As employees, we expect and deserve to work in safe places. The Occupational Safety and Health Act of 1970, 29 U.S.C. § 660(c), is a federal statute that regulates employment conditions relating to occupational safety and health. Under the Act, every person engaged in a business affecting commerce is required to furnish each employee with working conditions free from recognized hazards that are causing or are likely to cause death or serious physical harm and, further, to comply with occupational safety and health standards promulgated under the Act.
Employees and representatives of employees are afforded a wide range of substantive and procedural rights under the Act. For example, Section 11(c) of the Act provides, in general, that no person shall discharge or in any manner discriminate (retaliate) against any employee because the employee has exercised rights under the Act.
What is Workplace Retaliation?
To establish a claim for retaliation under Section 11(c), the employee must produce evidence sufficient to establish reasonable cause to believe that a reasonable judge could rule that: (1) the employee participated in protected activity which the employer knew of or suspected; (2) the employee subsequently suffered an adverse action by the employer; and (3) there is a causal connection between the employee’s protected activity and the employer’s subsequent adverse action.
What is Protected Activity?
Section 11(c) provides in general that employers shall not discharge or in any manner discriminate against any employee because the employee has: (a) Filed any complaint under or related to the Act; (b) Instituted or caused to be instituted any proceeding under or related to the Act; (c) Testified or is about to testify in any proceeding under the Act or related to the Act; or (d) Exercised on his own behalf or on behalf of others any right afforded by the Act. Additionally, internal complaints made in good faith to employers about working conditions may also be protected activity.
How to Prove Retaliation?
However, employees should note thatan employer’s actions which adversely affect an employee may legitimately be based on nondiscriminatory grounds. Thus, an employee's engagement in activities protected by the Act does not automatically render him immune from discharge or discipline for legitimate reasons, or from adverse action dictated by non-prohibited considerations.
At the same time, to establish a violation of section 11(c), the employee's engagement in protected activity need not be the sole consideration behind discharge or other adverse action. If protected activity was a substantial reason for the action, or if the discharge or other adverse action would not have taken place “but for” engagement in protected activity, section 11(c) has been violated. Ultimately, the issue as to whether a discharge was because of protected activity will have to be determined on the basis of the facts in the particular case.
If you believe that your employer has retaliated against you or you’ve been wrongfully terminated, you should consult an experienced New Hampshire employment law attorney. Please call us at (603) 288-1403 to see if we can help or fill out our online contact form for a free consultation.
Samantha J. Heuring