OSHA WHISTLEBLOWER ACT

WHISTLEBLOWER PROTECTION

What is a whistleblower?

INTRODUCTION

From recent court and Department of Labor rulings, taking any action against employees for experiencing injuries, appears to be somewhat challenging.

INTRODUCTION (Continued)

OSHA's new Whistleblower Act leaves quite a bit of gray area that could lead to violations or employers taken to court over risky company procedures and actions.

Whistleblower Protection

Section 11(c) of the OSHA Act prohibits anyone from discharging, retaliating or discriminating against any worker for exercising his or her rights under the act.

It's very important to understand their rights.

Whistleblower Protection

Protective activities include:

Raising safety and health concerns with an employer. (they can openly complain)

Reporting a work-related injury or illness.

Employee Whistleblower Protection

Filing a complaint with OSHA.

Seeking an OSHA inspection.

Participating in an OSHA inspection.

Participating or testifying in any proceeding related to an OSHA inspection.

Employee Whistleblower Protection

Protection from discrimination means that an employer cannot retaliate by taking “adverse” action. Examples include:

Firing or laying off

Blacklisting

Demotion

Employee Whistleblower Protection

Denying overtime or promotion

Discipline

Denying benefits

Failing to hire or rehire

Intimidating

Making threats

Reassignment affecting prospects for promotion

Reducing pay or hours

Whistleblower ProtectionHow to Make Safety Work Under the

Whistleblower Act

Make sure employees fully understand their responsibilities for safety through training, coaching, hands-on, and safety on every job.

The word “discipline” should never be used.

It is now illegal to discipline employees for causing, reporting, complaining about safety and so on.

However an employee can be disciplined for

violating established safety rules.

Whistleblower ProtectionWhat you should do

An employee reports an injury. Do an adequate investigation of the incident.

Treat the employee with dignity.

Determine the cause of the accident.

If the employee violated a safety rule, then you should “retrain” that individual on the rule violated.

You cannot write up the individual, admonish him/her, fire/speak harshly, cut hours or violate his/her rights or other Whistleblower Act violation.

KEEP IN MIND THAT DISCIPLINE CANNOT BE USED SIMPLY BECAUSE THEY

EXERCISED THEIR RIGHTS

THEIR RIGHTS DO NOT INCLUDEVIOLATING SAFETY RULES

YOU REALLY HAVE TO BE VERY CAREFULHOW YOU HANDLE THE SITUATION

Whistleblower ProtectionThe Right Way

Provide retraining in safety procedures.

Document the retraining.

The injured employee should be counseled.

This is not disciplinary action, but training/retraining.

Information should be included in his/her personnel file.

Training documentation of the incident

demonstrates the company is serious

about safety and its enforcement

Whistleblower ProtectionThe Right Way (Continued)

Training/retraining and documentation are “critical.”

It is the company’s responsibility to review the Whistleblower Act.

You are not disciplining the employee for having an accident or injury – you are retraining the employee to prevent future occurrences..

You never have to revert to discipline, simply retrain

When an employee's actions become egregious, that's the time to

follow your organization's policy on DISCIPLINE. Consult with

HR is the first thing to do. You can discipline employees, as long as it is performed according to your organization's procedures.

Filing Whistleblower Complaints Under the Affordable Care Act

SUMMARY

• Read the OSHA Whistleblower Act

• Watch carefully what you say to employees regarding any type of disciplinary action related to the Employee Protections

• Certainly, you can discipline employees for violating safety rules, just be sure you follow company procedures

• Retraining and documentation for anyone experiencing an accident or injury is in the company's best interests

• Pay attention to the Employee Protections related to the Affordable Health Care act or consult with your company's HR Department

• The penalties for violation of the Whistleblower Act can be substantial

I

SIMPLE SLIPS OF THE TONGUE, A REMARK TOWARD AN EMPLOYEE EXERCISING HIS OR HER RIGHT UNDER THE WHISTLEBLOWER ACT, CAN COME BACK TO HAUNT YOU IN A COURT OF LAW.

BE CAREFUL WHAT YOU SAY AND HOW YOU SAY IT.

KNOW THE EMPLOYEE'S RIGHTS AND DON'T VIOLATE

ACCIDENTS REQUIRE INVESTIGATION, RETRAINING AND DOCUMENTATION. IF YOU DO IT ANY OTHER WAY, YOU COULD BE OPENING A LAWSUIT.

FOLLOW YOUR ORGANIZATION'S POLICIES AND PROCEDURES.

WHEN WE SAY THERE ARE SUBSTANTIAL PENALTIESWE MEAN SUBSTANTIAL!