Do Employers Really Understand This Explosion of Whistleblower Claims?

Despite the DOL’s continuous promotion of whistleblower/retaliation claims, I don’t believe that employers appreciate the sheer variety of ways in which disgruntled employees can claim that the employer retaliated against him for complaining or raising issues related to safety, environmental, wage-hour, discrimination, or numerous other subjects. As OSHA explains ….

OSHA enforces the whistle-blower provisions of the CAA and TSCA and 20 other statutes protecting employees who report violations of various airline; commercial motor carrier; consumer product; environmental; financial reform; food safety; health care reform; nuclear; pipeline; worker safety; public transportation agency; maritime; and securities laws. Employers are prohibited from retaliating against employees who raise various protected concerns or provide protected information to the employer or to the government.

With that in mind, look at the post below from this week’s OSHA Quick Takes newsletter (subscribe). Employees claimed that they were fired because they complained about lead (environmental), hours on duty (Federal Highway Administration) and good old safety concerns.

Three companies ordered to reinstate workers for whistleblower violations of clean air, surface transportation and aviation acts.

Coit Services of Ohio has been ordered to reinstate a worker wrongfully terminated for reporting breaches of lead abatement protocol during home renovation work in Shaker Heights. The restoration and cleaning company must repay more than $161,000 in back wages, damages and fees for violating the Clean Air Act and Toxic Substances Control Act. See the news release for more information. OSHA also ordered Marlborough, Mass.-based Brillo Motor Transportation Inc. to reinstate and pay a worker more than $131,000 after the agency determined he was wrongfully terminated when he refused to drive more than the allowable hours mandated by federal regulations. Read the news release on how the company violated the Surface Transportation Assistance Act.

In a third case, OSHA ordered Metropolitan Aviation LLC to reinstate and pay a pilot more than $215,000 in back wages and damages after firing him for reporting an emergency landing. The air carrier violated the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century.
Let’s look at one of the individual OSHA press releases ….

Coit Services of Ohio has been ordered to pay $161,228 in back wages, compensatory damages and interest, plus attorney's fees, to a technician following an investigation by the U.S. Department of Labor's Occupational Safety and Health Administration. The investigation found that the Bedford Heights company violated the whistle-blower provisions of the Clean Air Act and the Toxic Substances Control Act. An investigation conducted by OSHA found that Coit Services wrongfully terminated an on-location technician for raising safety concerns about lead abatement during a residential water mitigation project in Shaker Heights.

"Professionals, who work in the restoration and cleaning industry, have a right and a responsibility to express their professional opinion and report safety-related concerns," said Nick Walters, regional administrator for OSHA in Chicago …..

OSHA's investigation concluded that the on-location technician, who has a license from the Environmental Protection Agency to perform renovation work on homes potentially with lead paint, was terminated in January 2012 for reporting breaches of lead abatement protocol. The breaches occurred when another employee deviated from lead safety practices by using a circular saw improperly to remove a ceiling. Possibly, this spread lead-based paint dust throughout the home.

I don’t mean to sound dismissive, but we seldom learn of a valid whistleblower claim. Despite the dramatic cachet associated with the word, “whistleblower,” the claims often come down to a disgruntled worker who always thinks that he is “right,” and cannot deal with an employer who disagrees with his version of the universe.
Unfortunately, the employer may then respond unwisely. It is easy for an employee to satisfy the requirement that they complained of or reported a concern about a protected subject. Some times, as in the case of a safety officer, that’s their job. The employer then makes one of a number of errors.

Error 1 … the employee raises a ridiculous issue and the employer understandably looses its cool, and responds accordingly. So the issue was unreasonable, but the employer DID take their adverse action because the employee complained … albeit, unreasonably. Bad move.

Error 2. The employer’s adverse action has nothing to do with the employee’s ostensible complaint, but the employer innocently ignored the complaint in taking its otherwise neutral action. The employer simply did not consider the “timing” and “how the decision would look.” The timing of the employer’s action makes it appear that the employee’s “complaint” had something to do with the adverse action. Or in the vernacular of retaliation, it looks as if “but for the employee’s action, they would not have been terminated.” I’m certainly not suggesting that the employer should have refrained from a legitimate disciplinary action. Far from it. But the employer should have considered how the action and timing would look, and maybe taken a few extra steps.

Error 3. Early on, the employer should have realized that they had hired a “problem employee,” who possessed a poor attitude or was a lousy performer. The employee blamed others and always had an excuse for an error; even when the error was no big deal. The employee ascribed their failures to the employer picking on them. They made errors. They violated rules. They displayed a lousy attitude. However, everyone viewed the employee like a hornet’s nest. They did not want to disturb the hornets, so they didn’t address legitimate performance and behavior issues because they were fearful that “the employee would sue them.” Eventually one of two things happens. The employee goes too far and the employer has to terminate the employee, or the employer’s patience finally snaps in frustration, and they terminate the employee. The action looks odd because the employer tolerated a lot more bad behavior in the past … and unfortunately, the termination occurred soon after the employee “complained” about a protected subject. Oops.

Error 4. The employer in fact did terminate the employee because he or she raised a protected issue, valid or not, and perhaps the employee raised it in an unreasonable fashion. I’m sorry. Perhaps the employee would have tested the proverbial saint. Nevertheless, their complaints were protected. Even worse, maybe retaliation was intended. Take the medicine and do better next time.

Action points?

1. Make sure that your supervisors are aware of the often confusing protections accorded a complaining employee. DO NOT refrain from legitimate disciplinary action, but be aware of the risk of retaliation claims if the employee raised one of a host of arguably protected issues. Step back. Analyze the action, and do what is necessary to buttress your action. Remember that even if the claimis unfounded, the act of complaining IS protected.
2. Do not delay your counseling and disciplinary action. I know that it requires a lot of effort, but document your “progressive actions.” Write them up. Counsel. Work with them. Try to correct the behavior. Show that you “tried.” To quote the famous British Prime Minister, Gladstone, “justice delayed is justice denied.”
3. Recognize the small 1 % of employees who are legitimate problems. Supervisors know who they are. Instead of ignoring their bad behavior or transferring them to some other unsuspecting supervisor, address them.
4. Always look for the fire behind the smoke. Even if the employee’s motives in raising a complaint are bad, try to determine if there is a valid issue somewhere in the smoke, and address it. I have learned a lot from complaints by individuals who can only be described as “jerks.” The fact that they were jerks does not mean that they were wrong.