04/02/2008

Last week, the U.S. Department of Labor (DOL) sued a New Jersey company that specializes in municipal sanitation projects and its president on behalf of an employee who claimed he was terminated in violation of the Occupational Safety and Health Act's whistleblower provisions. According to the DOL, the company fired the employee in retaliation for filing an anonymous complaint about safety practices. The lawsuit seeks to reinstate the employee; obtain compensatory damages, including punitive damages and lost back pay; and require the company to post notices regarding employees' rights for 60 days.

The DOL lawsuit highlights something that a surprising number of employers don't know (or seem to forget when faced with a whistleblowing employee): Employees have rights under various state and federal regulations that protect them from termination and discriminatory or harassing behavior by their employer when they report a health and safety violation to regulatory authorities. So, what should you do when an employee reports you to Cal/OSHA?

Be Proactive

An employee report to Cal/OSHA will likely initiate a worksite inspection by the agency. Hopefully your organization has been proactive and already has procedures in place covering how to handle a Cal/OSHA inspection. These procedures should address:

• The person who is responsible for escorting the inspector around the workplace during the inspection. Make sure you have a way of ensuring that this person can be contacted and made available quickly (having a call list at reception, for example) to prevent undue delay when the inspector arrives.
• Whether personnel who will provide documents know which ones you are willing to release at the time of inspection. Generally, most companies don't want to give an inspector unrestricted access to all of its documents. It's a good idea to have items properly filed and separated to limit access to only those documents you wish to allow the inspector to see during the inspection.
• The personnel who will meet with the inspector at the end of the inspection.

Do Your Own Inspection

You should conduct your own inspection and investigation to determine where you went wrong (if you did). Where appropriate, involve your safety committee. When conducting an investigation, be sure to determine why your internal processes didn't solve or prevent the problem before it escalated to a Cal/OSHA report. For example, are there issues with procedures for reporting and correcting safety concerns? If you do find problems, begin correcting them immediately; do not wait until you receive a letter or citation from Cal/OSHA.

Respond in a Timely Fashion

You need to respond to Cal/OSHA in an expeditious manner. If you receive a citation, be sure to take note of time frames for a response. By not responding to citations within an appropriate time frame, you can lose your ability to appeal those you don't agree with. To help with the response to Cal/OSHA, ensure that one person is responsible for tracking the citation or letter and all incoming and outgoing correspondence related to the citation or letter.

Don't Go on a Witch Hunt

Don't investigate to find out who reported you to Cal/OSHA; and, if you do know which employee filed the report, do not fire, demote, discipline, or otherwise harass or discriminate against him or her. (It's generally a good idea to call in the affected supervisors and managers and remind them that they are not to retaliate against the employee.) That the employee reported the company is actually irrelevant. An employee has the right to call Cal/OSHA and report what he or she believes to be a safety violation. If the employee reports you maliciously, Cal/OSHA will find nothing. If you are cited, it was because Cal/OSHA found a violation. And because the violation was there, you could have just as easily ended up with a citation as the result of an employee being injured or killed or because of a random inspection. The fault is with your health and safety practices, not with the employee reporting you.

When an employee reports a health and safety violation to Cal/OSHA, many organizations resort to knee-jerk reactions like firing him or her. Rather than succumbing to feelings of anger and betrayal, it is much better to see the report and any subsequent inspection as an opportunity (albeit a sometimes painful one) to improve your company's health and safety practices.

Don't Let Cal/OSHA Leave You Shaking in Your Shoes!

The thought of a Cal/OSHA inspection leaves most employers with a sense of dread--but with a little knowledge and pre-planning, an inspection doesn't have to be the painful beating that most people think it will. The COCA audio conference "Preparing for a Cal/OSH Visit: Five Steps You Can Take Now to Avoid Citations and Improve Workplace Safety" will arm you with the information you need to know to help make Cal/OSHA inspections go more smoothly. Learn what triggers an inspector's visit, which documents you'll need to have on hand, the most commonly cited safety standards, and more.

Click here to get your copy of the audio conference recording today!