Whistleblower Complaint Response and Defense Strategies under Section 11(c) of the Occupational Safety and Health Act

By: Kenneth D. Kleinman and Brad M. Kushner, STEVENS & LEE

This article addresses strategies for responding to and defending against whistleblower complaints filed under Section 11(c) of the Occupational Safety and Health Act (the OSH Act).¹ 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 occupational safety and health standards promulgated under the OSH Act.

AS DETAILED BELOW, ONE OF THE KEY FEDERAL AGENCIES that handles whistleblower complaints is the Occupational Safety and Health Administration (OSHA). Below is a chart showing data from OSHA on the number of whistleblower complaints filed with OSHA from 2015-2020. OSH Act whistleblower complaints increased during COVID-19.

Visualization of Whistleblower Complaints Received by OSHA (2015-2020).
Source: OSHA

As detailed below, the Securities and Exchange Commission (SEC) also receives many whistleblower complaints. Below is a chart with data from the SEC showing the types and numbers of whistleblower claims that the SEC received from 2017-2020.

Visualization of SEC Whistleblower Tips Received by Claim Type (2017-2020).
Source: SEC data.

Below is a chart with data from the SEC showing state-by-state whistleblower claims that the SEC received in 2020.

Visualization of SEC Whistleblower Tips Received by Claim Type (2017-2020).
Source: SEC data.

Elements of an OSH Act Whistleblower Action

Separate from the substantive safety and health standards, Section 11(c) of the OSH Act provides that no person shall discharge or in any manner discriminate against any employee because the employee has:

• Filed any complaint under or related to the OSH Act
• Instituted or caused to be instituted any proceeding under or related to the OSH Act
• Testified or is about to testify in any proceeding under the OSH Act or related to the OSH Act
• Exercised on his or her own behalf or on behalf of others any right afforded by the OSH Act²

Coverage of OSH Act Whistleblower Provisions

Any employee of a private-sector employer engaged in a business affecting interstate commerce is protected by Section 11(c). Employees of the U.S. Postal Service (USPS) are also covered by the OSH Act. Other than USPS employees, public-sector employees are not covered by Section 11(c).

Persons Prohibited from Discriminating and Retaliating

Section 11(c) states that “no person shall discharge or in any manner discriminate against any employee” because the employee has exercised rights under the OSH Act. The OSH Act defines person as “one or more individuals, partnerships, associations, corporations, business trusts, legal representatives, or any group of persons.” Thus, the prohibitions of Section 11(c) are not limited to actions taken by employers against their own employees. Section 11(c) also extends to unions, employment agencies, or any other person in a position to discriminate against an employee.³

Persons Protected from Discrimination and Retaliation

Section 11(c) protects employees, which are defined as “an employee of an employer who is employed in a business of his employer which affects commerce.”⁴ The OSH Act does not define the term employ. Courts determine the existence of an employment relationship, for purposes of Section 11(c), based upon economic realities.⁵ (“[T]he broad remedial nature of this legislation demonstrates a clear congressional intent that the existence of an employment relationship, for purposes of Section 11(c), is to be based upon economic realities rather than upon common law doctrines and concepts.”) (citations omitted).

For purposes of Section 11(c), even an applicant for employment may be considered an employee.⁶

Occupational Safety and Health Administration (OSHA) Whistleblower Complaint Process for OSH Act Claims

A complaint under Section 11(c) typically begins when an employee or employee representative files a complaint with OSHA. After an investigation, OSHA determines whether to file an action in federal court on behalf of the aggrieved employee. This process is described below.

Filing the Complaint

Any applicant for employment, employee, former employee, or their authorized representative is permitted to file a whistleblower complaint with OSHA. No particular form of complaint is required. The complaint may be in any language and need not be in writing. OSHA also accepts electronically filed complaints on its Whistleblower Protection Program website.⁷

A complaint must include, at a minimum:

• The complainant’s full name, address, and phone number
• The name, address, and phone number of the respondent or respondents
• The date of filing
• The date of adverse action
• A brief summary of the alleged retaliation addressing the prima facie elements of a violation⁸

Investigating the Complaint

After a complaint is filed, an investigator is assigned to conduct complaint intake and determine whether the complaint alleges facts sufficient to make a prima facie showing of retaliation. Many complaints are dismissed at this stage.

If the investigator determines that an investigation is warranted, the investigator will:

• Interview the complainant and any witnesses
• Obtain statements and documentary evidence
• Interview and obtain statements from respondents’ officials
• Review pertinent records
• Take any other actions necessary to gather evidence and assess the complainant’s claims and the respondent’s defenses

As the respondent’s legal counsel, you have the right to be present for any management interviews. Ultimately, the investigator will make a recommendation regarding whether the complaint appears to have merit.⁹

During an investigation, OSHA must disclose to the respondent (or the respondent’s legal counsel):

• The filing of the complaint
• The allegations contained in the complaint
• The substance of the evidence supporting the complaint¹⁰

OSHA will provide to the complainant (or the complainant’s legal counsel) the substance of the respondent’s response. OSHA will redact any information that may compromise the identity of potential confidential witnesses and other confidential or sensitive information.¹¹

Issuing a Determination

OSHA previously instructed investigators that a violation may be found if it was supported by a preponderance of the evidence. It lowered this burden in 2015, and OSHA now takes the position that investigators should determine whether there is reasonable cause to believe that Section 11(c) was violated.¹²

According to OSHA, this means that an investigator should determine whether a reasonable judge could find that a violation occurred, and “[t]he evidence does not need to establish conclusively that a violation did occur.”¹³

Section 11(c)(3) provides that the Secretary of Labor (Secretary) must notify a complainant of the Secretary’s determination within 90 days of the filing of the complaint. However, this 90–day provision is considered directory, rather than mandatory, and the Secretary’s failure to meet this timeline does not bar further investigation and does not affect the Secretary’s ability to file in federal court.¹⁴

Encouraging Settlement

It is OSHA’s policy to seek settlement of all cases determined to be meritorious prior to referring the case for litigation. Further, at any point prior to the completion of an investigation, OSHA will attempt to resolve complaints in which both parties seek a resolution, either informally or through its early resolution program.¹⁵

OSHA’s Early Resolution Program

OSHA has implemented an early resolution program that enables the parties to a whistleblower complaint to attempt to resolve a complaint before a full investigation occurs. The early resolution process can be launched either before the case is assigned for an investigation, or at any point while an investigation is ongoing. The investigation is stayed while the parties attempt to resolve the case with the assistance of a neutral OSHA representative. Information obtained by the neutral representative during the early resolution process is confidential and is not disclosed to OSHA’s investigative staff. Should the parties fail to reach a settlement, the case will be transferred to an investigator to start or resume investigation of the complaint.

While parties may request that the case be submitted to the early resolution program at any point during the investigation process, as a general rule, parties may only submit their case to the program one time.¹⁶

OSHA’s Requirements for Settlement Agreements

OSHA generally requires that any settlement agreement to which it is a party contain the elements outlined below, though these may be tailored to fit the particular situation:

• It must be in writing.
• It must stipulate that the respondent agrees to comply with the relevant statute(s).
• It must specify the relief obtained.
• It must address a constructive effort to alleviate any chilling effect, where applicable, such as a posting (including electronic posting, where the respondent communicates with its employees electronically) or an equivalent notice. If a posting or notice is not included in the settlement agreement the case file should contain an explanation.¹⁷

Employers and employees may resolve disputes between themselves and enter into private settlement agreements to which OSHA is not a party. To end OSHA’s investigation or lawsuit, a private agreement must be approved by OSHA. OSHA will approve a private settlement if it deems it to be:

• Fair
• Adequate
• Reasonable
• Consistent with the purpose and intent of Section 11(c)
• In the public interest

OSHA will not approve a whistleblower settlement agreement that contains provisions that may discourage whistleblowing, such as:

• Provisions that require employees to waive the right to receive a monetary award from a government-administered whistleblower award for providing information to a government agency about violations of the law
• Provisions that require an employee to advise the employer before voluntarily communicating with the government or to affirm that the employee is not a whistleblower¹⁸

If the parties do not submit their agreement to OSHA or if OSHA does not approve the signed agreement, OSHA may dismiss the complaint or continue its investigation.

Employers and their counsel should be aware that OSHA often issues press releases announcing the terms of settlements, including the monetary components.

Pursuing a Section 11(c) Claim in Federal Court

If OSHA finds merit and the case cannot be settled, the Secretary will file a civil action in federal court against the person who committed the violation.19 There is no private right of action under Section 11(c).20 The Secretary in a federal court action is represented by the Regional Solicitor’s Office.

There is no statute of limitations for the Secretary to file an action in federal court after notifying the parties of the outcome of an investigation. However, courts have held that the doctrine of laches may apply if the Secretary’s delay was unreasonable and inexcusable and the delay has resulted in prejudice to the defendant.²¹

Some States Recognize a Private Right of Action

Note, however, that some states do recognize a private right of action under state law for wrongful discharge based on public policy where an employee is discharged in retaliation for raising a safety complaint.²² Other states hold that any such complaint is preempted by Section 11(c).²³

Remedies Available for a Section 11(c) Complainant

Section 11(c) provides: “In any such action the United States district courts shall have jurisdiction, for cause shown to restrain violations of paragraph (1) of this subsection and order all appropriate relief including rehiring or reinstatement of the employee to his former position with back pay.”

Courts have interpreted this provision broadly to include:

• Lost wages
• Medical expenses
• Travel and housing expenses
• Emotional distress damages
• Prejudgment interest²⁴

Reinstatement

Reinstatement of the complainant to his or her former position is the presumptive remedy in whistleblower cases involving a discharge or demotion. Where reinstatement is not feasible, front pay in lieu of reinstatement may be awarded from the date of the award up to a reasonable amount of time for the complainant to obtain another job. Situations where front pay may be appropriate include:

• Those in which the respondent’s retaliatory conduct has caused the complainant to be medically unable to return to work
• Where the complainant’s former position or a comparable position no longer exists
• Where reinstatement might lead to extreme hostility or debilitating anxiety or other risks to the complainant’s mental health

If a complainant seeks front pay, consider retaining an economic and/or a vocational expert to limit a potential front pay award.

Back Pay

Back pay is typically calculated by deducting the complainant’s interim earnings (from sources such as interim employment and workers’ compensation payments) from the complainant’s total earnings (before taxes and other deductions) that the complainant would have earned during the period of unemployment. It typically includes any cost-of-living increases or raises that the complainant would have received if he or she had continued to work for the respondent, if supported by competent evidence. A back pay award may also include compensation for lost bonuses, overtime, benefits, raises, and promotions.

Complainants have a duty to mitigate their damages. To be entitled to back pay, a complainant must exercise reasonable diligence in seeking alternate employment. Employers may wish to consider whether it is appropriate and feasible to make an offer of reinstatement to a complainant to limit back pay exposure. A respondent’s cumulative liability for back pay ceases when a complainant rejects a bona fide offer of reinstatement to a job substantially equivalent to the complainant’s former position.

Compensatory Damages

A successful Section 11(c) complainant may also be entitled to an award of compensatory damages, which typically includes both pecuniary losses resulting from the adverse action, as well as damages to compensate the complainant for emotional distress, pain and suffering, loss of reputation, personal humiliation, and mental anguish suffered as a result of the adverse action.

Compensable pecuniary losses may include, for example, out-of-pocket medical expenses resulting from the cancellation of a company health insurance policy and medical expenses for treatment of symptoms directly related to the retaliation (e.g., post-traumatic stress, depression, etc.). They may
also include:

• Vested fund or profit-sharing losses
• Credit card interest and other property loss resulting from missed payments
• Annuity losses

Successful complainants may also recover expenses incurred as a result of searching for other employment.

A successful complainant in a Section 11(c) action may also be awarded compensatory damages for emotional distress, pain and suffering, loss of reputation, personal humiliation, and mental anguish resulting from the respondent’s adverse employment action. Emotional distress is not presumed.

Generally, a complainant must provide evidence of both:

• Objective manifestations of distress
• A causal connection between the retaliation and the distress

Objective manifestations of emotional distress include, but are not limited to:

• Depression
• Post-traumatic stress disorder
• Anxiety disorders

Objective manifestations also may include conditions that are not classified as mental disorders such as sleeplessness, harm to relationships, and reduced self-esteem.

Because a complainant must prove a causal connection between the retaliation and the emotional distress for which the complainant seeks compensation, you should explore in discovery whether there may be other causes for a complainant’s emotional distress.

Courts generally do not require medical evidence to support a claim of emotional distress under Section 11(c).²⁵ However, evidence from a healthcare provider is required if a complainant seeks to prove a specific and diagnosable medical condition.

Punitive Damages

Courts may award a complainant in a Section 11(c) action punitive damages to punish the employer for violations in which respondents are aware that they are violating the law or where the violations involved egregious misconduct. There is no statutory cap on punitive damages under Section 11(c).

A respondent’s good faith is a defense to punitive damages. Thus, a respondent may successfully defend against punitive damages if it can demonstrate that, for instance, its managers were acting on their own and contrary to a clear, consistently enforced anti-retaliation policy. To establish this defense, an employer will likely need to show not only that such a policy exists, but also that the offending manager was disciplined or terminated for violating it.

Nonmonetary Remedies

Remedies may also include:

• Non-monetary components (e.g., injunctive relief, expungement of warnings, reprimands, and derogatory references in a complainant’s personnel file)
• Providing the complainant with a neutral reference for future employers
• Non-retaliation training for managers and/or employees
• The posting of notices regarding employees’ Section 11(c) rights

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 (PPE), 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).²⁶

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 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 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.²⁷

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:

[T]here may be circumstances which would justify tolling of the 30–day period on recognized equitable principles or because of strongly extenuating circumstances, e.g., where the employer has concealed, or misled the employee regarding the grounds for discharge or other adverse action; or where the discrimination is in the nature of a continuing violation. The pendency of grievance-arbitration proceedings or filing with another agency, among others, are circumstances which do not justify tolling the 30–day period. In the absence of circumstances justifying a tolling of the 30–day period, untimely complaints will not be processed.²⁸

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 in McDonnell Douglas Corp. v. Green.²⁹

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
• A causal connection exists between the two

If the Secretary satisfies this burden, the employer must then articulate a legitimate, non-retaliatory 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 the complainant 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
• Complying with and obtaining benefits of OSHA standards and regulations
• Participating in an OSHA inspection
• Requesting information from OSHA
• Refusing to inform an employer of the identity of the person who complained to or contacted OSHA

In addition, [“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,”³⁰ and, on those occasions, an employer cannot take action against the employee without violating Section 11(c).

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.³¹

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.³²

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.³³ 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 the complainant 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.³⁴ There, the Court held that adverse actions include those that might “have dissuaded a reasonable worker from [engaging in protected activity].”

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.³⁵ While some actions, such as terminations and demotions, clearly qualify as adverse actions, others are context-specific.³⁶

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 but for cause for the adverse action.³⁷

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
• 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.³⁸ 

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.³⁹ Thus, when gathering evidence to defend a Section 11(c) claim it may be useful to ask decisionmakers 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 decisionmaker 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.40

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.⁴¹ Therefore, when investigating and gathering evidence, you should determine exactly when, how, and whether any decisionmakers learned of a complainant’s protected activity.

Establish the Respondent’s Legitimate Non-retaliatory 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, non-retaliatory 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.”⁴² 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.⁴³

To support an employer’s legitimate, non-retaliatory 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 COVD-19 pandemic.44 On August 14, 2020, the Office of Inspector General of Department of Labor issued a report to OSHA titled: “COVID-19: OSHA Needs To Improve Its Handling Of Whistleblower Complaints During the Pandemic.”45 The report indicated that there was a 30% increase in employee whistleblower complaints filed with OSHA from February 1 through May 31, 2020, 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 of 2020, 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.⁴⁶

On January 21, 2021, President Biden issued an Executive Order that directed OSHA to, among other things, take steps to protect workers who complain about unsafe conditions during the pandemic. On March 12, 2021, OSHA launched a National Emphasis Program (NEP) pursuant to which OSHA’s resources will be focused on enforcing the anti-retaliation provisions in Section 11(c). The NEP states that OSHA will do this by “preventing retaliation where possible, distributing anti-retaliation information during inspections, and outreach opportunities, as well as promptly referring allegations of retaliation to the Whistleblower Protection Program.” This will likely result in a departure from last year, when OSHA dismissed, without investigation, 54% of the more than 1,700 COVID-19 related complaints it received between April 2020 and August 2020.⁴⁷

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 29 C.F.R. § 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.48 Thus, whether an employee’s refusal to return to work for fear of contracting COVID-19 is protected under 29 C.F.R. § 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
• 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 29 C.F.R. § 1904.35

Employers should also be aware of 29 C.F.R. § 1904.35, 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.49 While Section 11(c) requires an employee to file a complaint, under 29 C.F.R. § 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 29 C.F.R. § 1094.35.

While the activity protected by 29 C.F.R. § 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 at Stevens & Lee. He represents management in all areas of employment counseling, employment litigation, and labor relations law. Ken is recognized as one of the leading authorities in occupational safety and health matters and maintains an active national litigation practice. He has successfully negotiated or tried dozens of high-profile, six-figure OSHA citations, including cases involving fatalities, multiple-employer work sites, and criminal prosecutions. He is an editor and chapter author of the nationally recognized treatise, Occupational Safety and Health Law, published by the American Bar Association and the Bureau of National Affairs. He is also a former management chair of the ABA Occupational Safety and Health Committee of the Labor and Employment Law Section.

Brad M. Kushner is a shareholder at Stevens & Lee. He concentrates his practice in labor and employment matters and has represented clients in class actions and collective actions in courts across the country. Brad counsels employers on OSHA matters and represents employers before the Occupational Safety and Health Review Commission. He is a chapter author for the nationally recognized treatise, Occupational Safety and Health Law, published by the American Bar Association and the Bureau of National Affairs. Brad also defends employers against wage and hour claims under the Fair Labor Standards Act and state laws, as well as claims brought under Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Family Medical Leave Act, and state anti-discrimination laws.

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1. 29 U.S.C.S. § 660(c). 2. Id. 3. 29 C.F.R. § 1977.4. 4. 29 C.F.R. § 1977.5(a). 5. Id. 6. 29 C.F.R. § 1977.5(b). 7. U.S. Dept. of Labor, The Whistleblower Protection Program. 8. See Whistleblower Investigations Manual: Directive Number CPL 02-03-007 (Whistleblower Manual) at 2-2. 9. See Whistleblower Manual at 1-4. 10. See Whistleblower Manual at 23-6. 11. Id. 12. See Whistleblower Manual at 3-5, 3-6. 13. See “Clarification of the Investigative Standard for OSHA Whistleblower Investigations,” memorandum from Directorate of Whistleblower Protection Programs. See Whistleblower Manual at 3-6. 14. See Marshall v. N. L. Industries, Inc., 618 F.2d 1220, 1224 (7th Cir. 1980) (Secretary’s failure to comply with 90-day provision did not bar action in federal court against employer); Donovan v. Freeway Const. Co., 551 F. Supp. 869, 878 (D.R.I. 1982) (Secretary’s failure to notify discharged employees within 90 days of complaint of Secretary’s determination to proceed against employer did not prohibit institution and prosecution of action against employer). 15. See Whistleblower Manual at 6-12, 6-13. 16. See OSHA DIRECTIVE NUMBER: CPL 02-03-006 (Alternative Dispute Resolution (ADR) Processes for Whistleblower Protection Program). 17. See Whistleblower Manual at 6-15. 18. See Whistleblower Manual at 6-19, 6-20. 19. 29 U.S.C.S. § 660(c)(2). 20. Donovan v. Occupational Safety & Health Rev. Comm., 713 F.2d 918, 926 (2d Cir. 1983); George v. Aztec Rental Ctr. Inc., 763 F.2d 184, 186 (5th Cir. 1985); Taylor v. Brighton Corp., 616 F.2d 256, 258–64 (6th Cir. 1980). 21. Donovan v. Square D Co., 709 F.2d 335, 340 (5th Cir. 1983); Marshall v. Intermountain Elec. Co., 614 F.2d 260, 263 (10th Cir. 1980). 22. See Pytlinski v. Brocar Prods., Inc., 760 N.E.2d 385 (Ohio 2002) (terminated employee who alleged he had delivered a memorandum to his employer detailing violations of OSHA regulations in the workplace stated a valid claim); Cloutier v. Great Atl. & Pac. Tea Co., Inc., 436 A.2d 1140 (N.H. 1981) (permitting recovery for wrongful discharge in violation of a public policy tenuously premised on duties imposed under OSHA). 23. See McLaughlin v. Gastrointestinal Specialists, Inc., 750 A.2d 283 (Pa. 2000) (holding that OSHA provides the exclusive remedy for employees that claim retaliatory termination based on an OSHA complaint); Walsh v. Consolidated Freightways, 563 P.2d 1205 (Ore. 1977) (holding that plaintiff’s claim of wrongful termination for raising workplace safety concerns was preempted by OSHA). 24. See Reich v. Cambridgeport Air Sys., Inc., 26 F.3d 1187, 1194 (1st Cir. 1994) (“We conclude . . . that the statutory power to award “all appropriate relief” gave the district court authority, where such relief is in fact appropriate, to award compensatory and even such traditional other relief as exemplary damages.”); Martin v. H.M.S. Direct Mail Service, Inc., 936 F.2d 108, 109 (2d Cir. 1991) (holding that prejudgment interest is an appropriate component of a back pay award in a Section 11(c) case). 25. See Acosta v. Fairmount Foundry, Inc., 2019 U.S. Dist. LEXIS 232592, at *1, n.1 (E.D. Pa. Feb. 6, 2019) (holding that plaintiff’s testimony regarding his emotional distress was sufficient to overcome a summary judgment motion). 26. 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 29 C.F.R. § 1977.5. 27. See 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). 28. 29 C.F.R. § 1977.15(d)(3). 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). 29. 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). 30. 29 C.F.R. § 1977.12(b)(2). 31. 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 Indus., 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.”). 32. 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)). 33. See Solis v. Consol. Gun Ranges, 2011 U.S. Dist. LEXIS 33547, at *18–19 (W.D. Wash. Mar. 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). 34. 548 U.S. 53, 67–68, 126 S. Ct. 2405, 2414-15, 65 L. Ed. 2d 345, 358-59 (2006). 35. Id. 36. See Perez v. U.S. Postal Serv., 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). 37. See 29 C.F.R. § 1977.6(b). (“”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 Bostock v. Clayton Cty., Ga., 140 S Ct. 1731, 1739, 207 L. Ed. 2d 218, 232 (2020); Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 133 S. Ct. 2517, 186 L. Ed. 2d 503 (2013)). 38. Compare Perez v. Eastern Awning Sys., 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 Fairmount Foundry, Inc., 2019 U.S. Dist. LEXIS 232592, at *1, n.1 (“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. Del. 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 Sys., 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.”). 39. See Thomas v. Tyco Int’l Mgmt. Co., 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.”). 40. See 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). 41. 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 Indus., 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.”). 42. 29 C.F.R. § 1977.6(b). 43. 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).