The U.S. Department of Labor’s (DOL) Occupational Safety and Health Administration (OSHA) aims “to ensure safe and healthful working conditions for workers.” OSHA’s Whistleblower Protection Program enforces the whistleblower provisions of the Sarbanes-Oxley Act and 25 whistleblower statutes. Recently, DOL issued three news releases announcing decisions in cases related to whistleblower retaliation: learn more about each of the cases below.
Midvale Paper Box Co. Inc.
On June 28, DOL announced that it filed a lawsuit against Midvale Paper Box Co. Inc., a Pennsylvania paper products manufacturing company, and its owner David Frank. According to the news release, a worker at the company was fired “for raising safety concerns and asking several times for safety gloves to operate a shredder and baler.” DOL filed the lawsuit “in the U.S. District Court for the Middle District of Pennsylvania in Scranton,” the news release states.
DOL reports that an OSHA compliance officer visited Midvale on October 5, 2017. The officer conducted a safety inspection “in response to a complaint alleging – among other things – that the company failed to provide personal protective equipment and made employees unjam machines without implementing required lockout/tagout procedures.” A worker suffered a hand injury “after the company denied the first request for safety gloves” — additionally, according to the news release, the company rejected two subsequent requests for safety gloves.
DOL alleges that the company “later terminated the worker in retaliation for multiple requests for gloves, participating in OSHA’s safety investigation and their mistaken belief that the worker filed the safety complaint that initiated the investigation.” The company “is currently contesting citations issued because of the October 2017 OSHA inspection. The agency assessed a proposed penalty of more than $200,000 for nine workplace safety violations, including one serious, two willful and six repeat violations,” the news release states.
After being fired, the aforementioned employee “filed a complaint with OSHA.” OSHA agreed with the employee, assessing that Midvale and Frank, the company’s owner, “violated Section 11(c)(1) of OSH Act when they terminated the employee for engaging in protected activities.” DOL’s complaint urges Midvale and Frank to “reinstate and pay the complainant for all past and future lost wages that resulted from the termination,” among other requests.
“Employers who retaliate against workers for raising valid safety concerns are breaking the law and creating an unsafe work environment for all of their workers,” said OSHA Regional Administrator Michael Rivera in Philadelphia. “Employees have a right to a safe and healthful workplace, and must never fear that reporting their concerns will cost them their jobs.” Read the full news release here.
Equistar Chemicals L.P.
On June 29, DOL announced that OSHA conducted a whistleblower investigation into an action by Equistar Chemicals L.P., which is a subsidiary of LyondellBasell, “one of the world’s largest plastics, chemicals and refining companies.” According to the news release, an account manager at Equistar Chemicals was placed on a “performance improvement program” and then fired after “continually express[ing] concerns and objections about a proposed accounting practice they believed to be illegal.” OSHA’s investigation found that the account manager was retaliated against “for their activities under the Sarbanes-Oxley Act.” The Sarbanes-Oxley Act was passed in 2002 and aimed to improve accounting and auditing procedures for publicly traded companies.
OSHA “ordered LyondellBasell to reinstate the account manager and pay $518,189 in lost wages and $145,293 in lost benefits.” The employer must also “pay an estimated $50,962 in interest on the back wages, $50,000 in compensatory damages and applicable attorney’s fees.” Additionally, OSHA ordered LyondellBasell to “expunge the account manager’s personnel record of any adverse information related to the whistleblower complaint.”
“We commend this worker for bravely exercising their rights and reporting workplace misconduct,” said OSHA Acting Regional Administrator William Donovan in Chicago. “This employee’s concerns were protected by federal laws and well-known by management who took illegal actions by retaliating against them.” In an editor’s note at the bottom of the news release, DOL adds a reminder that the department “does not release the names of employees involved in whistleblower complaints.” View the news release for this case here.
CSX Transportation Inc.
On July 1, DOL published a news release announcing that an OSHA investigation found Florida-based transportation supplier CSX Transportation “violated the Federal Railroad Safety Act and demonstrated a pattern of retaliation after firing a worker in December 2019 for reporting safety concerns.”
“OSHA ordered the company to pay $71,976 in back wages, interest, and damages, and $150,000 in punitive damages,” the news release reports. Additionally, the release notes that in October 2020, OSHA ordered CSX to reinstate a different employee who was terminated after they reported a safety concern and “an on-the-job injury.” CSX was ordered to pay “more than $95,000 in back wages and $75,000 in punitive damages” in the October 2020 case. According to the July 1 news release, “[s]imilar whistleblower investigations resulted in reinstatements and payment of back wages and damages in the New York region in 2016 and 2010.”
“CSX Transportation’s actions are unacceptable,” said OSHA Regional Administrator Eric Harbin in Dallas. “Federal law protects employees who report hazards in the nation’s transportation sector and OSHA is committed to enforcing these rights to keep workers safe.” Read the full news release here.
Whistleblowers in the Workplace
Whistleblowers are vital in reporting safety concerns in the workplace. In the 2020 fiscal year, OSHA documented receiving 3448 whistleblower docketed cases, which was an increase from the previous fiscal year.