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No Good Deed Goes Unpunished: How rewarding and promoting workplace safety may generate discrimination claims or OSHA record-keeping investigations

The Occupational Safety and Health Administration recently expressed concern that some workplace policies could discourage employee reporting, constitute unlawful discrimination and also violate recordkeeping regulations. OSHA also expressed its concern that the potential for unlawful discrimination may increase when management or supervisory bonuses are tied to lower reported injury rates. Most employers know that it is unlawful to discriminate or otherwise retaliate against employees who report workplace injuries and illnesses. Nevertheless, employers should be aware of OSHA’s newly published concerns in order to avoid or minimize the potential for being subjected to scrutiny or investigation.

Those concerns are as follows:

  1. According to OSHA, employers have been reported to have a policy or practice of taking disciplinary action against employees injured at work regardless of the circumstances of the injury. OSHA would not consider this action to have a legitimate nondiscriminatory reason to justify adverse action against an injured employee.

  2. Although OSHA recognizes an employer’s legitimate interest in receiving and responding to reports of injuries, OSHA believes the reporting rules should not penalize employees who do not immediately realize they have been injured or seriously injured.

  3. Even when an employer imposes discipline when it believes the injury occurred because the employee violated a safety rule, OSHA will carefully investigate to ensure the rule violation is not merely a pretext for discrimination. In particular, OSHA will investigate to determine whether the employer disciplined an employee for violating a workplace safety rule differently than circumstances in which an employee violates a safety rule but no injury occurs.

  4. OSHA also expressed concern that some programs may intentionally or unintentionally create incentives for employees not to report injuries. If an employer, for example, entered all employees who were not injured the previous year in a drawing for a prize, or if a team or group of employees is paid a bonus if they are not injured for a certain period of time, this practice may be considered a problem by OSHA if the incentive is great enough to discourage employees from reporting injuries.

Given OSHA’s views, those responsible for workplace safety should consider:

  1. Do company policies reward employees for maintaining a positive safety record so much as to create a disincentive to report injuries?

  2. Does the company discipline employees injured on the job if safety violations contributed to those injuries? If so, does it discipline employees for safety violations if there are no injuries?

  3. Does the company discipline employees injured on the job if they delay reporting such injuries?

  4. Are company policies vaguely worded, such that they could be used as a pretext for discriminating against employees for reporting? Phrases such as “failing to maintain situational awareness” or not “working carefully” were considered problematic by OSHA.

If the answer to any of those questions is “yes,” then employers should examine whether the circumstances involved discourage employees to report on the job injuries and other workplace safety concerns. While it is difficult to see how a policy that is designed to promote workplace safety could be used against an employer to demonstrate unlawful discrimination or retaliation, the potential for litigation will largely depend on each employer’s particular products and services, staff, training procedures, working conditions, risk tolerances and other workplace safety precautions.

Because policy decisions like these often span the entire workforce and implicate legal, ethical, practical and financial concerns, competent labor and employment counsel is uniquely situated to help address many of these concerns. For further advice on how to best tailor your company’s particular safety policies, please contact any member of Bingham Greenebaum Doll LLP’s Labor and Employment Practice Group.

  • Partner

    Ben Lewis is the Co-Chair of the Fiduciary Litigation Practice Group. He focuses his practice on complex business litigation matters, particularly disputes involving breach of fiduciary duty claims against trustees ...



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