Employers Should Prepare For More OSHA Whistleblower Investigations

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.

The Complaint Process

When OSHA receives a whistleblower’s complaint, it evaluates the complaint to see if it should be handled by an off-site investigation or on-site inspection. When workers file complaints, they can ask that their names not be released to employers.  Even without such a request, OSHA rarely reveals a complaining employee’s name. 

OSHA will consider a variety of factors when deciding whether to undertake an on-site inspection, including whether physical harm has been alleged, whether an imminent danger exists, whether the employer has failed to respond adequately to information about a hazard, and whether the employer has a “past history of egregious, willful or failure-to-abate OSHA citations within the past three years.”

When OSHA decides to conduct an on-site investigation, employees have the right to have a representative there. Employees or unions, not the employer, choose the representative.

If OSHA investigators decide that the complaint does not meet the criteria for an on-site inspection, they can conduct an off-site investigation. In that case, an investigator will call the employer, describe the supposed hazards, and then follow up with a fax or letter. Employers have five days to respond, describe any problems they find, and what corrective actions have been taken or are planned. If investigators decide the employer’s response is adequate, they will not conduct a further investigation.

The complainant will receive a copy of the employer’s response. If employees decide they are not satisfied with the employer’s response, they can request an on-site inspection.

After the investigation or inspection, OSHA sends a letter to the worker representative (union) or the employee who filed the complaint. Employers also must posts copies of citations at or near where a violation occurred.

What to Do Now

Employers should not only expect an increase in OSHA investigations and inspections, but investigations and inspections will likely be more intensive and time-consuming. In order to minimize the chance of coming into OSHA investigators’ cross-hairs, employers should take several steps.

•  Review and update health and safety programs.Employers should reconsider their safety program incentives in light of the Fairfax Memo and other OSHA changes. Common industry practices may now leave employers vulnerable to whistleblower claims. Companies should consult with in-house attorneys and outside counsel to determine whether their processes and procedures need to be revised. They should also look at best practices among their peers and customize their programs to match their specific needs.

Employers need to consider how best to promote a culture where employees feel comfortable raising concerns. Rather than a punitive approach to safety hazards, employers should consider incentive programs that encourage workers to raise concerns and report problems to the appropriate people.

Along with safety program incentives, employers should also review training procedures and implement any needed changes.

•  Educate employers, managers and supervisors.When workers have concerns, they should know whom to contact. Employees should know exactly what steps to take in order to raise safety concerns without fear of reprisal. In some cases, a suggestion box, hotline or anonymous email system that is managed by someone other than a person in their direct line of reporting may be the best approach. HR and legal advisors should be involved in this process as well.

Managers and supervisors should receive training about how to manage employee safety complaints, including preventing any retaliatory conduct. They should also be trained about how to escalate employee concerns up the chain of command when necessary.

•  Put everything in writing.Thorough documentation can help employers minimize liability when workers file a whistleblower complaint with OSHA. Companies should be sure to carefully abide by all OSHA reporting requirements. And if an injured worker is ever disciplined for violating safety regulations, managers and supervisors should specifically record why the discipline occurred in order to ward off potential retaliation claims.

Employers need to understand the implications of OSHA’s new emphasis on whistleblower investigations and inspections. By taking appropriate steps, companies can minimize the number of potential whistleblower complaints that employees file, and lessen the impact and liability they face if OSHA targets them.

Richard D. Alaniz is senior partner at Alaniz Schraeder Linker Farris Mayes, LLP, a national labor and employment firm, based in Houston. Questions about this column may be addressed to him at 281-833-2200 or [email protected].