On July 15 and 16, the U.S. Department of Labor (DOL) published news releases announcing two recent decisions regarding whistleblowers and retaliation. DOL’s Occupational Safety and Health Administration (OSHA) aims “to ensure safe and healthful working conditions for workers,” and OSHA’s Whistleblower Protection Program enforces the whistleblower provisions of 25 whistleblower statutes.
Marty Walsh, DOL Secretary, will be speaking at the National Whistleblower Center’s virtual event celebrating National Whistleblower Day 2021. The event will occur on July 28-30 and celebrate whistleblowers around the world, as well as host informative panels featuring whistleblowers and experts: RSVP for the event here.
Lawsuit against Roger H. Bohannan DDS Inc.
The July 15 news release states that DOL has filed a lawsuit against two North Texas dentists “on behalf of a dental hygienist and a dental assistant who were not reinstated” after they voiced concerns about coronavirus safety measures that would be instituted “when the practice reopened in spring 2020.” DOL filed the lawsuit in the U.S. District Court for the Northern District of Texas, Fort Worth Division.
According to the news release, Roger Bohannan and David Bohannan, who own Roger H. Bohannan DDS Inc., furloughed their employees in March and April 2020. This was in response to Texas’ prohibition of “specific dental procedures at the height of the pandemic.” The news release states: “While furloughed, the two employees asked what safety measures would be in place once patients and employees returned. After receiving a call to return to work, the employer did not reinstate the hygienist after they cited guidance from the Centers for Disease Control and Prevention and Occupational Safety and Health Administration.”
In the return to the office, “[t]he dental assistant was contacted for rehiring but the employer rescinded the offer after the assistant inquired about what safety measures were in place for their protection,” the news release states. All of the other employees were reinstated after the furlough ended. An OSHA investigation found that Bohannan Dentistry “discriminated against the employees for exercising their rights under section 11(c) of the Occupational Safety and Health Act and for engaging in the protected activity of making a good faith health and safety complaint.”
“Bohannan Dentistry violated employees’ rights by terminating them for reporting concerns about unsafe working conditions,” said OSHA Regional Administrator Eric S. Harbin in Dallas. “Workers should not fear losing their job because they raise safety concerns within the workplace. The Labor Department will continue to vigorously enforce these protections.”
The lawsuit orders Bohannan Dentistry to pay the complainant damages, “plus interest, for all past and future lost wages and benefits resulting from the termination,” among other forms of damages. DOL is also asking the court to order the practice to “Post a notice for employees stating that the defendants will not in any manner discriminate against any employee for engaging in activities protected by Section 11(c) of the OSH Act.”
Settlement with Advanced Disposal Services Solid Waste Midwest LLC
On July 16, DOL announced that a federal court approved a settlement of an OSHA whistleblower investigation that found an Illinois-based waste management company “violated federal law when it retaliated against a former truck driver who reported a workplace injury and raised concerns to the company that an unrepaired truck was unsafe to operate.”
As part of the settlement, the whistleblower is to receive $95,000 in lost wages from Advanced Disposal Services Solid Waste Midwest LLC. The company will also “provide prospective employers a neutral employment recommendation” for the whistleblower and include a copy of the court order in the employee’s personnel record. Additionally, the company will “post a notice of whistleblower rights in a common area at its Northbrook facility.” The news release states that “the company has denied any wrongdoing.”
The consent judgment and order was entered into by U.S. District Court Judge Manish S. Shah in the Northern District of Illinois. The action “follows an OSHA investigation finding that after the truck driver cited concerns about a vehicle’s safety hazards, a company manager assigned the vehicle to a different driver.” According to the news release, the manager then assigned the truck driver “to a vehicle with which they were unfamiliar.” When they were driving the vehicle, “the driver injured a finger and needed light duty to recover,” after which “a company investigation faulted the driver for the injury.” The news release states that the company later terminated the driver’s employment “after management suspected them of reporting unsafe working conditions to the company’s hotline.”
OSHA ruled that the truck driver’s firing was an act of retaliation “for their protected activities under the whistleblower protections of Occupational Safety and Health Act’s Section 11(c).” After the investigation, OSHA “filed a complaint in federal court seeking compensation for the driver for unlawful termination.”
“We commend this worker for standing up for their rights after suffering an injury and reporting workplace safety hazards that had the potential to injure other workers,” said OSHA Acting Regional Administrator William Donovan in Chicago. “Federal whistleblower laws protect workers from retaliation for reporting injuries and unsafe working conditions.”