b'Gary\'s Corner Faced with an OSHA Discrimination Case? Gary Auman, MRCA Legal Counsel L there has been aof discrimination claims filed with the atelyrash Occupational Safety and Health Administration (that allege OSHA) safety-related discrimination. Section 11of the Occupational Safety and Health Act of 1970 (c) prohibits an employer to "discharge or in any manner discriminateorLe-\'islation against any employee because such employee has filed any complaint instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding or b ause ecof the exercise by such employee on behalfothers of any of himself or right afforded byAct." this In the past, thishas been used when an employee is language terminated or disciplined for coo ng with OSHA in an inspection orrealize that employees who bring these charges think these peratifor filing awith OSHA against his employer. Lately, however,cases are worth much more than they actually are. U y, complaintsuallmore employees are using this section in cases when they feel wrongfullyan investigator will suggest settlement to both parties b the case efore treatedan employer for having brought aissue to his or hergoestocourt. Incases, the complainant will ask for rehire with bysafetymost attention.back pay. Aattorney can adv youthe strength of knowledgeableiseon For example, I\'m currently involved in ain which an ex your defense,potential costs ofand, if matterthelitigation,appropriate, the employee alleges he was not rehired by his former employer because hevaluesettlement. Ifsettlement cannot be reached, the investigator ofa hadacomplaint against aworked for afterwill decide whether there is sufficient evidence to take the case to court. filedsafety-relatedcompany he leaving his former employer. The matter is still in the investigative stage.take advantage ofaccess to attorneys who can MRCA\'s Ifitgoes to trial, the company\'s legal fees can exceed $20,000.cost tohelp you navigate confusing regulations. While M cannot TheRCA handle such aadministratively can approach $5,000.provide you with legal representation, itserve as a casecanvaluable workers our Increasingly, employees who are laid off after filing a\'resource for getting y initial questions answered and assisting you compensation claim are filing Section ll(c) actions as well. Anotherinapproach to take. Bywing both your rights choosing the correctknoexample involves ain which an employee filed aclaimand the best approach, you can protect yourself from expensive and casediscrimination after she was terminated for insubordination. She claimed that she waslengthy litigation. MRCA attorneys are very experienced in all matters discriminated againstquestioning whether she would receive aconcerning OSHA, includinglaw, workers\' compensation, forsafetyemployment bonus after awas injured by the employee of aparty. Shecontracts,litigation. fellow workerthirdand filed an ll(c) complaint. The matter was settled more out of concern overknow that there are some 11 c) situations pursued by ( customer relations than because the employer, myhad done anythingOSHA thatlegitimacy. For example, client,have questionablewhile wrong. While negotiating settlement, we were told,ll, the bonus shepending legislation would expand protection ofy who report "We emplo ees was complaining aboutabonus, wasn\'tIn the eyes ofon-the-job injuries to employers,is not currentlylaw. Also, most wassafetyit?"thethatthe investigator, thisall it took to make itll(c) case.employers who keep good records are able toove that no employees wasanprIn another case, OSHA said that reporting an on-the-job injury is thewere terminated despite workers\' compensation claims filed against their safetyhavewillay toyo suchcase. same as reporting ahazard; obviously, the employee would notcompany. Thisgo a long w supportur position ina been injured if not for ahazard.when taking disciplinary action against an employee, make safety sure itisfor nondiscriminatory reasons.Be surecan What You Should Doyou provide ample proof to the investigator to support your actions,be but An employee has 30 daysan adverse job action to raise an 11 (c) aftercareful. Ifuable to point out to the investigator that his or her issue. Ifface aimination investigation, Ithat youyo are you everdiscr suggestinvestigation is not of protected activity, the investigator may opt to end involve your attorney as soon as you are contacted bythe investigation. This is the exception rather than the rule, however. OSHA about a charge. The OSHA investigator will first want tohave good work rules and communicate them, either in gather information by assembling documentation and interviewingwriting or verbally, to your employees. employees. Do not take these matters lightly.Ifdetermines that OSHAhave a good enforcement program and always apply it the provisions of Section 11have been violated, it will bring an (c)consistently. action in U District Court. In case this happens,uwant your .S.yo willalways maintain accurate and complete records! I\'ll address attorney to have been involved in all aspects of the case.these latter points in future articles. Safety Technical&Research Committee Legal Advice7'