OSHA’s Whistleblower Protection Program enforces the whistleblower provisions of more than 20 whistleblower statutes protecting employees from retaliation for reporting violations of various workplace safety and health, airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health insurance reform, motor vehicle safety, nuclear, pipeline, public transportation agency, railroad, maritime, securities, tax, antitrust, and anti-money laundering laws and for engaging in other related protected activities.
Protection from Workplace Retaliation
An employer cannot take an adverse action against employees, such as: firing or laying off, demoting, denying overtime or promotion, or reducing pay or hours, for engaging in activities protected by OSHA’s whistleblower laws.
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The whistleblower laws that OSHA enforces prohibit employers from retaliating against employees for engaging in activities protected under those laws.
What is retaliation?
Retaliation occurs when an employer (through a manager, supervisor, or administrator) fires an employee or takes any other type of adverse action against an employee for engaging in protected activity.
What is an adverse action?
An adverse action is an action which would dissuade a reasonable employee from raising a concern about a possible violation or engaging in other related protected activity. Retaliation harms individual employees and can have a negative impact on overall employee morale. Because an adverse action can be subtle, such as excluding employees from important meetings, it may not always be easy to recognize.
Adverse actions may include actions such as:
Firing or laying off
Denying overtime or promotion
Failing to hire or rehire
Intimidation or harassment
Reassignment to a less desirable position or actions affecting prospects for promotion (such as excluding an employee from training meetings)
Reducing or changing pay or hours
More subtle actions, such as isolating, ostracizing, mocking, or falsely accusing the employee of poor performance
Blacklisting (intentionally interfering with an employee’s ability to obtain future employment)
Constructive discharge (quitting when an employer makes working conditions intolerable due to the employee's protected activity)
Reporting or threatening to report an employee to the police or immigration authorities
Are temporary workers protected from retaliation?
When a staffing agency supplies temporary workers to a business, both the staffing agency and its client (commonly referred to as the host employer) may be held legally responsible for retaliating against workers. For additional information on whistleblower protection rights of temporary workers, please see OSHA's Temporary Worker Initiative Bulletin No. 3 – Whistleblower Protection Rights.
What is an example of retaliation?
A worker informed her employer that she called OSHA because she believed there was a fire hazard that her employer refused to fix. The worker had reported the fire hazard previously to her employer. A workplace practice existed which allowed all employees to swap shifts if they needed to take time off. The worker tried to swap shifts a few days after she told her employer that she called OSHA, but her employer did not allow her to swap. However, the other employees were still allowed to swap shifts.
Workers have a right to call OSHA to report an unsafe condition. Section 11(c) of the Occupational Safety and Health Act protects workers who file complaints with OSHA. By calling OSHA to complain about the fire hazard, the worker engaged in protected activity under one of the whistleblower laws administered by OSHA. She informed her employer that she called OSHA. Her employer denied her shift swap only a few days after being notified that she called OSHA. In addition, she was the only employee denied the ability to swap shifts. The denial of the shift swap is an adverse action. And, in this case, it appears that her employer denied her shift swap because she engaged in the protected activity. If the employer denied her request to swap because she called OSHA, then retaliation has occurred and the employer’s actions violated section 11(c) of the Occupational Safety and Health Act.
How to File a Whistleblower Complaint
You have the right to file a whistleblower complaint with OSHA if you believe your employer retaliated against you for exercising your rights as an employee under the whistleblower protection laws enforced by OSHA. In States with OSHA-approved State Plans, employees may file complaints under section 11(c) of the Occupational Safety and Health Act with Federal OSHA and with the State Plan under its equivalent statutory provision.
Time Limits for Filing a Complaint
OSHA administers more than 20 whistleblower statutes, with varying time limits for filing. The time frame for filing a complaint begins when the adverse action, such as a firing, occurs and is communicated to the employee. The varying time frames are as follows:
Section 11(c) of the Occupational Safety and Health Act (OSH Act)
Clean Air Act (CAA)
Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)
Federal Water Pollution Control Act (FWPCA)
Safe Drinking Water Act (SDWA)
Solid Waste Disposal Act (SWDA)
Toxic Substances Control Act (TSCA)
International Safe Container Act (ISCA)
Anti-Money Laundering Act (AMLA)
Asbestos Hazard Emergency Response Act (AHERA)
Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21)
Affordable Care Act (ACA)
Consumer Financial Protection Act (CFPA)
Consumer Product Safety Improvement Act (CPSIA)
Criminal Antitrust Anti-Retaliation Act (CAARA)
Energy Reorganization Act of 1974, as amended by the Energy Policy Act of 2005 (ERA)
Federal Railroad Safety Act (FRA)
FDA Food Safety Modernization Act (FSMA)
Moving Ahead for Progress in the 21st Century Act (MAP-21)
You may file your whistleblower complaint using any of these filing options:
Online - Use the Online Whistleblower Complaint Form to submit your complaint to OSHA. Complaints received online from employees located in States with OSHA-approved State Plans will be forwarded to the appropriate State Plan for response.
Fax/Mail/Email – Fax, mail, or email a letter describing your complaint, or a printed copy of your completed Online Whistleblower Complaint Form to your local OSHA Regional or Area Office. Please make sure that your correspondence includes your name, mailing address, email address, and telephone or fax number so we can contact you to follow up.
If you would like more information on how to file a safety and health complaint, see OSHA’s File a Complaint page.
Helpful Information to Have When You File a Complaint
None of these items are required, but they are helpful to the investigator who will be investigating your complaint:
Documentation regarding additional complaints, such as a safety or health complaint or other statutorily protected complaint with OSHA or another enforcement agency
Copies of any relevant, lawfully obtained documents, such as emails, phone records, text messages, activity logs, meeting notes, work orders, letters, or memoranda, related to your complaint
Copies of any hiring and/or termination letters
A copy of the employer’s handbook for employees and/or collective bargaining agreement
Copies of any disciplinary action(s) that you received during your employment
A current description of your job
A list of names and telephone numbers of the potential witnesses who can confirm your allegations. Please include a brief summary of what you believe each witness may know.
The names, titles, and contact information for the management officials who made the personnel decision that you are complaining about
The names, titles, and contact information for the individuals who processed the paperwork regarding the personnel decision at issue (secretarial, clerical, or human resources personnel)
Copies of your last five (5) pay stubs
Copies of documents from any other proceedings (for example, EEOC complaints or lawsuits) between you and the company
Copies of all documents from unemployment or worker’s compensation proceedings related to the incident(s) discussed in your complaint
OSHA conducts an interview of each complainant to determine the need for an investigation. If OSHA conducts an investigation, it will also obtain information from the employer and witnesses as needed. If evidence supports the employee’s claim of retaliation, OSHA will take action that may include requiring the employer to restore the employee’s job, earnings, and benefits, as well as granting other appropriate relief. Additional information about the investigation can be found here.
Employers can create workplaces in which workers feel comfortable voicing their concerns without fear of retaliation. There are five key elements to creating an effective anti-retaliation program or enhancing an existing one. Click below for more information.
What to Expect During a Whistleblower Investigation
Filing a Complaint
An employee, or his or her representative, can file a whistleblower complaint with OSHA via mail, fax, telephone, in person, or online, against an employer for unlawful retaliation. During the investigation, the employee who files the complaint is referred to as "the Complainant," and the employer, against whom the complaint is filed, is referred to as "the Respondent." Neither side is required to retain an attorney, but if a party designates a representative, the designee will serve as the point of contact with OSHA.
It is imperative for the Complainant or his or her representative to provide OSHA with current contact information. Failure to do so may cause OSHA to conclude the investigation.
OSHA will interview the Complainant to obtain information about the alleged retaliation, and will determine whether the allegation is sufficient to initiate an investigation under one or more of the whistleblower protection statutes administered by OSHA. Regardless of the statute under which the complaint is filed, the conduct of the investigation is generally the same.
If the allegation is sufficient to proceed with an investigation, the complaint will be assigned to an OSHA whistleblower Investigator who is a neutral fact-finder who does not represent either party. The investigator will notify the Complainant, Respondent, and appropriate federal partner agency that OSHA has opened an investigation.
The Complainant and the Respondent should keep any potential evidence regarding the circumstances of the allegations, including all pertinent emails, letters, notes, text messages, voicemails, phone logs, personnel files, contracts, work products, and meeting minutes.
OSHA will request that both parties provide each other with a copy of all submissions they have made to OSHA related to the complaint. Both the Complainant and the Respondent should provide contact information for witnesses who could support or refute the alleged retaliation.
OSHA will ask the Respondent to provide a written defense to the allegations, also known as a position statement. Both parties are expected to actively participate in the investigation and to respond to OSHA's requests. Both parties are also given an opportunity to rebut the opposing party's position.
Whistleblower investigations vary in length of time. The parties may settle the retaliation complaint at any point in the investigation either through OSHA's Alternative Dispute Resolution (ADR) program, with the assistance of the assigned investigator, or through their own negotiated settlement that OSHA approves.
Under certain statutes, the Complainant may "kick out" and file the retaliation complaint in federal district court if there is no final order and a specified time from the filing of the complaint with OSHA has passed (180 or 210 days depending on the statute).
Conclusion of the Investigation
At the conclusion of the investigation, the investigator will make a recommendation to his/her supervisor regarding whether the evidence provides reasonable cause to believe that the Respondent violated the specific statute in question. If the supervisor and management concur with the merit or dismissal recommendation, OSHA will issue a findings letter to both parties, which will include information about remedies1 (if appropriate) and the right to object and have the case heard by an administrative law judge, except in cases under section 11(c), AHERA, or ISCA. In those cases, Complainants may request review by OSHA's National Office of dismissal decisions. In merit section 11(c), AHERA, or ISCA cases, unless a settlement is reached, the Department of Labor would have to file a complaint in district court to remedy the retaliation.