In October 2012, the U.S. Occupational Safety and Health Administration announced that it had obtained a consent judgment against Parker Medical Inc., a manufacturer of X-ray devices, for discharging an employee a few days after he filed a complaint with OSHA. Parker Medical agreed to pay the discharged employee $12,000 in back wages and interest, display the OSHA poster with information about whistleblower rights in its workplace, expunge the employee's personnel record of all references to the situation and provide a neutral job reference. 

This case is part of a nationwide trend that may have a severe impact on all manufacturers, and machining operations specifically, due to the high level of focus on safety required in these industries. Over the last several years, as part of a “multifaceted plan for strengthening the enforcement of 21 whistleblower laws,” OSHA has restructured its whistleblower program and has made changes to its program policy, training and internal systems.

For example, recently OSHA announced that its Office of the Whistleblower Protection Program would report directly to the much higher-profile Dept. of Labor’s Office of the Assistant Secretary, rather than the Directorate of Enforcement Programs.  The DOL called the restructuring a “significantly elevated priority status for whistleblower enforcement.”

When we read about “whistle blowing” we tend to think about big banks and white-collar crime. But OSHA’s initiative very clearly extends the possibilities to metalworking companies, as the Parker Medical case demonstrated. Employers need to understand what these changes are and how to take proactive steps to avoid potential investigations and ensure that they have defensible policies in place should an investigation arise.

OSHA Whistleblower Law

As is well recognized, under the Occupational Safety & Health Act of 1970 (“the Act”), employers must provide a “safe and healthful workplace.” Employers not only need to comply with all the relevant OSHA standards, such as those on fall protection or the guarding of certain equipment, but they are also required to comply with the General Duty Clause of the Act, which requires employers to make sure that their workplaces do not have any “serious recognized hazards.”

Also, employers must alert workers about hazards, keep accurate records of work-related injuries and illnesses, and perform medical tests required by some OSHA standards. They must post OSHA citations and the OSHA poster in the workplace where employees will see them, and they must notify the agency within eight hours of a death or when an accident sends three or more workers to the hospital.

Under the Act, employers cannot discriminate against workers for exercising their rights, which include filing an OSHA complaint, taking part in an inspection or talking to an inspector, seeking access to records about exposure and injury and raising a health or safety complaint.

According to OSHA, possible retaliation against employees can include firing or laying off, blacklisting, demoting, denying overtime or promotion, disciplining, denying benefits, failing to hire or rehire, intimidation, threats, harassment, hurting chances of promotion through reassignment and reducing pay or hours.  Virtually every aspect of the employment relationship is subject to a retaliation claim.

Changes at OSHA

OSHA’s changes to its whistleblower program, announced in late 2011, followed critical reports from the GAO in 2009 and 2010. These changes include:

Restructuring —Along with directly reporting to the Labor Department assistant secretary, OSHA is conducting pilot tests of changes to its field structure. In its 2012 budget, OSHA created a separate line item for the whistleblower program to create more visibility for whistleblowing activities and accomplishments. OSHA has also added 25 new investigators.

Training  —OSHA has changed how it trains investigators, including holding a national whistleblower training conference for all federal and state whistleblower investigators, along with DOL legal staff involved with whistleblower matters.

Program Policy  —OSHA has updated its Whistleblower Investigations Manual to reflect new case-handling procedures and information on new laws. Among the changes to the manual, investigators now are required to try to interview each complainant in every case. The manual also provides expanded guidance on how to deal with uncooperative respondents and the expanded use of administrative subpoenas.

Internal Systems  —OSHA has modified its data collection system and strengthened its audit program, to ensure that whistleblower complaints are handled correctly and in a timely manner.

In an effort to focus on obstacles to compliance, in mid-2012, Labor Department Deputy Assistant Secretary Richard E. Fairfax released a memo about “Employer Safety Incentive and Disincentive Policies and Practices.” The memo outlines how some common employer practices can discourage workers from reporting safety hazards. “Ensuring that employees can report injuries or illnesses without fear of retaliation is therefore crucial to protecting worker safety and health,” Fairfax stressed in the memo.