Blog - Tag: OSHA
EEOC, OSHA Retaliation Claims Surge
Over the past several years, employers have seen a significant uptick in retaliation and whistleblower claims filed by employees and investigated by federal agencies.
Often these claims are part of another complaint, either concerning workplace discrimination or harassment issues and filed with the Equal Employment Opportunity Commission, or concerning workplace safety issues, which are filed with Fed-OSHA.
In 2023, the EEOC saw a record number of retaliation complaints — 46,047, up 20% from 2022. During that same period the number of cases that were resolved jumped 28% to 43,685 from 34,180.
Monetary benefit awards and settlements leapt nearly 30% to $283 million in 2023, from $220 million in 2022.
Importantly, the number of complaints filed with the EEOC that include retaliation increased to 50% of the total in 2022, from 30% in 2010.
At OSHA, the number of whistleblower complaints filed with the agency increased significantly in 2023, with the vast majority of those complaints — about seven in 10 — filed under the OSHA Act section on “retaliation based on protected safety acts,” like harassment or discrimination.
OSHA has put an emphasis on protecting workers who suffer retaliatory treatment after bringing up workplace safety issues with management. The number of retaliation case determinations by OSHA soared nearly 30% between fiscal year 2023 and FY2022.
What is retaliation?
Retaliation means any adverse action that management or supervisors take against an employee because they complained about harassment or discrimination or workplace safety issues. Any negative action that would deter a reasonable worker in the same situation from making a complaint also qualifies as retaliation.
Employees who participate in an investigation of any of these problems are also protected. For example, you cannot punish a worker for giving a statement to a government agency that is looking into a discrimination claim.
Employment law experts recommend that employers do the following:
Set clear and unambiguous policies
- Your company policy should clearly state that retaliation is not permitted.
- The policy should describe the parameters of inappropriate conduct as well as you can define them.
- Put the policy in writing.
- Set reporting and grievance procedures, including the person to whom the employee can report a retaliation complaint.
- Have staff sign an acknowledgment of receipt of your policy.
Investigate complaints promptly
- All complaints should be taken seriously and investigated without delay.
- Anyone who participates in an investigation is protected from retaliation (not just the employee who makes a complaint, but witnesses as well).
- Take effective remedial measures, including carefully reviewing all disciplinary measures before imposing them. You should also ensure that disciplinary actions are consistent with past practices.
Train managers and supervisors
Train managers and supervisors and ensure they understand your policies.
Make sure they understand who is protected from retaliation (participants, complainants — and even persons related to the complainant in some cases).
They should also understand what constitutes retaliatory conduct and, if they are unsure, they should speak to your human resources manager.
Further protection
Besides instituting policies and training managers and supervisors about avoiding retaliatory actions, it is important to have proper insurance coverage in place: employment practices liability insurance.
This insurance may cover the cost of employee-initiated lawsuits like discrimination, harassment and retaliation complaints, but it will not cover illegal acts. Covered costs include legal fees, as well as any settlements or judgments rendered against your business.
OSHA Updates HazCom Standard
Changes are once again coming to Fed-OSHA’s Hazardous Communications Standard, which governs the handling of chemicals and other dangerous substances.
OSHA’s final rule, which takes effect July 19, 2024, will bring the standard in line with the latest update to the United Nations’ Globally Harmonized System of Classification and Labelling of Chemicals.
The update revises criteria for the classification of certain health and physical hazards, as well as updating labeling requirements and safety data sheets (SDSs), among other changes.
OSHA said it had updated the HazCom standard “to better protect workers by improving the amount and quality of information on labels and safety data sheets and allow workers and first responders to react more quickly in an emergency.”
Affected firms will have to update any alternative workplace labeling as well as their HazCom program, and provide any additional employee training for newly identified physical, health or other hazards.
Compliance deadlines are staggered:
First: Chemical manufacturers, importers or distributors evaluating substances will have to comply by Jan. 19, 2026, while those that evaluate mixtures will have to comply by July 19, 2027.
Second: Other employers will have to comply six months after those dates: July 19, 2026 for those that handle, store or use substances, and Jan. 19, 2028 for mixtures.
It’s important for employers to stay up to date on the HazCom standard to protect their workers. Labels and SDSs are often the first indication to a worker that they are handling a hazardous chemical, so it is imperative that they be as accurate and complete as possible.
What the rule does
The new rule ensures that OSHA’s HazCom standard jibes with the Global Harmonized System, which is used in most developed and many developing countries around the world. It provides consistent definitions of hazards, specific criteria for labels, and a specific format for safety SDSs.
It should be noted that the new classification criteria only affect SDSs and labels for certain products (aerosols, desensitized explosives and flammable gases). If your firm handles any of these you will have to ensure that your labels and SDSs for select hazardous chemicals are updated accordingly.
Some of the highlights of the rule:
Labeling — It updates labeling requirements for certain very small containers and bulk containers to ensure the labels are comprehensive and readable.
Manufacturers must also only provide the updated label for each individual container with each shipment once the product reaches its customer. Warehousing employees will not be required to open sealed pallets and boxes of containers to relabel them or repackage the product in preprinted bags.
Flammable gas addition — The flammable gas hazard class gets a new hazard class (desensitized explosives), as well as new hazard categories:
- Unstable gases in the Flammable Gases class
- Pyrophoric gases in the Flammable Gases class, and
- Nonflammable aerosols in the Aerosols class.
New and revised definitions — There are a number of definitions that are being revised or which are new altogether.
Employer takeaway
HazCom citations are one of the most common citations that OSHA issues. If your operations handle chemicals, you should take the opportunity now to review your HazCom programs and plan for compliance by the deadline that affects your company.
New Rule Permits Non-Employees to Join OSHA Inspections
A new Department of Labor rule change clarifies the rights of employees to appoint an outside representative to accompany OSHA officers during workplace inspections.
OSHA inspections usually occur after a workplace has had a safety-related incident or a whistleblower has reported suspected safety violations. Attorneys representing employers say the new rule, which comes into force May 31, could be problematic for businesses trying to keep inspections free of disruptions.
Advocates for employers worry that external observers may use their new ability to collect information that can be used to convince employees to join a union.
They also see a potential for other adversaries to join the inspections in search of employer failures. These might include disgruntled former employees, plaintiffs’ attorneys, potential expert witnesses or injured workers’ family members.
OSHA stressed that the final decision as to whether to permit a third party representative to join the inspection is up to the OSHA compliance safety and health officer that conducts the inspection. Either the employer or workers may appeal to the CSHO to reject a representative, but the CSHO decides.
In its response to public comments, OSHA emphasized the importance of employee representation to gathering necessary information about worksite conditions and hazards.
It also noted that the rule does not limit third party representatives to union representatives; third parties’ ability to participate will be based on their knowledge, skills or experience.
“Third party representatives’ sole purpose onsite is to aid OSHA’s inspection,” it wrote, “and CSHOs have authority to deny the right of accompaniment to third parties who do not do that or who interfere with a fair and orderly inspection.”
Supporters of the rule argued that third parties may:
- Have important technical or subject matter expertise.
- Have language skills and cultural knowledge.
- Increase employees’ trust in the inspections.
- Improve inspections of multi-employer worksites such as construction sites.
- Balance the rights of employers and employees.
The takeaway
Employers may be more likely to face litigation and a difficult discovery process after an accident when the revised walkaround rule comes into force this month, legal pundits say.
Some observers recommend that employers stand ready to object to participation from plaintiffs’ attorneys who may not have much workplace safety expertise but who know how to fish for clients. It will be important that they evaluate the need for a particular third party to participate in the inspection.
The rule might not take effect on schedule. Court challenges from the groups who have opposed it are anticipated. A court might issue an injunction preventing the rule’s enforcement during litigation.
That is uncertain, however, so employers should be ready on May 31 to permit third parties to join OSHA inspectors on their premises if workers request it.
New OSHA Electronic Reporting Rule Takes Effect
A new rule by the Department of Labor requires firms with 100 or more employees in certain industries to electronically submit their OSHA Form 300 and 301 logs, starting in 2024. These are in addition to submission of Form 300A-Summary of Work-Related Injuries and Illnesses.
The new rule applies to businesses in 104 high-hazard industries that include the agricultural, food production, manufacturing, retail, wholesale, transportation and medical sectors.
All employers that are subject to OSHA regulations are required to annually submit to OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and Form 301 (Injury and Illness Incident Report), and their Form 300A.
Additionally, employers are required to post their Form 300A in a conspicuous area in the workplace from Feb. 1 through April 30 every year.
The new rule leaves in place existing regulations requiring:
- Businesses with 20 to 249 workers in certain high-hazard industries to electronically submit information from their Forms 300A once per year.
- All employers with 250 or more workers to electronically submit information from their Forms 300A once per year.
The final day to submit the above electronic files is March 2, 2024.
You can find a full list of the affected 104 industries here.
The following are some of the industries that are affected by the new rule:
- NAICS 3118: Bakeries
- NAICS 3119: Other Food Manufacturing
- NAICS 3121: Beverage Manufacturing
- NAICS 3261: Plastics Product Manufacturing
- NAICS 3262: Rubber Product Manufacturing
- NAICS 3272: Glass and Glass Product Manufacturing
- NAICS 3273: Cement and Concrete Product Manufacturing
- NAICS 3361: Motor Vehicle Manufacturing
- NAICS 4244: Grocery and Related Product Merchant Wholesalers
- NAICS 4248: Beer, Wine and Distilled Alcoholic Beverage Merchant Wholesalers
- NAICS 4413: Automotive Parts, Accessories and Tire Stores
- NAICS 4422: Home Furnishings Stores
- NAICS 4441: Building Material and Supplies Dealers
- NAICS 4442: Lawn and Garden Equipment and Supplies Stores
- NAICS 4451: Grocery Stores
- NAICS 4522: Department Stores
- NAICS 4931: Warehousing and Storage
- NAICS 5621: Waste Collection
- NAICS 5622: Waste Treatment and Disposal
- NAICS 6219: Other Ambulatory Health Care Services
- NAICS 6221: General Medical and Surgical Hospitals
- NAICS 6222: Psychiatric and Substance Abuse Hospitals
- NAICS 6223: Specialty (except Psychiatric and Substance Abuse) Hospitals
- NAICS 6231: Nursing Care Facilities (Skilled Nursing Facilities)
- NAICS 6232: Residential Intellectual and Developmental Disability, Mental Health and Substance Abuse Facilities
OSHA’s reasoning
OSHA has said that it plans to use the information from the files to identify high-hazard employers and injury trends. It also said that it plans to publish some of the data it collects on its website, which has employers concerned that it may be used by attorneys to target them for lawsuits.
The federal agency says it’s for the sake of transparency and to provide information to employees, potential employees, customers and the general public about a company’s workplace safety history.