Section 11(c): Protection for Employees Who Raise Safety Concerns

When an employee reports a hazard or files an OSHA complaint, what does the law say you may not do in response? The answer is in Section 11(c) of the Occupational Safety and Health Act and in OSHA's regulation at 29 CFR Part 1977. Part 1977 says its purpose is "to make available in one place interpretations of the various provisions of section 11(c) of the Act which will guide the Secretary of Labor in the performance of his duties" (1977.2). It matters because Part 1977 reads the protection to include good faith complaints made only to you (1977.9(c)).

What does Section 11(c)(1) prohibit?

The prohibition is one sentence, word for word:

"No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or 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 because of the exercise by such employee on behalf of himself or others of any right afforded by this Act." (Section 11(c)(1))

The prohibited conduct is to "discharge or in any manner discriminate against" an employee, so it is not limited to firing (Section 11(c)(1)). Four activities are protected: filing a complaint "under or related to this Act," instituting such a proceeding or causing one to be instituted, testifying (or being about to testify) in such a proceeding, and exercising, on behalf of himself or others, "any right afforded by this Act" (Section 11(c)(1)).

Which complaints and rights are covered?

Part 1977 explains what a complaint "under or related to" the Act includes:

An employee request for inspection is the regulation's example of a complaint made "under" the Act, but not the only type protected (1977.9(a)).
Complaints registered with other Federal agencies that have authority to regulate or investigate occupational safety and health conditions are "related to" the Act. Complaints to State or local agencies about those conditions would be as well (1977.9(b)).
Those complaints "must relate to conditions at the workplace, as distinguished from complaints touching only upon general public safety and health" (1977.9(b)).
Complaints to employers, "if made in good faith," would be related to the Act, "and an employee would be protected against discharge or discrimination caused by a complaint to the employer" (1977.9(c)).

As examples of "any right afforded by this Act," the regulation says employees may request information from OSHA, and that employees interviewed by agents of the Secretary during inspections or investigations "could not subsequently be discriminated against because of their cooperation" (1977.12(a)).

Can an employee refuse to do a job that seems dangerous?

The general rule comes first: "as a general matter, there is no right afforded by the Act which would entitle employees to walk off the job because of potential unsafe conditions at the workplace" (1977.12(b)(1)). The regulation reasons that hazardous conditions "will ordinarily be corrected by the employer, once brought to his attention," and that if they are not, or if the hazard is disputed, the employee "will normally have opportunity to request inspection of the workplace pursuant to section 8(f) of the Act, or to seek the assistance of other public agencies which have responsibility in the field of safety and health" (1977.12(b)(1)). It then says: "Under such circumstances, therefore, an employer would not ordinarily be in violation of section 11(c) by taking action to discipline an employee for refusing to perform normal job activities because of alleged safety or health hazards" (1977.12(b)(1)).

The exception follows. An employee "would be protected against subsequent discrimination" when all of the following are present (1977.12(b)(2)):

The employee is confronted with a choice between not performing assigned tasks or subjecting himself to serious injury or death arising from a hazardous condition at the workplace.
The employee has no reasonable alternative.
The employee refuses in good faith to expose himself to the dangerous condition.
The condition causing the employee's apprehension of death or injury is 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.
That reasonable person would also conclude that there is insufficient time, due to the urgency of the situation, to eliminate the danger through resort to regular statutory enforcement channels.
The employee, where possible, must also have sought from his employer, and been unable to obtain, a correction of the dangerous condition.

How is a complaint filed, and how long does the employee have?

An employee who believes he has been discharged or otherwise discriminated against in violation of Section 11(c) "may, within thirty days after such violation occurs, file a complaint with the Secretary alleging such discrimination" (Section 11(c)(2)).

The regulation adds the details:

The employee, or a representative authorized to do so on his behalf, may file, and no particular form of complaint is required (1977.15(a), (b)).
Complaints not filed within 30 days of an alleged violation "will ordinarily be presumed to be untimely" (1977.15(d)(2)).
There may be circumstances that would justify tolling the 30-day period "on recognized equitable principles or because of strongly extenuating circumstances," for example where the employer has concealed, or misled the employee regarding, the grounds for discharge or other adverse action, or where the discrimination is in the nature of a continuing violation (1977.15(d)(3)).
A pending grievance-arbitration proceeding or a filing with another agency are, "among others," circumstances that do not justify tolling, and absent circumstances justifying tolling "untimely complaints will not be processed" (1977.15(d)(3)).

What does the statute say happens next?

The Secretary "shall cause such investigation to be made as he deems appropriate," and if he determines that the subsection has been violated, "he shall bring an action in any appropriate United States district court against such person" (Section 11(c)(2)).
In that action, the district courts have jurisdiction "for cause shown to restrain violations of paragraph (1) of this subsection and order all appropriate relief including rehiring or reinstatement of the employee to his former position with back pay" (Section 11(c)(2)).
Within 90 days of the receipt of a complaint, the Secretary "shall notify the complainant of his determination" (Section 11(c)(3)).

What should you take from this?

This summary is not legal advice. Three points come straight from the text:

Part 1977 treats a good faith complaint to the employer about occupational safety and health matters as related to the Act (1977.9(c)).
The protection for a work refusal in 1977.12(b)(2) depends on every condition in that paragraph being present; the general rule is in 1977.12(b)(1).
The 30-day filing period is in the statute (Section 11(c)(2)), and the regulation says there may be circumstances that would justify tolling it (1977.15(d)(3)).

Source

This article relies on the OSH Act, Section 11, paragraphs (c)(1) through (c)(3), and on these sections of 29 CFR Part 1977 as published on osha.gov: 1977.2, 1977.9, 1977.12, 1977.15, and 1977.23. The statute and the regulation themselves always control. A State that runs its own OSHA-approved State Plan "must have provisions as effective as those of section 11(c) to protect employees from discharge or discrimination" (1977.23).