Law360 (November 19, 2020, 12:56 PM EST) --
The OSH Act regulates employment conditions relating to occupational safety and health. Every person engaged in a business affecting commerce is required to furnish each employee employment and a place of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm and to comply with the Occupational Safety and Health Administration's standards promulgated under the OSH Act.
This is part two of a two-part article. It addresses the following issues concerning OSH Act whistleblower complaints:
- Best practices and strategies for defending OSH Act whistleblowing complaints;
- COVID-19 and OSH Act whistleblowing actions; and
- Considerations concerning Title 29 of the Code of Federal Regulations, Section 1904.35.
Part one of this article provides guidance on the following key aspects of OSH Act whistleblower complaints:
- Elements of an OSH Act whistleblower action;
- Coverage of OSH Act whistleblower provisions;
- OSHA's whistleblower complaint process;
- Encouraging settlement;
- Pursuing a Section 11(c) claim in federal court; and
- Remedies available for a Section 11(c) complainant.
Best Practices and Strategies for Defending OSH Act Whistleblowing Complaints
This section provides tips and strategies for defending a Section 11(c) complaint at the investigative stage and in a subsequent federal court action.
Draft an effective position statement.
A position statement submitted to OSHA is an employer's first opportunity to offer context and provide perspective on the facts and circumstances surrounding a Section 11(c) claim. A well-written, persuasive position statement can mean the difference between dismissal of a complaint at the administrative stage or years of costly litigation.
At the same time, you should use caution when drafting position statements because any admissions or inconsistencies may be used against the respondent during the investigation or in subsequent litigation. Keep in mind that the contents of a position statement and any supporting documents may be subject to public disclosure through a Freedom of Information Act request, so confidential information should be redacted or filed separately.
Use easy-to-follow narratives.
Most OSHA investigators are not attorneys. Thus, effective position statements should consist of an easy-to-follow narrative.
Legal citations should be used sparingly and only if they are critical to the respondent's arguments. It may be useful to divide the position statement into two sections: one setting forth the facts and background, and the other explaining precisely why the complaint should be dismissed.
Attach supporting documentation.
It is often helpful to attach supporting documentation that illustrates or corroborates the respondent's defenses. For example, witness statements, personnel and training records, company policies, and other documents that support the respondent's position may be included as exhibits. While not critical, you should consider attaching examples of company safety policies to demonstrate to OSHA the respondent's overall commitment to safety.
Consider providing evidence to rebut allegations.
You should also be aware that a retaliation investigation may lead to a separate investigation of a violation of a substantive safety or health standard. By way of example, if an employee complains that he or she was discharged for reporting a lack of personal protective equipment, OSHA may investigate not only the complainant's retaliation claim, but also whether the employer violated a standard requiring it to provide employees with PPE.
Thus, if a Section 11(c) complaint is based on a complainant's allegation of a substantive safety or health violation, you should consider providing evidence to rebut that allegation as well as the retaliation claim.
Consider seeking dismissal based on a failure to meet statutory requirements.
Below are some threshold considerations for respondents to consider when defending against a Section 11(c) complaint.
Is the complainant an employee?
Assess whether the complainant falls within the statutory definition of an employee protected by Section 11(c). While the statute's reach is broad, there may be instances when the complainant's relationship to the respondent is too attenuated to create an employment relationship under Section 11(c) and Title 29 of the Code of Federal Regulations, Section 1977.5.
Was the complaint timely?
Section 11(c) requires that complaints be filed with OSHA within 30 days of an alleged adverse action. Because of this short time frame, many Section 11(c) complaints are screened out or dismissed because the complainant has failed to timely file the complaint. Either after a complaint is filed with OSHA or after the secretary of labor files an action in federal district court, consider whether a complainant has met this deadline.
The first day of the 30-day period is the day after the alleged retaliatory decision is both made and communicated to the complainant. Generally, the date of the postmark, facsimile transmittal, email communication, telephone call, hand delivery, delivery to a third-party commercial carrier, or in-person filing at a U.S. Department of Labor office is considered the date of filing.
If the postmark is absent or illegible, the date filed is the date the complaint is received. If the last day of the statutory filing period falls on a weekend or a federal holiday, or if the relevant OSHA office is closed, the next business day will count as the final day.
Because Section 11(c) does not require any particular form of complaint, a complaint need not be reduced to writing to meet the 30-day deadline.
Additionally, because many complaints under Section 11(c) also raise claims under Sections 7 and 8 of the National Labor Relations Act, which has a six-month charge-filing period, OSHA often refers untimely Section 11(c) complaints to the National Labor Relations Board for investigation under that statute.
Note also that the 30-day statute of limitations may be equitably tolled. Title 29 of the Code of Federal Regulations, Section 1977.15(d)(3) states:
Consider whether the secretary has established a prima facie case.
OSHA and courts considering retaliation claims under Section 11(c) apply the burden-shifting framework established by the U.S. Supreme Court's 1973 ruling in McDonnell Douglas Corp. v. Green.
To establish a prima facie case, the secretary must show that:
- The employee engaged in protected activity;
- The employer took adverse action against the employee; and
- A causal connection exists between the two.
If the secretary satisfies this burden, the employer must then articulate a legitimate, nonretaliatory reason for the adverse employment action, at which point the burden shifts back to the secretary to show that the employer's explanation is pretextual.
Did the complainant engage in protected activity?
One way to defeat a Section 11(c) claim is to rebut a complainant's assertion that he or she engaged in protected activity. Activities protected by Section 11(c) include, but are not limited to, the following:
- Filing occupational safety or health complaints with OSHA or other agencies;
- Filing occupational safety or health complaints with management;
- Instituting or causing to be instituted any proceeding under or related to the OSH Act;
- Providing testimony relating to occupational safety or health;
- Exercising any right afforded by the OSH Act;
- Refusing to perform a dangerous assigned task under certain circumstances:
- Title 29 of the Code of Federal Regulations, Section 1977.12(b)(2) states:
"[O]ccasions might arise when an employee is confronted with a choice between not performing assigned tasks or subjecting himself to serious injury or death arising from a hazardous condition at the workplace," and, on those occasions, an employer cannot take action against the employee without violating Section 11(c).
- Complying with and obtaining benefits of OSHA standards and regulations;
- Participating in an OSHA inspection;
- Requesting information from OSHA; and
- Refusing to inform an employer of the identity of the person who complained to or contacted OSHA.
Section 11(c) also protects employees whom an employer perceives to have engaged in any of these activities, even if such perception is mistaken, or when an employer retaliates against a person who is closely connected with someone who engaged in protected activity.
Often, protected activity is not in dispute, such as in situations where an employee complained to OSHA about an unsafe condition or participated in an OSHA investigation. Additionally, OSHA and courts take a broad view regarding what other types of activities are protected.
Still, there are instances when a respondent may be able to show that a complainant did not engage in activity protected under Section 11(c). A complainant may erroneously characterize an ordinary workplace complaint as one involving safety or health.
For example, an employee might object to performing a particular assignment based on his or her preference but later claim that the objection was based on a safety or health concern. In such a situation, the employer should present evidence or testimony establishing that the employee's objection was not based on a safety or health concern, and thus was not protected under Section 11(c).
A complaint also is not protected activity if it is not made in good faith. Thus, consider whether a complainant had an ulterior motive in lodging a complaint.
Did the complainant suffer an adverse action?
Another way to defeat a Section 11(c) claim is to rebut a complainant's assertion of an adverse action. To prevail on a retaliation claim under Section 11(c), a complainant must establish that he or she suffered an adverse action.
Courts and OSHA apply the U.S. Supreme Court's definition of an "adverse action" set forth in Burlington Northern and Santa Fe Railway Company v. White. There, in 2006, the court held that adverse actions include those that might "have dissuaded a reasonable worker from [engaging in protected activity]."
According to the U.S. District Court for the Western District of Washington's 2015 decision in Perez v. U.S. Postal Service, adverse actions that may support a retaliation claim are not "limited to discriminatory actions that affect the terms and conditions of employment" and may also include, for example, a lateral transfer, an unfavorable job reference, or a change in work schedule. While some actions, such as terminations and demotions, clearly qualify as adverse actions, others are context-specific.
Thus, where a complainant was not discharged or demoted, you should consider whether a fact-finder would deem the action sufficiently adverse such that a reasonable worker would be dissuaded from engaging in activity protected by Section 11(c).
Is there a causal link between protected activity and the adverse action?
Another way to defeat a Section 11(c) claim is to demonstrate a lack of causation. A complainant in a Section 11(c) case must establish a causal link between his or her protected activity and the subsequent adverse employment action. While it is the secretary's burden to establish causation, you should consider whether you can present evidence to rebut the existence of a causal link.
In considering causation, OSHA and the courts analyze whether protected activity was a substantial reason or a but-for cause for the adverse action.
Evidence of causation may be direct or circumstantial and may include:
- Suspicious timing;
- Ambiguous statements or behavior toward the employee who engaged in protected activity;
- Evidence that similarly situated employees who did not engage in protected activity received better treatment; and
- Evidence that the employer offered a pretextual reason for an adverse employment action.
In the absence of direct evidence of causation, the secretary may rely upon close temporal proximity to infer a causal link. However, courts are divided on whether close temporal proximity alone may establish causation.
There is no bright-line test as to what time period is sufficient to create an inference of causation, and courts will consider the particular circumstances of each case. As a general rule, a temporal proximity of a few hours or days will support an inference of causation, while an intervening period of weeks or months, without other evidence, is likely insufficient.
Another aspect of timing to consider is whether the adverse action occurred before the protected activity. As a matter of logic, if the adverse action preceded the complainant's protected activity, causation is lacking. Thus, when gathering evidence to defend a Section 11(c) claim it may be useful to ask decision makers for notes, emails, calendar and diary entries, and any other evidence that may show when they made their decision to take an adverse action.
Another key element of causation is employer knowledge. A decision maker who is unaware that an employee engaged in protected activity cannot retaliate against the employee for such activity. Accordingly, an effective method to defeat causation is to show that the pertinent decisionmakers lacked knowledge of the complainant's protected activity.
Note, however, that proof of actual knowledge is not required, and a complainant may rely on circumstantial evidence or proof that a decisionmaker suspected the complainant engaged in protected activity. Therefore, when investigating and gathering evidence, you should determine exactly when, how and whether any decision makers learned of a complainant's protected activity.
Establish the respondent's legitimate nonretaliatory reason for the adverse action.
Another effective way to defeat a Section 11(c) claim is to prove that the respondent took an adverse action for a legitimate, nonretaliatory reason. The regulations implementing Section 11(c) state: "An employee's engagement in activities protected by the Act does not automatically render him immune from discharge or discipline for legitimate reasons, or from adverse action dictated by non-prohibited considerations." Thus, an employer can avoid liability by showing that it would have taken the same action in the absence of the complainant's protected activity.
Employers should ensure that any personnel issues or other problems that lead to an adverse action are timely and thoroughly documented. If you intend to use the employer's records to support the defense, you should ensure that the records are consistent with the employer's asserted explanations for the adverse action. Employers should also ensure that they follow all investigation and discipline protocols or be able to explain any deviations from those protocols, to avoid a finding that its asserted reason for taking an adverse action is a pretext for unlawful retaliation.
To support an employer's legitimate, nonretaliatory reason you should also consider providing evidence that other employees who committed the same infraction as the complainant but did not engage in protected activity were treated the same as the complainant. Evidence that a company has been consistent in its treatment of employees, regardless of protected activity, can be an effective way to establish that the company's asserted reason for an adverse action is genuine.
COVID-19 and OSH Act Whistleblowing Actions
OSHA whistleblower claims are on the rise since the beginning of the COVID-19 pandemic. On Aug. 14, the DOL's Office of Inspector General issued a report to OSHA titled "COVID-19: OSHA Needs To Improve Its Handling Of Whistleblower Complaints During the Pandemic."
The report indicated that there was a 30% increase in employee whistleblower complaints filed with OSHA from Feb. 1 through May 31 during the height of the COVID-19 pandemic. It seems likely that this trend will continue, and may even accelerate, as employees return to work.
Meanwhile, OSHA has stated that it intends to make retaliation complaints a priority, and in April, it released a statement reminding employers that they may not retaliate against workers for reporting unsafe or unhealthy working conditions relating to COVID-19, signaling that it views employer retaliation as a concern during the pandemic. Notably, however, OSHA has dismissed, without investigation, 54% of the more than 1,700 COVID-19-related complaints it received between April and August.
It is not surprising that the COVID-19 pandemic has resulted in an increase in whistleblower complaints, since any employee who, in good faith, expresses apprehension about returning to work and contracting COVID-19, or who raises concerns about perceived inadequate PPE or other safety precautions, is likely engaging in protected activity under Section 11(c).
Under Title 29 of the Code of Federal Regulations, Section 1977.12(b)(2), an employer may not discipline or discharge an employee who refuses to perform an assigned task because of a reasonable apprehension of death or serious injury, coupled with a reasonable belief that no less drastic alternative is available and insufficient time to eliminate the condition through regular statutory channels. The employee must also have sought and been unable to obtain a correction of the dangerous condition.
Thus, whether an employee's refusal to return to work for fear of contracting COVID-19 is protected under Section 1977.12(b)(2) and Section 11(c) would depend on the particular facts and circumstances of each case. Relevant factors might include:
- Whether the employee works in crowded areas;
- Whether someone else in the workplace tested positive for COVID-19; and
- Whether proper safety precautions are in place.
Given the uptick in retaliation complaints during the COVID-19 pandemic, employers should continue to take employee complaints seriously. Such complaints should be well-documented, and if an employee refuses to work because of COVID-19 fears, employers should engage in an interactive discussion with the employee to understand whether the fear is well founded before taking any adverse action against the employee.
Consider Title 29 of the Code of Federal Regulations, Section 1904.35
Employers should also be aware of Title 29 of the Code of Federal Regulations, Section1904.35, which prohibits employers from discriminating or retaliating against any employee who reports a work-related injury or illness and prohibits employers from creating any policy that would "discourage or deter" an employee from reporting a workplace injury or illness.
While Section 11(c) requires an employee to file a complaint, under Section 1904.35, OSHA may investigate or cite an employer for a whistleblower violation, with or without an employee filing. Further, unlike the 30-day time limit for filing a Section 11(c) complaint, OSHA has six months to issue a citation under Section 1094.35.
While the activity protected by Section 1094.35 is more limited than that covered by Section 11(c) in that it only prohibits retaliation for reporting a work-related illness or injury, employers should remember that certain actions might violate both provisions.
Kenneth D. Kleinman is senior counsel and Brad M. Kushner is a shareholder at Stevens & Lee PC.
This article is excerpted from Practical Guidance, a comprehensive practice resource that includes practice notes, checklists, and model annotated forms drafted by experienced attorneys to help lawyers effectively and efficiently complete their daily tasks. For more information on Practical Guidance or to sign up for a free trial, please click here.
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 29 U.S.C. § 660(c).
 For a full version of this practice note, see Whistleblower Complaint Response and Defense Strategies under Section 11(c) of the Occupational Safety and Health Act.
 See, e.g., Acosta v. Dura-Fibre LLC, 2018 U.S. Dist. LEXIS 89536, at *19 (E.D. Wis. May 30, 2018) (holding that a complainant's telephone call to OSHA area office was sufficient to satisfy the statute of limitations).
 See also Donovan v. Hahner, Foreman & Harness, Inc., 736 F.2d 1421, 1428 (10th Cir. 1984) (finding that equitable tolling of 30-day period was appropriate where employer misled employee into believing that he had been laid off rather than fired and employee made diligent efforts to discover his true employment status).
 See Cambridgeport Air Sys., Inc., 26 F.3d at 1189 (affirming district court's finding of Section 11(c) liability where complainant "was terminated because of his connection with [another employee who employer believed engaged in protected activity]" where they were "particularly close friends," management knew they were close friends, a supervisor had warned the plaintiff not to raise safety concerns, and their terminations occurred within one week of each other."); Perez v. Lloyd Industries, 399 F. Supp. 3d 308, 319 (E.D. Pa. 2019) (holding that complainant need not have actually engaged in protected activity, and "it was sufficient that [respondent's manager] perceived that [complainant] engaged in a protected activity.").
 See Marshall v. Springville Poultry Farm, Inc., 445 F. Supp. 2, 3 (M.D. Pa. 1977) (holding that an employee's internal safety complaint to his or her employer is protected under Section 11(c)); Donovan v. R.D. Andersen Constr. Co., Inc., 552 F. Supp. 249, 252 (D. Kan. 1982) (holding that employee's communications with a newspaper regarding safety conditions in the workplace were protected under Section 11(c)).
 See, e.g., Solis v. Consolidated Gun Ranges, 2011 U.S. Dist. LEXIS 33547, at *18–19 (W.D. Wash. March 30, 2011) (holding that a manager did not engage in protected activity when he sent an email raising concerns about the company's handling of lead to save his job and deflect blame when an employee under his supervision had suffered lead poisoning).
 See, e.g., Perez v. U.S. Postal Service, 76 F. Supp. 3d 1168, 1185 (W.D. Wash. 2015) ("Ordinarily, participation in investigative interviews, standing alone, does not constitute punishment or harm sufficient to deter a reasonable employee from engaging in protective activity. Investigative interviews may, however, rise to an actionable level where they lead to an adverse consequence or where the attending circumstances show that a reasonable person subjected to them would be dissuaded from complaining about discrimination.") (citations omitted).
 See 29 C.F.R. § 1977.6 (b) ("If protected activity was a substantial reason for the action, or if the discharge or other adverse action would not have taken place 'but for' engagement in protected activity, Section 11(c) has been violated.") (citing Mitchell v. Goodyear Tire & Rubber Co., 278 F.2d 562 (8th Cir. 1960) and Goldberg v. Bama Manufacturing, 302 F.2d 152 (5th Cir. 1962)). See also Perez v. Lloyd Industries, Inc., 399 F. Supp. 3d 308, 321 (E.D. Pa. 2019) ("[C]ircuit and districts courts have continued to hold that causation for OSHA can be established using either the 'but for' or 'substantial factor' test.") (collecting cases).
 Compare Perez v. Eastern Awning Systems, Inc., 2018 U.S. Dist. LEXIS 173900, at *28 (D. Conn. Oct. 10, 2018) ("Close temporal proximity between the plaintiff's protected action and the employer's adverse employment action may in itself be sufficient to establish the requisite causal connection between a protected activity and retaliatory action.") (quoting Kaytor v. Elec. Boat Corp., 609 F.3d 537, 552 (2d Cir. 2010)); and 2019 U.S. Dist. LEXIS 232592, at *1, n. 1 (E.D. Pa. Feb. 6, 2019) ("Fairmount argues temporal proximity, standing alone, is never sufficient to show causation in a retaliation claim. This is incorrect. In this circuit, the causal link between protected activity and the adverse employment action may be shown by temporal proximity "unusually suggestive of retaliatory motive.") (citing Carvalho-Grevious v. Delaware State Univ., 851 F.3d 249, 260 (3d Cir. 2017)); with Dura-Fibre LLC, 2018 U.S. Dist. LEXIS 89536, at *22 ("[M]ore than temporal proximity is required to show retaliation.") (citing O'Leary v. Accretive Health, Inc., 657 F.3d 625, 635 (7th Cir. 2011)); Chao v. Norse Dairy Systems, 2007 U.S. Dist. LEXIS 71478, at *36 (S.D. Ohio Sept. 26, 2007) ("In [Section 11(c)] retaliation cases, temporal proximity alone is insufficient to establish a causal connection.").36 (S.D. Ohio Sept. 26, 2007) ("In [Section 11(c)] retaliation cases, temporal proximity alone is insufficient to establish a causal connection.").
 See Thomas v. Tyco International Management Company, LLC, 416 F. Supp. 3d 1340, 1364 (S.D. Fla. 2019) (holding that, where a plaintiff's negative performance review and other unfavorable personnel actions occurred two months prior to protected activity, "it was not possible for these acts and events to have been made in retaliation for her protected [activity] because that conduct had not yet occurred [and] retaliation can only occur when protected activity precedes retaliation.").
 See, e.g., Perez v. Panther City Hauling, Inc., 2014 U.S. Dist. LEXIS 86379, at *34 (S.D. Ill. June 25, 2014) (denying summary judgment for Secretary of Labor where evidence showed that decisionmakers in plaintiff's termination learned of the complainant's filing of an OSHA complaint after they made the decision to terminate the complainant).
 See Reich v. Hoy Shoe Co., 32 F.3d 361, 367–68 (8th Cir. 1994) (inferring knowledge where employer suspected that plaintiff had complained to OSHA and holding: "[A]n employer that retaliates against an employee because of the employer's suspicion or belief that the employee filed an OSHA complaint has as surely committed a violation of Section 11(c) as an employer that fires an employee because the employer knows that the employee filed an OSHA complaint."); Acosta v. Lloyd Industries, Inc., 291 F. Supp. 3d 647, 655 (E.D. Pa. 2017) (denying summary judgment on issue of employer knowledge where company owner knew that plaintiff had taken photographs of an unsafe machine that injured another employee shortly before OSHA came to the facility to investigate the machine, because "[c]ommon sense and experience establish that employers also make employment decisions on what they suspect or believe to be true.").
 29 C.F.R. § 1977.6.
 See Dura-Fibre LLC, 2018 U.S. Dist. LEXIS 89536, at *25 (holding that employer failed to follow its own accident reporting/investigation procedures when investigating and disciplining plaintiff, which provided evidence of pretext to defeat the employer's assertion of a legitimate, non-retaliatory reason for the adverse action).
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