Meet David Michaels. Or maybe you shouldn’t want to. Michaels is assistant secretary at the U.S. Department of Labor’s Occupational Safety and Health agency.
Lately, Michaels and OSHA have concentrated on its whistleblower program; and employers should expect more claims and investigations. It has been developing a “multifaceted plan for strengthening the enforcement of 21 whistleblower laws under its jurisdiction,” according to Richard Alaniz, senior partner at Alaniz and Schraeder, a national labor and employment firm based in Houston. The changes follow reports by the Government Accountability Office that found problems with transparency, accountability, training, internal communications and audits in OSHA’s whistleblower program.
While top management, human resources and legal counsel will be involved in most OSHA inquiries, enterprise security executives also play a role.
“The ability of workers to speak out and exercise their rights without fear of retaliation provides the backbone for some of American workers’ most essential legal protections,” says Michaels. Under the Occupational Safety and Health Act of 1970 (OSH Act), employers must provide a “safe and healthful workplace.” Employers not only need to comply with all the relevant OSHA standards, but they are required to comply with the General Duty Clause of the OSH Act, which requires employers to make sure that their workplaces do not have any “serious recognized hazards.”
Discrimination and Retaliation
Under the OSH Act, employers cannot discriminate against workers for exercising their rights, which include filing an OSHA complaint, taking part in an inspection or talking to an inspector, seeking access to records about exposure and injury and raising a health or safety complaint. Possible retaliations against employees can include firing or laying off, blacklisting, demoting, denying overtime or promotion, disciplining, denying benefits, failing to hire or rehire, intimidation, threats, hurting chances of promotion through reassignment, and reducing pay or hours.
So when OSHA come calling, advises Alaniz, security directors should understand the following:
- An OSHA investigation is a big deal. The company should take such an investigation very seriously. HR, management, and legal counsel should all be extensively involved from the beginning.
- In order to limit OSHA violations and fines, the chief security officer should be educated and up-to-date on OSHA requirements. This includes an understanding of the investigatory process.
- Often the chief security officer will be involved with physical access to the facility or procedures relating to such access. When an OSHA investigator conducts an investigation of a facility, the company should ensure that the OSHA investigator does not enter any dangerous areas of the plant or otherwise come to harm during the investigation. The chief security officer may play a role in ensuring that the company handles the walkthrough correctly.
- In addition, there may be confidential or proprietary areas of the facility, or areas of the facility where the OSHA compliance officer does not have authority to enter. The company should be up-to-date on what these areas are, and this includes the chief security officer. It is important that the company does not interfere with the investigation, but the company should know precisely where that investigation is confined to.
- It is important that the company does not allow anyone to alter, hide or destroy documents. This should be made clear. Depending on the chief security officer’s job duties, he or she may be involved in this sphere to varying degrees. But in any case, the chief security officer should be aware of this and all other OSHA requirements.
Thorough documentation can help employers minimize liability when workers file a whistleblower complaint with OSHA. Companies and their security and life safety directors should carefully abide by all OSHA reporting requirements. And if an injured worker is ever disciplined for violating safety regulations, managers and supervisors should specifically record why the discipline occurred in order to ward off potential retaliation claims.