Wyo. Code R. 053-0014-7
OSHA - Practice & Procedure
Chapter 7: Discrimination Complaints
Effective Date: 11/26/2007 to Current
Rule Type: Current Rules & Regulations
Reference Number: 053.0014.7.11262007
(a) W.S.27-11-109 (e) provides in general that no person shall discharge or in any manner discriminate against any employee because the employee has:
(i) Filed any complaint under or related to the act;
(ii) Instituted or caused to be instituted any proceeding under or related to the act;
(iii) Testified or is about to testify in any proceeding under the act or related to the act; or
(iv) Exercised on his own behalf or on behalf of others any right afforded by the act.
(b) Any employee who believes that he has been discriminated against in violation of W.S. 27-11-109(e) shall, within 30 days after such violation occurs, file a complaint with the Department alleging such violation. The Compliance Supervisor shall then cause an investigation to be made.
(c) If the Compliance Supervisor determines that the provisions of the act have been violated, a Citation and Notification of Penalty shall be issued to the employer for the violation. Appropriate relief will be sought, including rehiring or reinstatement of the employee to his former position with back pay. Further, the employer shall remove any disability imposed upon the employee by the employer's discriminatory acts. The complainant shall be notified by certified mail of the determination made following the investigation of the complaint.
(a) Persons Prohibited from Discriminating
(i) W.S. 27-11-109(e) specifically states that "No employer shall discharge or in any manner discriminate against any employee because such employee has filed any notice of complaint or has 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 any right afforded by this act." W.S. 27-11-103(a)(iv) defines "employer" as "any individual or organization including the state and all its political subdivisions, which has in its employ one (1) or more individuals performing services for it in
employment.' The prohibitions of W.S. 27-11-109(e) are not limited to actions taken by employers against their own employees. An employer may be charged with discriminatory action against an employee of another person.
(b) Persons Protected by W.S. 27-11-109(e).
(i) All employees are afforded the full protection of the statute. For purposes of the act, an 'employee' is defined as 'a person permitted to work by an employer in employment.'
(ii) The act defines 'employment' as 'all services for pay under a contract of hire.'
(a) Actions taken by an employer, or others, which adversely affect an employee may be predicated upon nondiscriminatory grounds. The prohibitions of this section apply when the adverse action occurs because the employee has engaged in protected activities. An employee's engagement in activities protected by the act does not automatically render him immune from discharge or discipline for legitimate reasons, or from adverse action dictated by non-prohibited considerations.
(b) To establish a violation of W.S. 27-11-109(e), the employee's engagement in protected activity need not be the sole consideration behind discharge or other adverse action. If protected activity was a substantial reason for the action, or if the discharge or other adverse action would not have taken place 'but for' engagement in protected activity, the act has been violated.
(a) Discharge of, or discrimination against, an employee because the employee has filed 'any notice of complaint ...under or related to this act...' is prohibited by W.S. 27-11-109(e). An example of a complaint made 'under' the act would be an employee request for inspection pursuant to Chapter 3, Section 3(a) of these Rules. However, this would not be the only type of complaint protected by the act. The range of complaints 'related to' the act is commensurate with the purposes of this legislation and the scope of its application. An example of a complaint made 'related to' the act would be an employee reporting a work-related injury or illness on the 'equivalent form' of Workers' Safety and Compensation Report of Injury.
(b) Complaints made to other State or local agencies regarding occupational safety and health conditions would be 'related to' the act. Such complaints, however, must relate to conditions at the workplace, as distinguished from complaints touching only upon general public safety and health.
(c) Further, the beneficial principles of the act would be seriously undermined if employees were discouraged from lodging complaints about occupational safety and health matters with their employers. Such complaints to employers, if made in good faith, therefore would be related to the act, and an employee would be protected against discharge or discrimination caused by a complaint to the employer.
(a) Discharge of, or discrimination against, any employee because the employee 'has instituted or caused to be instituted, any proceeding under or related to this act' is also prohibited by W.S. 27-11-109(e). Examples of proceedings which could arise specifically under the act would be inspections of worksites under W.S. 27-11-108, employee contest of abatement date under W.S. 27-11-104(g)(ii), employee initiation of proceedings for promulgation of an occupational safety and health standard, employee application for modification of revocation of a variance under W.S. 27-11-111 and Chapter 5 of these Rules, employee judicial challenge to a standard and employee appeal of an Occupational Health and Safety Commission order under W.S. 27-11-104(g)(v). In determining whether a 'proceeding' is 'related to' the act, the considerations discussed in Section 3 of this Chapter would also be applicable.
(b) An employee need not himself directly institute the proceedings. It is sufficient if he sets into motion activities of others, which result in proceedings under or related to the act.
(a) Discharge of, or discrimination against, any employee because the employee has testified or is about to testify in proceedings under or related to the act is prohibited by W.S. 27-11-109(e). This protection is not limited to testimony in proceedings instituted or caused to be instituted by the employee, but would extend to any statements given in the course of judicial, quasi-judicial, and administrative proceedings, including inspections, investigations, and administrative rule making or adjudicative functions. If the employee is giving or is about to give testimony in any proceeding under or related to the act, he would be protected against discrimination resulting from such testimony.
(a) In addition to protecting employees who file complaints, institute proceedings, or testify in proceedings under or related to the act, W.S. 27-11-109(e) 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 in W.S. 27-11-104. Certain other rights exist by necessary implication. For example, employees may request information from the Department; such requests would constitute the exercise of a right afforded by the act. Likewise, employees interviewed by Department representatives in the course of inspections or investigations could not subsequently
Effective November 26, 2007 be discriminated against because of their cooperation.
(i) 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, should 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 Chapter 3, Section 3 of these rules, or to seek the assistance of other governmental agencies, which have responsibility in the field of safety and health.
Under such circumstances, an employer would not be in violation of W.S. 27-11-109(e) by taking action to discipline an employee for refusing to perform normal job activities because of alleged safety or health hazards.
(ii) 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.
(a) Who may file. A complaint of discrimination may be filed by the employee himself, or by a representative authorized to do so on his behalf.
(b) Nature of filing. The WOSH Form 007d is to be used for the purpose of documenting these complaints.
(c) Place of filing. Complaints must be filed with the Department.
(d) Time for filing.
(i) An employee who believes that he has been discriminated against shall, within 30 days after such violation occurs, file a complaint with the Department.
(ii) The 30-day period is to allow the Compliance Supervisor to deny complaints, which have become stale. Accordingly, complaints not filed within 30 days of an alleged
Effective November 26, 2007 violation will be presumed to be untimely.
(e) Exceptions to 30 day rule. Circumstances which would justify tolling of the 30-day period on equitable principles or because of strongly extenuating circumstances, e.g., where the employer has concealed, or misled the employee regarding the grounds for discharge or other adverse action; or where the discrimination is in the nature of a continuing violation. Pending grievance-arbitration proceedings or filing with another agency, do not justify tolling the 30-day period. In the absence of circumstances justifying a tolling of the 30-day period, untimely complaints will not be processed. The decision to toll the 30-day filing period shall be at the discretion of the Program Manager.
(a) The Compliance Supervisor shall, within 30 days of the completion of his investigation, notify a complainant of his determination whether prohibited discrimination has occurred.
(a) An employee's withdrawal of complaint shall be in writing to the Commission or Program Manager. Attempts by an employee to withdraw a previously filed complaint will not necessarily result in termination of the Department's investigation. The Department's jurisdiction cannot be foreclosed by unilateral action of the employee. However, a voluntary and uncoerced request from a complainant to withdraw his complaint will be given careful consideration and substantial weight as a matter of policy and sound enforcement procedure.
(a) Employees who refuse to comply with occupational safety and health standards or valid safety rules implemented by the employer in furtherance of the act are not exercising any rights afforded by the act. Disciplinary measures taken by employers solely in response to employee refusal to comply with appropriate safety rules and regulations will not be regarded as discriminatory action prohibited by W.S. 27-11-109(e). This situation should be distinguished from refusals to work, as discussed in Section 7 of this Chapter.