Adverse action and protected activity

An employer's action violates section 11(c) when the adverse action occurred because the employee engaged in activity protected by the OSH Act. See 1977.6(a).

• The text explains that adverse actions are lawful when based on nondiscriminatory grounds, but the protections of section 11(c) apply when the adverse action is taken because of protected activity.
• The determination depends on the facts of the case, so documentation, timing, and employer explanations all matter. See 1977.6 for context.

"But for" means the adverse action would not have happened if the employee had not engaged in the protected activity; proving this establishes a violation of section 11(c). See 1977.6(b).

• The regulation clarifies that protected activity need not be the sole or primary reason; it is enough that the adverse action would not have occurred but for the protected activity.
• Case law cited in the section supports this causation standard, and the specific facts of each case determine the outcome. See 1977.6 for the surrounding discussion.

No—engaging in protected activity does not automatically make an employee immune from discipline for legitimate, nondiscriminatory reasons. See 1977.6(a).

• The regulation explicitly says protected activity does not automatically shield an employee from discharge or discipline that is based on legitimate, non-prohibited considerations.
• Employers can discipline for valid reasons, but they must be able to show the action was not taken because of the protected activity. See 1977.6 for context.

Yes—an adverse action can have multiple reasons, and if the protected activity was a but-for cause, section 11(c) is violated even if other reasons also contributed. See 1977.6(b).

• The regulation states that protected activity need not be the sole or primary consideration; what matters is whether the adverse action would not have occurred but for the protected activity.
• This means mixed-motive situations can still give rise to liability if the protected activity was necessary to bring about the adverse action. See 1977.6 for further explanation.

Yes—actions by others as well as the employer can be relevant, and section 11(c) applies when those actions adversely affect an employee because of protected activity. See 1977.6(a).

• The regulation specifically notes that actions taken by an employer, or others, which adversely affect an employee may be predicated upon nondiscriminatory grounds but still fall under 11(c) if motivated by protected activity.
• When others take adverse actions, investigators will examine who acted, their authority, their motives, and any employer responsibility. See 1977.6 for context.

The determination is fact-specific and depends on evidence such as timing, employer statements, documentation, prior discipline, and comparators. See 1977.6(b).

• Relevant facts include how soon the adverse action followed the protected activity, written or verbal reasons given by the employer, performance records predating the protected activity, and whether similarly situated employees without protected activity were treated differently.
• Because the regulation says the question must be resolved on the basis of the facts in the particular case, careful investigation and record-keeping are key. See 1977.6 for guidance.

Section 11(c) protects employees from discharge or other adverse actions taken because they exercised rights protected by the OSH Act. See 1977.

• The overall regulation explains the anti-discrimination protections that prevent employers from retaliating against employees for activities such as filing complaints, participating in inspections, or otherwise exercising OSH rights.
• Specific causation standards and examples are explained in subsections like 1977.6(b).

An employer should document contemporaneous, objective evidence of legitimate reasons—like dated performance reviews, progressive discipline records, and investigation notes—to show the action was nondiscriminatory. See 1977.6(a).

• Good documentation should predate or be independent of the employee's protected activity where possible, include specific examples, and show consistent application of policies.
• Solid records help rebut a claim that the adverse action occurred "because" of protected activity; see 1977.6 on the role of nondiscriminatory grounds.

An employer can show evidence that the same adverse action would have been taken for legitimate reasons—such as documented misconduct, ongoing performance problems, or a previously planned firing—to rebut a but-for causation claim. See 1977.6(b).

• Employers should provide objective proof (e.g., records, witness statements, timelines) that disciplinary steps were in motion or that the decision was based on independent factors.
• If the employer proves the action was inevitable for nondiscriminatory reasons, section 11(c) is not violated; review 1977.6 for the standard.

Investigators should scrutinize employer explanations for consistency, timing, supporting documentation, and whether the explanation conflicts with other facts to determine if the action was actually motivated by protected activity. See 1977.6(a).

• A credible, contemporaneous record supporting the employer's reason strengthens the employer's position; inconsistent or post-hoc explanations weaken it.
• Because determinations are fact-specific, investigators will consider the totality of evidence. See 1977.6 for the governing principle.

A work refusal is protected only when all the stringent conditions in Section 12(b)(2) are met; otherwise a refusal is not protected. See the letter Work refusal and OSH Act protections.

• The Letter of Interpretation explains that protected refusal requires specific, narrowly defined conditions to be present, and those requirements are set out in the regulation referenced in the letter.
• The letter warns that simply leaving the workplace or being absent for the rest of a shift typically removes the activity from protection; see the interpretation for details.

No—leaving the workplace to file a complaint with OSHA is not protected, and being absent for the remainder of your shift generally takes you out of the realm of protected activity per the 1983 interpretation. See Work refusal and OSH Act protections.

• The letter explicitly states that nothing in Section 12(b)(2) authorizes leaving the workplace to file an OSHA complaint, and that doing so can negate protection for a refusal.
• The interpretation advises following the specific conditions in the regulation if you intend to claim a protected refusal; see the full letter for the explanation.

Yes—according to the 1983 letter, if a worker stayed at work, warned the employer about a life-threatening hazard, and was then fired for refusing to expose themselves to that hazard, the refusal would likely be protected. See Work refusal and OSH Act protections.

• The letter explains this as a hypothetical where the strict conditions for a protected refusal under Section 12(b)(2) would probably be satisfied.
• However, each case depends on its facts and whether the requirements in the regulation are actually met; review the interpretation for detail.

Courts and case law shape the causation framework by clarifying standards like the "but-for" test referenced in the regulation; determinations rely on these legal standards applied to case facts. See 1977.6(b).

• The section cites relevant Supreme Court and other court decisions that articulate causation principles used in evaluating retaliation claims.
• Practically, this means investigators and decisionmakers apply established legal tests to the specific facts of each case; see 1977.6 for reference.

An employee should document the protected activity with dates, descriptions of what was done or reported, copies of written complaints or emails, names of witnesses, and any employer responses to establish a clear timeline. See 1977.6(a).

• Good documentation helps show the connection between the protected activity and any later adverse action, especially when timing or employer statements suggest retaliation.
• Preserving contemporaneous records and witness names strengthens an 11(c) claim; see 1977.6 for the governing principle.

A worker should include the date and nature of the protected activity, the date and type of the adverse action, any employer reasons given, supporting documents (emails, performance reviews), and witness names to help show the adverse action would not have occurred but for the protected activity. See 1977.6(b).

• Showing a close temporal link between the protected activity and the adverse action, inconsistencies in the employer's reasons, or absence of prior discipline strengthens a but-for causation claim.
• Because decisions are fact-specific, providing as much contemporaneous evidence as possible is important; see 1977.6 for context.