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Enforcement of New Anti-Retaliation Provisions Now in Effect

Posted by Eric Kingsley | Dec 20, 2016 | 0 Comments

OSHA's Controversial Anti-Retaliation Regulations

Retaliation due to illness

Despite industry legal attempts to halt implementation of the new provisions, as of December 1, 2016, the Occupational Safety and Health Administration's (OSHA) broad and controversial new anti-retaliation regulations are now enforceable by said organization. The regulations prohibit employers from retaliating or taking adverse action against employees who report injuries or illness. The rule covers only situations where workers report on-the-job injuries and illnesses to OSHA when their employers want to cover them up, and the employer retaliates.

Attempt to Enjoin OSHA

Business groups sued to stop the entire rule, and a federal judge in Texas agreed to consider the case. On July 8, 2016, Texo ABC/AGC, Inc. and other entities (Plaintiffs) filed suit against the United States Department of Labor and OSHA alleging that the new anti-relation regulations stated in 29 CFR 1904.35(b)(1)(i), (iii) and (iv) are unlawful and, among other things, requesting that the court enjoin OSHA from enforcing the new regulations. That action prompted OSHA to delay its implementation for three months, until this month.

Final Rule May Improve Tracking of Workplace Injuries and Illnesses

Overall, OSHA's new rule calls for certain firms to electronically submit injury and illness data that they already record. That will make the data publicly available and nudge employers to focus on safety, according to the OSHA website. “The final rule requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation, which can be satisfied by posting the already-required OSHA workplace poster.”

“It also clarifies the existing implicit requirement that an employer's procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting” and includes the current legal ban on retaliation against workers for reporting work-related injuries and ailments.

The rest of the rule described above, to include covering the electronic, and public, injury and illness reports, starts on January 1st. Large employers, with over 250 workers, and smaller firms in high-risk industries, must first report by July 1 next year, with smaller firms reporting by March 2, 2018.

California Employers

As of December 1, OSHA may now investigate retaliation complaints, including employer imposition of post-accident testing, “incentive programs” that discourage injury reports and late reports due to employer interference. Employers should ensure that their safety rules and programs, particularly injury/illness reporting policies, and drug testing and safety incentive programs, comply with the new rule.

Should you have questions about retaliation or wrongful termination, don't hesitate to contact leading California employment lawyers from Kingsley & Kingsley. To discuss your situation call us toll-free at (888) 500-8469 or click here to contact us regarding your case.

About the Author

Eric Kingsley

In practice since 1996, attorney and firm co-founder Eric B. Kingsley has litigated complex cases and authored numerous appellate briefs in both state and federal court on behalf of the California law firm of Kingsley & Kingsley, including over 150 class actions. Mr. Kingsley concentrates his pra...


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