated?
OSHA has a list of actions that can be considered as “discrimination.” The list includes:
- firing or laying off
- blacklisting
- demoting
- denying overtime or promotion
- disciplining
- denial of benefits
- failure to hire or rehire
- intimidation
- reassignment affecting prospects for promotion and
- reducing pay or hours
If you experience any of these forms of discrimination, do not hesitate to call OSHA. You may do that by contacting your local OSHA office. Remember, you have 30 days after the discrimination happens to file a complaint. So after assessing that your case meets the requirements, file your complaint immediately.
How do I file a complaint?
Aside from those mentioned above, you need to remember that there are laws that have different deadlines from that of OSHA’s so make sure you check that first. Also, depending on the statute, you may need to put your complaint in writing. After your complaint has been filed, you will be interviewed by OSHA to determine if your case needs investigation.
The law is meant to keep things in order so if you’re following it, you should know that you’re on the right track. As the best-selling Book says, “We know that the law is good if one uses it properly.”
