Definition of employee coverage

The test focuses on the economic realities of the working relationship rather than traditional common-law labels. See 1977.5(a) which explains Congress intended the existence of an employment relationship for section 11(c) to be based on economic realities (citing U.S. v. Silk and Rutherford Food Corp.).

• This means OSHA and courts look at factors like who controls the work, who supplies tools, how the worker is paid, and whether the work is integral to the employer’s business.
• Always cite the specific facts of the situation when applying the economic realities test.

Yes — a worker labeled an independent contractor can still be an employee if the economic realities show an employment relationship. The 1977.5(a) text makes clear that the Act’s remedial purpose means the classification depends on economic realities rather than common-law doctrines.

• Don’t rely solely on the job title or contract language; evaluate the actual working relationship against economic factors.

Yes — an applicant for employment may be considered an "employee" and thus can be protected under section 11(c). See 1977.5(b), which cites NLRB v. Lamar Creamery as support for applicant coverage.

• The key consideration is whether the person qualifies as an "employee" at the time they engaged in the protected activity.

No — the person bringing the complaint need not be an employee of the discriminator for section 11(c) to apply. 1977.5(b) explicitly states the employee need not be employed by the discriminator; the principal consideration is whether the person was an "employee" when they engaged in protected activity.

• This covers situations where another party (not the employer) takes retaliatory action, provided the claimant was an employee at the time of the protected act.

No — employees of a State or political subdivision are not ordinarily covered by section 11(c). See 1977.5(c), which explains that given the Act’s definitions of "employer" and "employee," state and local government employees generally fall outside the intended coverage.

• "Not ordinarily" means there may be rare exceptions based on statutory scope or other law, but the default is that state/local public employees are excluded.

No — the Act does not define the term "employ." 1977.5(a) states that while the Act doesn’t define "employ," Congress intended the employment relationship for section 11(c) to be determined by economic realities.

• Because "employ" is not defined in the statute, courts and OSHA examine the actual working relationship and surrounding facts.

The Act describes an employee for section 11(c) as "an employee of an employer who is employed in a business of his employer which affects commerce." See the opening of 1977.5(a).

• That language ties coverage to work that affects interstate commerce and frames the statutory focus for determining employee status.

The timing is critical — the principal consideration is whether the person was an "employee" at the time they engaged in the protected activity. See 1977.5(b).

• If the claimant was an applicant or otherwise acting as an employee when the protected conduct occurred, they may qualify for protection even if their formal employment status later changed.

Leaving the workplace and abandoning your shift can remove protection for a work refusal under the Act. OSHA’s 1983 letter of interpretation explains that a refusal to work is protected only if the strict conditions of Section 12(b)(2) are met, and that leaving the workplace and being absent for the rest of the shift took the worker out of protected activity.

• If you remain at work, inform your employer of the hazard, and meet the criteria of 1977.12(b)(2) (see the cited letter for application), a work refusal may be protected.
• The 1977.5(a) definition of "employee" and OSH Act rules together guide whether protection applies.

OSHA references U.S. v. Silk and Rutherford Food Corporation v. McComb as supporting authorities for using the economic realities approach. See 1977.5(a), which cites those decisions in explaining that Congress intended employment relationships to be judged by economic realities.

• These cases are used to justify looking beyond formal titles and contracts to the actual substance of the working relationship.

Yes — because section 11(c) protection turns on whether the person was an "employee" when they engaged in protected activity, they can bring a complaint even if the discriminator is not their employer. 1977.5(b) explains that the employee need not be an employee of the discriminator.

• The crucial inquiry remains whether the claimant met the Act’s test for "employee" at the time of the protected act.

Employers should determine whether the worker is an "employee of an employer who is employed in a business of his employer which affects commerce," using the economic realities test described in 1977.5(a).

• Evaluate control, integration into the business, payment method, who provides tools, and other factual indicators rather than relying solely on contract labels.
• If in doubt, treat the worker as potentially covered and consult legal counsel, because the Act’s remedial purpose favors coverage.

Yes — the use of the phrase "any employee" supports broad coverage, including applicants and individuals who may not be employed by the discriminator. See 1977.5(b), which interprets that language to mean coverage is not strictly limited by formal employer-employee boundaries.

• The practical effect is that a wide range of workers can be protected if they meet the employee test at the time of protected conduct.

A refusal to work is likely not protected if the stringent conditions in Section 12(b)(2) are not met or if the worker left the workplace and abandoned the remainder of the shift. OSHA’s 1983 letter of interpretation states these facts removed the complainant from protected activity.

• The letter emphasizes that protection for work refusals is limited and fact-specific; staying on site and following the steps in the regulation (where applicable) is critical to maintaining protection.

Because Congress intended the OSH Act to provide broad protection, OSHA uses that remedial purpose to justify defining "employee" by economic realities rather than narrow common-law rules. See 1977.5(a).

• Practically, this means courts and OSHA interpret the statute to protect workers who functionally resemble employees, even if labels or contracts suggest otherwise.

A worker who was an applicant should show they met the economic-reality indicators of employee status at the time of the protected activity, because 1977.5(b) states an applicant may be considered an employee.

• Useful factual points include whether the person performed work, received compensation, was under the control of the employer, or otherwise functioned as an employee before formal hiring.

Yes — OSHA treats them differently in that employees of a State or political subdivision are not ordinarily within section 11(c) coverage. See 1977.5(c).

• Private-sector workers are generally covered if they meet the employee and commerce-related tests, while public-sector (state/local) employees are typically outside the Act’s contemplated coverage.