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March-April-2014

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28 PalletCentral March-April 2014 palletcentral.com hen OSHA chief Dr. David Michaels was asked last year about what he considered to be his biggest accomplishment after his first term in office, he pointed to OSHA's heightened prosecution of whistleblower cases and the outreach the agency is doing with workers to apprise them of their rights. Since the current administration came into power, whistleblower prosecutions by OSHA overall are up 38 percent. Moreover, about 30 percent of OSHA inspections are triggered by employee hazard complaints to the agency. While the Occupational Safety & Health Act of 1970 (OSH Act) has contained provisions protecting workers' rights to be free from retaliation for engaging in protected activity related to safety since day one – the provisions are in Section 11(c) of the OSH Act – over the years, OSHA's portfolio of work has increased and it now also enforces the whistleblower provisions in all, including more than a dozen environmental laws, commercial driver (CDL) whistleblower protections under the Surface Transportation Assistance Act (STAA), protections of the Federal Railroad Administration, and even the whistleblower anti-retaliation provisions in the Affordable Care Act ("Obamacare"). The basic protected activities of workers covered by Section 11(c) are pretty expansive: you cannot discipline or otherwise retaliate or take adverse action against workers who complain internally about safety or health concerns, who file hazard complaints with OSHA or one of its state agency counterparts, who speak privately to an inspector during a site inspection or accident investigation, who represent other workers as the "employee representative" during walk-around portions of an inspection, who testify against the employer during an OSHA hearing, or who object to settlement provisions or seek party status in OSHA litigation. What constitutes "adverse action" or retaliation is not limited to firing an employee. It includes many types of actions if motivated by the worker's protected activity, including: firing or laying off a worker; reducing pay or hours; blacklisting (bad reference); demotions; denying overtime, promotion or other benefits given to most workers; failing to hire or rehire a worker with a history of whistleblowing; disciplining protected workers in a disparate manner; making threats; and even reassigning a worker so his commute is increased or his prospects for promotion are jeopardized. A new lawsuit filed by OSHA, which has gained significant attention, points to another basis for whistleblower prosecution. On February 10, 2014, OSHA issued a news release (part of its current "public shaming" approach to enforcement) announcing that it filed suit against AT&T for suspending workers without pay for reporting workplace injuries. The litigation – Perez v. The Ohio Bell Telephone Co. (aka AT&T) – was filed in the U.S. District Court (ND- OH) on behalf of 13 employees who received unpaid suspension after reporting workplace injuries between 2011 W Osha WHISTLEBLOWER Prosecution Ramps Up by Adele L. Abrams, Esq., CMSP SAFET Y

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