Article by Cameron Taylor, Maintenance Steward and Website Editor.
It’s not uncommon to hear that if you report an injury, Management will threaten to discipline you. Sometimes they’ll actually carry through on their threat and issue discipline, and even skip steps in the process. If this happens to you, the first thing you should do is request a steward and file a grievance. The second thing you should do is virtually unknown, but you should file a complaint with OSHA. Why? It’s illegal to discipline an employee for reporting an injury, even during an employee’s probationary period. Towards the bottom of this article, I give advice for both the injured employee and their steward to fight back against disciplines for injuries.
If Management issues discipline for an “unsafe action” that led to injury, they MUST be absolutely and universally consistent for the discipline to be legal. For example, if an employee is disciplined for being injured while pulling instead of pushing, this is ONLY legal if employees have been disciplined every single time they’ve been observed pulling instead of pushing. The level of discipline received must also be the same as the level of discipline consistently issued for the offense. For example, it’s illegal if everyone normally receives a Letter of Warning for pulling instead of pushing, but the injured employee instead receives a 7-Day Suspension.
OSHA Victorious over USPS’ Illegal Termination of Probationary CCA
On May 1, 2023, a federal court explicitly ruled regarding a USPS employee that was terminated during their probation after they were injured:
A federal court in Tacoma has ruled that the U.S. Postal Service retaliated against an employee who reported an injury to supervisors and applied for workers’ compensation benefits in 2019 while on probation as a new postal employee.
When that ruling happened, the court had not yet been decided what the remedy for the employee, and/or any penalties for the USPS, would be. That would be decided later through the trial process. The law regarding the remedy that can be sought says, as described in the court’s rulings:
29 U.S.C. § 660(c) permits an employee aggrieved by discrimination in retaliation for reporting workplace safety concerns to file a complaint with the Secretary of Labor. When a violation is found, the Secretary may bring an action on the complainant’s behalf in district court, where the judge may award “all appropriate relief including rehiring or reinstatement of the employee to his former position with back pay.” 29 U.S.C. § 660(c).
On May 10, 2024, that trial ultimately concluded in that employee’s favor:
The Court makes the findings of fact and conclusions of law stated herein. The Court separately will enter a judgment in favor of the Secretary of Labor and against the United States Postal Service in the total amount of $141,307.50 and directing the United States Postal Service to expunge Cassandra Hankins’s employment record, consistent with these findings and conclusions.
The records do not state, but I assume the employee chose not to return to the USPS, which is why reinstatement was not part of the remedy issued by the Judge.
That said, the message sent by OSHA and the federal court, under Judge Adrienne Nelson, was clear: even Postal employees may not be terminated, or disciplined, for simply being injured and reporting that injury.
Combatting Discipline for an Injury
Were you disciplined for getting and reporting an injury? Or, for stewards, was your grievant disciplined for getting and reporting an injury? If either of those is yes, I’ll break down some steps to take.
For the employee that was injured then disciplined:
- Immediately request a steward and file a grievance.
- Document everything about the incident, including writing statements about the injury and your interactions with Management after you reported the injury (or they otherwise discovered the fact).
- File an online OSHA Whistleblower Complaint. MUST be done within 30 days of the discipline, retaliation, etc.
For the steward whose grievant was injured then disciplined:
- Encourage your grievant to file an online OSHA Whistleblower Complaint.
- File a grievance to get the discipline expunged completely.
- Make sure to also quote the JCIM on Article 14, Safety & Health, including where it says the following:
- Supervisors and managers also should understand that postal policy prohibits disciplinary action that may discourage accident reports or the filing of a claim for compensable injury with the Office of Workers’ Compensation Programs (OWCP).
- When safety rule violations occur, managers and supervisors have several alternative corrective measures at their disposal. Although discipline is one such measure, they should use it only when other corrective measures do not appropriately fit the circumstances.
- Make sure to also quote the JCIM on Article 14, Safety & Health, including where it says the following:
- In addition to normal contractual arguments, be sure to also cite in your contentions the OSHA regulations protecting the reporting of injuries, including 29 U.S.C. §660(c), “(c)Discharge or discrimination against employee for exercise of rights under this chapter; prohibition; procedure for relief”:
- (1)No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any 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 such employee on behalf of himself or others of any right afforded by this chapter.
- (2)Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of this subsection may, within thirty days after such violation occurs, file a complaint with the Secretary alleging such discrimination. Upon receipt of such complaint, the Secretary shall cause such investigation to be made as he deems appropriate. If upon such investigation, the Secretary determines that the provisions of this subsection have been violated, he shall bring an action in any appropriate United States district court against such person. In any such action the United States district courts shall have jurisdiction, for cause shown to restrain violations of paragraph (1) of this subsection and order all appropriate relief including rehiring or reinstatement of the employee to his former position with back pay.
- (3)Within 90 days of the receipt of a complaint filed under this subsection the Secretary shall notify the complainant of his determination under paragraph (2) of this subsection.