Anti-Discrimination Investigation
Discrimination Against Employees Who Exercise Their Safety and Health
Rights
Workers in Virginia have the right to complain to VOSH and seek an
investigation of alleged workplace safety and health discrimination.
Virginia Code §§40.1-51.2:1
and -51.2:2
authorizes VOSH to investigate employee complaints of employer discrimination
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; 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 "Discrimination or Retaliation"
Some examples of discrimination or 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 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 that poses the risk of death
or serious injury. 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).
Who to Contact
If you believe your employer has treated you unfairly because you exercised
your safety and health rights, contact the VOSH Discrimination Investigator
at 804-371-4995, right away. The Code of Virginia gives you 60 days
to report workplace safety and health discrimination.
You can telephone, fax or mail your complaint to us. 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.
Other Federal Whistleblower Laws
NOTE: Federal OSHA is responsible for enforcing whistleblower protection
under ten 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: 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. www.osha.gov
.