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Overview: The Occupational Safety and Health Administration (OSHA) enforces the whistleblower provisions in 22 statutes. The OSH Act specifically prohibits retaliation against whistleblowers who report workplace safety and health violations.
If an employee reports a health and safety violation to the employer or to OSHA, the employer may not punish the employee for this. This holds true even if it turns out that there was no violation. Retaliatory behavior by the employer refers to anything that could be considered a punishment to the employee, such as termination, demotion, denying payment or reducing hours, among others.
If an employer has valid reasons to discipline an employee who is also a whistleblower, it needs to be very careful to document the reasons and double check that the discipline is fair and equal. This helps ensure that the employer can prove that the disciplinary action had nothing to do with the whistleblowing.
Trends: The new electronic reporting rules that require employers to electronically report injury and illness data to OSHA beginning in 2017 contain anti-retaliation provisions, effective in 2016, that allow OSHA to issue citations for retaliation even if no employee has filed a complaint.
Author: Melissa Gonzalez Boyce, JD, Legal Editor
The US Supreme Court has agreed to hear Digital Realty Trust, Inc. v. Somers, a case that should resolve a circuit split as to whether the anti-retaliation provision of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank) applies to internal whistleblowers.
Updated to incorporate withdrawal of a DOL administrator interpretation on joint employment.
Updated to include the retaliation provisions of the Universal Paid Leave Amendment Act of 2016, effective April 7, 2017.
The 9th Circuit Court of Appeals has issued a decision that protects individuals who complain internally, but who do not make an external complaint to the Securities and Exchange Commission (SEC), under Dodd-Frank's anti-retaliation provision. The decision deepens an existing circuit split.
The Occupational Safety and Health Administration (OSHA) has issued its Recommended Practices for Anti-Retaliation Programs, which applies to both public and private employers. The resource is advisory only.
Updated to reflect examples of retaliatory discipline included in OSHA guidance interpreting the anti-retaliation provisions of the electronic reporting final rule.
Updated to include OSHA's final rule establishing procedures for handling Affordable Care Act retaliation complaints.
The Occupational Safety and Health Administration (OSHA) has issued a final rule that establishes procedures and time frames for handling whistleblower retaliation complaints under the Affordable Care Act (ACA).
Updated to include retaliation protections in the state right to request law, effective September 1, 2016.
HR guidance on OSHA whistleblowers.