Fourteen different federal laws, including the OSHA statute itself, ban companies from taking or threatening unfavorable action against a worker in retaliation for reporting company violations or exercising other legal rights. Canadian OHS laws provide the same basic protections to workers.

By the same token, lodging a safety complaint doesn’t make a worker immune from legitimate discipline. This series will show safety directors on both sides of the border how to discipline workers without liability under whistleblower laws. There’s also a Model Policy in TOOLS that you can use or adapt.

What the Law Says

Section 11(c) of the U.S. Occupational Safety & Health Act makes it illegal to “discharge or in any manner discriminate against any” worker because the worker files an OSHA complaint or “exercises any right” under the OSHA law. The OHS laws of each Canadian jurisdiction include similar protections. Acts of retaliation can include not just firing and layoff but:

• Reassignment or assignment to undesirable shifts;
• Blacklisting;
• Demotion, pay cuts or reduction of hours;
• Denial of overtime, promotion or benefits,
• Disciplinary action;
• Failure to hire or rehire;
• Intimidation; and
• Transfer.

Section 11(c) and its Canadian equivalents are no paper tiger. The government is committed to protecting whistleblowers against retaliation because worker complaints are the key to the OSHA/OHS enforcement process. So acts of retaliation are a serious liability risk.

Why You Need a Non-Retaliation Policy

One of the ways a company can protect against this liability is to create a clearly worded policy that reassures workers that you won’t retaliate against them for reporting violations or exercising other workplace safety and health rights. The policy should address both the worker and supervisors above them. A meaningful policy must address all levels of the workplace, they say.

Like the Model Policy in TOOLS, your non-retaliation policy should do five things:

• Restate your company’s commitment to workplace health and safety;
• Remind workers that they’re not only allowed but required to report OSHA violations;
• Require supervisors and managers to keep an “open-door policy” and encourage workers who have complaints to come forward;
• List the protected activities workers can engage in without retaliation; and
• State that anybody who violates the non-retaliation policy will be disciplined.

Caveat: Talk Is Cheap

A non-retaliation policy, no matter how eloquently worded, won’t do much good if nobody believes it. There needs to be trust and a known commitment to safety on the part of management. A non-retaliation policy at a company that practices oppression borders on the grotesque. A policy, on the other hand, at a company that really promotes worker involvement can help safety directors build a culture of safety and trust.

Conclusion

Next week, we’ll look at another aspect of the retaliation issue: the risk of retaliation under the federal Sarbanes Oxley Act and its Canadian equivalent, C-13.

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