You may file a complaint with OSHA if your employer retaliates against you by taking unfavorable personnel action because you engaged in protected activity relating to workplace safety or health, asbestos in schools, cargo containers, airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health insurance reform, motor vehicle safety, nuclear, pipeline, public transportation agency, railroad, maritime, motor vehicle safety, and securities laws.
Whistleblower Laws Enforced by OSHA
Each law requires that complaints be filed within a certain number of days after the alleged retaliation.
Asbestos Hazard Emergency Response Act (90 days);
Clean Air Act (30 days);
Comprehensive Environmental Response, Compensation and Liability Act (30 days);
Consumer Financial Protection Act of 2010 (180 days);
Consumer Product Safety Improvement Act (180 days);
Energy Reorganization Act (180 days);
Federal Railroad Safety Act (180 days);
Federal Water Pollution Control Act (30 days);
International Safe Container Act (60 days);
Moving Ahead for Progress in the 21 Century Act (motor vehicle safety) (180 days);
National Transit Systems Security Act (180 days);
Occupational Safety and Health Act (30 days);
Pipeline Safety Improvement Act (180 days);
Safe Drinking Water Act (30 days);
Sarbanes-Oxley Act (180 days);
Seaman’s Protection Act (180 days);
Section 402 of the FDA Food Safety Modernization Act (180 days);
Section 1558 of the Affordable Care Act (180 days);
Solid Waste Disposal Act (30 days);
Surface Transportation Assistance Act (180 days);
Toxic Substances Control Act (30 days);
Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (90 days).
Your employer may be found to have retaliated against you if your protected activity was a contributing or motivating factor in its decision to take unfavorable personnel action against you. Such actions may include:
Applying or issuing a policy which provides for an unfavorable personnel action due to activity protected by a whistleblower law enforced by OSHA;
Denying overtime or promotion;
Failing to hire or rehire;
Firing or laying off;
Reassignment to a less desirable position, including one adversely affecting prospects for promotion;
Reducing pay or hours;
Filing a Complaint
If you believe that your employer retaliated against you because you exercised your legal rights as an employee, contact OSHA as soon as possible because you must file your complaint within the legal time limits. An employee can file a complaint with OSHA by visiting or calling the local OSHA office or sending a written complaint to the closest OSHA regional or area office. Written complaints may be filed by facsimile, electronic communication, hand delivery during business hours, U.S. mail (confirmation services recommended), or other third-party commercial carrier. The date of the postmark, facsimile, electronic communication, telephone call, hand delivery, delivery to a third-party commercial carrier, or in- person filing at an OSHA office is considered the date filed. No particular form is required and complaints may be submitted in any language. For OSHA area office contact information, please call 1-800-321-OSHA (6742) or visit www.osha.gov/ html/RAmap.html. Upon receipt of a complaint, OSHA will first review it to determine whether it is valid on its face. All complaints are investigated in accord with the statutory requirements. With the exception of employees of the U.S. Postal Service, public sector employees (those employed as municipal, county, state, territorial or federal workers) are not covered by the Occupational Safety and Health Act (OSH Act). Non-federal public sector employees and, except in Connecticut, New York, New Jersey, the Virgin Islands, and Illinois, private sector employees are covered in states which operate their own occupational safety and health programs approved by Federal OSHA.
For information on the 27 State Plan states, call 1-800-321-OSHA (6742), or visit www.osha.gov/dcsp/osp/index.html. A federal employee who wishes to file a complaint alleging retaliation due to disclosure of a substantial and specific danger to public health or safety or involving occupational safety or health should contact the Office of Special Counsel (www.osc.gov) and OSHA’s Office of Federal Agency Programs (www.osha.gov/dep/ enforcement/dep_offices.html). Coverage of public sector employees under the other statutes administered by OSHA varies by statute. If you are a public sector employee and you are unsure whether you are covered under a whistleblower protection statute, call 1-800-321-OSHA (6742) for assistance, or visit www.whistleblowers.gov.
How OSHA Determines Whether Retaliation Took Place
The investigation must reveal that:
The employee engaged in protected activity;
The employer knew about or suspected the protected activity;
The employer took an adverse action; and
The protected activity motivated or contributed to the adverse action.
If the evidence supports the employee’s allegation and a settlement cannot be reached, OSHA will generally issue an order, which the employer may contest, requiring the employer to reinstate the employee, pay back wages, restore benefits, and other possible remedies to make the employee whole. Under some of the statutes the employer must comply with the reinstatement order immediately. In cases under the Occupational Safety and Health Act, Asbestos Hazard Emergency Response Act, and the International Safe Container Act, the Secretary of Labor will file suit in federal district court to obtain relief.
Partial List of Whistleblower Protections “Whistleblower Protections under the OSH Act”
The OSH Act protects workers who complain to their employer, OSHA or other government agencies about unsafe or unhealthful working conditions in the workplace or environmental problems. You cannot be transferred, denied a raise, have your hours reduced, be fired, or punished in any other way because you used any right given to you under the OSH Act. Help is available from OSHA for whistleblowers. If you have been punished or discriminated against for using your rights, you must file a complaint with OSHA within 30 days of the alleged reprisal for most complaints. No form is required, but you must send a letter or call the OSHA Area Office nearest you to report the discrimination (within 30 days of the alleged discrimination). You have a limited right under the OSH Act to refuse to do a job because conditions are hazardous. You may do so under the OSH Act only when (1) you believe that you face death or serious injury (and the situation is so clearly hazardous that any reasonable person would believe the same thing); (2) you have tried, where possible, to get your employer to correct the condition, and been unable to obtain a correction and there is no other way to do the job safely; and (3) the situation is so urgent that you do not have time to eliminate the hazard through regulatory channels such as calling OSHA. For details, see www.osha.gov/as/opa/ worker/refuse.html. OSHA cannot enforce union contracts or state laws that give employees the right to refuse to work.
Whistleblower Protections in the Transportation Industry
Employees whose jobs directly affect commercial motor vehicle safety or security are protected from retaliation by their employers for, among other things, reporting violations of federal or state commercial motor carrier safety or security regulations, or refusing to operate a vehicle because of violations of federal commercial motor vehicle safety or security regulations or because they have a reasonable apprehension of death or serious injury to themselves or the public and they have sought from the employer and been unable to obtain correction of the hazardous condition. Similarly, employees of air carriers, their contractors or subcontractors who raise safety concerns or report violations of FAA rules and regulations are protected from retaliation, as are employees of owners and operators of pipelines, their contractors and subcontractors who report violations of pipeline safety rules and regulations. Employees involved in international shipping who report unsafe shipping containers are also protected. In addition, employees of railroad carriers or public transportation agencies, their contractors or subcontractors who report safety or security conditions or violations of federal rules and regulations relating to railroad or public transportation safety or security are protected from retaliation.
Whistleblower Protections for Voicing Environmental Concerns
A number of laws protect employees from retaliation because they report violations of environmental laws related to drinking water and water pollution, toxic substances, solid waste disposal, air quality and air pollution, asbestos in schools, and hazardous waste disposal sites. The Energy Reorganization Act protects employees from retaliation for raising safety concerns in the nuclear power industry and in nuclear medicine.
Whistleblower Protections When Reporting Corporate Fraud
Employees who work for publicly traded companies or companies required to file certain reports with the Securities and Exchange Commission are protected from retaliation for reporting alleged mail, wire, bank or securities fraud; violations of SEC rules or regulations of the SEC; or violations of federal laws relating to fraud against shareholders.
Whistleblower Protections for Voicing Consumer Product Concerns
Employees of consumer product manufacturers, importers, distributors, retailers, and private labelers are protected from retaliation for reporting reasonably perceived violations of any statute or regulation within the jurisdiction of the Consumer Safety Product Safety Commission.
To obtain more information on whistleblower laws, go to www.whistleblowers.gov.
This fact sheet is based on “Whistleblower Protection: Your Rights as a Whistleblower Fact Sheet,” by the Occupational Safety and Health Administration (OSHA).