This article discusses Oregon laws related to OSHA reports and other types of internal and external reports concerning workplace safety. It also discusses rights and remedies available to employees who suffer retaliation due to their protected reports. Deadlines related to the OSEA are critically short, often 90 days or less, in cases involving workplace safety and health issues.
Oregon Safe Employment Act (OSEA): Purpose and Enforcement
The Oregon Safe Employment Act, ORS 654.001 et seq. (“OSEA”), is intended to assure as far as possible safe and healthful working conditions for every working man and woman in Oregon, to preserve our human resources and to reduce the substantial burden, in terms of lost production, wage loss, medical expenses, disability compensation payments and human suffering, that is created by occupational injury and disease. ORS 654.003.
The Oregon Occupational Safety and Health Division (OR-OSHA) is subdivision of the Oregon Department of Consumer and Business Services. OR-OSHA is the state governmental body responsible for enforcing Oregon’s workplace safety and health rules. OR-OSHA is the agency that investigates and resolves most complaints involving unsafe and unhealthful workplaces in Oregon. See, e.g., ORS 654.067(Inspection of places of employment); ORS 654.022 (Duty to comply with safety and health orders, decisions and rules); ORS 654.071 (Citation for safety or health standard violations); OAR Chapter 437.
Oregon employers and OR-OSHA rely on employee reports to maintain and improve workplace safety and health. In enacting the OSEA, the Oregon legislature specifically intended to “[e]stablish appropriate reporting and research procedures that will help achieve the objectives of the [OSEA], identify occupational hazards and unsafe and unhealthy working conditions[.]” ORS 654.003(5). The OSEA also specifically prohibits employers from retaliating against Oregon employees who report issues related to workplace health and safety. ORS 654.062(5).
The OSEA Applies to Oregon “Employers” and “Employees”
The OSEA applies to employers and employees. Employers include: (1) “[a]ny person who has one or more employees”; (2) business owners who elect to provide workers’ compensation coverage; and (c) successors and assignees of an employer. ORS 654.005(5). An employee is “[a]ny individual, including a minor whether lawfully or unlawfully employed, who engages to furnish services for a remuneration, financial or otherwise, subject to the direction and control of an employer.” ORS 654.005(4)(a). Under these definitions, business-to-business and independent contractor relationships are not covered by the OSEA. This means that parties to non-employment relationships are not necessarily legally protected when making safety and health-related reports.
Employees working outside of Oregon are not protected by ORS 654.062. Anderson v. Evergreen International Airlines, Inc., 131 Or App 726 (1994), Sup Ct review denied. However, such employees may still have other claims against the employer (e.g., federal law, other state laws, common law, etc.). Id.
Oregon Law Requires Employers to Provide a Safe and Healthful Workplace
The OSEA outlines several rights and obligations related to workplace safety and health:
- Employers Must Proactively Provide Safe and Healthful Workplaces. “Every employer shall furnish employment and a place of employment which are safe and healthful for employees therein, and shall furnish and use such devices and safeguards, and shall adopt and use such practices, means, methods, operations and processes as are reasonably necessary to render such employment and place of employment safe and healthful, and shall do every other thing reasonably necessary to protect the life, safety and health of such employees.” ORS 654.010.
- Employers Shall Not Allow Unsafe Workplaces to Exist. “No employer or owner shall construct or cause to be constructed or maintained any place of employment that is unsafe or detrimental to health.” ORS 654.015.
- Employers Shall Not Interfere with Safety Devices, Methods, or Processes. “No person shall remove, displace, damage, destroy or carry off any safety device or safeguard furnished and provided for use in any employment or place of employment, or interfere in any way with the use thereof by any other person, or interfere with the use of any method or process adopted for the protection of any employee in such employment or place of employment” ORS 654.020(1).
- Employers Must Proactively Comply with OSEA, OR-OHSA, and Other Related Rules. “Every employer, owner, employee and other person shall obey and comply with every requirement of every order, decision, direction, standard, rule or regulation made or prescribed by the Department of Consumer and Business Services in connection with the [OSEA] or in any way relating to or affecting safety and health in employments or places of employment, or to protect the life, safety and health of employees in such employments or places of employment, and shall do everything necessary or proper in order to secure compliance with and observance of every such order, decision, direction, standard, rule or regulation.”
- Employers Must Have a Safety Committee or Safety Meetings. Oregon employers must “establish and administer a safety committee or hold safety meetings.” ORS 654.176.
In addition to the OSEA, Oregon’s Employer Liability Law (ELL), ORS 654.305 et seq., provides specific legal rules related to “any work involving a risk or danger to the employees or the public”. ORS 654.305. Likewise, other specific industries may have additional statutory rights. For example, ORS 654.412 et seq., provides certain safety and health-related rights to health care employees. See also, ORS 441.174; ORS 443.765.
Finally, Oregon employers are typically subject to OR-OSHA regulations, including OAR Chapter 437. OAR Chapter 437 provides administrative rules covering a wide range of topics. (e.g., walking and working surfaces, ventilation, hazardous materials, first aid, fire protection, etc.) Employees who report concerns related to these topics may be protected from retaliation under the OSEA.
Employees Should Make OSHA and Other Workplace Safety Complaints
The OSEA specifically encourages employees to report workplace health and safety violations directly to employers. All employees “should notify the employer of any violation of law, regulation or standard pertaining to safety and health in the place of employment when the violation comes to the knowledge of the employee.” ORS 654.062(1). However, employees also have the legal right to file a complaint directly with OR-OSHA without notifying the employer first.
[A]ny employee or representative of the employee may complain to [OR-OSHA] of any violation of law, regulation or standard pertaining to safety and health in the place of employment, whether or not the employee also notifies the employeORS 654.062(2).
Employees are typically protected from retaliation even if there is not an actual violation. For example, in Butler v. Dept. of Corrections, 138 Or App 190 (1995), the Oregon Court of Appeals ruled that an employee need not establish that any violation of law, regulation or standard was alleged or actually existed in order to maintain a retaliation claim under ORS 654.062(5). Employee complaints “‘related to’ safe and healthful working conditions” are protected under ORS 654.062(5)(a). Glasscock v. Alliant Foodservice, 232 F. Supp. 2d 1148 (D. Or., 2011).
OSHA and BOLI’s Administrative Enforcement Procedures
ORS 654.062(3) obligates OR-OSHA to conduct a “reasonable and appropriate” investigation any time it receives an employee complaint regarding workplace safety and health. If OR-OSHA declines to issue a citation, an employee or the employee’s representative may request a statement from OR-OSHA setting forth the reasons for deciding not to issue a citation. ORS 654.062(3).
The procedural details of an OR-OSHA investigation are outlined in OAR 437-001-0001 to OAR 437-001-1065. Those OR-OSHA administrative rules cover a variety of topics, including: (1) Inspections (See also, ORS 654.067); (2) Violations and Penalties (See also, ORS 654.086); (3) Citations (See also, ORS 654.031 and ORS 654.071); (4) Posting Requirements; (5) Variances; and (6) Recordkeeping. ORS 654.082 also specifically prohibits employers from using equipment involved in an alleged or actual safety or health violation.
Confidentiality of OR-OSHA Complaints
Employees may make confidential reports to OR-OSHA. “The director shall establish procedures for keeping confidential the identity of any employee who requests protection in writing.” ORS 654.062(4).OR-OSHA specifically requires that complaints specify “[w]hether the complainant desires the complainant’s name and address to be kept confidential[.]” OAR 437-001-0285(7). “When a request has been made, neither a written complaint from an employee, or representative of the employee, nor a memorandum containing the identity of a complainant may be disclosed” as a public record. ORS 654.062(4).
Employees who make OR-OSHA complaints should carefully consider whether confidentiality is desirable. In some cases, it may be advantageous for employees to notify appropriate individuals of workplace safety or health reports.For example, in dismissing the plaintiff’s claim on summary judgment in Asaro v. Sealy Matress Mfg., Inc., Civil No. CV-09-295-ST (D.Or., Nov. 19, 2010), the court observed that the supervisor who allegedly retaliated against the plaintiff/employee “had no knowledge of […] the safety complaint.” Id at p. 7. The court also ruled that, “knowledge of the safety complaint and alleged retaliatory animus cannot be imputed to [the supervisor].” Id at p. 13.
Employer Retaliation and Discrimination Is Strictly Prohibited
Oregon law prohibits employers from retaliating against employees for exercising their rights to safe and healthful workplaces. Specifically,
It is an unlawful employment practice for any person to bar or discharge from employment or otherwise discriminate against any employee or prospective employee because the employee or prospective employee has:
- (a) Opposed any practice forbidden by [the OSEA];
- (b) Made any complaint or instituted or caused to be instituted any proceeding under or related to [the OSEA] or has testified or is about to testify in any such proceeding; or
- (c) Exercised on behalf of the employee, prospective employee or others any right afforded by [the OSEA].
Employees are not required to contact a government agency in order to be protected. “The Court of Appeals has also held that there is a sufficient basis for a claim under ORS 654.062 where an employee only complains to their employer, without contacting a government agency.” Krouse v. Ply Gem Pacific Windows Corp., 803 F. Supp. 2d 1220 (D. Or., 2011) citing Herbert v. Altimeter, Inc., 230 Or App 715 (2009). However, an employee’s refusal to do work requested does not necessarily “constitute opposing a practice forbidden by Chapter 654.” Ragnone v. Belo Corp., 131 F. Supp. 2d 1189 (D. Or., 2001); Pintok v. Employment Division, 32 Or App 273 (1978).
In order to prove a claim for retaliation under this section, a plaintiff must be able to establish a causal link between protected activity (e.g., opposition, complaint, or other protected exercise of an OSEA right) and one or more adverse employment actions (e.g., termination, discipline, reduction in hours, etc.). Causation may be established through direct or indirect evidence. Chuang v. Univ. of Cal. Davis, Bd. of Trustees, 225 F3d 1115, 1127 (9th Cir., 2000).
For example, in Lamont v. Anning-Johnson Co., Civil Case No. 09-CV-1391-PK (D.Or., Jun. 6, 2011), the court allowed a plaintiff’s case to proceed to trial where the plaintiff presented evidence that he was transferred to new job site immediately after making a safety complaint and was later laid off.In Glasscock v. Alliant Foodservice, 232 F. Supp. 2d 1148 (D. Or., 2011), the court denied summary judgment because of: (1) factual issues surrounding the employer’s stated reason for termination; and (2) close temporal proximity between employee’s complaints and employer’s retaliatory acts. Also, in Herbert v. Altimeter, Inc., 230 Or App 715 (2009), the Court of Appeals reversed the trial court’s directed verdict to employer where the employer promptly responded to an employee’s safety complaint and suspended and terminated employee three days after the complaint. The Herbert court cited close temporal proximity and “defendant was unhappy with plaintiff because her repair requests were costing defendant thousands of dollars” as sufficient to survive a motion for summary judgment. Id at 725, citing McPhail v. Milwaukie Lumber Co., 165 Or App 596, 602-605 (2000).
Procedure and Time Limitations for Bringing a Claim for Retaliation
To bring a claim for retaliation under ORS 654.062, a plaintiff may, “within 90 days after the employee or prospective employee has reasonable cause to believe that the violation has occurred, file a complaint with the Commissioner of the Bureau of Labor and Industries alleging discrimination[.]” ORS 654.062(6)(a). Employees may file these complaints individually or through counsel. The Bureau of Labor and Industries (BOLI) must notify employees of the Commissioner’s determination within 90 days of receiving a complaint. ORS 654.062(6)(b).
To read more about the BOLI process, including a discussion of whether an employee should retain counsel, please click here.
In addition to filing a BOLI complaint, an employee “may bring a civil action in any circuit court of the State of Oregon” alleging a violation of ORS 654.062(5). Such claims must be commenced “within one year after the employee or prospective employee has reasonable cause to believe a violation has occurred, unless a complaint has been timely filed [with BOLI].” ORS 654.062(6)(c).
Finally, employees who suffer retaliation for workplace safety or health reports may have legal rights outside of the OSEA. For example, Oregon’s private whistleblower protection statute, ORS 659A.199, protects any employee who “in good faith reported information that the employee believes is evidence of a violation of a state or federal law, rule or regulation.” ORS 659A.199(1). Claims under ORS 659A.199(1) are subject to a one year statute of limitations. ORS 659A.885(1). Employees may also have tort claims (e.g., wrongful discharge) subject to a two year statute of limitations under ORS 12.110(1).
Remedies for Employer Retaliation or Discrimination
Employees who suffer unlawful retaliation or discrimination for protected reports may be entitled to a range of remedies, including reinstatement, lost wages, compensatory damages, punitive damages, and jury trial.
The commissioner or the circuit court may order all appropriate relief including rehiring or reinstatement to the employee’s former position with back pay.
ORS 654.062(6)(d)(emphasis added).
Recent federal case law in Oregon suggests “all appropriate relief”, as used in ORS 654.062(6)(d), includes “a jury trial, compensatory and punitive damages, and attorney fees if plaintiff prevails.” Nilsson v. Luke-Dorf, Civil No. 09-1527-HA (D.Or., Feb. 17, 2011)(citing Hull v. Ivey Imaging LLC, Civil No. 08-744-HU, 2008 WL 5071100, at *2-3 (D. Or. Nov. 21, 2008)). It is also worth noting that an employer that successfully defends a suit by employee under ORS 654.062 is not entitled to prevailing party attorney fees. Mantia v. Hanson, 190 Or App 36 (2003), Sup Ct review denied.
Even though Oregon state courts have not defined the exact meaning of “all appropriate remedies”, the Oregon Court of Appeals in Deatherage v. Johnson, 230 Or App 422 (2009) interpreted that phrase in a broad manner under similar circumstances. The Deatherage court specifically explained that remedies under ORS 654.062(6)(c) are not necessarily limited to injunction, reinstatement, and back pay. Id.
Determining a plaintiff’s damages can only be done on a case-by-case basis. However, as a legal matter, the Oregon Supreme Court recently upheld as constitutional a jury verdict assessing punitive damages of $175,000 and lost wages of $16,000 against an employer in a case brought, in part, under ORS 654.062(5). Hamlin v. Hampton Lumber Mills, Inc., 349 Or 526 (2011).
Unemployment insurance benefits received by employee are not typically reduced from a back pay award under ORS 654.062. German Auto Parts v. Bureau of Labor and Ind., 111 Or App 522 (1992). Moreover, employees may pursue claims under ORS 654.062, regardless of the outcome of any claims for workers compensation or unemployment compensation. Griffith v. Hodes, 96 Or App 387 (1989), Sup Ct review denied.
Retaliation Claims Under the OSEA – Miscellaneous Issues
In addition to the substantive and procedural issues outlined above, employees should consider the following issues outlined in Oregon case law:
- Are Oregon OSEA claims preempted by federal law? See, Glasscock v. Alliant Foodservice, 232 F. Supp. 2d 1148 (D. Or., 2011)(plaintiff’s ORS 654.062(5)(a)retaliation claim is not necessarily preempted by the Federal Surface Transportation Assistance Act (STAA), 49 U.S.C. § 31105).
- Does insurance company have a duty to defend claims under the OSEA? See, Falkenstein’s Meat Co. v. Maryland Cas. Co., 91 Or App 276 (1988)(ruling that an insurance company had no “duty to defend” insured employer against OSEA retaliation claim under a comprehensive general liability policy).
- May an employee plead wrongful termination claims in a case involving OSEA claims? Nilsson v. Luke-Dorf, Civil No. 09-1527-HA (D.Or., Feb. 17, 2011); Deatherage v. Johnson, 230 Or App 422 (2009); Hull v. Ivey Imaging LLC, Civil No. 08-744-HU at pp. 2-3 (D. Or., Nov. 21, 2008); Love v. Polk County Fire District, 209 Or App 474 (2006); Cantley v. DSMF, Inc., 422 F. Supp. 2d 1214 (D. Or. 2006); Messer v. Portland Adventist Medical Center, 707 F. Supp. 449 (D. Or. 1989); Holien v. Sears, Roebuck and Co., 298 Or. 76 (1984); McQuary v. Bel Air Convalescent Home, Inc., 69 Or App 107 (1984); Walsh v. Consolidated Freightways, Inc., 278 Or 347 (1977).
- How does ORS 654.062(5) relate to the constitutional right to free speech? Shockey v. City of Portland, 313 Or 414 (1992)(discussing the issue in the public employment context).