Which Section of the OSH Act Prevents Employers Discriminating Against Employees?
Section 11(c) of the OSH Act prevents employers discriminating against employees when they exercise their rights to engage in a protected activity as defined by the Occupational Safety and Health Act. However, before filing an 11(c) complaint with OSHA, it is important to understand what activities are protected and what OSHA defines as discrimination.
One of the goals of the Occupational Safety and Health Act (OSH Act) is to involve workers in workplace safety and health (§1977.1(c)). To achieve this goal, the OSH Act encourages employers to create workplace environments in which employees feel comfortable asking questions, voicing concerns, or reporting injuries and illnesses without fear of discrimination.
If employers fail to create a suitable environment, and are not responsive to employees’ concerns, the OSH Act gives employees the right to escalate their concerns to the Occupational Safety and Health Administration (OSHA). Section 11(c) of the OSH Act prevents employers discriminating against employees when they exercise this right – and several others.
What Employee Rights are Protected Activities?
The OSH Act does not define protected activities as these can vary according to industry and State OSHA Plan. However, in guidance relating to how the OSH Act prevents employers discriminating against employees, the protected activities listed include:
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- Asking questions about safety or health matters.
- Voicing concerns about safety or health in the workplace.
- Reporting a work-related injury or illness.
- Requesting safety or illness data sheets.
- Requesting copies of OSHA standards or regulations.
- Filing a safety or health complaint with OSHA.
- Participating in an on-site OSHA inspection.
If an employee experiences an “unfavorable employment action” after engaging in a protected activity that they would not have experienced but for engaging in a protected activity, they can file a whistleblower complaint with OSHA. To qualify for investigation, the complaint must be filed within 30 days (longer for some State OSHA Plans) and allege one of the following:
- The employee was fired or laid off for engaging in a protected activity.
- There was a failure to hire an applicant or to rehire a former employee.
- The employee was denied overtime or there was a reduction in pay or hours.
- The employee was demoted or reassigned – affecting their prospects for promotion.
- The employee was disciplined, threatened, or intimidated by – on the instruction of – the employer.
How to File an OSHA 11(c) Complaint
If an employee believes they have been discriminated against, they can file an OSHA 11(c) complaint online by visiting www.whistleblowers.gov/complaint_page. It is also possible to file an OSHA 11(c) complaint by phone on 1-800-321-6742, or in person by visiting the closest OSHA regional or area office. OSHA 11(c) complaints cannot be filed anonymously.
If the OSHA 11(c) complaint is upheld, OSHA will attempt to facilitate a voluntary agreement to correct the discrimination and pay “relief”. The amount of relief may depend on the nature and length of the discrimination, and could include reinstatement, back pay with interest, compensation for expenses the employee has incurred, and damages for emotional distress.
If it is not possible to facilitate a voluntary agreement, the Department of Labor will pursue relief on behalf of the employee, costs, and punitive damages via the U.S. District Court. As this can be expensive for employers, it is not only important for employers to know which section of the OSH Act prevents employers discriminating against employees, but how Section 11(s) of the OSH Act prevents employers discriminating against employees.
