If you are going to file a complaint against your employer for a safety hazard at your job, you need to know the basics of filing one. These include how to file your complaint with the Occupational Safety and Health Administration (OSHA) and what to say in your complaint so that OSHA takes it seriously. You also want to understand how OSHA could handle your complaint and the possible outcomes. This is just common sense given the important decision you are making and the risk that your employer could engage in illegal retaliation. Here’s what you can expect after you file a complaint with OSHA.

OSHA’s Two Categories of Complaints

It is essential that you file your complaint with OSHA as soon as possible after you observe the hazard or other safety violation as OSHA can only issue citations for current violations or those that existed over the last six months. Once OSHA receives your complaint, it is grouped in one of two categories:

  • Inspection complaints that result in an inspection by an OSHA inspector
  • Investigative complaints that result in a telephone call by an OSHA inspector to the employer

How Does an Inspection Complaint Work?

Your complaint must meet certain criteria established by OSHA in order for it to be categorized as an investigative complaint. At least one of the following criteria must be met:

  • A written complaint is filed that is signed by an employee or his representative and provides sufficient detail for OSHA to determine that a violation or danger likely exists that threatens physical harm or that an imminent danger exists.
  • An allegation is made that physical harm has occurred, and the hazard continues to exist.
  • A report has been made of an imminent danger.
  • The complaint is about a company in an industry under one of OSHA’s local or national targeted programs or a hazard targeted in one of these programs.
  • The complaint is about an employer with a past history of egregious, willful OSHA violations or a failure to correct them within the last three years.
  • The complaint is made as a result of a referral from a whistleblower investigator.
  • The complaint is made in a workplace undergoing or scheduled for an inspection by OSHA.

Before scheduling an inspection, OSHA staff will determine whether it is reasonably likely that a safety or health hazard or violation has occurred. If there is evidence that the employer is in the process of correcting the problem, OSHA may hold off scheduling an inspection until it has given the employer the opportunity to provide documentation of this. Here’s what happens if OSHA does schedule an inspection:

  • The employee’s representative—a union representative or someone appointed by the employee if there is no union—has the right to accompany the OSHA inspector on his inspection.
  • Workers have a right to talk to the inspector privately regardless of whether an OSHA representative has been chosen. OSHA encourages workers to point out hazards, discuss accidents and illnesses that have resulted, and inform the inspector of any prior complaints that employees have made. If the workplace is not in its usual condition on the date of the inspection, employees should tell the inspector this.
  • Once the inspector conducts his investigation, OSHA will send the employee or his representative who filed his complaint a letter outlining the findings, any citations issued, and proposed penalties.
  • If a citation is issued, the employer is required to post it near the site of the violation so that all employees can see it

How Does OSHA Handle an Investigative Complaint?

If your complaint is determined to be an investigative complaint, OSHA will schedule an investigation. This is what you can expect to happen:

  • An OSHA staff member will call your employer to describe the complaint and follow up with a fax or letter.
  • Your employer has five days to respond.
  • If your employer denies your allegations or claims that the hazard has been corrected, an OSHA staff member must call you to discuss your employer’s response. You have the right to dispute this during your telephone conversation.
  • If you dispute your employer’s response, OSHA should use its professional judgment to decide whether to conduct an inspection.
  • If OSHA decides not to inspect your workplace, an OSHA staff member must contact you to advise you of the reasoning behind its decision.
  • While you have no right to appeal OSHA’s decision, you can file a complaint with them.

If you plan to file a complaint with OSHA, you need to obtain the advice of an experienced attorney before proceeding. You want to be certain that there are grounds to file a complaint, and you may have other legal rights and claims for compensation that you are not aware of. Start an online chat or fill out our online form today to learn about your legal options.

Manfred Ricciardelli
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Morristown Workers' Compensation Lawyer