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Horton Law Firm Blog SC OSHA Investigations into a Whistleblower Retaliation Complaint

 | SC OSHA Investigations into a Whistleblower Retaliation Complaint

If a South Carolina employee files a whistleblower retaliation complaint in South Carolina under OSHA, how long does it normally take for those complaints to be investigated?

The answer: a really, really long time!

Nearly five years ago, I published a blog post about OSHA Retaliation in South Carolina. Under the OSHA laws, companies cannot retaliate against employees for raising health and safety concerns in the workplace. For employees who have been retaliated against for making such reports, the employee has 30 days to file a whistleblower retaliation complaint with SC OSHA.

While these types of claims have never been a huge percentage of  my cases, I normally have one or two going at any one time. But I’ll be the first to admit that taking on these cases are not super attractive to me as a plaintiff’s lawyer. And that’s mainly due to two things: (1) the incredibly lengthy investigation process as conducted by the SC OSHA office; and (2) the lack of a private right of action that would allow me to file a lawsuit if SC OSHA dismisses the complaint.

The Average Time for an Investigation into OSHA Retaliation was 545 Days in 2021

I spent some time doing a little Google research, trying to find out some statistics related to the number of complaints filed in SC each year for OSHA retaliation specifically. For FY 2021 in South Carolina, OSHA reported that only 8% of retaliation investigations were complete within 90 days. The average number of days for an investigation to be complete? 545 days! As the average, mind you. Based on my own experience, I represented an employee on a complaint that got filed in November 2018, and it was not until December 2020 that the agency informed the investigation was complete and–surprise–found no merit.

That’s the other crazy statistic. SC OSHA found merit in only 6% of retaliation complaints, as compared with the national average of closer to 20% that year. I’ve had some of my client’s complaints dismissed for lack of merit, when I would have filed a lawsuit on their behalf any day of the week based on the same facts.

No Private Right of Action under OSHA

That leads into the next big issue: there’s no private right of action under the OSHA statute. Only the government can file a lawsuit on behalf of an employee. So when the SC OSHA office dismisses a complaint, the employee is essentially out of luck. It’s not like under the EEOC, where once the EEOC dismisses the charge, then the employee can obtain the Notice of Right to Sue and then file in state or federal court within 90 days. Nothing like that exists in the OSHA law.

I will still keep filing these charges as necessary, and I’ll keep following up with OSHA throughout the process, and I’ll keep appealing the internal findings of the agency. Often, if the company has violated one law, there’s a decent chance they’ve violated something else, like the National Labor Relations Act (firing employees when they get together to discuss health and safety concerns, for example), the Fair Labor Standards Act (as it turns out, the company failed to pay proper overtime and minimum wage), or any other of the anti-discrimination statutes. Give me some time in a consult and I can probably uncover some other wrongful behavior of the company.

Even though the OSHA process is frustrating, I believe that circumstances for employees in South Carolina will only get worse if we don’t push back and fight wherever we can. Give our office a call if you want to discuss further.

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