Section 11(c) of the Occupational Safety and Health Act prohibits retaliation against employees who raise safety concerns at work or participate in OSHA enforcement activity. In recent Congressional hearings, Assistant Secretary of Labor, David Michael, proposed substantive and procedural changes for OSHA retaliation claims. If adopted, the changes could pose significant problems for companies defending against these claims.

The most concerning of the changes proposed by Mr. Michael would allow for immediate “preliminary reinstatement” of a terminated employee claiming retaliation. Depending on what standards would ultimately be imposed for obtaining this sort of preliminary relief, employers could be required to reinstate a terminated employee before there has been any actual determination that retaliation occurred. Mr. Michael also proposed that individuals claiming OSHA retaliation should have the right to file a private cause of action in court. Currently, the exclusive avenue for pursuing an OSHA retaliation claim is to file an administrative complaint with OSHA for investigation. If OSHA finds a violation and no settlement is reached OSHA pursues the legal claim on behalf of the complaining employee. If OSHA finds no violation the case is over. The complaining employee has no individual right to sue. The proposal to allow individuals to pursue private claims may open the door to lawsuits even if OSHA finds no merit to the claim in it’s investigation. Mr. Michael also proposed that the current 30-day statute of limitations for filing an OSHA retaliation claim be expanded to 180 days. He noted that about 200 cases a year are dismissed by OSHA because they are filed outside the current 30-day limitations period.

These recommendations were made in a meeting before the Senate Sub-Committee on Employment and Workplace Safety. Any formal action by Congress on the proposals is probably still a long way off. But because the impact on employers could be significant, we will be watching this one closely.