Worker Rights and Whistleblower Protection (OSH Act Section 11(c))

Four kinds of protected activity

Section 11(c) of the OSH Act says no person shall discharge or in any manner discriminate against an employee because the employee has:

Reference: 29 CFR 1977.3 · 29 CFR 1977.3(a) · 29 CFR 1977.3(b) · 29 CFR 1977.3(c) · 29 CFR 1977.3(d) · 29 CFR 1977.9(c) · 29 CFR 1977.12(a) · 29 CFR 1977.9(b) · 29 CFR 1977.10(a)

Who is protected, and who cannot retaliate

• All employees are afforded the full protection of section 11(c). Even a job applicant could be considered an employee for this purpose.
• The ban is not limited to your own employer. A person may be charged with retaliating against another company's employee. It extends to unions, employment agencies, or any other person in a position to discriminate against you. On a multi-employer site, that can include another contractor.

One limit: employees of a State or political subdivision would not ordinarily be covered by section 11(c). States that run their own OSHA plans must have protections as effective as section 11(c).

Reference: 29 CFR 1977.4 · 29 CFR 1977.5(a) · 29 CFR 1977.5(b) · 29 CFR 1977.5(c) · 29 CFR 1977.23

When a refusal is protected

As a general matter, the Act gives no right to walk off the job because of potential unsafe conditions. Normally, you report the hazard; if it is not fixed or there is a dispute, you can request an OSHA inspection or ask another safety agency for help.

A refusal is protected when all of these are true:

• You refuse in good faith, with no reasonable alternative.
• A reasonable person in your situation would conclude there is a real danger of death or serious injury.
• There is not enough time, because of the urgency, to fix the danger through regular enforcement channels (such as an OSHA inspection).
• Where possible, you asked your employer to correct the condition and they did not.

Reference: 29 CFR 1977.12(b)(1) · 29 CFR 1977.12(b)(2)

Protection is not immunity

• Refusing to follow safety rules is not protected. Refusing to comply with OSHA standards or valid employer safety rules is not exercising a right under the Act. Discipline solely for that refusal will not ordinarily be treated as retaliation.
• Protected activity is not a shield against legitimate discipline. Reporting a hazard does not automatically make you immune from discipline for legitimate reasons.
• But retaliation does not have to be the only reason. If the discharge or other adverse action would not have happened "but for" your protected activity, section 11(c) has been violated.

Reference: 29 CFR 1977.22 · 29 CFR 1977.6(a) · 29 CFR 1977.6(b)

30 days, no special form

• Who: you, or a representative authorized to file for you.
• How: no particular form is required.
• Where: with the OSHA Area Director for the area where you live or were employed.
• When: within 30 days after the violation occurs. Complaints filed later are ordinarily presumed untimely. In narrow cases the 30 days can be extended, for example where the employer concealed or misled you about the grounds for the action, or where the discrimination is a continuing violation. A pending union grievance or a filing with another agency does not extend the 30 days.

If OSHA's investigation finds a violation, the Secretary of Labor may take the case to U.S. district court for relief, including rehiring or reinstatement with back pay. You may also pursue a union grievance at the same time.

Reference: 29 CFR 1977.15(a) · 29 CFR 1977.15(b) · 29 CFR 1977.15(c) · 29 CFR 1977.15(d)(1) · 29 CFR 1977.15(d)(3) · 29 CFR 1977.3 · 29 CFR 1977.18(a)(1) · 29 CFR 1977.15(d)(2)