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OSHA accepts anonymous complaints

Workers can report workplace health hazards to OSHA. For those afraid their employer will retaliate, the agency accepts anonymous reports. Workers can report workplace health hazards to OSHA. For those afraid their employer will retaliate, the agency accepts anonymous reports. (ISTOCKPHOTO.COM)
Email|Print|Single Page| Text size + By Elaine Varelas
June 15, 2008

Q. My co-workers and I are subject to what we believe are harmful fumes. Management is aware of the problem, but has refused to take measures to improve air quality. My co-workers and I are hesitant to speak out due to fear of retaliation. What actions can we take to ensure safe conditions without risking our jobs?

A. A safe working environment is vital to both employees and employers. It is ideal when employers take efforts to protect employees voluntarily, but many must be "encouraged" by Occupational Safety and Health Administration laws.

Your question raises two significant issues - safety and health concerns and fear of retaliation. I consulted with David Conforto, founder and managing partner of Conforto Law Group, a Boston-based firm concentrating in employment law. He said, "Congress passed the federal Occupational Safety and Health Act of 1970 in an effort to reduce the number and severity of work-related injuries and illnesses. One section of this act contains broad language requiring employers to ensure working conditions 'which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.' "

OSHA enforces the act. OSHA has investigated countless problems and has been known to evacuate entire facilities until problems are corrected.

Recognizing that retaliation is a common concern among employees, OSHA will investigate anonymous complaints.

Conforto added, "If you do report hazards and suffer retaliation, the act contains a whistle-blower provision. If after reporting unsafe working conditions you suspect that your employer is retaliating, you must act quickly. You will have only 30 days to file a complaint with OSHA.

"You must show a causal connection between your report of unsafe working conditions and the adverse employment action that you suffered to prevail under these guidelines. Expect your employer to attack your job performance as justification for the adverse action. To anticipate your employer's arguments, request your 'personnel record' as defined under M.G.L. c. 149, §52C. This statute requires all employers with 20 or more employees to retain a personnel record for each employee. Anything that affects qualification for employment must be included as part of an employee's record. The request should be sent by certified mail. Upon receipt, your employer will have five business days to produce the appropriate documentation. Review your file carefully and pay close attention to all documentation discussing your performance. Respond promptly in writing to any memoranda that mischaracterize your job performance and ask that your response be included with your personnel record."

If OSHA determines your employer took an adverse employment action - such as termination - the agency may require reinstatement and award back wages. In rare cases, OSHA may also award punitive damages.

Finally, should you and your co-workers band together to report unsafe conditions, you may have an added layer of protection. An employer who retaliates against a group of employees commits an unfair labor practice under Section 8(a)(1) of the National Labor Relations Act.

Disclose arrest record to recruiter early on
Q. I am in the customer service field and have been placed in my last two jobs via placement agencies. I interview and get hired by these companies, and do an outstanding job, then I get offered a full-time position. That's when I run into trouble. I have a misdemeanor assault charge on my record from five years ago that has gotten me discharged from my last two jobs, and it's the type of charge that I am unable to have expunged. I get the same story: your productivity is outstanding, you're one of our best reps, but it is "corporate policy," and there's nothing we can do. It seems these temp agencies are not properly screening me and it just becomes a big waste of time for everyone. I was at my last job for seven months and was one of the team leaders as a temp! As soon as I sign the credit/background release, it all goes downhill. How am I going to land a job with a good company if they keep holding an old charge against me?

A. Most people are happy about good news surprises, but do not want to be caught off guard by bad news. They want to be prepared and you need to prepare a recruiter and a potential employer with information about your situation. You are now experienced with the process and the level of screening done by the agencies.

I'd advise you to meet with one of the recruiters who placed you in one of the last two jobs. They know your situation, and know that you have been a strong employee. They also know what comes up with a credit/background check. Ask them if they can present you as a strong temp candidate, release the information about your record, their experience with you and the earlier employer wanting to promote you. They should be able to show an employer that you now recognize early disclosure is the best policy. If that doesn't work, try another recruiter with the full story divulged in the beginning.

Some industries are more stringent in their background checks. Financial services, healthcare, and those supporting these two industries are typically most challenging. You may find that other industries do not conduct these checks. Lastly you may need to remain in a temp role until your record clears.

Google yourself to see what employers can see
Q. I recently was passed over for a job and the prospective employer told my recruiter that I didn't disclose my most recent job, which is untrue. I have been unemployed for five months now and have not worked anywhere. I know I am being truthful and I am unsure why this has happened and why the company is not being forthcoming on how they obtained the erroneous information. What are the resources available in which an employer could have come to this conclusion?

A. There are countless resources on the Internet for employers to generate information (correct or incorrect) about prospective employees' work histories. Credit checks and networking sites like LinkedIn and Facebook are just a few. I don't see the issue being as much about how this information is available, but more about how you can prevent this situation from happening again. With such significant concerns about identity theft, I believe it is important to follow this issue through to its conclusion so you can prevent its reoccurrence, and not be put into a situation where your integrity is questioned.

Of course, if this were the only issue regarding your potential employment, I would think the company would explain the issue to the recruiter and ask for clarification about your job history. It is unclear why the recruiter wouldn't push more to get access to the data and source. Your recruiter should want to make sure this issue will not pose problems at future interviews. Since recruiters are most often the liaison between the candidate and prospective employer, your recruiter is in a great position to find out why this incorrect information kept you from being offered a job. I encourage you to continue candid conversations regarding your employment history and clearing up the issue with your recruiter.

Let's start with the belief that neither of you is trying to mislead the other. Employment doesn't refer to only long-term full-time jobs. I'm sure you have checked your memory for part-time jobs, temp roles, or any other employment they might have stumbled across. Did you work for a day and leave an employer? I need to ask because the employer/recruiter/candidate rumor mill works quite well, and information can be passed electronically or word of mouth - so don't burn your bridges!

If you haven't left anything out, do some of your own investigating. Conduct an online search on yourself to make sure your name, in all its variations, comes up with information that matches who you really are. Even Marge Simpson Googled her own name, and I advise you do the same to see what is in the public domain about you, or if there is someone who sounds like you. Ask your recruiter to do similar searches, and a credit or background check to see what information surfaces that doesn't correspond to the background you provided.

If you are using any of the social networking sites, review your data carefully, and make sure there are no surprises to your information. See what casual information may be listed that sounds like you may have had another employer. Perhaps you said something like, "I have been to that restaurant so often I should be on the payroll."

If you aren't using social networking sites, ask your friends to see if someone with your name or a similar name is listed on their pages. Is there information in any of these that may suggest something which is not accurate or could have been misinterpreted? If you find potentially confusing information, supply the data to your recruiter and explain what may have occurred. The recruiter should be willing to communicate to the company and clear up the basics of the situation. If they are not willing to do so, you can go directly to the company. If you do not discover any confusing data, you can try calling a more senior human resources person to ask for additional information about the data they have.

Elaine Varelas has over 20 years of career development and consulting experience and is currently managing partner at Keystone Partners, a career management firm headquartered in Boston.

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