The whistleblower laws that OSHA enforces prohibit employers from retaliating against employees for engaging in activities protected under those laws.
What is retaliation?
Retaliation occurs when an employer (through a manager, supervisor, or administrator) fires an employee or takes any other type of adverse action against an employee for engaging in protected activity.
What is an adverse action?
An adverse action is an action which would dissuade a reasonable employee from raising a concern about a possible violation or engaging in other related protected activity. Retaliation harms individual employees and can have a negative impact on overall employee morale. Because an adverse action can be subtle, such as excluding employees from important meetings, it may not always be easy to recognize.
Adverse actions may include actions such as:
- Firing or laying off
- Demoting
- Denying overtime or promotion
- Disciplining
- Denying benefits
- Failing to hire or rehire
- Intimidation or harassment
- Making threats
- Reassignment to a less desirable position or actions affecting prospects for promotion (such as excluding an employee from training meetings)
- Reducing or changing pay or hours
- More subtle actions, such as isolating, ostracizing, mocking, or falsely accusing the employee of poor performance
- Blacklisting (intentionally interfering with an employee’s ability to obtain future employment)
- Constructive discharge (quitting when an employer makes working conditions intolerable due to the employee's protected activity)
- Reporting or threatening to report an employee to the police or immigration authorities
Are temporary workers protected from retaliation?
When a staffing agency supplies temporary workers to a business, both the staffing agency and its client (commonly referred to as the host employer) may be held legally responsible for retaliating against workers. For additional information on whistleblower protection rights of temporary workers, please see OSHA's Temporary Worker Initiative Bulletin No. 3 – Whistleblower Protection Rights.
What is an example of retaliation?
Example situation:
A worker informed her employer that she called OSHA because she believed there was a fire hazard that her employer refused to fix. The worker had reported the fire hazard previously to her employer. A workplace practice existed which allowed all employees to swap shifts if they needed to take time off. The worker tried to swap shifts a few days after she told her employer that she called OSHA, but her employer did not allow her to swap. However, the other employees were still allowed to swap shifts.
Example analysis:
Workers have a right to call OSHA to report an unsafe condition. Section 11(c) of the Occupational Safety and Health Act protects workers who file complaints with OSHA. By calling OSHA to complain about the fire hazard, the worker engaged in protected activity under one of the whistleblower laws administered by OSHA. She informed her employer that she called OSHA. Her employer denied her shift swap only a few days after being notified that she called OSHA. In addition, she was the only employee denied the ability to swap shifts. The denial of the shift swap is an adverse action. And, in this case, it appears that her employer denied her shift swap because she engaged in the protected activity. If the employer denied her request to swap because she called OSHA, then retaliation has occurred and the employer’s actions violated section 11(c) of the Occupational Safety and Health Act.
