OSHA Whistleblower Protection

Iowa has an Occupational Safety and Health (OSHA) statute similar to the federal OSHA statute.  Iowa OSHA’s law, which is found in Iowa Code Chapter 88, is intended to advance “the policy of this state to assure so far as possible every working person in the state safe and healthful working conditions and to preserve human resources.”  Iowa OSHA includes detailed requirements concerning injury reports, injury prevention, training, state investigation and enforcement, and judicial review.

Iowa OSHA allows for reports of safety issues by employees.  Iowa Code 88.9(3)(a)(1) prohibits employers from retaliating against OSHA “whistleblowers”:  “A person shall not discharge or in any manner discriminate against an employee because the employee has filed a complaint or instituted or caused to be instituted a proceeding under or related to this chapter or has testified or is about to testify in any such proceeding or because of the exercise by the employee on behalf of the employee or others of a right afforded by this chapter.”

An employee who believes that they’ve been retaliated against for making an OSHA report or participating in an OSHA investigation may file a complaint with the Iowa Department of Labor under Iowa Code 88.9(3)(b).  The Department of Labor will then investigate the employee’s retaliation complaint.   If the Department of Labor conludes that retaliation has occurred, it has the authority to bring a court action against the employer under Iowa Code 88.9(3)(b)(2).  The court can order reinstatement of employment and other remedies, including back pay.

The employee may also file a civil lawsuit for wrongful termination in addition to pursuing a Department of Labor complaint.  Iowa first recognized wrongful termination claims for OSHA retaliation in the 2009 case of George v. D.W. Zinser Co.  There are several differences between an Iowa Department of Labor complaint and a civil wrongful termination suit under theGeorgecase: (1) you have all the control over a civil suit and virtually none over a Department of Labor investigation; (2) you get to choose your lawyer and court in a civil suit but not in a Department of Labor action; and (3) there are more damages available to you in a civil suit, including emotional distress and punitive damages.

Many employees chose to begin with an Iowa Department of Labor OSHA retaliation complaint and then use any information gathered during the state’s investigation to support a later civil lawsuit for wrongful termination.  That’s the best course of action because nothing prevents you from choosing both legal avenues and the state may help you prove your wrongful termination claim.

A caution though — It’s likely that if you allow your Iowa Department of Labor complaint to proceed all the way to a court action brought by the Department of Labor, and the court rules in your employer’s favor, you’ll forfeit your right to sue for wrongful termination on the same claim.  Litigants normally aren’t allowed to bring the same claim twice, so that means that a court will only decide your OSHA retaliation allegations once, regardless of the outcome the first time.  So the best practice is to, at some point, end the Iowa Department of Labor’s investigation and just move forward with your own OSHA retaliation civil lawsuit in which you’ll have full control of the proceedings, rather than risking that the Department of Labor takes your claim to court for you and loses.

I can help you with any employment law or labor law questions that you might have.  Please feel free to contact me for a free initial consultation about employment law or labor law.


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