The Occupational Safety and Health Act was passed in 1970 and created the Occupational Safety and Health Administration (OSHA) to protect employees from dangerous working conditions and to standardize workplace safety. Over the years, it has been amended many times and now includes provisions that protect employees from retaliation from their employers when they either report injuries under the OSHA reporting requirements or if they file a complaint against their employer for a violation of OSHA standards. Many states have a state version of OSHA and, in the case of California, have state laws that prohibit retaliation against whistleblowers, as well.
What Conduct is Prohibited by Federal OSHA Whistleblower Laws?
Simply put, an employee is protected from “adverse actions” if they avail themselves of the rights guaranteed by OSHA. Adverse actions can include:
- Termination or lay off
- Denial of overtime
- Denial of promotion
- Disciplinary actions
- Denial of benefits
- Failure to hire or rehire
- Intimidation or harassment
- Threatening behavior
- Reassignment that impacts prospects or likelihood of promotion
- Reducing pay or scheduled hours
What Employees are Covered?
OSHA retaliation provisions cover employees and their conduct under what most think of as workplace safety regulations (such as wearing a hard hat where appropriate or utilizing fall protection where required). OSHA also administrates whistleblower protections under a number of other federal laws. These include:
- Environmental laws with reporting requirements such as the Safe Drinking Water Act (SDWA), the Resource Conservation and Recovery Act (RCRA), the Clean Water Act (CWA), the Clean Air Act (CAA) and several others;
- Financial laws such as the Sarbanes-Oxley Act in regards to allegations of fraud against certain financial companies;
- Transportation laws such as the Federal Railroad Safety Act and the Pipeline Safety Improvement Act and
- The Consumer Product Safety Improvement Act, among others.
What Activities are Protected Federally?
The theme that remains consistent through all of these laws is that if an employee reports a violation of the law or of reporting requirements, the employer can not take an adverse action against the employee. If the employer does so, then it can be alleged that they are in violation of federal whistleblower law and the employee is empowered to file suit against the employer.
California’s OSHA Whistleblower Law
California has its own version of the federal OSHA whistleblower law that is found in the California Labor Code Section 1102.5. This law prohibits any employer from making or enforcing any rule or policy to prevent an employee from disclosing information to a government agency, a person with authority over that employee or to an investigative body if the employee believes the information will disclose a violation of state or federal law or a rule or regulation. Furthermore, the law prohibits any retaliation for such a disclosure or for refusing to participate in an activity that would result in a violation of a federal or state rule or regulation. Finally, the law provides a civil penalty of up to $10,000 per violation for employers who are found to be in violation.
The reality exists for many employees today that they are afraid to complain about working conditions or perceived violations of the law because they are afraid of losing their jobs or being blacklisted. However, federal and California laws protect employees from having to balance their safety against the prospect of losing their job. If you find yourself in a position like this, protecting your rights is paramount. The attorneys at Willoughby Brod LLP have years of experience in representing whistleblowers and making sure San Francisco area employers are held accountable. Give them a call today at 800-427-7020 or click here to set up your free case evaluation today.
(image courtesy of igor-ovsyannykov)