OSH Law Primer, Part VI: Employees’ and Employers’ Rights When Interacting With OSHA

The first article in this series provided a general overview of the OSH Act and OSHA; the second article examined OSHA’s rulemaking process; the third article reviewed an employer’s duty to comply with standards; the fourth article discussed the general duty clause; and the fifth article addressed OSHA’s recordkeeping requirements. In this, the sixth article in the series, we examine the respective rights of employers and employees under the OSH Act and OSHA’s standards and regulations.

Quick Hits

• The OSH Act establishes several employee rights, including the right to speak to OSHA without fear of employer retaliation or retribution, the right to make complaints in good faith, the right to access certain information, and the right to work in environments “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”
• The OSH Act also affords employers rights, including the right to be free from unreasonable conduct that could violate constitutional protections, the right to a reasonable inspection, the right to representation during interviews of management employees, the right to protect trade secrets, and the right to establish the “unpreventable employee misconduct defense.”

The OSH Act and the various regulations and standards issued by OSHA afford both employees and employers rights when interacting with OSHA. These rights are in addition to those afforded by the United States Constitution and various other laws and regulations.

Rights of Employees

The rights afforded employees include the right to speak to OSHA without fear of retaliation or retribution by their employers. Specifically, 29 U.S.C. § 657 authorizes OSHA to conduct private interviews with employers, owners, operators, agents, and employees. Section 11(c) of the OSH Act generally states that “[n]o person shall discharge or in any manner discriminate against any employee” because the employee has:

• filed any complaint under or related to the OSH Act;
• instituted or caused to be instituted any proceeding under or related to the OSH Act;
• testified or is about to testify in any proceeding under the OSH Act or related to the OSH Act; or
• exercised on his or her own behalf or on behalf of others any right afforded by the OSH Act.

The Right to Complain

An employee who believes he or she was discriminated against in violation of Section 11(c) of the OSH Act may file a complaint with the secretary of labor setting forth those claims. The secretary then conducts an investigation to determine whether the allegations are true. The remedies for a violation of Section 11(c) include rehiring or reinstatement of the employee to the former position with back pay.

Similarly, an employee has the right to complain about occupational safety and health conditions. The OSH Act does not require the employee to make a formal complaint to OSHA for protection under Section 11(c) to apply, so long as the employee’s complaint is made in good faith. The complaint can be made to OSHA, the employer, or an authorized representative of the employer.

The Right to Refuse to Work

In addition to and as an augmentation of the aforementioned rights, employees also have the right to refuse to work. While it may seem self-evident—particularly in so-called “right-to-work” states—that an employee cannot be compelled to work, Section 11(c) of the OSH Act also protects an employee who refuses to work because he or she believes that the work exposes him or her to a hazard. If several employees were to raise the same or similar complaints concerning safety and health conditions, they would enjoy protection for concerted activity under the National Labor Relations Act.

The Right to Information

The right to information is codified in a number of ways. Many states have so-called “right-to-know” laws that require employers to share information with employees concerning chemicals and other substances in the workplace. OSHA’s hazard communication standard, as well as other standards, compel employers to provide employees with similar information. Additionally, Section 8(c) of the OSH Act and various OSHA standards require employers to provide to employees: (1) a poster provided by OSHA containing basic information about the OSH Act and employees’ rights; (2) injury and illness logs containing information about all recordable work-related injuries and illnesses; (3) exposure monitoring information and medical records; and (4) information regarding chemicals to which they may be exposed while in the workplace.

The Right to Participate in OSHA Inspections

The “walkaround rule” is receiving a lot of attention lately due to recent revisions to that rule, but employees have long had the right to participate in OSHA inspections. Specifically, employees have the statutory right to participate in OSHA inspections either directly or through their representatives in the opening and closing conferences, walk-around inspections, interviews, and subsequent enforcement proceedings.

The Right to Workplaces Free From Recognized Hazards

The General Duty Clause or Section 5(a)(1) of the OSH Act sets forth the last of the employee rights to be addressed here. The right expressed in the General Duty Clause is the employee’s right to a workplace free from recognized hazards.

Rights of Employers

Employers also have rights when dealing with OSHA. These rights are especially focused on the right to be free from unreasonable conduct (e.g., searches and seizures) that could violate constitutional protections.

The Right to a Reasonable Inspection

One of the employer rights is the right to a reasonable inspection. Section 8(a) of the OSH Act provides OSHA with the authority to enter and inspect worksites during reasonable times. Specifically, Section 8(a) authorizes OSHA “to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions ….”

The Right to Representation

Another right held by employers is the right to representation during interviews of management employees. The reason for this right is that statements made by management employees are nearly always binding on the company and may legally be considered admissions against the employers’ interest.

The Right to Refuse to Perform Warrantless Operational/Process Demonstrations

While OSHA is entitled to observe work as it is being performed, it may not insist that it be shown how equipment operates or how particular operations are performed. The employer retains the right not to perform work or engage in demonstrations of its processes during an OSHA inspection. While the exercise of this right can escalate tensions with OSHA and result in consequences for failing to cooperate, the fact remains that OSHA cannot compel employers to engage in demonstrations of equipment operation or operational processes without securing a warrant first.

The Right to Continue Operations

A common misconception, particularly following a fatality or catastrophe, is that OSHA will “shut down” an employer and prevent the employer from continuing its operations. Employers have the right to continue their operations, albeit in a safe manner. OSHA does not have the right to prevent an employer from working, so long as the employer is doing so safely. Under the OSH Act, only a U.S district court has the power to prevent an employer from engaging in its normal operations, but only after OSHA has shown that an imminent danger exists.

The Right to Protect Trade Secrets

Though employers cannot claim trade secret protection for documents and information they are required to keep and produce under the OSH Act, employers do have the right to protect information considered trade secrets. Typically, the exercise of this right does not extend to the right not to disclose information to OSHA, but it does allow employers to take measures to prevent further disclosure of that trade secret information by OSHA. OSHA recognizes this right and permits employers to exercise it without consequence or ramification.

The Right to Establish the “Unpreventable Employee Misconduct Defense”

The last right to be addressed here that employers possess is the right to establish the “unpreventable employee misconduct defense.” The elements of the defense are: (1) the employer has established work rules designed to prevent the violation; (2) it has adequately communicated those rules to its employees; (3) it has taken steps to discover violations; and (4) it has effectively enforced the rules when violations have occurred. If the employer can establish these elements in support of this defense, it can prevail in the event OSHA issues a citation.

Ogletree Deakins’ Workplace Safety and Health Practice Group will publish additional articles on the Workplace Safety and Health blog as an ongoing part of its OSH Law Primer series. The next article in the series examines employee refusals to work and whistleblower protections.