Man Bites Dog – OSHA Style

OSHA enforces more whistleblower laws than any other agency and has made whistleblower protection one of its principal goals. So it grabs your attention when you read “Whistleblower Wins $820,000 Settlement Against OSHA.”

OSHA’s foremost official overseeing injury record keeping for 25 years claimed that OSHA retaliated against him because he repeatedly spoke out internally and externally, and before Congress and the media about his belief that employers significantly underreported workplace injuries, and OSHA was not doing much about it.

Many employers and safety professionals would argue that this gentleman was wrong about massive employers underreporting, but that’s not the issue. Was he retaliated against because he spoke out … even intemperately?

The U.S. Fourth Circuit Court of Appeals found evidence that D.C. OSHA leadership:

• plotted to “get” the employee for embarrassing the agency;
• conducted a trumped-up investigation to justify his removal; and
• discharged him for participating in a loud dispute with a co-worker for similar actions.

Read the Settlement Agreement and Fourth Circuit decision.

Lessons?

The employee may have got it wrong about underreporting – his claims may have been inaccurate. And any employer can understand the agency’s leadership fuming about an employee publicly embarrassing the organization. Unfortunately, neither an inaccurate safety complaint or publicly embarrassing the organization justifies adverse action.

This former OSHA employee’s burningly passionate belief that employers intentionally under record and report workplace injuries is shared by others in OSHA, unions and even safety groups. Never doubt OSHA’s “continuing” commitment to address what it sees as record keeping violations and related adverse action against employees who report recordable injuries.

Notwithstanding being bitten by their own system, OSHA’s leadership and the DOL generally remain determined to promote whistleblower claims. Just this week, OSHA teed up possibly allowing electronic filing of whistleblower claims. Based on my time at the NLRB and 30 years of observations, that’s a bad idea. Complainants need to deal with an officer of the day or similar person to describe their complaints. The official can better pull out the salient facts, or discourage frivolous claims.

If indeed OSHA leadership harassed and terminated an employee because he embarrassed the Agency, this occurrence will increase any distrust of the current leadership’s respect for procedure and process. Observers have already commented on OSHA’s use of directives and interpretations to change things that should be addressed by rule making and legislation . . . or by the Agency’s often harsh “regulation by shame.” Traditionally, regardless of the administration, OSHA has enjoyed a reputation for professionalism, and that reputation is essential to its mission.

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
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