On February 10, 2014, the Secretary of Labor filed a lawsuit (without a summons) in the U.S. District Court for the Northern District of Ohio, Eastern Division, against The Ohio Bell Telephone Company on behalf of 13 employees. The complaint in Thomas E. Perez. Secretary of Labor v. The Ohio Telephone Company alleges that the employer violated Section 11(c) of the Occupational Safety and Health Act (the Act) by knowingly and maliciously discriminating against 13 employees when it issued disciplinary warnings and one-to-three-day suspensions without pay as a consequence of each employee reporting an on-the-job injury. The complaint further alleges that after each employee reported a work-related injury to his/her supervisor, the employer conducted an investigation, determined that a safety policy was violated – in 12 of the 13 incidents did not cite a specific rule or policy – and then issued a disciplinary warning and suspension. An answer from Ohio Bell has not yet been filed and the time to do so has not passed.
The lawsuit illustrates the increased emphasis the Occupational Safety and Health Administration (OSHA) places on processing employee complaints and prosecuting retaliation claims. Through its Whistleblower Protection Program, OSHA provides easy access for employees to file whistleblower complaints, complete with complaint form and online filing. To be timely, the employee's complaint must be filed with OSHA within 30 days after the discriminatory decision was made and communicated to the employee. Assuming the investigatory and voluntary resolution process specified in OHSA's Whistleblower Investigations Manual was followed in the Ohio Bell case, the employer has possibly already incurred expenses and costs that equate to lost wages claimed and now faces expenses and other costs associated with litigation that could far exceed that claim.
OSHA has whistleblower authority under 22 federal laws, including the Act and the Federal Railroad Safety Act (FRSA) that prohibit employers from discriminating against employees for reporting injuries. In August 2011, OSHA obtained orders under the FRSA against Burlington Northern Santa Fe Railway to pay an employee $300,000 (back wages, compensatory damages, attorney's fees and punitive damages) and against Norfolk Southern Railway Co. to pay a former employee $122,199 (compensatory damages, attorney's fees and punitive damages) for allegedly discriminating against employees who reported work-related injuries by issuing a 30-day disciplinary suspension without pay and termination, respectively.
Employers may look to OSHA's Deputy Assistant Secretary's Memorandum, dated March 12, 2012, to find what employer policies and practices OSHA considers violate Section 11(c) of the Act. Practices that OSHA considers unlawful include:
- A policy to discipline all employees who are injured on-the-job regardless of fault (regardless of the circumstances surrounding the injury);
- Rules that penalize employees who do not realize immediately that their injuries are serious enough to report, or even that they are injured at all;
- Enforcement of a workplace safety rule when such enforcement is a pretext for discriminating against an employee who reports an injury; and
- Programs that provide employees an incentive to not report an injury.
To determine whether OSHA might view enforcement of a workplace safety rule to be a pretext for discriminating against an employee who reports an injury, an employer may look to the guidance OSHA has directed its field compliance officers to consider:
- Does the employer monitor for compliance the work rule in the absence of an injury?
- Does the employer consistently impose equivalent discipline against employees who violate the work rule in the absence of an injury?
- What is the nature of the rule cited by the employer when imposing discipline: is the rule vague, may the rule be manipulated by use of phrases such as requiring employees to "maintain situational awareness" or "work carefully"?
- Is the safety rule enforced, including discipline for violation, in situations that do not involve an employee injury? and
- Is the safety rule more stringently enforced against injured employees than noninjured employees?