{"id":660,"date":"2019-07-11T18:08:00","date_gmt":"2019-07-11T22:08:00","guid":{"rendered":"http:\/\/caloshadefensereport.com\/?p=660"},"modified":"2026-03-15T23:48:28","modified_gmt":"2026-03-15T23:48:28","slug":"responding-to-osha-11c-retaliation-charges-employee-safety-complaints-and-rapid-response-investigations","status":"publish","type":"post","link":"https:\/\/www.connmaciel.com\/calosha-defense-report\/responding-to-osha-11c-retaliation-charges-employee-safety-complaints-and-rapid-response-investigations\/","title":{"rendered":"Responding to OSHA 11(c) Retaliation Charges, Employee Safety Complaints, and Rapid Response Investigations"},"content":{"rendered":"

By\u00a0Lindsay A. DiSalvo<\/strong><\/a>\u00a0and\u00a0Beeta B. Lashkari<\/strong><\/a><\/p>\n

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.\u00a0 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.\u00a0 These responses are an opportunity for the employer to avoid an inspection or litigation of a retaliation claim.\u00a0\u00a0A strong response could assuage OSHA\u2019s concerns and resolve the complaint in a favorable manner for the employer.\u00a0 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.<\/p>\n

Thus, employers must\u00a0ensure there is a procedure in place for managing and developing the responses to these situations, and\u00a0be strategic about the information they share with OSHA in the response.\u00a0 We are pleased to share the following tips and strategies for how to effectively address such complaints.<\/p>\n

Whistleblower Complaints\"\"<\/a><\/u><\/strong><\/p>\n

To start, although OSHA enforces whistleblower standards under 22 different statutes, the agency receives most of its retaliation claims (over 62%) under\u00a0Section 11(c) of the Occupational Safety and Health (OSH) Act<\/a><\/strong>. 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.<\/p>\n

While the vast majority \u2013 about 71% \u2013 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.\u00a0 This is particularly true because, under Section 11(c), employees can be entitled to substantial remedies, such as\u00a0<\/span>reinstatement, back pay, front pay, compensatory damages, and punitive damages if the employee can show \u201cevil motive or callous indifference\u201d on the part of the employer.<\/p>\n

Understanding the elements of the employee\u2019s case, and how to defend against them, therefore, is essential.\u00a0 Prior to 2016, the employee had to establish a\u00a0prima facie<\/em>\u00a0case of retaliation in order to maintain a claim and proceed through an OSHA investigation.\u00a0 Now, however,\u00a0OSHA guidance in its Whistleblower Manual<\/strong><\/a>\u00a0states that an employee need only prove its claim has merit.\u00a0 As such, the bar for employees is much lower, and a complaint can go forward even if there is only reasonable cause to believe a violation occurred.\"\"<\/a><\/p>\n

Nonetheless, the elements of a whistleblower claim under Section 11(c) are similar to the elements under other types of retaliation claims.\u00a0 The employee must prove that:<\/p>\n

    \n
  1. s\/he engaged in protected activity;<\/li>\n
  2. the employer took some adverse action; and<\/li>\n
  3. there was a causal connection between the protected activity and adverse action.<\/li>\n
  4. Additionally, and unlike other types of retaliation claims, the employee must also prove knowledge; i.e., that the decisionmaker knew of the protected activity at the time of taking the adverse action.<\/li>\n<\/ol>\n

    If the employee can show the required elements, the employer then has the opportunity to counter them by demonstrating it had a legitimate, non-discriminatory reason for the adverse action.\u00a0 The reason may be insubordination or poor performance, among a host of other reasons.<\/p>\n

    It is important for employers to understand the elements an employee must establish and its own potential defenses because these are the topics an employer should address in its position statement to OSHA.\u00a0 Essentially, this is the employer\u2019s first and best chance to submit a persuasive written response to the allegations in the complaint, so drafting this statement is the opportune time to seek assistance from experienced legal counsel.<\/p>\n

    Here are some of our best practice tips:<\/p>\n