HRER 811 PSWC Narrow Legal Issue Questions

this is the book we are currently reading off.

Readings are attached

• Lesson 8 Commentary
• Twomey & Greene Text Readings:Chapter 11Occupational Safety and Health Law, pp. 393–424But skip American Textile Case 11.1, Whirlpool Case 11.3, Marshall Case 11.4, and John Carlo Case 11.5.Chapter 15Section 15:4, Workers’ Compensation: Relationship to the ADA, pp. 603–612But skip Halliman Case 15.6, Quaker Oats Case 15.7, and Gacioch Case 15.8.Chapter 16Section 16:2, Whistleblower Protections Under the Sarbanes–Oxley and Dodd–Frank Acts, pp. 638–644
• Additional Readings: OSHA, Final Rule to Improve Tracking of Workplace Injuries and Illnesses Frequently Asked QuestionsOSHA, The Whistleblower Protection Programs OSHA, Fact Sheet: Filing Whistleblower Complaints under the Sarbanes–Oxley ActOSHA, Access to Medical and Exposure RecordQuestion Set 1Steelworks PA Inc. employs 500 people in a plant in rural Pennsylvania. It is nonunion. Although Steelworks promotes health and safety in some ways, the company does not display an OSHA poster or otherwise affirmatively inform employees about their OSH Act rights or reporting procedures for occupational illnesses or injuries.Steelworks maintains three years’ worth of records in its Log of Work-Related Injuries and Illnesses. While current or former employees are not permitted to inspect the Log for privacy reasons and no summaries are posted, the Log is available for inspection by authorized federal representatives.Steelworks’ health and safety incentive program includes the following incentives:”employee of the month” recognition, which includes a gift certificate for dinner at a local restaurant for the hourly employee who offers the most useful suggestion to eliminate or moderate a significant workplace hazard;a jacket with the Steelworks logo for hourly employees who serve on the company’s safety and health committee;a $50 bonus for hourly employees who successfully complete the company’s annual safety and health training session; anda monthly 2% bonus for each supervisor whose department reports no injuries.In light of the Lesson 8 reading and some research in connection with Pennsylvania law, analyze the fact pattern using the IRAC (issue, rule, analysis, conclusion) formula:Identify the narrow legal issue(s) identified in the fact pattern.Identify the rule or test used to analyze such issues. If you cite a case, please provide a complete case citation.State whether that rule or test is based on federal or Pennsylvania state law.Explain how that rule/test analyzes these issues, including each aspect of the new incentive program.Identify and explain the basis for the conclusion that you anticipate a court would reach based on the law and the facts presentedQuestion Set 2Each state has laws governing the rights of workers who suffer occupational injuries or illnesses and the estates of those who have been killed on the job. Please research and write an essay about your state’s laws. You can quote some text from the laws, but please write most of the submission in your own words. Your essay should include the following information:Does your state have a workers’ compensation law? If so, include its name and URL.Which employers are subject to that law, and which (if any) are exempted?Must employers obtain workers’ compensation insurance, or can they self-insure or otherwise opt out, and under what circumstances?What remedies are available under the workers’ compensation law for temporary illness or injury; permanent disability; loss of limb, sight, or hearing; and death?Does the workers’ compensation law create an exclusive remedy for workplace illnesses, injuries, and deaths, and if not, to what extent can a lawsuit be brought against employers?If your state does not have a workers’ compensation law, describe the law in your state that governs remedies for illness, injuries, and deaths related to employment.Describe what you found most surprising or interesting about your state’s law.Please provide complete citations to the laws that you describe so your instructor can access them, too.PreviousNext

Access to Medical
and Exposure Records
U.S. Department of Labor
Occupational Safety and Health Administration
OSHA 3110
2020 (Revised)
This booklet provides a generic overview of a standardsrelated topic. This publication does not alter or determine
compliance responsibilities, which are described in the
OSHA standards and the Occupational Safety and Health
Act. Because interpretations and enforcement policy may
change over time, the best sources for additional
guidance on OSHA compliance requirements are current
administrative interpretations and decisions by the
Occupational Safety and Health Review Commission and
the courts. This publication is in the public domain and
may be reproduced fully or partially without permission.
Source credit is requested but not required.
OSHA will make this information available to sensory
impaired individuals upon request. Call (202) 693-1999.
Who should read this booklet?
If you are an employee who has a possible exposure
to or uses toxic substances or harmful physical
agents at your work site or an employer who has
employees that may be exposed, you need to know
your rights and responsibilities under OSHA’s
standard on Access to Employee Exposure and
Medical Records [Title 29 of the Code of Federal
Regulations (CFR) Part 1910.1020]. 1
If you are an employee who may have been
exposed to toxic substances or harmful physical
agents in the workplace, OSHA’s regulation may help
you detect, prevent, and treat occupational disease.
You have the right to access relevant exposure and
medical records and to know how OSHA’s standard
covers you if you are any of the following:
■
■
■
A current or former employee who is or may have
been exposed to toxic substances or harmful
physical agents.
An employee who
was assigned or
transferred to work
involving toxic
substances or
harmful physical
agents.
The legal
representative of a
deceased or legally
incapacitated
employee who was
or may have been
exposed to toxic
substances or harmful
physical agents.
Designated employee representatives may
access employee medical or exposure records and
analyses created from those records only in very
specific circumstances. Designated employee
representatives include any individual or organization
to whom an employee has given written authorization
to exercise a right of access.
1
Particular circumstances may vary for access to medical and exposure
records. Refer to the provisions of the OSHA standard for specific
information and requirements.
What types of exposures should I
be concerned about?
As an employee, what types of
records can I access?
The standard covers records documenting the amount
of employee exposure to “toxic substances and harmful
physical agents.” Toxic substances and harmful physical
agents may include the following:2
You may access any employee exposure records
that show the measuring or monitoring of your own
exposure to a toxic substance or harmful physical agent.
If your employer does not have any records that
specifically chart your own exposure levels, you may
access the exposure records of employees who engage
in similar work or working conditions and may have
experienced exposures similar to yours. Employee
exposure records include the following:
■
Metals and dusts, such as, lead, cadmium, and silica.
■
Biological agents, such as bacteria, viruses, and fungi.
■
Physical stress, such as noise, heat, cold, vibration,
repetitive motion, and ionizing and non-ionizing
radiation.
■
■
■
What is “access”?
Access means the right to examine and copy medical
and exposure records. As an employee, you have the
right to access exposure and medical records and
analyses based on these records that concern your
employment. An employer must permit employees and,
in certain circumstances their designated representatives,
to access exposure and medical records relevant to the
employee, free of charge, within a reasonable period of
time. As an employee, you and your designated
representatives may access your medical and exposure
records in one of three ways:
■
■
■
2
The employer may give you a copy of the document, or
The employer may provide facilities for you to copy
the document, or
The employer may loan you the document to copy it
offsite.
According to OSHA’s regulation, “toxic substance or harmful physical
agent” posing a hazard to human health must either (1) be listed in the
latest edition of the NIOSH Registry of Toxic Effects of Chemical
Substances, (2) have yielded positive evidence of an acute or chronic
health hazard in testing conducted by or known to the employer, or
(3) be the subject of a safety data sheet (SDS) kept by or known to
the employer indicating that the material may pose a hazard to human
health.
Monitoring results of workplace air or measurements
of toxic substances or harmful physical agents in the
workplace, including personal, area, grab, wipe, or
other forms of sampling results.
Biological monitoring results, such as blood and urine
test results.
Safety data sheets (SDSs) containing information
about a substance’s hazards to human health.
You also may access any employee medical records
concerning your health status that were created or
maintained by a physician, nurse, health care
professional, or technician. Employee medical records
include the following:
■
Medical and employment questionnaires or histories.
■
Results of medical examinations and laboratory tests.
■
Medical opinions, diagnoses, progress notes, and
recommendations.
■
First-aid records.
■
Descriptions of treatments and prescriptions.
■
Employee medical complaints.
In addition, you may access any analyses —
compilations of data or statistical studies—of employee
medical and exposure records that concern your working
conditions or workplace. If an analysis includes
information that could be used to directly or indirectly
identify individual employees, however, the employer is
required to remove these “identifiers” to the extent
possible before permitting employee access to the
analysis. Examples of identifiers include an employee’s
name, address, social security number, and job title.
What types of records can
a designated employee
representative access?
The OSHA standard recognizes two types of
designated representatives: (1) an individual or
organization to whom the employee has given written
authorization to access his or her medical or exposure
records, and (2) a recognized or certified collective
bargaining agent. To access employee information,
employee representatives must follow very specific
requirements, such as the following:
■
■
As an employer, what do I need
to know about this standard?
If you are an employer, you must do the following:
Preserve and maintain accurate medical and exposure
records for each employee.3
■
Inform workers of the existence, location, and
availability of those medical and exposure records.
■
Give employees any informational material regarding
this standard that OSHA makes available to you.
■
Make records available to employees, their designated
representatives, and to OSHA, as required.
■
Employee Exposure Records. Recognized or certified
collective bargaining agents may access employee
exposure records without individual employees’
written consent. The designated representative must
request access in writing from the employer, however,
and must specify the records to be disclosed and the
occupational health need for accessing the records.
Employee Medical Records. Designated
representatives may access the medical records of any
employees who have given the representative specific
written consent. As with employee access to medical
records, access is limited to those records pertaining
to the authorizing employees.
Do employers have to make all
Records available?
No. If you are an employer, the following are not
considered “medical records” under this standard:
■
■
■
Analyses. For the purpose of analyses using exposure
or medical records, recognized or certified collective
bargaining agents may access the records without
individual employee’s written consent. As with
employee access, however, the employer must remove
or prevent access to any information in these analyses
that could reasonably be used to identify the individual
employees whose records are the subject of the
analyses.
3
Physical specimens, such as blood and urine samples.
Records concerning health insurance claims if they
are (1) maintained separately from your medical
program and its records, and (2) not accessible by
employee name or other personal identifier (e.g.,
social security number or home address).
The Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.
§12112(d)(3)(B)-(C) generally requires employers to keep employee
medical information confidential. Equal Employment Opportunity
Commission (EEOC) standards, however, do not prohibit employers
from making the disclosures required by OSHA’s medical access
standard. For further information on ADA standards regarding
employee medical records, contact the EEOC at www.eeoc.gov.
■
■
■
Records created only for use in litigation that are
privileged from discovery.
Records created as part of voluntary employee
assistance programs, such as records for alcohol
and drug abuse or personal counseling, if they are
maintained separately from your medical program
and its records.
Trade secret information involving manufacturing
processes or a percentage of a chemical substance
in a mixture, as long as you inform health
professionals and employees and their designated
representatives that you have deleted that
information from medical and exposure records. If
the exclusion of the trade secret information
substantially impairs the evaluation of when and
where the exposure occurred, however, you must
provide alternative information to the employee
consistent with the requirements of 29 CFR Part
1910.1020.
What if I do not have exposure
records for a particular
employee?
If you do not have
exposure records that
document the
amount of a toxic
substance or
harmful physical
agent that the
requesting
employee has
been exposed to,
you must give the
requesting
employee the
records of other
employees (with personal identifiers removed) with
similar duties or working conditions that reasonably
indicate the amount and nature of exposures the
employee requesting the records may have had.
You also may be required to supply exposure
records that reasonably indicate the amount and
nature of toxic substances or harmful physical
agents at a particular workplace, or used in a
specific working condition, to which the requesting
employee is being assigned or transferred.
How long do I have to keep
employee exposure and
medical records and other
exposure information?
Unless another OSHA rule specifically provides a
different period of time, you must keep the
following:
■
Employee medical records for at least the duration
of the employee’s employment plus 30 years,
except for
❖
❖
❖
■
Health insurance claims records that you
maintain separately from your medical program
and its records.
First-aid records made onsite by a non-physician
of one-time treatment and later observations of
minor scratches, scrapes, or other injuries that did
not involve medical treatment, loss of
consciousness, restriction of work or motion, or
transfer to another job.
Medical records of employees who have worked
for less than 1 year as long as you offer all such
records to the employee upon termination of
employment.
Employee exposure records for at least 30 years,
except for
❖
❖
❖
❖
Background data related to environmental, or
workplace, monitoring or measuring—such as
laboratory reports and worksheets—must only
be retained for 1 year, so long as you preserve
certain interpretive documents relevant to the
interpretation of the data for 30 years.
SDSs and other specified records concerning the
identity of a substance or agent, so long as you
keep some record of the identity, preferably the
chemical name and information on when and
where it was used, for 30 years.
30
yea
30 years
r
30 years
Biological monitoring results designated as
exposure records by specific OSHA standards shall
be preserved and maintained as required by the
specific standard governing their use.
Analyses using medical or exposure records for at
least 30 years.
30 years
What if I go out of business?
If you go out of business, you must do the following:
■
■
Transfer all records subject to this standard to the
successor employer OR, if there is no successor,
Notify current employees at least 3 months before the
business closes of their right to access their records.
You also must either transfer the records required to
be preserved under this standard to the National
Institute for Occupational Safety and Health
(NIOSH), or notify the Director of NIOSH in writing
of your intent to dispose of the records 3 months
before that disposal.
Does the standard cover me if I
work or run a business in a state
that operates its own job safety
plan?
How can I get assistance or more
information about OSHA and its
requirements?
OSHA operates technical assistance, training and
education, and consultation programs to help
employers and employees understand rules and their
requirements.
In addition, OSHA’s website—www.osha.gov—
contains information on agency programs, activities,
policies, rules, training and education, outreach, and
more. For a list of available publications and
information on OSHA electronic products, visit the
website.
For more information about Access to Employee
Exposure and Medical Records, see Standards on
OSHA’s website, or contact your nearest OSHA
Regional or Area Office.
Yes. OSHA requires states with their own safety and
health programs to have rules and enforcement
programs that are at least as effective as those of the
federal program
■
■
If you are an employee in an OSHA-approved state
plan, you have the same rights as employees in states
under federal OSHA jurisdiction, but your state plan
may have additional requirements.
If you are an employer in a state plan, you have at
least the same responsibilities and rights as employers
in states under federal OSHA jurisdiction, but your
state plan may have additional requirements.
For more information on state plans, contact the state
plan in your state or visit OSHA’s website at
www.osha.gov.
To file a complaint, report an emergency, or seek OSHA
advice, assistance, or products, call 1-800-321-OSHA or
your nearest regional office. The teletypewriter (TTY)
number is 1-877-889-5627.
FactSheet
Filing Whistleblower Complaints under
the Sarbanes-Oxley Act
Employees who work for publicly traded companies or companies that are
required to file certain reports with the Securities and Exchange Commission
(SEC) are protected from retaliation for reporting alleged mail, wire, bank, or
securities fraud; violation(s) of SEC rules and regulations; or violation(s) of
Federal law relating to fraud against shareholders.
Covered Companies
A company is covered by section 806 of the
Sarbanes-Oxley Act of 2002 (SOX) if it has a class
of securities registered under Section 12 of the
Securities Exchange Act or is required to file
reports under Section 15(d) of that Act. Its subsidiaries, contractors, subcontractors, or agents
may also be covered.
On July 21, 2010, the Sarbanes-Oxley Act was
amended by the Dodd-Frank Wall Street Reform
and Consumer Protection Act (Public Law 111203) to extend coverage to “nationally recognized
statistical rating organizations,…as defined in
Section 3(a) of the Securities Exchange Act, and
their contractors, subcontractors and agents.”
Protected Activity
An employer covered under SOX may not
discharge or in any manner retaliate against an
employee because he or she:
• provided information
• caused information to be provided, or
• assisted in an investigation by
■ a federal regulatory or law enforcement
agency
■ a Member or committee of Congress, or
■ an internal investigation by the company
relating to alleged mail fraud, wire fraud,
bank fraud, securities fraud, violation(s)
of SEC rules and regulations, or violation(s)
of Federal law relating to fraud against
shareholders.
In addition, an employer may not discharge or
in any manner retaliate against an employee
because he or she filed, caused to be filed,
participated in or assisted in a proceeding
relating to alleged mail fraud, wire fraud, bank
fraud, securities fraud, violation(s) of SEC rules
and regulations, or violation(s) of Federal law
relating to fraud against shareholders.
If an employer takes retaliatory action against an
employee because he or she engaged in any of
these protected activities, the employee can file a
complaint with OSHA.
Unfavorable Employment Actions
An employer may be found to have violated
SOX if the employee’s protected activity was a
contributing factor in the employer’s decision to
take unfavorable employment action against the
employee. Such actions may include:
• Firing or laying off
• Blacklisting
• Demoting
• Denying overtime or promotion
• Disciplining
• Denying benefits
• Failing to hire or rehire
• Intimidation
• Making threats
• Reassignment affecting prospects for
promotion
• Reducing pay or hours
Deadline for Filing Complaints
Complaints must be filed within 180 days after
an alleged violation of SOX or after the date on
which the employee became aware of the
violation. An employee, or representative of an
employee, who believes that he or she has been
retaliated against in violation of SOX may file
a complaint with OSHA.
How to File a SOX Complaint
An employee can file a SOX complaint with OSHA
by visiting or calling their local OSHA office at
1-800-321-OSHA (6742), or sending a written
complaint to their closest OSHA regional or
area office. Written complaints may be filed by
facsimile, hand delivery during business hours,
U.S. mail (confirmation services recommended),
or other third-party commercial carrier. For written
complaints, the date the complaint is sent via facsimile, hand delivered, postmarked, or delivered
to a third-party commercial carrier 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.
Complaints must be filed within 180 days of the
alleged discrimination or of when the employee
learned of the alleged discrimination (see
“Deadline for Filing Complaints” section for
details). Upon receipt of a complaint, OSHA
will first review it to determine whether it is a
valid complaint allegation (e.g., timeliness or
jurisdiction). All complaints are investigated in
accordance with the statutory requirements – see
29 CFR Part 1980.104.
Results of the Investigation
If the evidence supports an employee’s claim of
retaliation and a settlement cannot be reached,
OSHA will issue an order requiring the employer
to reinstate the employee, pay back wages,
restore benefits, and other possible relief to make
the employee whole, including:
• Reinstatement with the same seniority status.
• Payment of back pay with interest.
• Compensation for special damages, attorney’s
fees, expert witness fees, and litigation costs.
OSHA’s findings and order become the final
order of the Secretary of Labor, unless they are
appealed within 30 days.
After OSHA issues its findings and order, either
party may request a full hearing before an
administrative law judge of the Department of
Labor. The administrative law judge’s decision
and order may be appealed to the Department’s
Administrative Review Board.
If a final agency order is not issued within 180
days from the date the employee’s complaint is
filed, then the employee may file the complaint in
the appropriate United States district court.
To Get Further Information
For a copy of the Sarbanes-Oxley Act, the
regulations (29 CFR 1980), and other information,
go to www.osha.gov and click on the link for
“Whistleblower Program.”
For information on the Office of Administrative
Law Judges procedures and case law research
materials, go to www.oalj.dol.gov and click on the
link for “Whistleblower.”
For information on Federal securities laws, rules
and regulations or for information on publicly
traded companies, go to www.sec.gov.
This is one in a series of informational fact sheets highlighting OSHA programs, policies or
standards. It does not impose any new compliance requirements. For a comprehensive list of
compliance requirements of OSHA standards or regulations, refer to Title 29 of the Code of Federal
Regulations. This information will be made available to sensory-impaired individuals upon request.
The voice phone is (202) 693-1999; teletypewriter (TTY) number: (877) 889-5627.
For assistance, contact us. We can help. It’s confidential.
Occupational
Safety and Health
Administration
U.S. Department of Labor
www.osha.gov (800) 321-OSHA (6742)
DOE FS-3490 12/2011
The Whistleblower Protection Program
You have the right to report if your workplace is unsafe.
Learn More (https://www.dol.gov/general/topics/whistleblower)
Whistleblower Protections
OSHA’s Whistleblower Protection Program enforces the whistleblower
provisions of more than 20 whistleblower statutes (/whistleblower_actsdesk_reference) protecting employees from retaliation for reporting violations of
various workplace safety and health, airline, commercial motor carrier,
consumer product, environmental, financial reform, food safety, health insurance
reform, motor vehicle safety, nuclear, pipeline, public transportation agency,
railroad, maritime, securities, tax, antitrust, and anti-money laundering laws and
for engaging in other related protected activities.
Learn more about workplace retaliation and what it means, how to file a
whistleblower complaint, how to create an anti-retaliation program, what to
expect during a whistleblower investigation, and more below.
Find OSHA’s COVID-19 resources (https://www.osha.gov/coronavirus) to help
you stay safe and healthy, and find COVID-19 whistleblower data (/covid-19data).


Retaliation
The whistleblower laws (/statutes) that OSHA enforces prohibit employers from
retaliating against employees for engaging in activities protected under those
laws.
What is retaliation?
Retaliation occurs when an employer (through a manager, supervisor, or
administrator) fires an employee or takes any other type of adverse action
against an employee for engaging in protected activity.
What is an adverse action?
An adverse action is an action which would dissuade a reasonable employee
from raising a concern about a possible violation or engaging in other related
protected activity. Retaliation harms individual employees and can have a
negative impact on overall employee morale. Because an adverse action can be
subtle, such as excluding employees from important meetings, it may not
always be easy to recognize.
Adverse actions may include actions such as:
Firing or laying off
Demoting
Denying overtime or promotion
Disciplining
Denying benefits
Failing to hire or rehire
Intimidation or harassment
Making threats
Reassignment to a less desirable position or actions affecting prospects for
promotion (such as excluding an employee from training meetings)
Reducing or changing pay or hours
More subtle actions, such as isolating, ostracizing, mocking, or falsely
accusing the employee of poor performance
Blacklisting (intentionally interfering with an employee’s ability to obtain
future employment)
Constructive discharge (quitting when an employer makes working
conditions intolerable due to the employee’s protected activity)
Reporting or threatening to report an employee to the police or immigration
authorities
Are temporary workers protected from
retaliation?
When a staffing agency supplies temporary workers to a business, both the
staffing agency and its client (commonly referred to as the host employer) may
be held legally responsible for retaliating against workers. For additional
information on whistleblower protection rights of temporary workers, please see
OSHA’s Temporary Worker Initiative Bulletin No. 3 – Whistleblower Protection
Rights (https://www.osha.gov/sites/default/files/publications/OSHA3781.pdf).
What is an example of retaliation?
Example situation:
A worker informed her employer that she called OSHA because she believed
there was a fire hazard that her employer refused to fix. The worker had
reported the fire hazard previously to her employer. A workplace practice existed
which allowed all employees to swap shifts if they needed to take time off. The
worker tried to swap shifts a few days after she told her employer that she
called OSHA, but her employer did not allow her to swap. However, the other
employees were still allowed to swap shifts.
Example analysis:
Workers have a right to call OSHA to report an unsafe condition. Section 11(c)
of the Occupational Safety and Health Act protects workers who file complaints
with OSHA. By calling OSHA to complain about the fire hazard, the worker
engaged in protected activity under one of the whistleblower laws administered
by OSHA. She informed her employer that she called OSHA. Her employer
denied her shift swap only a few days after being notified that she called OSHA.
In addition, she was the only employee denied the ability to swap shifts. The
denial of the shift swap is an adverse action. And, in this case, it appears that
her employer denied her shift swap because she engaged in the protected
activity. If the employer denied her request to swap because she called OSHA,
then retaliation has occurred and the employer’s actions violated section 11(c)
of the Occupational Safety and Health Act.
How to File a Whistleblower
Complaint
You have the right to file a whistleblower complaint with OSHA
(https://www.osha.gov/whistleblower/WBComplaint.html) if you believe your
employer retaliated against you for exercising your rights as an employee under
the whistleblower protection laws enforced by OSHA. In States with OSHAapproved State Plans, employees may file complaints under section 11(c) of the
Occupational Safety and Health Act with Federal OSHA
(https://www.osha.gov/contactus/bystate) and with the State Plan
(https://www.osha.gov/stateplans) under its equivalent statutory provision.
Expand All

Time Limits for Filing a Complaint

Ways to File a Complaint
 Helpful Information to Have When You File a
Complaint

Procedures
Retaliation Protection by Subject
(/retaliation_by_subject#employee-safety)
Employee Safety
(/retaliation_by_subject#transportation-services)
Transportation Services
(/retaliation_by_subject#environmental-protection)
Environmental Protection
(/retaliation_by_subject#fraud-prevention)
Fraud and Financial Issues
(/retaliation_by_subject#consumer-product-motor-vehicle-and-food-safety)
Consumer Product, Motor Vehicle, and Food Safety
(/retaliation_by_subject#health-insurance)
Health Insurance
How to Create an Anti-Retaliation
Program
Employers can create workplaces in which workers feel comfortable voicing
their concerns without fear of retaliation. There are five key elements to creating
an effective anti-retaliation program or enhancing an existing one. Click below
for more information.
(https://www.osha.gov/Publications/OSHA3905.pdf)
What to Expect During a
Whistleblower Investigation
Filing a Complaint
An employee, or his or her representative, can file a whistleblower complaint
(/#howtofile) with OSHA via mail, fax, telephone, in person, or online, against
an employer for unlawful retaliation. During the investigation, the employee
who files the complaint is referred to as “the Complainant,” and the
employer, against whom the complaint is filed, is referred to as “the
Respondent.” Neither side is required to retain an attorney, but if a party
designates a representative, the designee will serve as the point of contact
with OSHA.
It is imperative for the Complainant or his or her representative to provide
OSHA with current contact information. Failure to do so may cause OSHA to
conclude the investigation.
OSHA will interview the Complainant to obtain information about the alleged
retaliation, and will determine whether the allegation is sufficient to initiate an
investigation under one or more of the whistleblower protection statutes
administered by OSHA. Regardless of the statute under which the complaint
is filed, the conduct of the investigation is generally the same.
Investigative Process
If the allegation is sufficient to proceed with an investigation, the complaint
will be assigned to an OSHA whistleblower Investigator who is a neutral factfinder who does not represent either party. The investigator will notify the
Complainant, Respondent, and appropriate federal partner agency that
OSHA has opened an investigation.
The Complainant and the Respondent should keep any potential evidence
(/#2-accordion-header) regarding the circumstances of the allegations,
including all pertinent emails, letters, notes, text messages, voicemails,
phone logs, personnel files, contracts, work products, and meeting minutes.
OSHA will request that both parties provide each other with a copy of all
submissions they have made to OSHA related to the complaint. Both the
Complainant and the Respondent should provide contact information for
witnesses who could support or refute the alleged retaliation.
OSHA will ask the Respondent to provide a written defense to the
allegations, also known as a position statement. Both parties are expected to
actively participate in the investigation and to respond to OSHA’s requests.
Both parties are also given an opportunity to rebut the opposing party’s
position.
Whistleblower investigations vary in length of time. The parties may settle
the retaliation complaint at any point in the investigation either through
OSHA’s Alternative Dispute Resolution (ADR) program (/alternative-dispute),
with the assistance of the assigned investigator, or through their own
negotiated settlement that OSHA approves.
Under certain statutes, the Complainant may “kick out” and file the retaliation
complaint in federal district court if there is no final order and a specified time
from the filing of the complaint with OSHA has passed (180 or 210 days
depending on the statute).
Conclusion of the Investigation
At the conclusion of the investigation, the investigator will make a
recommendation to his/her supervisor regarding whether the evidence
provides reasonable cause to believe that the Respondent violated the
specific statute in question. If the supervisor and management concur with
the merit or dismissal recommendation, OSHA will issue a findings letter to
both parties, which will include information about remedies1 (if appropriate)
and the right to object and have the case heard by an administrative law
judge, except in cases under section 11(c), AHERA, or ISCA. In those cases,
Complainants may request review by OSHA’s National Office of dismissal
decisions
(https://www.osha.gov/sites/default/files/enforcement/directives/CPL_02-03012.pdf). In merit section 11(c), AHERA, or ISCA cases, unless a settlement
is reached, the Department of Labor would have to file a complaint in district
court to remedy the retaliation.
For a complete explanation of the investigation process, please refer to the
Whistleblower Investigations Manual
(https://www.osha.gov/sites/default/files/enforcement/directives/CPL_02-03011.pdf).
1 As appropriate OSHA’s remedies will include applicable interest rates, which
are set by the Internal Revenue Service, see
https://www.whistleblowers.gov/backpay (/backpay)
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