Q: What types of whistleblower complaints does OSHA investigate?
A: OSHA enforces more than 20 whistleblower laws 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, and securities laws and for engaging in activities related to those laws. The complete list of whistleblower laws administered by OSHA can be found here.
Q: What activities are protected under the whistleblower laws enforced by OSHA?
A: Employees have the right to engage in “protected activity.” Different activities are protected under each whistleblower law. Generally, protected activities include reporting conduct that the employee reasonably believes violates a relevant federal law, filing a complaint about a violation, and testifying, assisting, or participating in a proceeding related to a violation. In general, these protected activities include internal reporting of concerns to the employer, as well as reporting issues to relevant federal, state, or local regulatory agencies or law enforcement.
In some instances, OSHA’s whistleblower laws may provide even broader protection. For example, Section 11(c) of the Occupational Safety and Health Act bans retaliation against employees for reporting injuries, illnesses, or unsafe conditions to their employers, participating in OSHA inspections, and, under certain conditions, refusing to work when there is reasonable fear of death or serious injury. Information about protected activity under specific laws can be found here.
Q: Is an employee protected from retaliation for reporting conduct that the employee mistakenly believes is unlawful?
A: Yes. As long as the employee had a reasonable, good faith belief that a violation occurred or could occur, the reporting is generally considered protected activity.
Q: What is retaliation?
A: Retaliation is taking an adverse action against an employee for engaging in protected activity. Adverse action can include:
- Firing or laying off
- Denying overtime or promotion
- Reducing pay or hours
- Giving an employee a reassignment that affects his or her prospects for promotion
- Denying benefits
- Failing to hire or rehire
- Blacklisting (intentionally interfering with an employee’s ability to obtain future employment)
- Making threats
Q: What elements must OSHA find to determine that retaliation in violation of a whistleblower law took place?
A: To find that unlawful retaliation took place, OSHA must determine that:
- The employee engaged in protected activity under one of OSHA’s whistleblower laws; and
- The employer knew about or suspected the protected activity; and
- The employer took an adverse action; and
- The protected activity caused the adverse action.
The precise standard for determining causation that OSHA uses in a case varies depending on the specific whistleblower law that applies to an employee’s complaint. More information about the standards that OSHA applies for determining whether retaliation occurred can be found in OSHA’s Whistleblower Investigations Manual.
Q: Do employees have any recourse under federal laws not enforced by OSHA for retaliation due to occupational safety or health activity?
A: Possibly. Depending on the facts of the case, laws enforced by other federal agencies may be applicable. For example, if the safety or health activity was undertaken with or on behalf of co-workers, including, but not limited to, the filing of a grievance under a collective bargaining agreement (“concerted activity”), the complainant may file a charge with the National Labor Relations Board (NLRB) within six months of the adverse action.
Q: Can public sector employees file whistleblower complaints with OSHA?
A: Under Section 11(c) of the OSH Act, public sector employees, with the exception of Postal Service, are not covered. Other OSHA whistleblower laws may protect federal, state, and/or local government employees depending on the circumstances. More information about employee coverage under the whistleblower statutes enforced by OSHA is available here.