Employment Law: Protection For Workplace Safety Whistleblowers

Section 11(c) of the Occupational Safety and Health Act, 29 U.S.C.S. § 660, provides that an employee cannot be fired or discriminated against because the employee began a proceeding under the Occupational Safety and Health Act or testified in such a proceeding. This protection covers any private-sector employee of an employer whose business affects interstate commerce.

Except for employees of the U.S. Postal Service, public sector employees – including local, county, state and federal employees – are not covered by Section 11(c). However, by executive order and OSHA regulation, federal agencies do have procedures for protecting federal employees who report worker safety concerns and allege discrimination due to such reporting. Also, parallel state plans may protect local, county and state employees.

OSHA regulations concerning the administration of Section 11(c) may be found at 29 C.F.R. 1977.

Section 11(c) protects activities in five categories:

  1. Occupational safety and health complaints filed with OSHA or other government agencies
  2. Safety complaints communicated to the employee’s supervisor or higher management at the company
  3. Participation in an inspection by OSHA or in any other proceeding under the Occupational Safety and Health Act
  4. Giving testimony in a judicial or administrative proceeding
  5. Refusing to carry out any assignment that the employee reasonably believes presents a danger of death or serious injury

Complaint Procedure

If an employee believes he or she has been discriminated against due to engaging in a protected activity described above, the employee may file a complaint with OSHA in any form, including mail, facsimile, telephone call or conversation. OSHA will put the complaint on its form OSHA-82 or 87, and that form then will be provided to the employer, with the identity of any witnesses deleted if necessary.

A complaint of discrimination due to whistleblowing on employee safety concerns must be filed within 30 days of the date on which the person making the complaint was notified of the adverse action that makes up the discrimination. If the discrimination is of a continuing type, the complaint must be filed within 30 days of the last day of the continuing discrimination.

State Standards

States may establish their own occupational safety and health standards. A state plan for development and enforcement of standards may be submitted to the Secretary of Labor, who in turn may approve the state plans if they have standards at least as stringent as OSHA’s. In those states with approved state plans, an employee may file an occupational safety and health discrimination complaint with either the federal or the state office.

Jurisdiction of a state plan covers employees of all private-sector employers and all state and local government employees. OSHA normally will refer complaints that it receives which are under state plan jurisdiction to the state for further handling. If the state’s handling of the complaint is considered deficient, OSHA may assume jurisdiction again and issue its own determination. If an employee alleging discrimination does not want his or her complaint investigated by a state, the complaint will be considered by OSHA and investigated without state involvement.