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What’s the Harm in Reporting Injuries?
Retaliation and Worker Safety Programs

Written by Billie Garde, Clifford & Garde, LLP

Of the 2,878 retaliation cases filed with the Department of Labor in 2012, the greatest majority of those cases, 1,745 or 60%, were filed by workers who alleged that they were retaliated against for raising concerns about worker safety issues.  Section 11(c) of the Occupational Health and Safety Act (OSHA) prohibits any employer from discriminating against an employee who reports an injury or illness. 29 CFR 1904.36.  Unlike the DOL whistleblower litigation that the NAECP members are familiar with under the various federal environmental whistleblower protection statutes such as the Energy Reorganization Act (ERA), the Pipeline Safety Improvement Act, and the environmental protection provisions such as the Clean Air Act, Clean Water Act, etc., 11(c) cases are investigated and prosecuted by the Department of Labor.  There is no private right of action, so it is up to the Department to take enforcement action against companies that they believe have retaliated against workers for reporting workplace injuries and illnesses. 

In addition to investigating individual cases of retaliation, the DOL also looks at company policies and practices that discourage the reporting of injuries --- either directly or indirectly.  In March, 2012 the DOL issued a memorandum to all the Regional Administrators regarding Employer Safety Incentive and Disincentive Policies and Practices. Written by then Deputy Assistant Secretary Richard Fairfax, the memo is referred to as the “Fairfax Memo.”  The memo identifies common practices and programs that, although advertised as improving safety, actually discourage reporting.  Fairfax notes that these practices and programs “could constitute unlawful discrimination” and a violation of 11(c) and other whistleblower protection statutes. 

Since most of the NAECP members work for organizations that track and monitor workplace safety injuries, most of us have likely received concerns from workers who either assert that they were retaliated against for reporting injuries, or that workplace injury statistics are skewed or manipulated to show better than actual results.  The Fairfax Memo relates to this experience because it lists the “most common potentially discriminatory” types of policies or programs.  It is an eye-opening list, because it includes many programs that serve as foundations for identifying and tracking worker injuries.  Indeed, OSHA has made it clear that “[w]hile OSHA appreciates employers using safety as a key management metric, we cannot condone a program that encourages discrimination against workers who report injuries.”

Below are some common programs that OSHA has found discourage workers from reporting injuries; review the memo itself for more details about its position:

• Policies of taking disciplinary action against employees who are injured on the job, regardless of the circumstances surrounding the injury.  Reporting an injury is always a protected activity;

• Policies that discipline an employee who reports an injury, because of “the time or manner” of reporting the injury;

• Policies that impose discipline on the grounds that the injury resulted from the violation of the safety rule by the employee, if such discipline is based on pre-text, and not the facts;

• Policies that unintentionally or intentionally provide employees an incentive to not report injuries.  For example, providing bonuses or awards to departments or teams if no one is injured creates a dynamic that discourages reporting of concerns.

The DOL states that investigations into these situations must include an especially careful examination of whether and how the employer applies the rule in situations that do not involve an employee injury.  In this examination, “enforcing a rule more stringently against injured employees than non-injured employees may suggest the rule is a pre-text for discrimination against an injured employee in violation of section 11(c).”  As members of the NAECP, we must also be mindful of these effects and seek to apply these lessons in our own workplace reporting procedures. 

An interesting article on the issue of workplace injury and retaliation claims was published last year by The Wall Street Journal and is worth a read.  The article is “Workplace Injuries Drop, But Claims of Employer Retaliation Rise” from The Wall Street Journal on July 22nd, 2013.   These issues are also being addressed by the DOL whistleblower advisory committee. 

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