Have you ever had an employee get upset about something in the workplace and call the Occupational Safety and Health Administration (OSHA) in an attempt to cause a problem for you? You receive that dreaded letter in the mail bringing the “anonymous” complaint to your attention, and you have to spend time and money to respond. What’s even worse is that you know who the employee is, but you can’t do anything about it. Or at least you’d better not.
One of my favorite holiday movies has been and will forever remain the 1989 classic “Christmas Vacation,” with the beloved Griswold family. Who doesn’t love Clark Griswold and Cousin Eddie? In one scene near the end, Clark is upset with his boss over not receiving a bonus, and he uses quite a few select adjectives to describe him. I believe Clark refers to his boss as a “cheap, lying, no-good, rotten, four-flushing, low-life, snake-licking, dirt-eating, inbred, overstuffed, ignorant, blood-sucking, dog-kissing, brainless, hopeless, heartless, fat-a**, bug-eyed, stiff-legged, spotty-lipped, worm-headed sack of monkey dung”—and I may have deleted a couple of words.
That is how we typically feel when we know that an employee has called OSHA. We are angry, disappointed and upset that a worker would be so callous as to try to cause problems for us. And often, right or wrong, some employers react with vengeance.
The OSHA Whistleblower Protection Programs are designed to protect employees from retaliation if they call OSHA when they believe an unsafe condition exists in the workplace. OSHA defines retaliation as any form of firing or laying off, blacklisting, demoting, denying of overtime or promotion, disciplining, denying of benefits, failing to hire or rehire, intimidating, making threats, reassigning affecting prospects for promotion, or reducing pay or hours. Whether you know the employee who called OSHA or you just suspect a particular person, more than 20 federal laws that protect employees from whistleblower retaliation.
The costs associated with a whistleblower case can be astounding. Consider a recent Iowa case in which a worker’s employment was terminated after the employee raised repeated concerns to the company's owner about new procedures being implemented. The employee rightfully refused to perform his job in an unsafe manner, potentially causing serious injury to the worker, co-workers or the public. He filed a complaint, and the company subsequently was ordered to reinstate the driver to his former position with all pay, benefits and rights, in addition to paying back wages of $23,203 plus interest. OSHA ordered the company to pay $50,000 in compensatory damages and $50,000 in punitive damages as well as “reasonable” attorney's fees.
In her ruling, Marcia Drumm, acting regional administrator for the OSHA office in Kansas City, Mo., stated: “An employer does not have the right to retaliate against employees who report work-related injuries or safety concerns. OSHA is committed to protecting all workers from retaliation for exercising basic worker rights.”
Although this case does not involve long-term care per se, the message remains loud and clear, and it is being applied across all industry lines: You cannot retaliate against an employee just because he or she exercised the right to demand a safe work environment.