We all know here that the law is the most powerful of schools for the imagination. No poet ever interpreted nature as freely as a lawyer interprets the truth. -- Jean Giraudoux
The legislation that set up OSHA in 1970 also gives employees the right to complain about workplace safety and health issues. The idea is that those who work in a particular environment are usually most familiar with its hazards. Consequently, employee complaints about workplace hazards have special significance and merit attention.
During Fiscal Year (FY) 1994, OSHA received approximately 30,900 complaints alleging safety and health hazards in the workplace, with about 7,400 being formal complaints. These complaints generated 23 percent of all of OSHA's inspections for that year. In fact, for the last 5 years, the complaint inspection average has been 24 percent of all OSHA inspections. During this period, 32 percent of serious violations, 23 percent of repeat violations, 28 percent of willful violations, and 51 percent of failure-to-abate violations resulted from complaint-initiated inspections. Responding to complaints, therefore, is a vital part of OSHA's enforcement effort.
When to File a Complaint
OSHA always recommends that employees try to resolve safety and health issues first by reporting them to their supervisors, managers, or company safety and health committees. At any time, however, employees can bring these problems to the nearest OSHA area office for resolution. Furthermore, under Section 11 (c) of the OSH Act, employees have a right to make a complaint without discrimination or reprisal from their employers.
Who Can Complain?
Employees or their representatives have a right to request an inspection of an establishment if they believe there is a violation of a safety or health standard that threatens physical harm, or an imminent danger. Anyone, not just employees, who has sufficient knowledge of a workplace safety or health hazard may make a complaint. A complaint is considered a request for an OSHA inspection, but not all complaints result in inspections.
Is There More than One Type of Complaint?
OSHA classifies inspection requests in two ways: formal and nonformal complaints. Whether the agency treats a request for an inspection as a formal or nonformal complaint depends on the employment relationship the complainant has with the employer and whether the complaint is written and signed.
A formal complaint is one signed by the complainant alleging an imminent danger or a violation of a regulation that may cause physical harm. The complainant must be a current employee or a representative of an employee that is exposed to the hazards complained-about in the workplace.
Nonformal complaints are oral or unsigned complaints or complaints by former employees or non-employees. Such complaints are generally investigated by telephone or letter, but also can initiate an onsite inspection.
When and How Should the Complaint Be Made?
Complaints may be made at any time a person becomes aware of a safety or health hazard in the workplace. During an inspection, for example, any employee or employee representative may make a complaint to the compliance safety and health officer (CSHO) conducting the inspection. Also, potential complaints can be directed to an area director or CSHO in the closest area office in the state where the workplace is located.
Does the Complaint Need to be Written?
A complaint may be oral (in person or by telephone) or written (by letter or the OSHA-7 complaint form). The OSHA-7 form, "Notice of Alleged Safety and Health Hazards," is usually filled out by area office personnel when an individual calls or visits an area office to make a complaint.
To formalize oral complaints, OSHA gives or sends a completed OSHA-7 to the complainant for signature, or the complainant signs a letter with the particular details of the complaint and sends it to the area office. If the complainant does not sign the OSHA-7, the complaint cannot be treated as a formal complaint.
Because OSHA must give the employer a copy of the complaint, area office personnel may copy written information onto another OSHA-7 to conceal from the employer anything that would identify the complainant, such as handwriting, especially if the complainant has requested anonymity.
What Information Must the Complainant Give?
The complainant must provide enough information for OSHA to determine that safety or health hazards exist and if they are potential violations of safety or health standards. This means describing the alleged hazard in enough detail so OSHA can determine the existence and seriousness of the hazard. A complainant should be prepared to give all the requested information on the OSHA-7 (see box), whether it or equivalent form or a letter is used.
The more detailed and exact the information given in the complaint the better OSHA can evaluate the alleged hazard or hazardous condition and make the proper determination whether to conduct a workplace inspection, to telephone the employer, or to send a letter. This determination is becoming increasingly impor tant as more and more demands are put on OSHA's resources.
Because it is important to give as much complete and accurate information as possible about an alleged hazard, answers to the following types of questions may be useful:
* How many employees work in the establishment and how many are
* What is the nature of the exposure?
* What type of work is performed in the unsafe or unhealthful area?
* What type of equipment is used? What is its condition?
* What are the materials and/or chemicals used?
* What is the process and/or operation involved?
* What kinds of work are done nearby?
* How often do employees work at the task that leads to their exposure? For how long at a time?
* How long (to your knowledge) has the condition existed?
* Have any attempts been made to correct the condition?
* How many shifts work in the area and what times do they start? On what shift does the condition exist?
* What personal protective equipment is required by the employer and is the equipment used by the employees?
* Have any employees or anyone else the employees work with been
injured as a result of this condition?
The following are some specific questions for health hazards:
* Has the employer administered any tests to determine if employees
are exposed to the hazardous condition or substance?
* What are these tests and the results of the tests?
* What engineering controls are in place in the area in which the employee work? (For instance, are there any fans or acoustical insulation in the area which may reduce exposure?)
* What administrative or work practice controls has the employer put into effect?
* Do any employees have any symptoms which they think are caused by the hazardous condition or substance?
* Have any employees been treated by a doctor for a work-related disease or condition? What was it?
* Have there been any "near-miss" incidents?
When the complainant does not provide the essential information, or the complaint is too vague to evaluate, or when the area office has other specific information that the complaint is not valid, OSHA will attempt to clarify or supplement available information. If OSHA decides that the complaint is not valid, a letter is sent to the complainant advising of the decision and its reasons.
Potential complainants also should keep in mind that it is unlawful to make any false statement, representation, or certification in any complaint. Violations can be punished under Section 17(g) of the OSH Act by a fine of not more than $10,000, or by imprisonment of not more than 6 months, or by both.
Will a Complaint Initiate an Inspection?
An onsite inspection will not automatically follow a complaint. OSHA evaluates complaints according to local area office procedures, including criteria for classifying the alleged violation or violations as serious or other-than-serious. If after reviewing the complaint information, the area office determines that an imminent danger situation exists, OSHA can initiate an inspection immediately--even before receiving a signed complaint through the mail.
The agency will schedule all complaints that meet the criteria for formal complaints for workplace inspections. OSHA will investigate formal serious complaints on a priority basis within 30 working days and formal other-than-serious complaints within 120 days. If resources do not permit investigation within these time frames, OSHA will send a letter to the complainant explaining the delay and indicating when an investigation may occur.
When OSHA finds there are no reasonable grounds for believing that a violation or hazard exists, the agency must report this in writing to the complainant. If the complaint does not result in an onsite inspection, the employer will either receive a telephone call or a letter from OSHA. Anyone, however, who files a formal complaint may appeal the agency's decision not to inspect for a hazard or violation. If, however, the area office initiates an onsite inspection, the employer also will receive a copy of the complaint. Finally, each of the 23 states and 2 territories that have an OSHA state plan, as provided by Section 18 of the OSH Act, must have an inspection process at least as effective as that provided by Federal OSHA and must include procedures for filing workplace safety and health complaints.
Can OSHA Respond More Quickly to Complaints?
The agency has been concerned for some time about the backlog of complaints in some area offices. As part of OSHA's reinvention efforts, two area offices--Cleveland and Peoria--successfully developed and piloted a new process for handling nonformal complaints. After surveying their customers, the area office teams focused their efforts on increasing their responsiveness to complaints to abate hazards more quickly.
The key to the new process is the telephone: Calling employers about hazards rather than writing a letter or scheduling a visit expedites the response. Further, by obtaining the complainant's agreement to try a phone call first, Cleveland and Peoria have been able to get problems resolved faster. This also frees inspection resources for cases where abatement is critical.
The performance results are impressive. Cleveland, which receives the highest volume of nonformal complaints in the country, reduced its complaint processing time from 39 to 9 workdays. Peoria, which receives fewer complaints, reduced its response time from 23 to 5 workdays. So, workers who file complaints with the Peoria offices are now getting results in 5 days or less instead of having to wait an average of 3 weeks.
Area office staff in the pilot program often are able to contact employers within 24 hours of receiving a complaint. Frequently, employers agree to investigate and fix the problem immediately. This has drastically cut the lag time between reporting a complaint and abating the problem by as much as three-quarters in some cases.
Both workers and employers appreciate OSHA's cooperative approach. Workers like this process because OSHA gets their complaints resolved quicker, and employers get personal attention from an OSHA representative immediately after a complaint has been filed. This allows employers to investigate the allegation themselves right way, and if a hazard does exist, they can quickly take corrective action. In the past, employers would not even have been aware of such an allegation until several days after it had been filed, because OSHA's procedure was to mail a letter rather than make a phone call or send a fax.
Encouraged by the success of their nonformal complaint process, the Cleveland and Peoria teams are looking at how they can improve the handling of formal complaints that merit an onsite inspection by OSHA. Under this approach, OSHA would develop new criteria to determine and set priorities for those complaints requiring onsite inspections while protecting the right of employees to request an inspection. For other nonformal complaints, OSHA would investigate using the phone and fax method.
A pilot for formal complaints began in Cleveland, Peoria, Atlanta, and Parsippany (New Jersey) in March. Preliminary results are positive. In Peoria, for example, onsite inspections responding to complaints are now being initiated in an average of 3 workdays, instead of 35 workdays. Their complaint backlog has virtually been eliminated.
At present, OSHA is prepared to implement the new nonformal complaint process in each of its field offices. The staff from Peoria and Cleveland have presented a train-the-trainer program, and the regions now have their own trainer to facilitate a reduction in complaint turnaround time in each area office. Each area office will be trained in the new process, and the regional facilitators will assist them in establishing office goals and measuring their performance. The goal is to implement the new nonformal complaint process by June 1, 1995, and then assess the results of the formal complaint pilot.
Brought to you by - The 'Lectric Law Library
The Net's Finest Legal Resource For Legal Pros & Laypeople Alike.