Guide to Responding to 11(c) Safety Retaliation Complaints and Notices of Alleged Hazards/Employee Safety Complaints

By Lindsay A. DiSalvo and Beeta B. Lashkari

When OSHA receives a complaint related to worker safety and health or a severe injury report, one action by OSHA is to give the employer an opportunity to respond before it takes the more extreme action of opening an inspection.  In addition, when OSHA receives an allegation of retaliation, it must provide the employer a chance to explain why the adverse employment action of which it is accused was legitimate or did not occur as alleged.  These responses are an opportunity for the employer to avoid an inspection or litigation of a retaliation claim.  A strong response could assuage OSHA’s concerns and resolve the complaint in a favorable manner for the employer.  However, these responses can also create a written record of admissions to which OSHA can hold the employer accountable, and any supporting documentation may be closely scrutinized and used to create liability.

Thus, employers must ensure there is a procedure in place for managing and developing the responses to these situations, and be strategic about the information they share with OSHA in the response.  We are pleased to share the following tips and strategies for how to effectively address such complaints.

Whistleblower Complaints

To start, although OSHA enforces whistleblower standards under 22 different statutes, the agency receives most of its retaliation claims (over 62%) under Section 11(c) of the Occupational Safety and Health (OSH) Act. Section 11(c) prohibits employers from retaliating against workers who in good faith attempt to exercise a worker safety-related protected right under the law.

While the vast majority – about 71% – are either dismissed by OSHA or withdrawn by the employee, the sheer number of complaints OSHA receives, and the fact that nearly 30% of them do end in favor of the employee, should be more than motivation for employers to thoroughly address each one filed against them.  This is particularly true because, under Section 11(c), employees can be entitled to substantial remedies, such as Continue reading

Conn Maciel Carey Welcomes Former CSB Attorney-Investigator to the Firm

beeta lashkariWashington, D.C.-based Labor & Employment and OSHA / Workplace Safety boutique law firm Conn Maciel Carey LLP is pleased to announce that Beeta B. Lashkari has joined the firm as an attorney in its Washington, D.C. office.

Ms. Lashkari, a former attorney-investigator at the U.S. Chemical Safety and Hazard Investigation Board (CSB), has extensive experience handling government investigations and is equipped to defend clients in an array of matters before federal, state, and local government agencies, including OSHA 11(c) and whistleblower retaliation claims and EEOC investigations and enforcement actions.

Ms. Lashkari will assist the Labor and Employment practice group in advising and representing clients in a wide-range of inspections, investigations, and enforcement actions, including those from the EEOC, the Department of Labor’s Wage and Hour Division, the U.S. Occupational Safety and Health Administration (OSHA), the U.S. Environmental Protection Agency, the CSB, and state and local employment agencies.  In addition to her work with the Labor and Employment practice group, Ms. Lashkari will assist the OSHA Workplace Safety practice group in advising and representing clients in a wide-range of inspections, investigations, and enforcement actions before federal OSHA and state OSH agencies.

“We are thrilled to have Beeta join our growing niche practice and look forward to utilizing her government investigation experience to the benefit our employer clients,” said Kara M. Maciel, Chair, Labor & Employment Practice Group.

 

Conn Maciel Carey Opens Chicago Office with Prominent OSHA and Labor Lawyers Aaron Gelb and Mark Trapp

Washington, D.C.-based OSHA and Labor & Employment law firm Conn Maciel Carey LLP is pleased to announce the launch of a Midwest Office in Chicago, IL and the addition of two prominent Chicago attorneys – Aaron R. Gelb and Mark M. Trapp.

“We are thrilled not only to expand the Firm’s national footprint to the Midwest, but especially to be doing so with such great lawyers as Aaron and Mark,” said Bryan Carey, the firm’s managing partner.  “This move will enable us to better serve our existing national platform of clients, and will strengthen the firm’s specialty focus on Labor & Employment and Workplace Safety Law.  We look forward to bringing Aaron and Mark on board, as they will add depth to all areas of the firm’s practice, including OSHA, litigation and labor counseling on behalf of our management clients.”

Mr. Gelb, former Labor & Employment Shareholder and head of the OSHA Practice at Vedder Price PC, in its Chicago office, represents employers in all aspects of the employer-employee relationship.  Aaron GelbAaron’s practice has a particular emphasis on advising and representing clients in relation to inspections, investigations, and enforcement actions involving federal OSHA and state OSH programs, and managing the full range of litigation against OSHA.

“Aaron and I share the same vision of how we want to practice law and do business, thus entrusting him with the keys to our new Chicago office, and combining our expertise, talent, and resources together made so much sense,” said Eric J. Conn, Chair of the firm’s national OSHA practice“We look forward to partnering with Aaron to build a solid brand for our Midwest practice among our client base and doing what we know best, providing top-notch service and excellent value to clients.”

Aaron also has extensive experience litigating equal employment opportunity matters in federal and state courts having tried a number of cases to verdict and defending employers before the EEOC as well as fair employment agencies across the country.  In the past 5 years alone, Aaron has successfully handled more than 250 discrimination charges.

Mr. Gelb said “I am incredibly excited to join what I believe to be the country’s leading OSHA practice as the experience and expertise of the Conn Maciel team will enable me to enhance the workplace safety legal support I currently provide to my clients in the Midwest and beyond.  I’ve known Eric for years and have great respect for what he and his colleagues have accomplished in the OSH field.  At the same time, Kara’s employment defense group fits perfectly with my practice as we share a common client-focused philosophy and deep experience in many of the same industries.  While leaving Vedder Price after nearly 20 years was not an easy decision, I simply could not pass up the opportunity to partner with two dynamic attorneys that so perfectly complement the dual aspects of my practice.”

Mr. Trapp joins the firm with seventeen years of experience, during which he has represented employers in all types of labor disputes, from union campaigns and collective bargaining to grievances and arbitrations. Mark M. Trapp (3)Mr. Trapp has defended employers before administrative agencies and in litigation brought under the ADA, ADEA, Title VII and other federal anti-discrimination laws.

Mr. Trapp said “I am thrilled to again have the opportunity to work with the top-notch legal professionals at Conn Maciel Carey.” According to Mr. Trapp, the expertise of a boutique firm focused on OSHA and other labor and employment matters “complements my experience handling labor and employment issues. I look forward to helping strengthen the team’s ability to provide exceptional knowledge and insights to labor and employment clients, and expanding the firm’s presence in the Midwest.”

Mr. Trapp is perhaps best known as a leading authority on multi-employer pension withdrawal liability.  His articles on withdrawal liability and other labor and employment issues have been published in respected legal publications.

“I have worked with Mark for over a decade at various law firms, so I am excited that he has joined our boutique practice that focuses on positive client solutions and effective client service.  His unique knowledge of traditional labor issues and multi-employer pension disputes is unparalleled and he has proven to be a creative and out-of-the-box adviser when counseling clients,” Kara M. Maciel, Chair of the Labor & Employment Practice reported.

Whistleblower Retaliation Article Published in BLR’s HR Daily Advisor and Upcoming Webinar

whistleblower-articleBLR recently published a two piece article in the HR Daily Advisor by Kara Maciel and Daniel Deacon, of Conn Maciel Carey’s national Labor & Employment Law Practice Group, regarding government agencies increased focus on whistleblowers and retaliation, and how employers can avoid whistleblower and retaliation complaints from their employees.

Over the past year, there have been significant changes in both the Equal Employment Opportunity Commission (“EEOC”) and Occupational Safety and Health Administration (“OSHA”) that make it easier for employees to demonstrate that an employer acted with retaliatory intent.  Given this increased focus on retaliation, it is prudent for employers to take steps to avoid whistleblower and retaliation complaints from their employees, and ensure that they have adequate workplace policies and complaint systems to address retaliation complaints before an employee complaint lands before the EEOC or OSHA.

Part 1 of the article, titled “Preventing Whistleblowers in the Workplace: EEOC Expands the Rights of Whistleblowers,” focuses on how the EEOC has modified the standard it uses to evaluate retaliation claims, and has become more aggressive in its whistleblower enforcement efforts. Continue reading

OSHA Promulgates Final Rule on ACA Whistleblower Complaints

WhistleblowerOn October 12, 2016, the Occupational Safety and Health Administration (“OSHA” or the “Agency”) announced that it had issued a Final Rule establishing procedures for the filing, evaluation, and litigation of whistleblower complaints under the Affordable Care Act (“ACA”).  The rule became effective on October 13, 2016.  It lays out time frames for the handling of retaliation complaints under the ACA and explains the different procedural steps in the process; namely, filing a complaint, investigation of the complaint by OSHA, appealing OSHA determinations, hearings before an Administrative Law Judge (ALJ), and options for review of final determinations.  Much of the framework for ACA whistleblower complaints is similar to other whistleblower laws enforced by OSHA and will seem familiar to employers, but below are some of the highlights of the final rule of which employers should be aware.

Protected Activity and Types of Retaliation

The ACA was signed into law back in 2010, but many of its significant requirements did not kick in until several years later.  Of significance from an employer perspective, employers with 50 or more full-time employees (employees working 30 or more hours per week) must provide affordable health care coverage to their full-time employees and may be subject to a financial penalty if a full-time employee receives a premium tax credit for purchasing individual coverage on an insurance exchange.  Although enforcement of the ACA’s requirements generally does not fall within the purview of OSHA, the Agency has been charged with enforcing the whistleblower provisions of the Occupational Safety and Health Act (“OSH Act”), as well as 21 other statutes, including the ACA.

Based on employer obligations under the ACA, the final rule prohibits retaliation against an employee for receiving a tax credit or a cost-sharing reduction for enrolling in a qualified health plan.  OSHA also explains in the preamble to the Final Rule that this protected activity could include employee actions taken to exercise their rights under the ACA, such as retaliation against an employee who requests information necessary to apply for a tax credit.  Additionally, like most other whistleblower provisions, an employee is protected from retaliation for reporting or refusing to participate in acts he or she reasonably believes to be in violation of the ACA.  In this context, a reasonable belief means “both a subjective, good faith belief and an objectively reasonable belief.”

OSHA has also specifically laid out the types of actions it would deem retaliatory if taken, at least in part, based on an employee’s protected activity.  These types of actions include:

  • Firing or laying off;
  • Reducing pay or hours;
  • Blacklisting;
  • Demoting or denying promotion;
  • Denying overtime or benefits;
  • Failing to hire or rehire;
  • Disciplining;
  • Intimidating or making threats; or
  • Reassigning in a manner that threatens prospects for promotion.

Timing and Process for Filing a Complaint

If an employee has engaged in protected activity under the ACA and, as a result, feels he or she has been retaliated against by the employer, the employee must file a complaint with OSHA within 180 days after the retaliation has occurred.  This means an employee has 180 days from the time a retaliatory action is taken and the employee either was aware or reasonably should have been aware of the retaliatory action.  As compared to the whistleblower provisions of the OSH Act, this is double the amount of time employees have to file a complaint for a violation of those whistleblower protections.

The final rule does not require complaints be filed in a specific form and they can be submitted in any language.  An employee can file a complaint with OSHA in person at the local OSHA office; by phone call to the local OSHA office; or in writing by fax, electronic communication, mail or hand delivery to the closest OSHA office.  The date the complaint is communicated or delivered, or, in the case of mailing, the date the complaint is postmarked, is considered the date the complaint is filed for purposes of evaluating whether it was timely made within the 180-day period.

Agency Investigation and Evaluation of the Complaint

Upon receiving a complaint, a designated OSHA representative will review it to determine whether it meets certain basic threshold requirements to move forward.  One such threshold consideration will be whether it has been filed within the 180-day window.  OSHA will also immediately notify the subject employer of the filing of the complaint, including the allegations contained therein and the evidence supporting the complaint.  OSHA will provide the same information to the complaining employee and the appropriate federal agency charged with administration of the provision of the ACA under which the complaint is filed.  Within 20 days of receiving the notification from OSHA, the employer and complaining employee may submit to OSHA written statements regarding the complaint including supporting evidence and documentation.

OSHA must initially assess the complaint to determine whether the complaint, supplemented by interviews of the employee, supports a prima facie case of impermissible retaliation.  If it does, and only if it does, will OSHA perform a full investigation of the complaint, considering evidence presented by both parties.  To establish a prima facie case, the employee must show:

  1. The employee engaged in activity protected by the ACA;
  2. The employer knew or suspected that the employee engaged in protected activity;
  3. The employee suffered an adverse employment action; and
  4. The circumstances presented are sufficient to raise an inference that the protected activity was a contributing factor in the adverse action.

Notably, under the ACA whistleblower provisions, the protected activity must be only a “contributing factor” to the adverse action; a lower burden to establish than the whistleblower provisions of other laws that use a “but for” standard.  Under the “contributing factor” standard, an employee must show the protected activity alone, or in connection with other factors, affected the employer’s adverse decision in any way.

If OSHA determines that the employee has established a prima facie case, it may discontinue its investigation of the complaint if the employer can prove by “clear and convincing evidence” that it would have taken the same adverse action in the absence of the protected activity.  However, conversely to the employee’s burden, the clear and convincing evidence standard creates a more significant hurdle for employers, requiring they show it is “highly probable” or “reasonably certain” they would have taken the adverse action even if the protected activity had not occurred.

Based on the evidence gathered during its investigation, OSHA must issue written findings within 60 days of the complaint being filed.  These findings will specify OSHA’s determination as to the merits of the complaint.  If OSHA finds the evidence does not support retaliation, the complaint will be dismissed.  Alternatively, if OSHA finds reasonable cause to believe the complaint has merit, the Assistant Secretary will order appropriate relief for the employee such as preliminary reinstatement (if terminated), back pay with interest, compensatory damages, attorney fees and costs, and/or some sort of affirmative action to abate the violation.

Appealing a Determination

After a determination is rendered, the employer and/or employee has 30 days from receipt of the findings to file objections, in writing, to the Agency’s determination and, in effect, request a full hearing before an ALJ.  The filing of objections will stay any remedy granted by the Agency except preliminary reinstatement of the employee.  If neither party files objections within the 30-day period, the Assistant Secretary’s determination becomes a final order, no longer subject to review.

Timely objections will result in a hearing before an ALJ that must occur “expeditiously” after receipt of the objections unless good cause is shown or the parties otherwise agree.  The hearing will require de novo review of the complaint, meaning the ALJ will assess the evidence presented during the hearing without influence from the Agency’s prior determination or considering the validity of that determination.  The same burdens of proof and production apply for the employee and employer as in the Agency evaluation stage of this process.

The decision of the ALJ will become a final order of the Secretary of Labor if there is no request for review to (1) the Administrative Review Board within 14 days after the date of the decision; or (2) the United States Court of Appeals for the applicable circuit within 60 days of the issuance of a final order.  Appeals for judicial review can also be made within 60 days of issuance of a final order based on a decision of the Administrative Review Board.

OSHA, the employee, and the employer can also agree to a settlement prior to the issuance of a final order, although the type of settlement will depend on the stage in the proceeding.

Recommendations for Employers

There are several steps employers can take to try to avoid whistleblower complaints from their employees under the ACA.  First, employers should ensure there is a complaint system in place employees can use to bring issues of suspected retaliation to the employer’s attention before going directly to OSHA.  If an employer receives a complaint, it should thoroughly investigate and inform the employee of its findings and any actions it plans to take.  Second, employers should implement anti-retaliation policies and train management representatives and benefits administrators on those policies, as well as how to effectively manage covered employees.  Third, prior to and at the time an adverse action is taken, employers create and maintain documentation of the decision-making process to clearly establish it any adverse action is unrelated to the employee’s protected activity.

If a complaint of retaliation is filed with OSHA, the employer should take full advantage of its opportunity to provide its position and support for that position to the Agency.  This could lead to a determination in the employer’s favor earlier in the process, avoiding increased costs and additional time spent litigating the whistleblower claim.  It could also facilitate settlement, if that is the course the employer would like to pursue, as information is shared among the parties to the proceeding.

As Retaliation Claims Rise, Employers Face New Challenges Under Employment, OSHA and Health Care Laws

Authored By:  Kara M. Maciel & Eric J. Conn

Whistleblower  As we discussed in a recent webinar, employers are facing an increased risk of defending a retaliation complaint as administrative policy changes and expansive federal laws make asserting these claims easier for employees.

Whistleblower and related-retaliation charges are on the rise throughout the country, and the Occupational Safety and Health Administration (OSHA), tasked with fielding complaints under 22 laws, is also becoming more aggressive. The Equal Employment Opportunity Commission (EEOC) enforces the anti-retaliation provisions of several laws, including Title VII and the ADA.  In addition, sweeping laws like the Affordable Care Act (ACA) are creating increased fodder for discrimination complaints.  Armed with increased financial resources, federal investigators now aim to be more receptive to complaints as part of what the EEOC and OSHA view as needed reforms of their whistleblower enforcement arm.

Claims on the Rise

Retaliation claims under Title VII have grown substantially over the years. More than a decade ago, these claims made up less than a quarter of all EEOC charges, but since then they have increased exponentially.  Now not only do they make up the most significant portion of claims, they are almost 50 percent of all claims brought.  OSH Act 11(c) claims have also been increasing, and are now about double the number from 10 years ago.  Despite the large number of 11(c) claims, however, about 72 percent of them are withdrawn or dismissed, and frequently are settled.  Less than 1 percent actually receive a merit determination from OSHA.

Procedurally, there are important timing differences between an EEOC charge and an 11(c) claim.  An EEOC charge must generally be filed Continue reading