Cussing Out Your Employee May Get You Sued By… OSHA??


Hopefully you are aware of the continuing escalation of all forms of whistleblower and retaliation claims, including under the 21 Anti-Retaliation laws enforced by special investigators from OSHA’s Whistleblower group. If not, check out the News Room on OSHA’s Whistleblower page.

OSHA’s news release states:
U.S. Department of Labor has filed a lawsuit in the U.S. District Court against Duane Thomas Marine Construction LLC and owner Duane Thomas for terminating an employee who reported workplace violence, in violation of Section 11(c) of the OSHAct.

Seems fairly standard. OSHA asserts that an employer fired an employee for complaining about unsafe work conditions. It’s a bit unusual to hear that the alleged unsafe conditions involved fear of workplace violence, but who can blame an employee in the current environment?
However, as you read on, it transpires that the complained of hazard was the owner!
The employee alleged that, on numerous occasions between Dec. 9, 2009, and Feb. 25, 2011, Mr. Thomas committed workplace violence and created hostile working conditions. He allegedly behaved abusively, made inappropriate sexual comments and advances, yelled, screamed and made physically threatening gestures, in addition to withholding the employee’s paycheck.

• The employee, who worked directly for Thomas, reported to him that he was creating hostile conditions. On Feb. 25, 2011, the employee filed a timely whistleblower complaint with OSHA alleging discrimination by Thomas for having reported the conditions to him.

• On March 18, 2011, Thomas received notification of the complaint filing. On March 23, 2011, Thomas had computer passwords changed in order to deny the employee remote access to files and then terminated the employee. OSHA’s subsequent investigation found merit to the employee’s complaint.

And we’re not just talking reinstatement, OSHA seeks back wages, interest, and compensatory and punitive damages, as well as front pay in lieu of reinstatement. Additionally, it seeks to have the employee’s personnel records expunged with respect to the matters at issue in this case and to bar the employer against future violations of the OSH Act.

Solis v. Duane Thomas Marine Construction LLC and Duane Thomas, individually
Civil Action File Number 2:13-cv-76-FTM-99-DNF).
Ok,… my usual caveat. I do not personally know the facts. The employer may have screwed up, behaved badly and given the complainant the ability to make out a viable claim. Or, the Complainant may have made up and exaggerated the whole thing. While I have yet to see an employee lawsuit that was completely accurate, I do have a high respect for the Atlanta Regional Solicitors’ office, who would be handling the case, so there must be at least some pretty bad facts.

Lessons and Action Points?
1. This atmosphere may or may not have presented a valid safety hazard, but guess what? Under 11©, the violation is the act of terminating the employee for complaining about a safety concern. The concern does not have to be valid (there is a different standard if the employee refuses to work because of an unfounded and unreasonable concern).

2. For all we know, the employee could have annoyed his boss with unfounded complaints until the boss fired him in a moment of anger… and that’s a potential violation.

3. Or… the boss could have indeed cursed the employee, made sexual innuendo and threatened the guy. Maybe it was a safety hazard. Maybe it was not an unsafe situation. But, if the boss indeed did the stuff alleged, than he succeeded in providing me with three opportunities in one week to Blog about how foolish behavior gets a company sued (same-sex harassment and plain old vile racial comments for the other two entries).

4. We need to simply eliminate from our vocabulary the two phrases:
“Boys will be boys,”
“You had to be there.”
The problem is that lawyers and Uncle Sam will also be there if one’s conduct is foolish enough.
6. I am reasonably confident that my readers will not dog-cuss their employees, albeit slightly less confident than I was one week ago, but this unusual law suit indicates that supervisors had better think twice before going off on employees.
7. Finally, employers really must effectively train employees and supervisors to behave professionally regardless of the setting,… and train supervisors to understand the many splendored behaviors which may be protected as whistle blowing.
My next four years are going to be busy.


About mavity2012

I am a Senior Partner operating out of the Atlanta office of Fisher & Phillips LLP, one of the Nation’s oldest and largest management employment and labor firms. My practice is national and keeps me on the road or in one of our 28 offices about 50 percent of the time. I created and co-chair the Firm's Workplace Safety and Catastrophe Management Practice Group. I have almost 29 years of experience as a labor lawyer, but rely even more heavily on the experience I gained in working in my family's various businesses, and through dealing with practical client issues. Employers tell me that they seldom meet an attorney who delivers on his promise to provide practical guidance and to be a business partner. As a result, some executives probably use different terms than “practical” to describe my fellow travelers in the profession. I don't enjoy the luxury of being impractical because I spend much of my time on shop floors and construction sites dealing with safety, union and related issues which are driven by real world processes and the need to protect and get the most out of one's most important business assets ... its employees. That's one of the reasons that I view safety compliance as a way to also manage problem employees, reduce litigation and develop the type of work environment that makes unions unnecessary. Starting out dealing with union-management challenges and a stint in the NLRB have better equipped me to see the interrelationship of legal and workplace factors. I am proud also of my experience at Fisher & Phillips, where providing “practical advice” is second only to legal excellence among the Firm’s values. Our website lists me as having provided counsel for over 225 occasions of union activity, guided unionized companies, and as having managed approximately 450 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. I have coordinated complex inspections involving multi-employer sites, corporate-wide compliance, and issues involving criminal referral. As a full labor lawyer, I oversee audits of corporate labor, HR, and safety compliance. I have responded to virtually every type of day-to-day workplace inquiry, and have handled cases before the EEOC, OFCCP, NLRB, and numerous other state and federal agencies. At F & P, all of us seek to spot issues and then rely upon attorneys in the Firm who concentrate on those areas. No tunnel vision. I teach or speak around 50 times per year to business associations, bar and professional groups, and to individual businesses. I serve on safety committees at three states’ AGC Chapters, teach at the AGC ASMTC
This entry was posted in cultural changes, EEOC, generational differences, government inspections, management and leadership, NLRB, OSHA, whistleblower/retaliation, workplace violence and tagged , , , , , . Bookmark the permalink.

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