Discriminating Against Employees Who Exercise Their Safety and Health Rights is Illegal

Workers have the right to complain to OSHA or their employer if they believe they are working in an unsafe environment, and can seek an OSHA inspection. Section 50-9-25 of the New Mexico Occupational Health and Safety Act authorizes OSHA to investigate employee complaints of employer discrimination against those who are involved in safety and health activities. Federal OSHA is responsible for enforcing whistle blower protection under twenty other Federal laws. State and local government workers also have the right to file a complaint of employer discrimination in New Mexico.

Some examples of discrimination are firing, demotion, transfer, layoff, losing opportunity for overtime or promotion, exclusion from normal overtime work, assignment to an undesirable shift, denial of benefits such as sick leave or vacation time, blacklisting with other employers, taking away company housing, damaging credit at banks or credit unions and reducing pay or hours.

Refusing to do a job because of potentially unsafe workplace conditions is not ordinarily an employee right under the NM OHS Act. (Your union contract or other state law may, however, give you this right, but OSHA cannot enforce it) Refusing to work may result in disciplinary action by your employer. However, employees have the right to refuse to do a job if they believe in good faith that they may be exposed to an imminent danger. “Good Faith” means that even if an imminent danger is not found to exist, the worker had reasonable grounds to believe it did exist.

If you believe your employer has treated you differently because you exercised your safety and health rights, contact New Mexico OSHA. Discrimination complaints that fall under the NM OHS Act must be filed with the State OSHA Program within 30 days of the discrimination action.

You can call our office to discuss your concerns, but a submitted complaint must be signed to be valid.  You can fill out the Discrimination Complaint Form and mail or send it as an email attachment to nmohsb.whistleblower@env.nm.gov, or you can call to request a hard copy which must be signed and faxed, mailed, or emailed back to our Bureau within the 30 day period. OSHA will conduct an in-depth interview with each complainant to determine the need for an investigation. If evidence supports the worker’s claim of discrimination, OSHA will ask the employer to restore the worker’s job, lost earnings, and benefits. If the employer objects, OSHA may take the employer to court to seek relief. Employees have other rights under State law regarding job termination, which are not enforced by the NM State OSHA.  Private Counsel would be able to advise an employee on other remedies.

Federal Laws with Whistleblower Protection Administered by Federal OSHA

Surface Transportation Assistance Act

Asbestos Hazard Emergency Response Act

International Safety Container Act

Clean Air Act

Safe Drinking Water Act

Federal Water Pollution Control Act

Toxic Substances Control Act

Solid Waste Disposal Act

Comprehensive Environmental Response, Compensation and Liability Act

Energy Policy Act

Aviation Investment and Reform Act

Sarbanes Oxley Act

Pipeline Safety Improvement Act

Federal Railroad Safety Act

National Systems Security Act

Consumer Product Safety Improvement Act

Affordable Care Act

Seaman’s Protection Act

Consumer Financial Protection Act

Food Safety Modernization Act

If you believe you have been discriminated against for actions under or related to one of these Federal Laws, you must contact Federal OSHA.

To contact the Dallas Region VI  OSHA Office, call 972-850-4145.

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OHSB Main Phone Number: 505-476-8700

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