Office of Whistleblower Protection
Anti- Retaliation Investigation
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Retaliation Against Employees Who Exercise Their Occupational Safety and Health Rights
Workers in Virginia have the right to complain to VOSH and seek an investigation of alleged workplace safety and health retaliation. Virginia Code §40.1-51.2:1 and -51.2:2 authorizes VOSH to investigate employee complaints of employer retaliation against employees who are involved in safety and health activities protected under the Virginia laws, standards and regulations.
Examples of “Protected Activity”
Some examples of activities protected under Virginia law are lodging a complaint to your employer or any other person under or related to the safety and health provisions of Title 40.1 of the Code of Virginia; lodging a complaint with VOSH without first bring the matter to the attention of your employer; instituting or causing to be instituted any proceeding under or related to the safety and health provisions of Title 40.1 of the Code of Virginia; testifying or intending to testify in any proceeding under or related to the safety and health provisions of Title 40.1 of the Code of Virginia; cooperating with or providing information to VOSH personnel during a worksite inspection; or exercising on your own behalf or on behalf of any other employee any right afforded by the safety and health provisions of Title 40.1 of the Code of Virginia. (See VOSH Administrative Regulations Manual, Virginia Administrative Code 16 VAC 25-60-110).
Examples of “ Retaliation”
Some examples of retaliation are firing, demotion, transfer, layoff, losing opportunity for overtime or promotion, exclusion from normal overtime work, assignment to an undesirable shift, denial of benefits such as sick leave or vacation time, blacklisting with other employers, taking away company housing, damaging credit at banks or credit unions and reducing pay or hours.
Refusal to Work
Refusing to do a job because of potentially unsafe or unhealthy workplace conditions is not ordinarily an employee right under VOSH laws, standards and regulations. (Your union contract may give you this right; however, VOSH cannot enforce it.) Refusing to work may result in disciplinary action by your employer.
However, employees have the right to refuse to do a job if they otherwise would be exposed to an imminent danger based on a reasonable fear of serious injury or death . Discharge or discipline of an employee who has refused to complete an assigned task because of a reasonable fear of injury or death will be considered retaliatory only if the employee has sought abatement of the hazard from the employer and the statutory procedures for securing abatement would not have provided timely protection. The condition causing the employee’s apprehension of death or injury must be of such a nature that a reasonable person, under the circumstances then confronting the employee would conclude that there is a real danger of death or serious injury and that there is insufficient time, due to the urgency of the situation, to eliminate the danger through resort to regular statutory enforcement (e.g. filing an employee complaint with VOSH). In addition, in such circumstances, the employee, where possible, must also have sought from his or her employer, and been unable to obtain, an abatement of the dangerous condition. (See VOSH Administrative Regulations Manual, Virginia Administrative Code 16 VAC 25-60-110).
Retaliation Against Employees Who Exercise Their Safety and Health Rights
Who to Contact
If you believe your employer has treated you unfairly because you exercised your safety and health rights, contact the VOSH Whistleblower Investigator at (757) 455-0891 Ext.134 right away. The Code of Virginia gives you 60 days after the adverse action to report workplace safety and health retaliation.
You can telephone, fax or mail your complaint to the Whistleblower Investigator at Interstate Corporate Center, Building 6, 6363 Center Drive, Suite 101, Norfolk, Virginia 23502. Phone: (757) 455-0891 Ext. 134 Fax number: (804) 371-6524.
VOSH conducts an in-depth interview with each complainant to determine the need for an investigation. If evidence supports the worker’s claim of discrimination, VOSH will ask the employer to restore the worker’s job, earnings and benefits, or seek other corrective actions. If the employer objects, VOSH may take the employer to court to seek relief for the worker. If, after the investigation, VOSH refuses to issue a charge against the employer, private sector and local government employees can bring an action in a circuit court having jurisdiction over the employer (state government employees have no right to bring an action in circuit court). VOSH is not involved in such private proceedings.
Other Federal Whistleblower Laws
Federal OSHA is responsible for enforcing whistleblower protection under numerous federal laws. Federal OSHA Area Office staff can explain the protections under these laws and the deadlines for filing complaints.
Federal laws with whistleblower protections administered by federal OSHA include, but are not limited to: the Surface Transportation Assistance Act; the Asbestos Hazard Emergency Response Act; the International Safety Container Act; the Energy Reorganization Act; the Clean Air Act; The Safe Drinking Water Act; the Federal Water Pollution Control Act; the Toxic Substances Control Act; the Solid Waste Disposal Act; the Comprehensive Environmental Response, Compensation and Liability Act, and the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century. http://www.whistleblowers.gov/