The Occupational Safety and Health Administration (OSHA) is a federal agency that sets and enforces workplace safety regulations. Congress empowers OSHA to ensure unsafe work practices and dangerous conditions are identified and corrected.
OSHA provides training and resources for those who need assistance or want to report safety violations. They also do onsite inspections and seminars about workplace safety. The agency has approximately 2,400 federal inspectors and over 550 state consultants. These include complaint discrimination investigators, engineers, physicians, educators, and other technical support personnel.
Filing a Complaint with OSHA
Dangerous conditions exist in almost any workplace. Many workers don’t know how to report an unsafe work condition. They question whether contacting OSHA can help, and wonder if their employer can find out who made the complaint.
Sometimes employees accept the situation and do their jobs despite the unsafe work practices. Whether out of fear of retaliation, being ostracized by coworkers, or suffering some other indignity, some people just keep quiet. That may seem like the easiest solution, but not taking action only perpetuates the danger. To protect workers’ confidentiality, OSHA accepts anonymous complaints.
There are a few steps to filing an OSHA complaint…
Step One: Addressing the unsafe condition
Before contacting OSHA, discuss your concerns with your employer or supervisor. It’s possible your employer isn’t aware of the dangerous condition. Most employers want to correct a danger as soon as they know it exists. They would rather correct an unsafe work practice than face the repercussions of an OSHA violation.
OSHA’s mandate is to assist employers in maintaining a safe workplace, but OSHA won’t hesitate to take punitive action where necessary. Employers who fail to cooperate may be subject to substantial fines and penalties, and could have their business shut down until the dangerous condition is rectified.
Step Two: Filing an OSHA complaint
If your employer makes no attempt to correct a dangerous workplace condition, then you can contact OSHA and begin the formal complaint process. OSHA has ten regional offices throughout the country. You should contact the office assigned to your state (you can find it on their website). Fill out their official complaint form and send it to the closest office.
When you fill out the form, you need to describe the hazardous working conditions and give any other information you think will help OSHA identify the problem. You don’t have to cite a particular OSHA rule or regulation. They investigate complaints with or without that information. You can request your complaint be kept anonymous, and OSHA will fully comply.
Step Three: The OSHA investigation
OSHA begins an investigation based on your allegations of a dangerous workplace condition or what you believe is an unsafe work practice. They probably won’t keep you updated on the status of their investigation. An OSHA investigator is assigned to the case. His inital action is to contact your employer and discuss the alleged hazardous condition.
In many cases, the fact that a complaint was filed isn’t revealed. The OSHA investigator’s primary concern is the existence of an unsafe work practice or dangerous working condition, not who prompted the investigation.
The investigator bases his inquiry on the facts you listed in your complaint and asks for your employer’s comments. Your employer has five days to respond. OSHA then sends you a copy of your employer’s response. If you’re not satisfied with the response, you can ask OSHA to make an onsite inspection at your workplace.
OSHA and Workers’ Compensation
OSHA and workers’ compensation are two entirely separate entities. You don’t receive any reward from OSHA for reporting an unsafe condition. If you’re injured because of an OSHA safety violation however, you have the right to file a workers’ comp claim.
Under state and federal workers’ comp laws, an injured worker may receive payment for medical bills, out-of-pocket expenses (medications, bandages, crutches, etc.), and about two-thirds of wages lost during treatment and recovery. Payment for pain and suffering is not covered by workers’ compensation.
OSHA and Third-party Actions
Under workers’ compensation laws, an employer’s negligence is usually irrelevant. Most injuries caused by employer negligence are treated the same as any other on-the-job injury.
The courts have established an exception that may apply when a worker’s injury is connected to an OSHA violation. When proof of the exception exists, an injured worker may claim workers’ comp benefits AND pursue additional damages under a third-party claim against his employer.
Damages can include payment of all medical bills, out-of-pocket expenses, total lost wages, plus an amount for pain and suffering. In an extreme case of intentional negligence, the court may award punitive damages.
Evidence of Negligence
To meet the requirements of the third-party exception, you must prove that your employer’s negligence was the cause of your injury and that her actions or omissions were “grossly negligent” or showed “a wanton disregard for your safety.” Proving this is very difficult. No criteria or checklist exists, so the courts take each case on its individual merits.
In most cases, injuries stemming from OSHA violations are handled through workers’ compensation, even when OSHA is conducting an investigation. If your employer ignores an OSHA citation to correct a safety violation and you are injured because of it, that may help meet your burden of proof. You still must prove that the failure to comply rises to a level of gross negligence or a wanton disregard for your safety.
Strong evidence supporting intentional negligence is vital to a successful third-party action. The courts allow an employer to offer reasons that disprove intentional negligence, such as:
- The employer wanted to correct the OSHA violation but didn’t have enough money.
- The employer has proof that it was the landlord’s duty to take corrective action.
- The employer was in the process of selling the business, and the duty to take corrective measures was being negotiated.
The courts may not accept these excuses for not taking corrective measures, but there still must be proof that the employer’s negligence was intentional.
Reimbursing Workers’ Compensation
Third-party lawsuits can take months or years before they finally settle or go to trial. In the meantime, workers’ compensation is paying for medical bills and expenses. By law, when an injured employee receives an award from a lawsuit for those same injuries, he must reimburse the workers’ comp insurance company for its payments.
The injured worker’s third-party award generally is higher than the total amount of workers’ comp payments. He can keep the difference between those payments and the full amount awarded in the third-party negligence action. This surplus normally includes full lost wages and an award for pain and suffering.
The Role of Attorneys
You must seek legal representation if you intend to file a third-party lawsuit in addition to a workers’ compensation claim. An attorney probably won’t take your case unless you have substantial injuries or you are acting on behalf of a loved one who died as a result of the unsafe work practice.
To find evidence of an employer’s gross negligence your attorney must:
- Gather evidence of the dangerous condition (photographs, videos, etc.)
- Take sworn depositions of coworkers who were also exposed to the unsafe working condition
- Take sworn depositions of your employer and management staff
- Take the sworn deposition of the OSHA investigator
- Subpoena OSHA’s and your employer’s records, especially those relating to OSHA notifications, fines, etc.
- Seek out any other evidence that your employer’s actions or omissions were intentional and inexcusable
Personal injury attorneys work on a contingency basis. You don’t pay any fees in advance, including costs for depositions, private investigations, etc. If your attorney successfully settles your case or wins it at trial, she deducts between 33.3 and 40 percent of the gross amount as her fee, plus expenses.
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