by Kara M. Maciel, Esq. and Dan Deacon, Esq., Conn Maciel Carey
In part one of this article, we focused on how the Equal Employment Opportunity Commission (EEOC) has become more aggressive in its whistleblower enforcement efforts. Together, the EEOC and the Occupational Safety and Health Administration (OSHA) have recently taken steps to make it easier for employees to demonstrate that an employer acted with retaliatory intent. This article will focus on OSHA’s involvement in whistleblower protections.
OSHA Revamps Whistleblower Protection Program
OSHA has also been busy revamping its rules that protect whistleblowers under the various laws the agency is charged with enforcing to ensure consistency and to give employees time to file complaints. Although OSHA enforces whistleblower standards under 22 different statutes, including the Clean Air Act (CAA), the Sarbanes-Oxley Act (SOX), and the Affordable Care Act (ACA), most retaliation claims are brought under Section 11(c) of the OSH Act.
|Are you at risk of an OSHA whistleblower investigation? Attend “OSHA’s New Whistleblowing Requirements: How to Steer Clear of Legal Missteps Amid Increased Employee Protections” on Wednesday, November 30, 2016, and make sure you’re aware of new rules impacting the management of employee complaints! See below for more information.|
Section 11(c) prohibits employers from discharging or discriminating against employees for filing a complaint or institute or cause to be instituted any proceeding under or related to the OSHA Act or participating in any such proceeding.
It is not surprising that OSHA is increasing its focus on its whistleblower protection program. While Section 11(c) actions are the most common retaliation claims, historically, they have not been the most effective. Section 11(c) claims have nearly doubled over the past decade but less than 1% of these claims receive a merits decision from OSHA. The overwhelming majority are either dropped, dismissed, or settled.
Over the past year, OSHA has taken several steps to provide more protections for whistleblowers and increase its antiretaliation enforcement arm. OSHA issued new guidance in an updated field enforcement manual that took effect January 28, 2016. The enforcement manual replaces previous guidance that was issued in May 2015, and includes one significant change that negatively impacts employers during the investigation process.
Under the May 2015 guidance, OSHA investigators were instructed to dismiss a retaliation claim prior to a hearing unless the employee could establish the elements of a prima facie case of retaliation. The new enforcement manual eliminates the prima facie standard for determining whether a merit finding should be made, and therefore reduces the possibility that a complaint will be dismissed.
The new standard that investigators apply is whether “OSHA has reasonable cause to believe a violation occurred.” Investigators do not actually need to find that a violation occurred. Instead, the determination is based on the investigators subjective belief, after reviewing all the evidence, whether a reasonable judge could rule in the employee’s favor.
This vague and overbroad investigatory standard will surely give rise to an increased number of merits decisions on retaliation claims before Administrative Law Judges as more employers will be forced to respond at the hearing stage.
In addition to the lower investigation standard published in the enforcement manual, the most significant development in OSHA’s whistleblower enforcement efforts occurred in May 2016 when it published its new electronic recordkeeping rule.
In the Preamble of the Final Rule, OSHA included new obligations requiring employers to implement “reasonable reporting” procedures for employees to report to their employers work-related injuries, and a broad and vague new set of provisions that expand OSHA’s enforcement authority to prevent employer retaliation against employees who report injuries and illnesses.
Specifically, OSHA discussed reporting procedures and policies that may violate the new antiretaliation provisions, and retaliatory issues related to safety incentive programs, post-injury drug testing, and management compensation or bonuses tied to injury rates.
Amidst confusion and a legal challenge filed in the U.S. District Court for the Northern District of Texas in July 2016 that was sparked by industry backlash to the antiretaliation provisions of the final rule, OSHA issued an interpretation letter on October 19, 2016 that provides some additional guidance—albeit very minimal—on these topics. Whether the antiretaliation provisions will take effect remains a question to be answered. The implementation deadline has been pushed back by OSHA on two separate occasions—one prompted by the Judge—and it is uncertain when the case will be resolved.
In addition to Section 11(c) retaliation actions, the new recordkeeping rule provided OSHA a new enforcement mechanism that allows them to issue regulatory citations for retaliatory conduct. Under the new framework, regardless of whether any employee alleges that he or she was the victim of retaliation, employers may receive a regulatory citation for implementing a policy or taking action that has a perceived retaliatory effect against employees even if there is no whistleblower. Essentially, an employer’s policy on its face can serve as the basis for a retaliation-based citation and civil penalty from OSHA.
Given this flurry of activity by OSHA over the past year to increase whistleblower protections, employers will likely see more retaliation claims brought against them and make it to the hearing stage before an Administrative Law Judge.
Retaliation under the Affordable Care Act
Whistleblower actions under the ACA and related claims have also come to the forefront of the employment world over the past year. On October 12, 2016, OSHA announced that it had issued a Final Rule prohibiting retaliation against an employee for receiving a tax credit or a cost-sharing reduction for enrolling in a qualified health plan. The final rule also established procedures for the filing, evaluation, and litigation for whistleblower complaints under the ACA.
Protected activity under the rule includes employee actions taken to exercise their rights under the ACA, such as requesting information necessary to apply for a tax credit, and reporting or refusing to participate in acts an employee reasonably believes to be in violation of the ACA.
OSHA specifically laid out the types of actions it would deem retaliatory if taken based on an employee’s protected activity, including firing or laying off, reducing hours or pay, blacklisting, demoting or denying a promotion, denying overtime or benefits, failing to hire or rehire, disciplining, intimidating or making threats, and reassignment.
Notably, the protected activity only needs to be a “contributing factor” as opposed to the “but-for” causation standard that is traditionally used to evaluate the causation element of retaliation claims.
Recommendations for Employers
Employers can take several steps to avoid whistleblower and retaliation complaints from their employees.
- First, employers should implement antiretaliation policies and properly train managers, supervisors, and benefits administrators on those policies. Employers should document and maintain the training on such policies.
- Second, employers should ensure that it has a responsive complaint system in place where employees can bring issues of suspected retaliation to an employer’s attention before going directly to an administrative agency or a court. An employer should conduct its own investigation of the claim, including determining whether the charge is timely brought, interview employees, document the investigation and findings, and inform the employee of the results.
- Finally, employers should document their decision-making process to clearly establish that any adverse action is unrelated to an employee’s protected activity.
If a retaliation complaint is filed with the EEOC, OSHA, or a court, an employer should be in a good position to respond to the complaint and limit agency investigations and inquiries into the company. This will help alleviate both the stress and financial burden that stems from dealing with a retaliation claim.
An employer that is prepared to respond to a retaliation complaint may be able to obtain a favorable judgment early in the process and avoid increased costs and additional time spent litigating claims.
Join us on November 30 for an in-depth webinar led by a founding partner of the Washington, D.C.-based law firm of Conn Maciel Carey, featuring live Q&A on the practical impact OSHA’s latest provisions on workplace whistleblowing will have on your organization.
|Kara Maciel is chair of Conn Maciel Carey’s national Labor Employment Practice Group. She focuses her practice on representing employers in all aspects of the employment relationship. Ms. Maciel works to create workplace solutions for her clients across all industries. She defends employers in litigation at both the federal and state levels, including matters related to ADA, FLSA, FMLA, OSHA, Title VII, and affirmative action/OFCCP regulations. She advises clients regarding the protection of trade secrets and the misappropriation of confidential or proprietary information, both defending employers and pursuing enforcement against former employees. When relevant, Ms. Maciel provides advice and counsel to unionized and non-unionized workplaces regarding the employer’s rights under the National Labor Relations Act. Ms. Maciel counsels employers on how to develop lawful strategies to comply with the Affordable Care Act (ACA).
Dan Deacon is an associate in Conn Maciel Carey’s Labor & Employment Practice Group and OSHA Practice Group. Mr. Deacon advises and represents employers in all aspects of the employer-employee relationship including wage and hour disputes, claims of discrimination, compliance with the ADA, ACA, and FMLA. He works with employers to develop and implement effective workplace policies and safety and health programs. Additionally, Mr. Deacon counsels employers during inspections and investigations conducted by federal Occupational Safety and Health Administration (OSHA) and state OSHA programs, and responds to notices from OSHA about employee complaints of safety hazards. Mr. Deacon also represents employers in OSHA litigation, including citation contests and administrative hearings.