You are the safety director of a medium-size company. The superintendent of the production department comes to you with a complaint about a problem employee, Clumsy Clarence. The superintendent wants to fire Clarence, but Clarence is keenly aware of OSHA.
You fear that before he is fired, Clarence will get wind of what is happening and, in an attempt to make himself “bullet proof,” file a safety complaint with the safety enforcement branch of OSHA. Firing Clarence then would become much more difficult, as he could complain to the “whistleblower” branch of OSHA that he was discriminated against for being a whistleblower, in violation of section 11(c) of the OSH Act.
You fear that a misstep could cause your company to spend time and money convincing an OSHA discrimination investigator that Clarence was fired for being a bad employee, not for filing a safety complaint. Worse, if you lose a discrimination case, you might be required to pay back wages, reimburse expenses for attorney’s and expert’s fees, reinstate the employee and even pay punitive damages. You also may be the subject of a nasty press release, a legally questionable practice OSHA openly calls “regulation by shaming.”
Examples of such press releases can be found on OSHA’s Web site, http://www.OSHA.gov. Click on “Newsroom” to view the agency’s press releases.
If an Employee Files a Complaint
If Clarence does file a safety complaint before you can fire him, an OSHA discrimination investigator may contact you to determine whether you discriminated against Clarence. The investigator will want to know how you dealt with Clarence, what your reasoning was for firing him and whether Clarence was singled out among your employees. How will you show the OSHA investigator that Clarence’s termination was unrelated to his safety complaint?
You can recount the conversation you had with the superintendent when you decided to fire Clarence. You can get the superintendent to corroborate your story. You can even have a supervisor attest that Clarence did poor work, with a bad attitude, and violated loads of safety rules. But this evidence creates a he-said/she-said problem, which easily can start you down the path to protracted investigation and even a formal 11(c) discrimination complaint.
A better way to convince the OSHA investigator that you are not discriminating against whistleblowers is to maintain a comprehensive system of documentation. All disciplinary events should be documented in writing and filed in a retrievable manner. Even so-called oral reprimands should be memorialized (making them oral in name only). A documented trail of employee discipline will show the OSHA investigator that your reasons for firing Clarence were genuine and are not related to his safety complaint.
Whistleblower Complaints: Avoiding Discrimination Charges through Documentation