WHAT SHOULD MANAGERS KNOW ABOUT RETALIATION PROTECTIONS? Robin Soderblom BA 638 Bellevue University...
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- WHAT SHOULD MANAGERS KNOW ABOUT RETALIATION PROTECTIONS? Robin
Soderblom BA 638 Bellevue University September 13, 2013
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- Whistleblower & Retaliation Protection The Occupational
Safety and Health Administration (OSHA) administers the employee
protection or whistleblower provisions of seventeen statutes Under
the Occupational Safety and Health Act (OSH Act), employees may
file complaints with OSHA if they believe that they have
experienced discrimination or retaliation for exercising any right
afforded by the OSH act, such as complaining to the employer union,
OSHA, or any other government agency about workplace safety or
health hazards; or for participating in OSHA inspection
conferences, hearings, or other OSHA-related activities.
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- Examples of Anti-Retaliation Protection Acts Surface
Transportation Assistance Act (STAA) Asbestos Hazard Emergency
Response Act (AHERA) International Safe Container Act (ISCA) Energy
Reorganization Act (ERA) Clean Air Act (CAA), Safe Drinking Water
Act (SDWA) Wendell H. Ford Aviation Investment and Reform Act for
the 21st Century (AIR21) Corporate and Criminal Fraud
Accountability Act, Title VIII of the Sarbanes-Oxley Act (SOX)
Pipeline Safety Improvement Act (PSIA) Federal Rail Safety Act
(FRSA) National Transit Systems Security Act (NTSSA) Consumer
Product Safety Improvement Act (CPSIA) Other Department of Labor
agencies, such as the Wage and Hour Division, the Employee Benefits
Security Administration, and the Mine Safety and Health
Administration, enforce the anti-retaliation provisions of numerous
other statutes and Executive OrdersWage and Hour DivisionEmployee
Benefits Security AdministrationMine Safety and Health
Administration
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- Basic Provisions/Requirements Generally, the employee
protection provisions listed above prohibit covered employers from
discharging or otherwise discriminating against any employee
because the employee engaged in certain activities protected by law
The protected activities typically include: Initiating a proceeding
under, or for the enforcement of, any of these statutes, or causing
such a proceeding to be initiated; Testifying in any such
proceeding; Assisting or participating in any such proceeding or in
any other action to carry out the purposes of these statutes; or
Complaining about a violation. Many of the statutes specifically
protect an employee's internal complaints to his or her employer It
is the Department of Labor's position, as set forth in regulations,
that employees who express safety or quality assurance concerns
internally to their employers are protected under all of the
whistleblower statutes administered by OSHA
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- Employee Rights Any employee who believes that he or she has
been discriminated or retaliated against in violation of any of the
statutes listed above may file a complaint with OSHA Complaints
must be filed within 30 days after the occurrence of the alleged
violation under the OSH Act, CAA, CERCLA, SWDA, FWPCA, SDWA, and
TSCA within 60 days under ISCA within 90 days under AIR21, SOX, and
AHERA and within 180 days under STAA, ERA, PSIA, FRSA, NTSSA, and
CPSIA. If the Secretary of Labor has not issued a final decision
within 180 days of the filing of a SOX complaint, one year of the
filing of an ERA complaint, or 210 days of a STAA, FRSA, NTSSA, or
CPSIA complaint, and there is no showing that there has been delay
due to the bad faith of the employee, the employee may bring an
action at law or equity in district court under those
statutes.
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- Recordkeeping/Reporting & Notices Posters. Although there
is no specific Whistleblower Poster, the Whistleblower Protection
provisions have the following poster requirements under the
Occupational Safety and Health Act (OSH Act) and the Energy
Reorganization Act of 1974 (ERA): All employers covered by the OSH
Act are required to display and keep displayed the OSHA Job Safety
and Health: Its the Law poster. There is a separate poster for
Federal agencies. This poster informs employees of their right to
file a retaliation or discrimination complaint with OSHA for making
safety and health complaints or for exercising rights under the OSH
ActJob Safety and Health: Its the LawFederal agencies The poster
must be displayed in a conspicuous place where employees and
applicants for employment can see it. Reproductions or facsimiles
of the poster shall be at least 8 1/2 by 14 inches with 10 point
type. Posting of the notice in languages other than English is not
required Employers covered by the Energy Reorganization Act of 1974
(ERA) must display the poster, Your Rights Under the Energy
Reorganization Act, where employees can readily see itYour Rights
Under the Energy Reorganization Act Notices. There are generally no
notice requirements for employers under most of the Whistleblower
Protection provisions administered and enforced by OSHA. For other
notice requirements under the OSH Act, see the OSHA Recordkeeping,
Reporting, Poster, and Other Notice Requirements pageOSHA
Recordkeeping, Reporting, Poster, and Other Notice Requirements
page Recordkeeping There are generally no recordkeeping
requirements for employers under most of the Whistleblower
Protection provisions administered and enforced by OSHA. For other
recordkeeping requirements under the OSH Act, see the OSHA
Recordkeeping, Reporting, Poster, and Other Notice Requirements
pageOSHA Recordkeeping, Reporting, Poster, and Other Notice
Requirements page Reporting There are generally no reporting
requirements for employers under most of the Whistleblower
Protection provisions administered and enforced by OSHA. For other
reporting requirements under the OSH Act, see the OSHA
Recordkeeping, Reporting, Poster, and Other Notice Requirements
pageOSHA Recordkeeping, Reporting, Poster, and Other Notice
Requirements page
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- Penalties & Sanctions Upon receipt of a timely complaint,
OSHA notifies the employer and, if conciliation fails, conducts an
investigation. Where OSHA finds that complaints filed under the OSH
Act, AHERA, and ISCA have merit, they are referred to the
Solicitor's Office for legal action. Complaints under these three
statutes found not to have merit will be dismissed. Where OSHA
finds a violation after investigating complaints under the other
statutes listed above, it will issue a determination letter
requiring the employer to pay back wages, reinstate the employee,
reimburse the employee for attorney and expert witness fees, and
take other steps to provide necessary relief. Complaints found not
to have merit will be dismissed. Parties who object to OSHA's
determinations under the other statutes listed above (except for
the OSH Act, AHERA, and ISCA) may request a hearing before the
Department of Labor's Office of Administrative Law Judges (OALJ).
Administrative Law Judges' decisions are reviewed by the Department
of Labor's Administrative Review Board, which the Secretary of
Labor has designated to issue final agency decisions.Office of
Administrative Law Judges (OALJ)Administrative Review Board Under
STAA, if OSHA finds in favor of the employee, litigation ordinarily
is conducted by the Solicitor's Office, but sometimes by the
private party. Under the other statutes, litigation generally is
conducted by the private parties themselves. Employers and
employees may seek judicial review of an adverse Administrative
Review Board decision. Under the AIR21, SOX, PSIA, FRSA, NTSSA, and
CPSIA, employees who file complaints frivolously or in bad faith
may be liable for attorney's fees up to $1,000.
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- State, Local, and Other Federal Laws The Supreme Court has held
that the employee protection provisions of the ERA do not preempt
existing state statutes and common law claims. The other statutes
listed above should be consulted separately to determine whether or
not their employee protection provisions are supplementary to
protection provided by state laws
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- Compliance Assistance The Department of Labor provides
employers, workers, and others with clear and easy-to-access
information and assistance on how to comply with the Whistleblower
Protection provisions, including OSHAs Whistleblower Program Web
site. Compliance assistance related to the Act, including
explanatory brochures, fact sheets, and regulatory and interpretive
materials, is available on the Compliance Assistance By Law Web
pageOSHAs Whistleblower Program Web site Compliance Assistance By
Law
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- Department of Labor Contacts Occupational Safety and Health
Administration (OSHA) Occupational Safety and Health Administration
(OSHA) Contact OSHA Contact OSHA Telephone: 1-800-321-OSHA
(1-800-321-6742)
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- Conclusion The Occupational Safety and Health Act (OSH Act) is
designed to protect employees who may file complaints with OSHA, a
union, or any other government agency about workplace safety or
health hazards The Occupational Safety and Health Administration
(OSHA) administers the employee protection or whistleblower
provisions of seventeen statutes Compliance Assistance: OSHAs
Whistleblower Program Web site OSHAs Whistleblower Program Web site
Compliance Assistance By Law Compliance Assistance By Law
Occupational Safety and Health Administration (OSHA) Occupational
Safety and Health Administration (OSHA) Contact OSHA Contact OSHA
Telephone: 1-800-321-OSHA (1-800-321-6742) WWW.DOL.GOV
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- Reference: www.dol.gov