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OSHA Whistleblower Attorney Discusses How to Win Workplace Safety and Health Issues

scaffolding.injury.bought.from.istock.photo.jpgOur New York Whistleblower Lawyer helps courageous employees, current and former, come forward and expose allegations of workplace safety and health. Sometimes it is not easy to blow the whistle and the process can be complicated and often times, the affected employee may be suffering from an illness caused by the workplace. The federal law, Occupational Safety and Health Act (“OSHA” or the “Act”), was passed in 1970 by President Nixon and was created to address rising workplace injuries and deaths and prevents employers from retaliating against whistleblowers. In recent years, well known businesses such as SeaWorld and Hershey’s Chocolate have been the subject of workplace safety complaints or inquiries. Employees have the right to a safe workplace and to be free of retaliation if they file a complaint or engage in protected activity under the Act. If you are concerned about your safety or believe there are hazards at your job, contact our Whistleblower Attorney at (800) 893-9645 for a confidential consultation. Because of an affected employee’s medical issues, these types of cases may also crossover with disability discrimination and leave of absence issues under employment law.

Who Can File a Complaint Under the Act

Most employers in the private sectors are covered under the federal law and required to comply with the Act. An employee can file a complaint — the term “employee” is defined broadly and includes an individual who is employed in the business of an employer which affects commerce. Most public sector employees, with the notable exception of postal workers, are not covered by the law but they may be covered by state law. Workers who are properly classified as indenpedent contractors may not be covered by the law. However, just because a worker is called an independent contractor does not mean that is accurate or correct – as we have discussed in prior blog posts, misclassification of employees as independent contractors is a common error made by businesses and is sometimes done intentionally to avoid providing employee protections such as filing OSHA complaints.

Employees should try to document any hazards in the workplace. If a photo of a hazardous condition can be taken without violating a company policy, it may be helpful for the employee to take and keep the photo. Generally, complaints should be made in writing to prevent disputes as to whether a complaint was made. Because of the short deadlines involved in these types of cases and described below, quick action is necessary. If you believe you are being retaliated against because of a complaint whether it be by demotion or otherwise, consider all of the factual reasons why the adverse action is unfounded. For example, if you are being disciplined for poor production quotas but other employees who also have low production quotas are not being disciplined, then the production quota may be a pretext for the employer’s retaliatory action. These are fact specific inquiries.

What Are An Employer’s Responsibilities Under the Act

Employers must follow all of OSHA’s guidelines in order to provide a safe workplace that is free of any serious hazards. Employers are obligated to eliminate or reduce all known hazards. In addition, employers must, among other things, (i) inform employees of hazards by conducting trainings, labels, and information sheets; (ii) keep accurate records of all work-related injuries and illnesses; (iii) perform required tests in the workplace; (iv) provide
required hearing exams and other medical exams; and (iv) notify OSHA within 8 hours of a workplace incident where is a death or when three or more workers go the hospital. Employers in certain industries (e.g., construction, maritime, longshoring, agriculture) also are subject to industry specific guidelines. Some of the most common violations concern failure to provide respiratory protection, failure to protect against fall protection, and failure to provide adequate hazard communications.

What Can Employees File A Complaint About

Employees can request an inspection of their workplace if they believe there is a violation of a safety or health regulation or if there is any danger that threatens physical harm, or if an “imminent danger” exists. In addition, employees can (i) exercise their rights under the Act without reprisal, discrimination or retaliation; (ii) receive information and training about safety hazards and OSHA standards; (iii) request copies of test results completed to locate workplace hazards; and (iv) review records of work-related injuries and illnesses. Employees also have a limited right to refuse performing certain job duties if (a) they believe that they face death or serious injury; (b) they have tried, where possible, to have the dangerous condition corrected and are unable to obtain such correction; and (c) the hazard is so urgent and there is not sufficient time to eliminate the hazard through a regulatory complaint or otherwise.

An employee may not be fired, demoted, transferred, discriminated or retaliated in any way because a OSHA complaint was filed or the employee engaged in a protected activity. The term “protected activity” is defined broadly and can include contacting OSHA, filing a complaint with OSHA, and acting as a witness in an OSHA enforcement action. The term may not include a threat to contact OSHA. In addition to the bases described in the preceding paragraph, an employee can file a complaint for retaliation as well. Retaliatory conduct can include denial of overtime hours or pay, denial of employee benefits, refusal to rehire, intimidation, threatening conduct, reassignment to a less favorable role, reduction of pay or hours, and suspension.

Deadlines to file an OSHA complaint based on retaliation are incredibly short in comparision to other statutes of limitations. Employees should seek experienced counsel immediately. As per the United States Department of Labor, the agency that is responsible for enforcing OSHA claims, below is a list of statutes along with deadlines to file a complaint after the alleged retaliation – please note the law including deadlines can change and readers should consult legal counsel regarding their specific situation:

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 21st Century Act — 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
As you can see, there are a myriad of standards and statutes that come into play in workplace safety complaints. Each case is different and there can be interplay of different legal principles such as disability discrimination and strategic considerations in deciding in how to blow the whistle. Contact our office to learn your rights, options and how to deal with retaliatory actions. blow.the.whistle.bought.from.istock.photo.jpg

Disclaimer: 

Thank you for visiting our Blog. This blog provides general information and thoughts about various employment law issues primarily in the New York Tri-State area and occasionally in other areas. You are welcome to read the posts. However, do not construe any content on this blog as legal advice or the creation of an attorney-client relationship. Again, we provide the content only for informational purposes. You should not make decisions based information on our blog since the application of the law depends on the facts and each situation may be different. In addition, the law in most jurisdictions is different and changes constantly and we make no representations that any information on our blog has been updated. The Blog should not be used as a substitute for competent legal advice from an experienced attorney in your state or jurisdiction.