AKOSH Whistleblower Fact Sheet
Alaska Occupational Safety and Health (AKOSH) is responsible for enforcing Alaska Statute 18.60.089, which says it is unlawful for an employer to retaliate against an employee for engaging in a protected activity.
What is a Protected Activity? (See 8 AAC 61.480)
- Filing a safety/health complaint with AKOSH
- Participating in an AKOSH enforcement inspection or proceeding
- Reporting workplace safety/health concerns to management
- Reporting /Filing workplace injuries, illnesses, or fatalities
- Any right provided under AS 18.60.010-105
What is Retaliation?
A person taking an unfavorable employment action against an employee may be found to have violated AS 18.60.089 if the employee would not have experienced the unfavorable employment action(s) but for their protected activity. Examples include, but are not limited to:
- Firing or laying off
- Denying overtime
- Cutting hours
How AKOSH Determines Whether Retaliation Took Place
The investigation seeks evidence showing:
- The employee engaged in protected activity (PA);
- The employer knew about the protected activity;
- The employer took an adverse action;
- Motivating factor(s) for adverse action(s), including perpetuating a chilling effect in the workplace to intimidate workers: and
- Any other information material to the complaint(s) and defense(s).
AKOSH Actions Regarding Retaliation
Settlement Agreements are the most expedient way to address the complaint and seek a ‘make whole’ remedy for the employee. AKOSH seeks to discuss settlement upon initial contact with the parties.
If the evidence supports the employee’s allegation and a settlement cannot be reached, AKOSH will recommend that the Commissioner of Labor request the Attorney General to bring an action in Superior Court against the violator (the one(s) who retaliated).
Limited Protections for Employees Who Refuse to Work
You have a limited right under the OSH Act https://www.osha.gov/laws-regs/oshact/toc to refuse to do a job because conditions are hazardous. You may do so under the OSH Act only when (1) you believe that you face death or serious injury (and the situation is so clearly hazardous that any reasonable person would believe the same thing); (2) you have tried to get your employer to correct the condition, and there is no other way to do the job safely; and, (3) the situation is so urgent that you do not have time to eliminate the hazard through regulatory channels such as calling AKOSH. Regardless of the unsafe condition, you are not protected if you simply walk off the job. For details, see https://www.osha.gov/right-to-refuse.html.
Union grievance processes are most appropriate for complaints involving Collective Bargaining Unit (CBU) contract terms. AKOSH / OSHA PA may also apply.
Filing a Complaint
If you believe your employer retaliated against you because you engaged in the above protected activity(ies), you must file a complaint within 30 days of the unfavorable personnel action.
For more information call 907-269-4940 or Visit the AKOSH home page
Alaska Admin Code
31st Legislature (2019 -2020)
8 AAC 61.480. Protected activity
a) To establish a violation of AS 18.60.089 , the employee's engagement in a protected activity need not be the only consideration for discharge or other discrimination. AS 18.60.089 is violated if
(1) engaging in a protected activity is a substantial reason for the action;
(2) the discharge or other discrimination would not have taken place if the employee had not engaged in a protected activity.
b) The following activities are protected:
(1) An employee may file a discrimination complaint that is related to conditions at work place, as distinguished from a complaint related only to general public safety and health. The employee may file a complaint with the department, a federal, state or local government agency, or the employer. The employee is not required to make the complaint directly. It is sufficient if the employee sets into motion, or participates with others in, an action that results in a complaint being made.
(2) An employee may institute or cause to be instituted any proceedings related to the enforcement of occupational safety and health standards. These proceedings include contesting an abatement date under AS 18.60.093 (e), petitioning for adoption of an occupational safety and health standard, requesting modification or revocation of a variance, or judicially challenging a standard. The employee is not required to institute the proceeding directly. It is sufficient if the employee sets into motion, or participates with others in, activities which result in proceedings related to AS 18.60.010 - 18.60.105 .
(3) An employee may testify or intend to testify in proceedings under AS 18.60.010 - 18.60.105 . This protection is not limited to testimony in proceedings instituted or caused to be instituted by employees, but extends also to any statements give in the course of judicial, quasi-judicial, or administrative proceedings including inspections, investigations, and administrative regulations adoption or adjudicative functions.
(4) An employee may exercise any other right afforded by AS 18.60.010 - 18.60.105 . These rights include participating in an enforcement inspection, requesting a copy of the log and summary of occupational injuries and illnesses, and requesting access to an employee's own medical records.
c) An employee's engagement in a protected activity described in (b) of this section does not protect the employee from discharge or discipline for legitimate reasons unrelated to the protected activity.
d) An employee who walks off the job because of an unsafe condition at the worksite is engaged in protected activity if the employee is confronted with the choice of not performing an assigned task or being subjected to a risk of serious injury or death arising from the unsafe condition. The condition causing the employee's apprehension of death or injury must be of such a nature that a reasonable person would conclude that there is a read danger of serious injury and that there is insufficient time, due to the urgency of the situation, to eliminate the danger through the employer or regular governmental enforcement channels. An employee, if feasible, must also have first sought from the employer, and have been unable to obtain, a correction of the unsafe condition.
8 AAC 61.490 Unprotected Activity
An employee who refuses to comply with occupational safety and health regulations or valid safety rules implemented by an employer may jeopardize rights afforded by AS 18.60.010 - 18.60.105 . Disciplinary measures taken by an employer solely in response to employee refusal to comply with appropriate safety and health rules and regulations ordinarily will not be regarding as discriminatory.