Employers Now Have Expanded Whistleblower Liability Under OSHA Rules

The Occupational Safety and Health Administration (OSHA) recently announced some changes to its whistleblower system that will result in employers having greater liability in whistleblower cases.

OSHA has had a massive increase in the number of whistleblower complaints filed in recent years, and it is expected this number will only continue to grow. The number of whistleblower complaints filed with the agency increased by 74 percent between 2012 and 2018. The majority of those claims involve violations of the Occupational Safety and Health Act, and many of those involve employees claiming their employers retaliated against them (by suspension, demotion or termination, among other negative employment actions) after they engaged in protected whistleblower activity.

Employer responsibility

Under the OSH Act, OSHA has 90 days to complete whistleblower investigations, but the backlog has gotten to the point where in 2019, OSHA took an average of three times that number of days to reach a decision. It is expected OSHA will start taking more efforts to negotiate settlements as its resources for investigating cases and taking offenders to court are limited.

Employers are still responsible for creating an environment in which employees can speak up about safety concerns without fear of retaliation. According to OSHA, companies should include the following elements in a strong anti-retaliation program:

• Managers who encourage employees to report their concerns and who are capable of keeping those reports confidential
• A clearly outlined and communicated system for resolving reports of whistleblower retaliation
• A clearly defined system for receiving and responding to those reports
• Anti-retaliation measures that deal with both employees and managers
• Oversight for the program to ensure impartiality

For more information about employer liability in OSHA whistleblower cases, contact an experienced attorney at Kardell Law Group.