Answering the whistle
April 16, 2013
The US Dept. of Labor’s Occupational Health and Safety Administration (OSHA) is beefing up its whistleblower program, which means employers should brace themselves for more claims and investigations. Any employer could find itself the target of an OSHA investigation.
Employers need to understand what these changes mean and how they can respond appropriately to avoid potential investigations and create defensible policies in case an investigation arises.
Various states have agencies that work in agreement with OSHA and may impose additional requirements on employers in their jurisdiction. For example, Washington’s plan is administered by the Department of Labor and Industries, Division of Occupational Safety and Health. California has a similar agency in place. State agencies are aggressive in both states.
Under the Occupational Safety & Health Act of 1970, and the state counterparts, employers must provide a “safe and healthful workplace.” Employers not only need to comply with all the relevant OSHA standards, but they are required to comply with the General Duty Clause, which requires employers to make sure that their workplaces do not have any “serious recognized hazards.”
Employers can’t 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 at the workplace.
What to do now
In order to minimize the chance of coming into OSHA investigators’ cross-hairs, employers should take several steps.
Review and update – As part of reviewing and updating both voluntary and state-mandated safety programs, employers should also reconsider their safety program incentives since some practices may now leave employers vulnerable to whistleblower claims. They should also look at best practices among their peers and customize their programs to match specific needs.
Employers need to consider how they can promote a culture where employees feel comfortable raising concerns. 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 to see if any areas of weakness exist and address them.
Educate – When workers have concerns, they should know the appropriate person to contact.
Sometimes, a suggestion box, hotline or anonymous email system managed by someone other than production managers 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 and escalate employee concerns up the chain of command when necessary.
Put it 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, to ward off potential retaliation claims.
In states such as California, workers’ compensation retaliation claims are filed routinely.
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.