OSHA and the National Labor Relations Board (NLRB) have reached an agreement where OSHA will now refer untimely retaliation claims from its Whistleblower Division to the NLRB for review. An OSHA Memorandum from Assistant Secretary of Labor for OSHA, Dr. David Michaels provides greater detail on the inter-agency referral system. Under OSHA’s whistleblower provisions, employees have 30 days to file a complaint for employer retaliation. The NLRB, on the other hand, provides employees six months to file complaints regarding unfair labor practices. Because in OSHA’s and the NLRB’s view retaliation can be considered an unfair labor practice, the agencies’ agreement effectively circumvents OSHA’s 30 day statute of limitations and prolongs the life of employees’ stale whistleblower claims.
Discrimination / Whistleblowers
Disciplining employees for violating safety and health rules is a critical component of any good safety and health program. OSHA's recent policy on employee discipline for violating safety and health rules undercuts the use of such discipline and encourages employees to consider possible claims for retaliation. This policy states that employers should only enforce “legitimate safety and health rules" and sets forth a series of possible claims for employees challenging the discipline to consider. The claims provided include: (1) whether the discipline was proportional to the infraction, (2) whether it was consistently applied to other employees and (3) whether it was based on a vague rule.
Last week, we discussed OSHA’s prohibition on rate-based, safety incentive programs (e.g., a year-end pizza party for no employee injuries). According to the agency, these programs actually encourage employees to underreport workplace injuries/illnesses and should be replaced instead with behavior-based programs that provide positive incentives for reporting.
Now we are starting to see OSHA enforce its policy on rate-based programs. According to a recent formal settlement agreement, the cited employer was not only required to eliminate its rate-based incentive programs, but retain a compensation/benefits expert to evaluate “alternate safety-based provisions in its Incentive and Bonus Programs.”
OSHA has become increasingly critical of traditional, rate-based safety incentive programs that, according to the agency, actually discourage employees from reporting workplace injuries. OSHA’s favorite example to use is the year-end pizza party for achieving low incidence rates – as OSHA’s argument goes, while seemingly harmless enough, employees are actually incentivized to withhold injury reports to get free pizza. Assistant Secretary of Labor for OSHA, David Michaels most recently highlighted the agency’s concerns over these programs in a February 4, 2013 OSHA Employees All-Hands Meeting, lumping them in with factors that “undermine a workplace culture of safety.”
Since there is no OSHA standard concerning incentive programs, it was unclear how the agency planned to enforce its policy on these “safety disincentive programs.” Fortunately, OSHA has offered guidance that not only informs employers how they may be cited, but how to tailor their safety programs to create positive incentives and avoid any citation, period.
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