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TURNING EMPLOYER WRONGS INTO EMPLOYEE RIGHTS

*At this time, we are only conducting phone consultations, please no walk-ins.

Should I report my employer’s unsafe working conditions to OSHA?

Of all the federal whistle blower protections, those offered under OSHA (Occupational Safety and Health Act) are the weakest in terms of offering any protections to those reporting their employers. As a California employee rights firm, we have had lots of calls asking this question,  and the answer is almost always no.

Here’s why: First, OSHA non-retaliation protection does not provide for a private cause of action. Once the complaint is made, only the Department of Labor may prosecute a claim against the employer. If DOL refuses to prosecute, the case is closed. And, the claimant must file a claim within 30 days, effectively cutting off any rights if not timely filed.

If in fact the Department of Labor prosecutes on behalf of the employee (we have never had such a situation), then the remedies are broad and all damages routinely available in court, such as backpay, reinstatement, compensatory and exemplary damages may be recovered. Reich vs. Cambridge Port Air, 26 F3d 1187 (1st Cir 1994). In at least once case, an employee’s refus;alto engage in work in a hazardous environment was considered protected activity. Whirlpool Corp vs. Marshall, 445 US 1 (1980).

There are approximately 19 federal whistle blower laws and regulations which the DOL has jurisdiction over. In most cases, it is to the employee’s advantage to base a state lawsuit (in California, for termination in violation of publc policy based on state or federal violations, rather than expecting the DOL to prosecute. Of course, each case is different and you should consult with an attorney in your state experienced in this area of law. We pride ourselves on representing dozens of California whistle blowers each year and welcome the chance to discuss your case.