Employment Law
The Toxic Substances Control Act was enacted in order to test, screen, and regulate all chemicals produced in or brought into the United States. The Act requires that any chemical that will reach consumers must first be tested for toxicity. Also, existing chemicals that pose health or environmental risks are monitored. Under Section 23 of the Act, employees are protected from discrimination or firing by their employer for participating in a proceeding to enforce any requirement of the Act.
Section 23, 15 U.S.C.S. § 2622, provides:
No employer may discharge any employee or otherwise discriminate against any employee with respect to the employee's compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of the employee) has -- (1) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter; (2) testified or is about to testify in any such proceeding; or (3) assisted or participated or is about to assist or participate in any manner in such a proceeding or in any other action to carry out the purposes of this chapter.
OSHA role
While the Environmental Protection Agency administers the general provisions of the Toxic Substances Control Act, employee complaints of discrimination are filed with and handled by the Occupational Safety and Health Administration within the Department of Labor. Such complaints must be filed within 30 days after the violation of Section 23 occurs (although that deadline may be tolled if the discrimination is continuing in nature).
Section 23 protects employees who themselves or through others provide information, file complaints, or participate in any manner in a proceeding related to administration or enforcement of the Toxic Substances Control Act. An employee's complaint to management or refusal to perform work due to conditions that the employee reasonably believes are unsafe or unhealthful may be considered participation in a proceeding under the Act.
Actionable discrimination under the Act is viewed broadly and includes not only termination from employment but also any discrimination in compensation, terms, conditions, or privileges of employment attributable to the employee's participation in a Toxic Substances Control Act proceeding.
Complaint process
Complaints of discrimination received by OSHA are reviewed by supervisors who in turn will notify EPA of any potential environmental hazards disclosed by the complaint. The complaint letter, with witness names redacted, is sent to the respondent and the local EPA office, and an investigation is conducted by OSHA. A written notice of the results of the investigation and, if appropriate, an order of abatement should be completed within 30 days.
Remedies for the employee include an order requiring affirmative action of the employer to abate the violation, including reinstatement of the employee with back pay, compensatory damages, and where appropriate, exemplary damages. The employee also may be awarded costs and expenses, including attorney fees. Copyright 2006 LexisNexis, a division of Reed Elsevier Inc.
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