(a) In addition to protecting employees who file complaints, institute proceedings, or testify in proceedings under or related to the Act, section 11(c) also protects employees from discrimination occurring because of the exercise “of any right afforded by this Act.” Certain rights are explicitly provided in the Act; for example, there is a right to participate as a party in enforcement proceedings (section 10). Certain other rights exist by necessary implication. For example, employees may request information from the Occupational Safety and Health Administration; such requests would constitute the exercise of a right afforded by the Act. Likewise, employees interviewed by agents of the Secretary in the course of inspections or investigations could not subsequently be discriminated against because of their cooperation.
(b)(1) On the other hand, review of the Act and examination of the legislative history discloses that, as a general matter, there is no right afforded by the Act which would entitle employees to walk off the job because of potential unsafe conditions at the workplace. Hazardous conditions which may be violative of the Act will ordinarily be corrected by the employer, once brought to his attention. If corrections are not accomplished, or if there is dispute about the existence of a hazard, the employee will normally have opportunity to request inspection of the workplace pursuant to section 8(f) of the Act, or to seek the assistance of other public agencies which have responsibility in the field of safety and health. Under such circumstances, therefore, an employer would not ordinarily be in violation of section 11(c) by taking action to discipline an employee for refusing to perform normal job activities because of alleged safety or health hazards.
(2) However, occasions might arise when an employee is confronted with a choice between not performing assigned tasks or subjecting himself to serious injury or death arising from a hazardous condition at the workplace. If the employee, with no reasonable alternative, refuses in good faith to expose himself to the dangerous condition, he would be protected against subsequent discrimination. The condition causing the employee's apprehension of death or injury must be of such a nature that a reasonable person, under the circumstances then confronting the employee, would conclude that there is a real danger of death or serious injury and that there is insufficient time, due to the urgency of the situation, to eliminate the danger through resort to regular statutory enforcement channels. In addition, in such circumstances, the employee, where possible, must also have sought from his employer, and been unable to obtain, a correction of the dangerous condition.
[38 FR 2681, Jan. 29, 1973, as amended at 38 FR 4577, Feb. 16, 1973]
Notes of Decisions
Whirlpool Corp. v. Marshall, 445 U.S. 1 (1980).
· cites it 3× “That question, as stated at the outset of this opinion, is whether the Secretary’s regulation authorizing employee “self-help” in some circumstances, 29 CFR § 1977.12 (b)(2) (1979), is permissible under the Act.”
United Steelworkers of Am. v. Marshall, 647 F.2d 1189 (D.C. Cir. 1980).
· cites it 2× “29 C.F.R. § 1977.12 (1979). In holding that the regulation lay within OSHA’s statutory power the Court rejected the petitioner’s argument that Congress’ rejection of the Daniels “strike-with-pay” provision bespoke a legislative animus against the regulation in question.”
Thomas Perez v. Ohio Bell Tel., 655 F. App'x 404 (6th Cir. 2016).
“The Act and its regulations, however, do not provide any further elaboration as to when an employer appropriately disciplines an employee for not complying with mandatorily imposed health and safety guidelines and when an employer inappropriately discriminates against an…”
Mitchell v. TAC Technical Servs., Inc., 734 N.E.2d 1198 (Mass. App. Ct. 2000).
· cites it 4× “More particularly, the plaintiff points to 29 C.F.R. § 1977.12 (a) (1999), which discusses § 11(c) of the act.”
Usery v. Whirlpool Corp., 416 F. Supp. 30 (N.D. Ohio 1976).
· cites it 2× “Pursuant to his authority under the Act to issue regulations, the Secretary promulgated 29 C.F.R. § 1977.12 (b)(2), which states: However, occasions might arise when an employee is confronted with a choice between [not] performing assigned tasks or subjecting himself to serious…”
Dole v. H.M.S. Direct Mail Serv., Inc., 752 F. Supp. 573 (W.D.N.Y. 1990).
· cites it 5× “The Secretary of Labor promulgated a regulation, codified at 29 C.F.R. § 1977.12 , defining certain “rights” which, although not delineated by § 11(c), are protected under OSHA.”
Nat'l Labor Relations Bd.. v. Tamara Foods, Inc., 692 F.2d 1171 (8th Cir. 1982).
· cites it 2× “) The regulation, 29 C.F.R. § 1977.12 , providing this right to employees in paragraph (b)(2) is quoted in full in footnote 3 of Whirlpool Corporation v.”
Ballinger v. Dept. of Soc. & Health Servs., 705 P.2d 249 (Wash. 1985).
“12 (1979)) in which the Court upheld, under section 11(c)(1) of the federal Occupational Safety and Health Act of 1970 (OSHA) statutes, administrative regulations which provided that occasions might arise when an employee is confronted with a choice between not performing…”
Derendinger v. Kiewit Constr. Co., 272 F. Supp. 2d 850 (D. Alaska 2003).
· cites it 2× “2d 154 (1980), a case on which Kiewit relies, the United States Supreme Court held that 29 C.F.R. § 1977.12 “simply permits private employees of a private employer to avoid workplace conditions that they believe pose grave dangers to their own safety.”
Usery v. Babcock & Wilcox Co., 424 F. Supp. 753 (E.D. Mich. 1976).
“Indeed the Secretary acknowledges this in 29 CFR 1977.12(b)(1). 3 . The Act does not explicitly include a right to refuse dangerous work assignments.”
— 29 C.F.R. § 1977.12(b) — 2 cases
— 29 C.F.R. § 1977.12(b)(1) — 1 case
Usery v. Babcock & Wilcox Co., 424 F. Supp. 753 (E.D. Mich. 1976).
“Indeed the Secretary acknowledges this in 29 CFR 1977.12(b)(1). 3 . The Act does not explicitly include a right to refuse dangerous work assignments.”
— 29 C.F.R. § 1977.12(b)(2) — 1 case
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