The Occupational Health and Safety Act, passed in 1970, requires employers to provide a healthy and safe workplace for their employees. The Act is enforced by the Occupational Safety and Health Administration (OSHA) which takes employee complaints about hazardous workplaces and conducts on-site inspections.
The Act gives employees the right to notify their employers or OSHA about an unsafe workplace and to request an on-site inspection. However, what can an employee do if his employer retaliates against him for filing a complaint? Does the Act offer any protections for whistleblowers?
To encourage employees to file complaints to OSHA and to prevent employers from intimidating their employees into silence, the Act prohibits an employer from retaliating or discriminating against an employee who has notified OSHA of a potential workplace health and safety violation.
Unlawful retaliation occurs when an employee actually participates in an OSHA proceeding, the employer learns of this action, and, as a result of the employee’s participation, the employee suffers an adverse employment action.
Take, for example, an industrial worker who files a complaint with OSHA that his employer is not properly storing explosives on the job-site. If the employer learns of the worker’s complaint and then proceeds to fire him because he notified OSHA of the violation, the employer has wrongfully retaliated against the employee. Participation in an OSHA proceeding is not limited to filing a complaint. It can include testifying in a proceeding or requesting an on-site inspection.
Similarly, an adverse employment action is not limited to being fired. A reduction in pay or job duties could also be an adverse employment action. Usually, an action that costs an employee money is adverse. The standard used is whether a reasonable employee would think that the action is materially adverse such that he would be discouraged from making his complaint.
As mentioned above, a reduction in pay or job duties would be materially adverse, but so would a change in supervisor, harassment, or creating a hostile work environment. For example, an employer giving an employee additional work and demeaning or humiliating assignment would be an adverse employment action.