OSHA and UOSH Whistleblower Claims

 If you’ve experienced retaliation at work for speaking up about workplace safety issues, you may be protected by whistleblower laws. Both the Occupational Safety and Health Administration (OSHA) at the federal level and the Utah Occupational Safety and Health Division (UOSH) at the state level provide whistleblower protections for employees who engage in safety-related protected activities. OSHA, 29 U.S.C. § 654, and its general duty provision, requires employers to furnish employment free from recognizable safety hazards. Similarly,  Utah Code § 34A-6-101 et seq. requires employers to provide safe and healthy working conditions to employees in Utah. Specifically, OSHA’s general duty provision, 29 U.S.C. § 651 et seq., imposes a general duty on employers to furnish a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm” to employees, mandates that employer’s comply with OSHA regulations, and requires employees to comply with all OSHA rules and regulations. 29 U.S.C. § 654(a)(1). UOSH has these identical requirements in its general duties provision. See Utah Code § 34A-6-201(1)-(3).

Both OSHA and UOSH provide employees with a legal right to make a complaint about safety issues. Section 34A-6-203 of UOSH expressly prohibits an employer from “discharge[ing] or in any way retaliate[ing] against an employee because the employee: (a) files a complaint or institutes or causes to be instituted a proceeding under or related to this chapter; or … (c) exercises a right granted by this chapter on behalf of the employee or others. Hence, the law provides each employee with a legal right or privilege to complain and protects an employer from retaliation because a complaint has been made. Similarly, OSHA provides that very same legal right and protection for employees. 29 U.S.C. § 660(c)(1) provides that “[n]o person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this Act.

Retaliation may include firing, demotion, pay cuts, denial of promotions, harassment, or reassignment or other adverse changes to an employee’s employment. To file a federal OSHA whistleblower claim, you must act quickly—typically within 30 days of the adverse action. Like federal OSHA, under UOSH employees must file retaliation complaints within 30 days of the adverse action, and UOSH investigates to determine if retaliation occurred. An employee must establish four elements to make a prima facie case of retaliation:

1. Protected Activity. The employee must engage in a protected action, such as filing a safety complaint, reporting unsafe conditions, or exercising rights under the Act. Complaints can be external (to UOSH or OSHA) or internal (to supervisors or management).

2. Employer Knowledge. The employer must know about the protected activity, either directly or indirectly through constructive notice.

3. Adverse Action. The employee must suffer a materially adverse employment action (such as termination, demotion, or pay reduction) that would discourage a reasonable worker from reporting concerns.

4. Causation. There must be a causal connection between the employee’s protected activity and the adverse action. This can be shown by direct or circumstantial evidence, such as by timing (temporal proximity), evidence of animus, disparate treatment, or a pattern of retaliation, among other things

 

If all four elements are established, the burden shifts to the employer to present a legitimate non-retaliatory reason for the adverse action. The employee then can prove that this reason is a pretext—not the real reason for termination or discipline, or to otherwise show that his or her protected activity led to the termination. If an employee prevails on his or her claim, remedies may include reinstatement, back pay, removal of negative employment records, and neutral references for future job searches. For example, in a recent decision Stavros Law obtained for a client under UOSH the client was awarded over $85,000 in lost wages, lost benefits and other relief and ordered the employer to expunge records from the employee’s file.

 

4If you believe you have been retaliated against, act quickly to protect your rights. Filing a whistleblower claim may secure justice for you and help ensure safer workplaces for everyone. Or if you have been subject to a whistleblower claim by an employee, it’s important to act quickly. For more information about OSHA and UOSH claims, you can contact one of our Utah wrongful termination employment lawyers at Stavros Law by calling (801) 758-7604,  emailing us at scheduling@stavroslaw.com or visiting our website, www.stavroslaw.com.