Companies have to enforce their safety rules, and that includes disciplining workers. But OSHA says you can’t retaliate against an employee for reporting an injury – one that might have occurred because the worker violated a safety rule. With OSHA’s growing emphasis on whistleblowers, how do you balance this?
The answer: carefully.
That’s the message in a recent post on the Managing OSHA blog from the Arent Fox law firm.
Mark Dreux and Matt Thome write they have seen retaliation claims by employees “grow with greater frequency in the past year, and expect them to continue to grow.”
This is more confirmation than surprise. When OSHA had to cut its budget due to sequestration, it found a way to increase its resources for investigating whistleblower cases.
So, let’s set up an example. Employee Adam is injured at work. His employer’s investigation finds a root cause for the injury was Adam violating a company safety rule.
The company has a three strikes policy: After a third safety infraction, an employee is fired.
Adam has violated safety rules previously, so the company fires him. He then goes to OSHA and claims his firing was retaliation for becoming injured at work.
How can the company defend itself against this claim?
Here is one of those times when it’s important for safety to work together with HR. And what’s the HR mantra when it comes to disciplining employees? Document, document, document.
Let’s go back to our example. Hopefully, when Adam had his first two safety strikes, the company documented how it handled those situations.
A common practice: After the first safety violation, the employee receives a verbal warning. Even though the employee receives the warning verbally, this is documented by safety and HR.
A second safety violation comes with a written warning, which explicitly spells out that breaking another safety rule within a certain period of time will result in termination.
Dreux and Thome say it’s important that the documentation “conveys that the contested discipline lacked discriminatory intent.” In other words, the termination had nothing to do with the fact the employee was injured. Instead, it has to do with violation of a safety policy.
What will OSHA look for if it decides to investigate? According to its own document on whistleblower cases, the following will be considered:
- Does the employer monitor for compliance with the work rule in the absence of an injury?
- Does the employer consistently impose equivalent discipline against employees who violate the work rule in the absence of an injury?
- The nature of the rule cited by the employer should also be considered. Vague rules, such as a requirement that employees “maintain situational awareness” or “work carefully” may be manipulated and used as a pretext for unlawful discrimination.
The last bit of advice from Dreux and Thome: “Employers should not be deterred from imposing employee discipline where warranted for fear of a looming whistleblower claim.”
At least that’s the case if the employer has followed the above steps.
How do you handle situations in which workers violate safety rules? Let us know in the comments.
