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Whistleblower Law Blog

Topic: Occupational Safety and Health Administration (OSHA)

OSHA Finds BNSF, Rail Company Owned by Berkshire Hathaway, Liable in Three Retaliation Cases and Awards Damages to Employees

The Department of Labor’s Occupational Safety and Health Administration found a railway company owned by Warren Buffett’s Berkshire Hathaway liable in three retaliation complaints brought by employees. OSHA ordered Berkshire Hathaway’s Burlington Northern Santa Fe Railway Co. (BNSF) to pay more than $272,000 to these employees, plus various non-monetary relief.

OSHA found that BNSF violated the Federal Railroad Safety Act (FRSA) when it reprimanded a conductor who missed work in accordance with a physician’s treatment plan. In addition to ordering BNSF to pay $12,000 in monetary damages ($2,000 in compensatory damages and $10,000 in punitive damages, plus attorneys’ fees), OSHA ordered BNSF to purge the employee’s personnel record of all disciplinary information, and to distribute whistleblower rights information to all employees.

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Department of Labor Files Suit against Florida Construction Company for Terminating Employee Who Reported Workplace Violence to OSHA

The U.S. Department of Labor (DOL) has filed a lawsuit in the U.S. District Court for the Middle District of Florida against Duane Thomas Marine Construction LLC and owner Duane Thomas for violating Section 11(c) of the Occupational Safety and Health Act (OSHA).

According to DOL, between December 9, 2009 and February 25, 2011, Duane Thomas created a hostile work environment by making sexually inappropriate comments and advances, yelling at employees, making physically-threatening gestures, and withholding employees’ paychecks. An employee who worked directly for Thomas confronted him about his behavior.

On February 25, 2011, the employee filed with OSHA a complaint alleging that Thomas had retaliated against him because he voiced his concerns about Thomas’s unlawful workplace behavior.  A couple of weeks later, Thomas received notification from OSHA that the complaint had been filed.  On March 23, 2011, Thomas changed the employee’s computer passwords, denied him remote access to work files, and terminated the employee.

Teresa Harrison, OSHA’s acting regional administrator in Atlanta, stated:

“Employees have the right to raise workplace violence concerns without fear of retaliation… OSHA will continue to enforce the whistleblower provisions of the OSH Act to protect employees who report violations.”

The Employment Law Group® law firm has an extensive nationwide whistleblower practice representing employees who have been victims of retaliation.

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OSHA Announces Appointment of New Whistleblower Protection Program Director

On November 20, 2012, the Department of Labor’s Occupational Safety and Health Administration’s (OSHA) Assistant Secretary Dr. David Michaels announced that Beth Slavet has been appointed as the new direct or OSHA’s Whistleblower Protection Program.

Slavet has over thirty years of whistleblower enforcement experience. Prior to her appointment as director of OSHA’s whistleblower program, Slavet served as a member, vice chairman and former chairman of the U.S. Merit Systems Protection Board (MSPB) from 1995-2003. Slavet spent the last decade working in the private sector where she focused on representing whistleblowers.

The Employment Law Group® law firm has an extensive nationwide whistleblower practice representing employees who have been victims of retaliation.

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Northern Illinois Flight Center Ordered to Reinstate and Pay Whistleblower over $500,000 after He Was Terminated for Complaining About Violations of the Pilot Certification Process

Following an investigation conducted by the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) the Northern Illinois Flight Center has been ordered to reinstate an Illinois pilot and pay him over $500,000 in back pay, benefits and damages. OSHA found that the flight center violated the whistleblower protection provision of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21) when it terminated the pilot after he contacted the Federal Aviation Administration (FAA) regarding violations of the pilot certification process.

According to the pilot, on February 16, 2009 he was allegedly asked to falsify a pilot certification form for a training flight he had performed with another pilot. However, he maintained that he could not certify the form because all required elements had not been completed during the training flight. Then on March 23, 2009, his supervisor attempted to coerce him into signing a backdated and incorrect form. The pilot informed his supervisor that he wanted to directly contact the FAA to discuss the pilot certification process and forms, which he did between March 25 and 27. Following his contact with the FAA Flight Standards District, he was terminated on April 7 and provided with no reason for his termination.

Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels stated:

“Firing pilots for reporting inaccurate procedures to the FAA endangers other pilots, their passengers and the public at large… The Labor Department has a responsibility to protect all employees, including those in the aviation industry, from retaliation for raising safety concerns and exercising these basic worker rights.”

The Employment Law Group® law firm has an extensive nationwide whistleblower practice representing employees who have been victims of retaliation.

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OSHA Announces Launch of Alternative Dispute Resolution Program for Complaints Filed with Whistleblower Protection Program

Earlier this month the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced that it will be launching an alternative dispute resolution (ADR) pilot program for complaints filed with OSHA’s Whistleblower Protection Program.

The new program will be implemented in OSHA’s Chicago and San Francisco regions and will work with complainants and employers to try to resolve disputes in a cooperative and voluntary manner through early resolution and mediation. According to OSHA, when a whistleblower files a complaint in one of the two pilot regions, both parties will be notified of their ADR options and if they choose, they may work through an OSHA regional ADR coordinator to resolve their issues.

Dr. David Michaels, Assistant Secretary of Labor for OSHA, stated:

“OSHA is committed to fair, effective and timely enforcement of the whistleblower laws delegated to us by Congress. . .  Alternative dispute resolution can provide immediate relief and finality to both parties.”

The Employment Law Group® law firm has an extensive nationwide whistleblower practice representing employees who have been victims of retaliation.

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Department of Labor’s Administrative Review Board (ARB) Expands Procedural Protections for Whistleblowers by Adopting “Fair Notice” Pleading Standard for Assessing OSHA Whistleblower Complaints

Last month, in Evans v. United States Environmental Protection Agency, ARB No. 08-059, ALJ No. 2008-CAA-3 (ARB July 31, 2012), the Administrative Review Board (ARB) of the U.S. Department of Labor issued a decision rejecting heightened pleading standards previously announced by the U.S. Supreme Court in favor of a lower pleading standard for whistleblower complaints filed before the Occupational Safety and Health Administration (OSHA) and the DOL’s Office of Administrative Law Judges (OALJ).

In Aschroft v. Iqbal and Bell Atlantic Corp. v. Twombly, the Supreme Court held that a plaintiff’s complaint must allege sufficient facts to state a claim “that is plausible on its face” in order to withstand a motion to dismiss.  In its recent decision in Evans, the ARB rejected this “plausibility” standard, instead holding that administrative whistleblower complaints only need to “give fair notice of the protected activity and adverse action” in order to survive a motion to dismiss. Additionally, the ARB held that such plaintiffs are afforded “sufficient opportunity to amend or supplement” complaints which do not initially meet the “fair notice” threshold for sufficiency of complaints.

Factual and Procedural History

The plaintiff, Douglas Evans, worked as an Environmental Protection Specialist for the U.S. Environmental Protection Agency (EPA) and, in 2004, complained to the EPA Administrator alleging that the Agency had forced employees to engage in emergency response duties without the necessary experience and had assigned hazardous job duties to employees who did not have such duties in their prior job descriptions.  The EPA then suspended Evans in 2006 alleging that he had made threats of violence at work.  Following his suspension, Evans filed a complaint  with OSHA claiming that the EPA had retaliated against him in violation of several federal laws. Evens subsequently filed numerous amended complaints, each of which alleged further retaliation actions by the EPA in response to his initial complaint.

In 2008, An Administrative Law Judge (ALJ) dismissed Evans’ complaint, holding that Evans’ had not alleged facts sufficient to demonstrate that he engaged in any protected conduct.  The ARB affirmed this ruling in 2010 holding that Evans’ complaint failed to state a claim sufficient under the standards of Iqbal and Twombly standards.  Following the ARB’s dismissal, Evans sought a review from the Ninth Circuit Court of Appeals but the Ninth Circuit remanded the case for the ARB to decide the applicability of the Iqbal and Twombly pleading standard to OSHA whistleblower complaints.

ARB Adopts “Fair Notice” Standard, Notes “Materially [Different]” Nature of Administrative Whistleblower Complaints

In articulating the applicable standard for OSHA whistleblower complaints, the ARB noted that the “plausibility” standard required of complaints in federal court “materially differs” from administrative whistleblower complaints.  The ARB noted that such whistleblower complaints “are informal documents that initiate an investigation”, are “often filed…without the assistance of counsel”, and that OSHA regulations “expressly allow for investigatory complaints to evolve into complaints containing [a] prima facie claim.”

In short, the ARB concluded that because the Iqbal/Twombly standard previously applied by the ARB was “inappropriate given the nature of the administrative whistleblower process”, the ARB’s revised ruling concluded that such complaints that give “fair notice” of the protected activity and adverse employment action are sufficient to withstand a motion to dismiss for failure to state a claim.”

The ARB further articulated the de minimis detail required, holding that:

 “a sufficient statement of the claims need only provide (1) some facts about the protected activity, showing some “relatedness” to the laws and regulations of one of the statutes in our jurisdiction, (2) some facts about the adverse action, (3) a general assertion of causation and (4) a description of the relief that is sought.”

Greater Opportunity for Whistleblowers to Amend Administrative Complaints

On the issue of amending OSHA whistleblower complaints, the ARB emphasized the “need for an ALJ to liberally provide a whistleblower complainant an opportunity to amend” and that such an assessment “must be conducted in a manner consistent with informal administrative proceedings.”  Specifically, the ARB held that the “ALJ should not dismiss a complaint for failure to state a claim until he or she has allowed the complainant a sufficient opportunity to amend or supplement the claim(s) contained in the complaint.”  The ARB then remanded the case as the ALJ had not granted Evans such an opportunity to amend his complaint.

Impact on Whistleblowers

The ARB’s new standard will potentially make it easier for whistleblowers to bring retaliation claims under one of OSHA’s 21 statutes.  Additionally, employers may now find it more difficult to get the complaints of whistleblowers dismissed for being insufficiently plead.  The Evans decision is a procedural expansion in tandem with the ARB’s recent expansion of substantive protections for whistleblowers.

The Employment Law Group® law firm’s whistleblower attorneys have helped many clients file suit against employers that fraudulently bill the U.S. government, and have established favorable precedents under the retaliation provision of the False Claims Act.

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Union Pacific Railroad Agrees to Pay Whistleblower $38,000 to Settle Allegations of Retaliating Against Him for Reporting a Work-Related Injury

Omaha, Nebraska-based Union Pacific Railroad Co. has agreed to pay an employee $38,561.92 in punitive damages for violating the whistleblower provision for the Federal Railroad Safety Act when it retaliated against an employee who reported a work-related injury.

An investigation conducted by the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) found that after two coupled cars came apart on July 8, 2011, the employee, a switchman in Union Pacific’s Topeka, Kansas yard, suffered the loss of two teeth and several facial lacerations when he was struck by cars being moved. After the employee reported the injury, the railroad company issued him with a ten day unpaid suspension, even though evidence showed that the employee was not at fault.  Employees that had not reported injuries either were not disciplined or received lesser penalties.

In addition to paying the $38,561.92 settlement, Union Pacific must remove disciplinary references from the employee’s personnel record and post a notice throughout the Kansas City Service Unit informing employees of their whistleblower rights.

The Employment Law Group® law firm has an extensive nationwide whistleblower practice  representing employees who have been victims of retaliation.

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Real Estate Management Company Agrees to Pay $45,000 to Settle OSHA Allegations of Illegally Terminating Maintenance Employee for Raising Safety Concerns Regarding Asbestos

Earlier this month, CMM Realty Inc., a real estate management company headquartered in Columbia, South Carolina, entered a consent decree with the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) to settle allegations that it violated the Clean Air Act’s whistleblower provision when it terminated a maintenance worker who raised safety and environmental concerns regarding asbestos at the work site.

On May 13, 2009, the employee reported asbestos exposure at CMM Realty’s Briargate Condominiums in Columbia to the South Carolina OSHA Program and the South Carolina Department of Health and Environmental Conservation. The same day after he made this report, CMM Realty told the employee that his services were no longer needed and five days later sent official notification of his termination.

As part of the settlement, CMM will pay the former employee $45,000, provide him with neutral references for prospective employers and will expunge all disciplinary actions from his personnel record. OSHA also permanently prohibited CMM from violating the whistleblower provision of the Occupational Safety and Health Act and ordered the employer to post an OSHA fact sheet regarding whistleblower protection in English and Spanish at the company’s facility.

Cindy A. Coe, OSHA’s regional administrator in Atlanta, Georgia, said:

“OSHA is committed to security workers’ rights of protection from retaliation upon reporting workplace safety and/or environmental concerns.”

The Employment Law Group® law firm has an extensive nationwide whistleblower practice  representing employees who have been victims of retaliation.

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OSHA Orders Norfolk Southern Railway to Pay Whistleblowers Over $800,000 after Finding that the Company Terminated Them for Reporting Work Injuries

Norfolk Southern Railway, a railroad operator based in Norfolk, Virginia, has been ordered by the Department of Labor’s Occupational Safety and Health Administration (OSHA) to pay $802,168.70 to settle allegations that it violated the whistleblower provision of the Federal Railroad Safety Act when it terminated three employees who reported work injuries.

According to OSHA, this lawsuit, in part, stems from ongoing investigations into allegations that Norfolk Southern retaliates against employees who report work-related injuries. This settlement addresses three concurrent investigations involving a laborer in Greenville, South Carolina, an engineer in Louisville, Kentucky, and a railroad conductor in Harrison, Pennsylvania. In these three cases, the individuals that reported the injuries to OSHA had themselves been injured on the job. OSHA’s investigations found that Norfolk Southern either began treating the injured employees less favorably or they alleged that the employees had falsified their work-related injuries.

In addition to paying over $800,000, Norfolk Southern has been ordered to remove all disciplinary records from the whistleblowers files, post a notice regarding employees’ whistleblower rights and provide employees with proper training regarding these rights.

Assistant Secretary of Labor Dr. David Michaels stated:

“Firing workers for reporting an injury is not only illegal, it also endangered all workers. When workers are discouraged from reporting injuries, no investigation into the cause of the injury can occur… To prevent more injuries, railroad workers must be able to report an injury without fear of retaliation. The Labor Department will continue to protect all employees, including those in the railroad industry, from retaliation for exercising these basic worker rights. Employers found in violation will be held accountable.”

The Employment Law Group® law firm has an extensive nationwide whistleblower practice  representing employees who have been victims of retaliation.

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OSHA Orders Alaska-Based Youth Treatment Provider to Reinstate Whistleblower Who Was Fired After Reporting Safety Concerns at the Facility

In a press release issued last week, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced that Anchorage, Alaska- based North Star Behavioral Health System has been ordered to reinstate and pay over $250,000 to an employee who was terminated in retaliation for reporting safety concerns regarding the facility’s water supply.

An investigation conducted by OSHA’s Whistleblower Protection Program found that the company violated the whistleblower provision of the Safe Drinking Water Act (SDWA) when it terminated an employee after he reported concerns about safe drinking water and a lack of appropriate licensing by a North Star manager who held certain regulatory responsibilities regarding the facility’s drinking water system. Following the employee’s complaint to state agencies, North Star not only ordered him to refrain from future contact with regulatory agencies but terminated him for allegedly sabotaging the facility’s water supply, allegations which OSHA determined by to be unsubstantiated.

In addition to reinstating the whistleblower, OSHA ordered that North Star must pay him nearly $60,000 in back wages, $75,000 in emotional distress damages, $100,000 in punitive damages, $2,018 in compensatory damages, and approximately $35,600 in attorney fees. Finally, North Star must post OSHA’s whistleblower protection fact sheet at its Anchorage facility.

The Employment Law Group® law firm has an extensive nationwide whistleblower practice  representing employees who have been victims of retaliation.

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