Defending Against Retaliation Claims
OSHA Whistleblower Retaliation Claims Defense Lawyers in Texas
Defending Against Whistleblower & Retaliation Complaints
If an employee makes a complaint about workplace safety, the employer is prohibited from retaliating against that employee. The law is intended to promote workplace safety by protecting employees' ability to raise safety concerns, and the Occupational Safety and Health Administration (OSHA) takes claims of retaliation seriously.
However, our firm knows one vital fact: Not every allegation of retaliation is valid.
Often, nonperforming employees will allege retaliation just to protect themselves from their own improper action. We help employers defend themselves against inaccurate claims that they retaliated against workers.
At Hendershot Cowart P.C., our lawyers serve the needs of businesses in Houston and throughout Texas. We help employers prevent and deal with OSHA claims, including allegations of retaliation.
On This Page:
- What Is OSHA’s Whistleblower Protection Program?
- What Does OSHA Consider Retaliation?
- Defending Against OSHA Whistleblower Retaliation Claims
- More Ways To Protect Texas Employers From Whistleblower Retaliation Complaints
- Defending Employers Against OSHA Whistleblower Retaliation Claims For More Than 30 Years
OSHA’s Whistleblower Protection Program protects employees from retaliation for raising or reporting concerns about workplace safety and health laws.
OSHA also enforces protections for complaints about:
- Consumer product, motor vehicle, and food safety;
- Environmental protection;
- Fraud and financial protection;
- Health insurance; and
- Transportation services laws.
Employees who believe that they have experienced retaliation in violation of one of these laws may file a complaint with OSHA.
The Whistleblower Program will review and investigate complaints to determine whether the employer retaliated against the employee for engaging in activity protected under one of OSHA’s whistleblower laws. OSHA may also attempt to assist the employer and employee in reaching a settlement of the case.
Per OSHA, retaliation against a worker occurs when an employer takes an adverse action against the employee because the employee engaged in a protected activity, such as reporting a safety concern.
Retaliation can be subtle. Examples of adverse actions include:
- Firing or laying off the worker
- Demoting, blacklisting, or disciplining the worker
- Denying overtime or promotion
- Reducing pay or hours
- Denying benefits
- Reassignment to a less desirable position
For employers, these claims can be complicated; there are many reasons to change a worker's job duties, hours, and responsibilities. In many cases, the adverse actions do not result from the employee's protected contact with OSHA, but instead are related to employee performance or business needs.
If an employer can show by clear and convincing evidence that it would have taken the adverse action regardless of the employee's OSHA whistleblower activity, the employee's claim can be dismissed.
The best way to defend against a retaliation claim is to document all actions taken following an employee complaint about safety and to thoroughly investigate the claim. Among other things, employers should:
- Keep comprehensive personnel files. If an employee violates an OSHA rule, safety protocol, or workplace rule, document the violation and take witness statements. Keep evidence and documentation to support your actions.
- Follow through on employee safety concerns promptly, even if they appear to be trivial. Maintain the employee’s confidentiality to prevent further retaliation or isolation by coworkers.
- Be transparent with the employee about next steps, including investigation procedures. Keep the reporting employee informed of all developments throughout the investigation and follow up with the reporting employee to ensure continued protection from retaliation. Document your communications.
- Investigate claims using an objective, independent complaint review process while avoiding conflicts of interest and preconceptions. For example, such an investigation should be independent from the company’s legal counsel, who is obligated to protect the employer’s interests.
- Ensure that any subsequent employment status changes are made for valid, non-retaliatory reasons and that you have previous, progressive documentation of those reasons.
Even if the safety complaint is dismissed or without merit, an underlying retaliation complaint is a serious charge. Work with an experienced OSHA defense attorney if you suspect a retaliation claim could be, or has been, filed.
Employers can further protect themselves from claims of whistleblower retaliation by:
- Demonstrating a commitment to preventing retaliation at the management level by training managers on what retaliation is and their legal obligations to prevent retaliation.
- Putting systems in place that enable and encourage employees to report hazards, safety concerns, and acts of retaliation through internal channels. Make sure these systems protect the reporting employee’s confidentiality.
- Documenting the process for receiving and responding to reports of retaliation, including the investigation and resolution procedure.
- Proactively review proposed actions against an employee to ensure they do not violate whistleblower laws.
- Monitoring and auditing your anti-retaliation program by analyzing reporting trends, ensuring managers are following policy, and surveying employees to see if they are comfortable reporting safety concerns.
With more than 35 years of experience, we understand the real-life issues employers face every day in complying with OSHA standards and guidelines.
Our OSHA defense law firm can help you reduce the risk of whistleblower claims of retaliation and defend you when employees claim retaliatory acts. We can also help appeal OSHA’s decision if you object to the findings and represent you through OSHA’s appeals process.
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