Enforcing Your OSHA Rights
If you believe that your workplace is unsafe, your first action should be to make your supervisor at work aware as soon as possible. If your employer has designated a particular person or department as responsible for workplace safety, inform the appropriate person of the danger.
In general, your complaint will get more attention if you present it on behalf of a group of employees who all see the situation as a safety threat. And, as for filing a complaint, there is safety in numbers. An employer who becomes angry over a safety complaint is much less likely to retaliate against a group of employees than against an individual.
A Health Hazard Evaluation, or HHE, is a study of a workplace conducted by representatives at the National Institute for Occupational Safety and Health. It is conducted, free of charge, to learn whether workers are exposed to hazardous materials or harmful conditions. The aim with such inspections is to diagnose a problem whose cause is not obvious rather than to punish an employer for causing it; NIOSH officials do not have any punishment or enforcement authority. Three or more employees, a union rep, or an employer may seek these workplace evaluations.
HHEs are intended to root out systemic health and safety problems in a workplace, rather than an immediate danger or hazard; those should be reported to OSHA by following the steps described below, in “Enforcing OSHA Rights.” But it is appropriate to seek an HHE instead if:
• Employees in your workplace have an illness from an unknown cause.
• Employees are exposed to an agent or working condition that is not regulated by OSHA.
• Employees experience adverse health effects from exposure to a regulated or unregulated agent or working condition, even though the permissible exposure limit is not being exceeded.
• Medical or epidemiological investigations are needed to evaluate the hazard.
• The incidence of a particular disease or injury is higher than expected in a group of employees.
• The exposure is to a new or previously unrecognized hazard.
• The hazard seems to result from the combined effects of several agents.
Recent HHE investigations were requested, for example, because of an alarming number of cases of cancer, hearing loss, and sickness alleged from workplace exposure to diesel fuel, smoke, and chemicals.
NIOSH responds to an HHE request by writing to you with a referral to another agency that may be able to help, calling to discuss possible solutions to the problem, or visiting the workplace one or more times to talk with affected employees and conduct studies. This process can take from a few months to a few years, depending on the type of evaluation.
For more information on HHEs, call OSHA at 800-321-6742, or visit the NIOSH website at www.cdc.gov/niosh.
Filing a Complaint
If you have not been successful in getting your company to correct a workplace safety hazard, you can file a complaint with OSHA.
You can file online at the OSHA Workers’ Page. However, be aware that most online complaints are addressed by OSHA’s phone/fax system. That means they may be resolved informally over the phone with your employer. In general, file online for less serious complaints, or when you are not interested in an on-site inspection of your workplace.
Written, signed complaints submitted to OSHA offices are more likely to result in on-site OSHA inspections. To follow this approach, download the OSHA complaint form, complete it, and then fax or mail it to your local OSHA regional office. Or you may simply contact your local OSHA office to receive a copy of the complaint form. You can find the nearest OSHA office by looking in the federal government section of the telephone book or by searching for it through the agency’s website at www.osha.gov.
However you opt to file, it is wise to make a copy of the paperwork or send it to yourself as an email—and if you mail in the form, send it by certified mail.
If you request it, OSHA must keep confidential your identity and that of any other employees involved in the complaint. If you want your identity to be kept secret, be sure to check the section on the complaint form that states: “Do not reveal my name to the employer.” And if you file online, you may want to take the precaution of using your home computer or one in a library or other public facility rather than using workplace equipment.
Upon receiving your complaint, OSHA will assign a compliance officer to investigate. The compliance officer will likely talk with you and your employer and inspect the work conditions that you have reported.
How Complaints Are Resolved
There are two ways that OSHA can respond to a complaint. Agency workers can either perform an on-site inspection or an off-site investigation, also quaintly known as a “phone/fax investigation.”
OSHA responds more quickly to lower priority hazards using a phone/fax approach. The agency claims that this allows it to concentrate resources on the most serious workplace hazards.
If an off-site investigation is appropriate, the agency telephones the employer, describes the alleged hazards and then follows up with a fax or letter. The employer must respond in writing within five days, identifying any problems found and noting corrective actions it has taken or is planning to take. If the response is adequate, OSHA generally will not conduct an inspection. The person who filed the original complaint will receive a copy of the employer’s response and, if still not satisfied, may then request an on-site inspection.
If the employee or employee representative files a written complaint, then OSHA may conduct an on-site inspection. Inspections are generally conducted where: There are claims of serious physical harm that have resulted in disabling injuries or illnesses or claims of imminent danger situations; written, signed complaints request inspections; and an employer has provided an inadequate response to a phone/fax investigation.
During an inspection, a compliance officer who finds that the condition about which you complained poses an immediate danger to you and your coworkers can order your employer to immediately remove the danger from the workplace—or order the workers to leave the dangerous environment.
Where the danger is particularly urgent or the employer has a record of violations, OSHA may get tough by asking the courts to issue an injunction—a court order requiring the employer to eliminate workplace hazards.
EXAMPLE: A group of pipeline workers complained to OSHA that the earth walls of the excavation in which they were working were not well supported and could collapse on them. The OSHA compliance officer tried unsuccessfully to talk the employer into improving the situation. OSHA obtained a court injunction forbidding work to continue within the excavation until the walls were shored up with steel supports.
If the danger is less immediate, the compliance officer will file a formal report on your complaint with the director of OSHA for your region. If the facts gathered by the compliance officer support your complaint, the regional director may issue a citation to your employer.
The citation will specify what work conditions must be changed to ensure the safety of the employees, the timetable that OSHA is allowing for those changes to be made—usually known as an abatement plan—and any fines that have been levied against your employer.
EXAMPLE: Leslie is a machine operator in an old woodworking shop that uses lathes that throw a large quantity of wood dust into the air inside the shop. The wood dust appeared to be a hazard to the employees who breathed it, and Leslie was unsuccessful in resolving the problem with the shop’s owner. She filed a complaint with OSHA.
OSHA studied the air pollution in the shop and agreed that it was a threat to workers’ health. It ordered the shop’s owner to install enclosures on the lathes to cut down on the amount of dust put into the air and filter-equipped fans throughout the shop to capture any wood dust that escaped from the enclosures. Because the lathe enclosures and fans needed to be custom-designed and installed, OSHA allowed the shop’s owner six months to correct the situation.
In the meantime, OSHA ordered the shop’s owner to immediately provide Leslie and all the other people employed there with dust-filtering masks to wear over their mouths and noses. However, since OSHA regulations generally require employers to make the workplace safe and not just protect workers from an unsafe work situation, the masks were considered merely a temporary part of the long-term abatement plan.
An OSHA inspector who finds a workplace safety hazard or other violation will tell all affected employees about it and post a danger notice before leaving the workplace. This public notice of an unsafe condition is often the impetus an employer needs to take the hazard seriously and correct it.
The importance of being specific. Like many other government agencies, OSHA is a huge bureaucracy that is organized and operated according to computerized file numbers. The best way to get prompt service and accurate information from OSHA is to be as specific as possible. In your dealings with OSHA, be sure to mention the name of the company, the department of that company, the number assigned to the complaint that you are tracking, and the date on which it was filed.
Jot down the names and numbers of those with whom you speak. And keep detailed notes of your conversations, complete with dates and times.
Workplace hazards often become obvious only after they cause an injury. For example, an unguarded machine part that spins at high speed may not seem dangerous until some person’s clothing or hair becomes caught in it. But, even after a worker has been injured, employers sometimes fail—or even refuse—to recognize that something that hurt one person is likely to hurt another.
If you have been injured at work by a hazard that should be eliminated before it injures someone else, take the following steps as quickly as possible after obtaining the proper medical treatment:
- If you believe the hazard presents an immediate life-threatening danger to you and your coworkers, call OSHA’s emergency reporting line at 800-321-6742.
- File a claim for workers’ compensation benefits so that your medical bills will be paid and you will be compensated for your lost wages and injury. Workers’ compensation claims can cost a company a lot of money; filing such a claim tends to quickly focus an employer’s attention on safety problems. In some states, the amount you receive from a workers’ comp claim will be larger if your injury was due to a violation of a state workplace safety law.
- Point out to your employer the continuing hazard created by the cause of your injury. As with most workplace safety complaints, the odds of getting action will be greater if you can organize a group of employees to do this.
- If your employer does not eliminate the hazard promptly, file a complaint with OSHA and any state or local agency that you think may be able to help.
You have the right to contest an abatement plan OSHA designs to correct a workplace hazard—for example, if you feel the suggested plan is insufficient. To do so, send a letter expressing your intent to contest the plan to your local OSHA director within 15 days after the OSHA citation and announcement of the plan is posted in your workplace. You need not list specific reasons for contesting the plan in this letter; all you need to make clear is that you think the plan is unreasonable.
After it receives your letter, OSHA will refer the matter to the Occupational Safety and Health Review Commission in Washington, DC, an agency independent of OSHA. That commission will send your employer a notice that the abatement plan is being contested.
This notice will order the employer to post in the workplace an announcement that the plan is being contested. It will also require the employer to send a form that certifies the date on which that announcement was made back to the commission—with copies to OSHA, to you, and to other employees who have contested the plan.
Then, everyone involved in the case has ten days from the date the contest notice was posted to file an explanation of their viewpoints on the abatement plan with the commission. Copies must also be sent to all others involved in the case.
When attempts to reach a resolution are unsuccessful, the commission submits the case to an administrative law judge. These proceedings usually take several months—and sometimes years—depending upon the complexity of the workplace hazards involved.
Hearings before administrative law judges are very much like a trial. Much time and money can be consumed in gathering evidence, and the hearings are usually scheduled during daytime hours, when most employees are at work. You will probably have to hire a lawyer to help if you decide to pursue your safety complaint at this level.
You also have the right to appeal a decision by an administrative law judge for the Occupational Safety and Health Review Commission to the full commission or in federal court, but you will probably have to hire a lawyer to help you at these levels as well.
The explanation you file on the abatement plan need not be elaborate. It should be as clear, brief, and precise as possible. For example, if you have made a list of employee injuries that have already resulted from the hazard in your workplace, list the date, time, location, and identity of the worker injured for each incident in your explanation.
Your explanation need not be typewritten, but your odds of communicating your viewpoint effectively will be increased if it is easy to read.
Send your explanation by certified mail to:
Occupational Safety and Health Review Commission
1120 20th Street, NW, 9th Floor
Washington, DC 20036
Be sure to include a cover letter stating the name of the company involved, the number assigned to the case by the review commission and OSHA, and your mailing address and telephone number. Send a copy to the OSHA office where you filed your original complaint, to your employer, and to any people identified in the paperwork the commission sent to you as parties in the case. Also, be sure to save a copy of your cover letter, your explanation, and any supporting documents that you send with it for your personal files.
After it has gathered all the statements on the case, the commission will typically turn them over to U.S. Labor Department lawyers, who will attempt to meet with everyone who submitted statements and negotiate a resolution that is agreeable to all. The commission tries to negotiate settlements whenever possible, and by this point, everyone involved will have had an opportunity to read and think about each other’s viewpoints. So the odds are that your complaint will be resolved at this stage.
OSHA gives you the right to refuse to continue doing your job in extreme circumstances that represent an immediate and substantial danger to your safety.
This right is limited. You cannot walk off the job and be protected by OSHA in just any workplace safety dispute—and this tactic cannot be used to protest general working conditions. But OSHA rules give you the right to walk off the job without being discriminated against later by your employer if the situation is a true workplace safety emergency.
A walk-off will be legally merited only if your situation meets all of the following conditions:
- You asked your employer to eliminate the hazard and your request was ignored or denied. To protect your rights, it would be best to tell more than one supervisor about the hazard or to call the danger to the attention of the same supervisor at least twice—preferably in front of witnesses.
- You did not have time to pursue normal OSHA enforcement channels. In most cases, this means that the danger must be something that came up suddenly and is not a safety threat that you allowed to go unchallenged for days, weeks, or months.
- Staying on the job would make a reasonable person believe that he or she faced a threat of serious personal injury or death. If the hazard is something that you can simply stay away from—such as a malfunctioning machine in a work area that you do not have to enter—it probably would not qualify as creating an emergency.
- You had no other reasonable alternative to refusing to work, such as asking for a reassignment to another area.
EXAMPLE: Mike is a welder in a truck building plant. Shortly after starting work one day, he noticed that a large electrical cable running along the plant’s ceiling had broken overnight, was coming loose from the hardware attaching it to the ceiling, and was dangling closer and closer to the plant floor. He and several of his coworkers immediately told their supervisor about the broken cable, but the supervisor did nothing about it. The group also told the supervisor’s boss about the danger, but still nothing was done to correct it.
By about 11 a.m., the broken cable had dropped to the point where it was brushing against the truck body that Mike was welding. Sparks flew each time the cable and the truck body touched. Because he had a reasonable fear that an electrical shock transmitted from the broken cable could seriously injure or kill him, Mike walked off the job. His supervisor fired him for leaving work without permission. But, because the danger fit OSHA’s definitions of an emergency, OSHA ordered the company to reinstate Mike to his job with back wages—after first repairing the broken and dangling cable.
If you use the extreme option of walking off a job because of a safety hazard, be sure to contact your nearest OSHA office as soon as you are out of danger. Call the agency’s emergency reporting number: 800-321-6742. Jot down the name of the OSHA officer with whom you speak—and also note the time that you report the hazard. That will preserve your right to be paid back wages and other losses from the time that the hazard forced you to walk away from work.
Any citation issued by OSHA must be posted for at least three days in a conspicuous place within the workplace it affects. If the hazard specified in the citation is not corrected within three days after the citation is issued, then the citation must remain posted until it is corrected.
Compliance officers are required to advise those who originally filed a complaint of the action taken on it. If you need more information about the outcome of an OSHA investigation that affects your workplace, call, write, or visit your local OSHA office.
If OSHA has given your employer an extended time to remedy a workplace hazard, then you also have a right to request a copy of that abatement plan from your employer. Your other recourse is to obtain a copy from the OSHA compliance officer who handled your complaint.
Under OSHA, it is illegal for an employer to fire or otherwise discriminate against you for filing an OSHA complaint or participating in an OSHA investigation. OSHA can order an employer who violates this rule to return you to your job and to reimburse you for damages—including lost wages, the value of lost benefit coverages, and the cost of searching for a new job. A number of state laws also protect against retaliation for reporting workplace health and safety violations.
However, you can not enforce this restriction against retaliation by going directly into court; you must ask OSHA to intercede.
If you suspect illegal retaliation, you have 30 days from the time the illegal action took place to file a complaint about it with your local OSHA office. The outcome of your illegal discrimination complaint may turn on whether you can prove that you were fired or demoted because you contacted authorities, not because your performance slipped or economic cutbacks made the firing necessary. Be sure to back up your complaint with as much documentation for your employer’s action as possible.
Once you have filed a complaint about illegal job discrimination, OSHA has 90 days to respond. If you have shown that you were fired or otherwise punished because of complaining to OSHA, the compliance officer handling your complaint will attempt to convince your employer to take the proper action to remedy the situation. For example, if you were demoted in retaliation for your complaint, the OSHA compliance officer would probably ask your employer to reinstate you to your original position and give you the back pay to which you are entitled.
If OSHA is unsuccessful in talking your employer into reversing the effects of the illegal discrimination, it can sue your employer in federal court on your behalf.