OSHA’s been cracking down on employers who violate whistleblower protections. Here are two examples.
OSHA’s Whistleblower Protection Program enforces the whistleblower provisions of more than 20 whistleblower statutes protecting employees who report violations of various workplace safety, airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health insurance reform, motor vehicle safety, nuclear, pipeline, public transportation agency, railroad, maritime, and securities laws.
Rights afforded by these whistleblower acts include, but are not limited to, worker participation in safety and health activities, reporting a work related injury, illness or fatality, or reporting a violation of the statutes.
Protection from discrimination means that an employer cannot retaliate by taking “adverse action” against workers.
Two recent whistleblower cases illustrate the kind of employer actions that can lead to whistleblower rule violations.
Case 1. The U.S. Department of Labor sued a furniture company for allegedly firing a worker who filed a safety complaint with OSHA.
According to the complaint filed with the U.S. District Court for the District of Massachusetts in Springfield, the employee contacted OSHA on May 9, 2011, alleging safety and health hazards in the basement of his workplace, including the presence of asbestos, mold and rodents. On May 11, the employer discharged the employee after it questioned him as to why he filed the complaint.
The employee filed a whistleblower complaint with OSHA, which investigated and found merit to the complaint.
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The Labor Department’s lawsuit sought a judgment affirming the employer discharged the employee in retaliation for filing an OSHA complaint and permanently prohibits him from illegally retaliating against employees in the future. The lawsuit sought payment of more than $20,000 in lost wages to the employee, plus interest, as well as payment of compensatory and/or punitive damages and posting of a nondiscrimination notice at the workplace.
“Employees have a right to file a complaint with OSHA without fear of discharge or other forms of retaliation from their employer,” said Robert Hooper, OSHA’s acting regional administrator for New England. “Such retaliation can coerce workers into silence, preventing them from reporting or raising concerns about conditions that could injure, sicken or kill them.”
“The Occupational Safety and Health Act gives the department the authority to file suit against employers that take action against employees in this manner. The department will not hesitate to act when the case warrants,” said Christine Eskilson, deputy regional solicitor of labor for New England.
Case 2. A railroad company has been ordered to reinstate a conductor and pay him more than $244,000 in back wages and damages following an investigation by OSHA. OSHA found that the company was in violation of the whistleblower provisions of the Federal Railroad Safety Act for terminating an employee in Flint, Michigan, for failing to perform an inspection of a passing train under hazardous safety conditions.
The company has been ordered to pay the conductor $99,324 in back wages and benefits, less applicable employment taxes, $45,000 in compensatory and $100,000 in punitive damages and reasonable attorney’s fees. The company must also remove disciplinary information from the employee’s personnel record and provide whistleblower rights information to its employees.
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OSHA’s investigation upheld the employee’s allegation that the railroad terminated his employment on February 26, 2013, in retaliation for reporting hazardous safety conditions and refusing to complete the dangerous tasks. Operating in dark, foggy conditions during the early morning hours of Dec. 15, 2012, the conductor did not perform a required roll-by inspection of a passing train near the Flint rail yard. The train was stopped on a bridge with a steep incline down to the river, and the conductor felt this was an unsafe location for the inspection.
Following an internal investigative hearing, the railroad removed him from service and accused him of violating the company’s policy to inspect passing trains when duties and terrain permit, and subsequently terminated the employee. OSHA’s investigation, however, found that the railroad terminated the employee in retaliation for having engaged in protected conduct under the Federal Railroad Safety Act. The investigation also found that crew members of the passing train were not held to the same standard to conduct a roll-by inspection.
“When employees are disciplined for legally choosing not to conduct work tasks in unsafe environments, worker safety and health are clearly not the company’s priority,” said Nick Walters, OSHA’s regional administrator in Chicago. “Whistleblower protections play an important role in keeping workplaces safe. Workers should never be forced to choose between safe work practices and keeping their job.”