|May 6, 2013|
Previously published on April 2013
You’ve heard of hostile work environment claims in terms of sexual harassment or discrimination. But, what about in terms of an OSHA violation? In a recent news release, the Occupational Safety and Health Administration (“OSHA”) announced that it had filed a complaint in a federal district court against an employer under OSHA’s whistleblower statutes for terminating an employee who had reported workplace violence in the form of the owner’s verbal threats that created a hostile work environment.
In that case, the Acting Secretary of Labor for the U.S. Department of Labor, Seth Harris (“Secretary”), determined that the employee was discharged in violation of OSHA’s whistleblower provisions. The employee made several complaints to her employer that his verbal, mental, and emotional abuse in the workplace was unbearable. This workplace violence included threatening to fire, verbally abusing, making sexually inappropriate comments and advances, yelling, screaming, making physically threatening gestures, making untimely payment, and demeaning the employee.
The employee made a final complaint to her employer that the hostile work environment was becoming worse due to his inhumane, threatening, and abusive behavior in the workplace and by telling her “she will do what he wants or she is fired.” The employee also complained that the employer had withheld her pay. Shortly thereafter, the employee filed a whistleblower complaint with OSHA alleging discrimination by the employer for reporting the workplace violence conditions. The employer received the OSHA charge and five days later 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 this lawsuit resulted.
The cost of this lawsuit could be substantial to the employer should the Secretary prevail. The Secretary is seeking not only reinstatement, but back wages, interest, compensatory and punitive damages, as well as front pay in lieu of reinstatement. Additionally, the Secretary seeks to have the employee’s personnel records expunged regarding the matters at issue and barring the employer against future violations.
In McGrath North's latest Masters Series presentation in January, “Regulatory Roundup: What’s Ahead for Employers in 2013,” we discussed the aggressive enforcement approach of OSHA that was expected for 2013, specifically with whistleblower investigation and enforcement. This case is the perfect example of such aggressive enforcement expanding into areas including hostile work environment claims. OSHA enforces the whistleblower provisions of the Occupational Safety and Health Act and 21 other statutes. Under these statutes, OSHA, will investigate actions against employees including firing or laying off, blacklisting, demoting, disciplining, intimidation, and making threats.
This case, not unlike other hostile work environment cases, shows the importance of good management practices, along with the growing importance of training supervisors and managers about the importance of their individual behavior. The following website provides more information on OSHA’s Whistleblower Protection Program: http://www.whistleblowers.gov/