If an employee feels unsafe at a jobsite, they are legally entitled to contact the Occupational Safety and Health Administration (OSHA) and are protected as a whistleblower. It can be frustrating at the least and damaging at most when an employee decides to contact OSHA before discussing their issues or concerns with you; however, it is crucial that you understand your rights.
If a worker on your jobsite has contacted OSHA to file a whistleblower complaint, you should consult a Jacksonville OSHA lawyer immediately so that they can help explain the best course of action. An attorney will discuss the process, help you navigate an OSHA inspection, correct possible citations, and dispute wrongful citations. Furthermore, an attorney will explain the best way to protect both yourself and your employees so that your jobsite is safe and your workers are happy.
What Is a Whistleblower Complaint?
According to OSHA, a whistleblower complaint must allege four key elements:
- The employee engaged in activity protected by the whistleblower protection law(s) (such as reporting a violation of the law);
- The employer knew about, or suspected, that the employee engaged in the protected activity;
- The employer took an adverse action against the employee;
- The employee’s protected activity motivated or contributed to the adverse action.
An example of a whistleblower complaint is when an employee reports an area of a jobsite that is out of compliance with OSHA regulations and which poses a fall risk — like unsafe scaffolding. The employee may file a complaint with OSHA regarding the scaffolding, which will then trigger an investigation from the agency, which will involve an inspection and interviews with employees.
You should remember, although whistleblower complaints may be uncomfortable, employees have the right to make these complaints in good faith. If a complaint is not made in good faith, you will be given a chance to contest it. An OSHA whistleblower complaint can be filed through an online form, a telephone line, or in writing. After filing a whistleblower complaint, OSHA will attempt to first contact the employee. If the employee does not answer, the complaint will be dismissed.
Related: Preventing OSHA Violations
What to Do in an Osha Inspection
An OSHA inspection can place extra stress on even the most experienced contractors, especially when the inspection comes as a result of a whistleblower complaint. Having a procedure in place for all OSHA inspections can help ensure that the results are fair. Jacksonville construction attorneys should be contacted immediately when an OSHA inspector arrives. You are legally entitled to have attorney representation present during an inspection.
During the inspection, make sure to take rigorous notes. Documentation is key in forming a reliable defense against incorrect citations. Typically, the OSHA inspector will conduct private employee interviews during the inspection. Your employees have the right to decline an interview; however, they could then be subpoenaed by OSHA. If this is the case, they would need to have an attorney present. Your employees should be made aware, prior to the event of an OSHA inspection, of their rights with respect to interviews and other contact with OSHA. Cotney Construction Law is very knowledgeable in OSHA defense and has a substantial background in representing contractors, subcontractors, suppliers, manufacturers and others in the construction industry.
Related: OSHA Employee Complaint Inspections
Are Whistleblower Complaints Anonymous?
Whistleblower complaints are not anonymous. However, when an employee files a whistleblower complaint, they are legally protected against retaliation. It’s crucial to ensure that you do not discriminate or retaliate in any way because this can cause additional legal trouble. If an employee is retaliated against, they have between 30 and 180 days to file another complaint from the date of the retaliatory action.
Because an employee complaint may be shared with the employer, whistleblowers should remember that they do not need to include witness names or their contact information on the form; whistleblowers will have the opportunity to offer evidence in support of your complaint during the investigation.
How to Dispute a Complaint and Protect Your Business?
After an inspection, the OSHA representative will present any issues they found. OSHA has six months from the time of the inspection to issue citations, so this is the ideal time to ask any questions and get the correct clarifications you need. This is when you can also find out if there will be a follow-up inspection.
If you feel that any citations are incorrect or you would like to dispute a citation, a Jacksonville construction dispute attorney will discuss the process with you. There is a specific deadline for each citation to be disputed, and additional documentation may be required in order to dispute the citation. Legal counsel will advise you on your rights following the inspection to protect you from unnecessary fines and other penalties. Furthermore, an attorney will discuss how to ensure that the worksite is in compliance for future follow-up OSHA inspections. They will also work to ensure that your paperwork is in compliance with labor unions, OSHA, and other government agencies.
Cotney Construction Law’s experienced attorneys will provide sound legal advice to construction professionals at every level and can assist your firm with any construction need. Not only do we advise our clients on legal matters, but we also provide a myriad of other valuable services for construction businesses, including contract review, employment law advice, and litigation and arbitration services. We also advocate for clients involved in licensing complaints, permitting issues, stop-work orders, and more.
Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.