Workplace Hazards & Accidents: Fear of Employer Retaliation in Pennsylvania

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Can an employer retaliate when a worker files an OSHA complaint or files for workers’ compensation benefits?

Imagine the following scenario: a worker at a construction site in Philadelphia sees that workers are not using fall protection gear when working on the third floor roof, a violation of Occupational Safety & Health Administration (OSHA) standards. He tells his supervisor who does nothing. The worker is concerned that someone will fall and files a complaint with the local OSHA office in Philadelphia.
His employer finds out and fires him.

Here’s another, similar scenario: a worker falls at a factory in the Philadelphia suburbs. She files a worker’s compensation claim due to a serious back injury. The employer says that the accident occurred because the worker was violating safety procedures, which is untrue. The accident occurred as a result of the employer’s negligence. After filing for workers’ compensation benefits, the worker receives a negative performance write-up. As it turns out, other workers who have filed workers’ compensation claims have received similar, negative treatment.

Although these hypothetical scenarios may seem farfetched, they are actually quite common. Here’s why. Most employers in Pennsylvania provide workers’ compensation benefits through an insurance plan. Therefore, employers pay an insurance premium for employee workers’ compensation benefits. When an employee makes a workers’ compensation claim, the employer’s insurance premium goes up. Therefore, an employer has a financial incentive to keep workers’ compensation claims down. Some employers actually pay workers’ compensation benefits themselves, literally out of pocket. These kinds of employers obviously face a greater financial risk when an employee makes a workers’ compensation claim. As a result, when an employee makes a workers’ compensation claim, the employer may engage in retaliatory tactics, such as:
• firing,
• demoting,
• denying work benefits (i.e., overtime),
• reassigning job duties, or
• reducing hours.

Protection Under Federal Law – OSHA

Under the federal Occupational Safety & Health Act of 1970, Section 11, employers are barred from engaging in discriminatory or retaliatory acts. Section 11(c)(1) provides:

No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this Act.

Under Section 11(c), protected activities include:
• reporting safety hazards to the employer,
• reporting a work related accident or injury,
• filing a complaint with OSHA,
• complying with an OSHA investigation, and
• testifying in a related legal proceeding.

Pennsylvania (State) Protections Against Retaliation for Making a Workers’ Compensation Claim or Reporting a Work Hazard

In Shick v. Shirey, a 1998 Pennsylvania Supreme Court case, the court recognized and upheld an employee’s right to bring a wrongful termination action against an employer where the employee was fired for filing a workers’ compensation claim. The court found that the Pennsylvania Workers’ Compensation Act restricts an employee’s legal rights to file a lawsuit against the employer for a work related injury. Therefore, it is against public policy to allow an employer to turn around and fire an employee who files a workers’ compensation claim.

In the 15 years since the Shick case was decided, Pennsylvania courts have ruled against employers in retaliation cases where employers engaged in discriminatory practices other than firing, such as demotion, intimidation, and denying work benefits.

Under both federal and state law, employees are protected from engaging in protected activities, i.e., making a workers’ compensation claim or reporting work accident hazards. Retaliation for engaging in these types of activities is illegal in Pennsylvania.

Paul Bucci is a work accident lawyer who focuses on catastrophic plaintiffs’ work accident litigation. Mr. Bucci is licensed in Pennsylvania and West Virginia and has handled 100s of work accident cases. Mr. Bucci is a partner at the Philadelphia law firm of Laffey, Bucci & Kent.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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