Small Victory for OHS Whistleblower

OSHA’s Regional Office in New York announced the successful resolution of a retaliation case filed by a worker who was discharged by his employer after he expressed concerns about entering a workspace which had just been “bombed” with an insecticide.  The case began more than two years ago at a residential housing complex in Flushing, NY, called Second Housing Co. Inc., and was resolved under a consent order in which the employer agreed to pay more than $66,000 in back wages to the worker.

Under Section 11(c) of the OSH Act:

“No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act…  Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of this subsection may, within 30 days after such violation occurs, file a complaint with the Secretary [of Labor/OSHA] alleging such discrimination.” 

Here’s how it worked out in this case against Second Housing Co., Inc.:

The employee was “directed to clean a compactor room that had just been ‘bombed’ with insecticide.  When he asked for personal protective equipment to do the assignment without exposing himslef to the toxins in the room, he was given inadequate equipment, and again directed to do his job.  The employee objected voicing his genuine concern that the assignment was unsafe and unhealthy.  In response, the defendant [employer] discharged him in retaliation for OSHA protected activity.”

Then, within 30 days, the employee filed a complaint with OSHA.  (If the worker had waited 31 days, he would have been out of luck.)

OSHA investigated the employee’s allegation, and as required under the OSH Act, the agency had to respond to the worker within 90 days, about whether there is adequate evidence to pursue a discrimination case.

“If upon such investigation, the Secretary determines that the provisions of this subsection have been violated, she shall bring an action in any appropriate U.S. district court against such person [employer].”

In this case, the complaint was filed in federal court on December 13, 2007.  That’s almost two years after the worker was fired.  (No telling whether he was able to get another job—probably hard getting a good reference from a boss who fired you!)   

Once the case was assigned to federal district judge Eric N. Vitaliano, a resolution came quickly.  The consent judgment notes:

“Plaintiff [Secretary of Labor] has filed her complaint and defendant [Second Housing Co Inc.] has appeared by counsel, and without admitting or denying the allegations of the complaint, has agreed to the entry of this Order and Judgment without contest.” [emphasis added]

The “defendant shall pay $66,000 in back wages, plus interest…”

“In the event that the plaintiff [employee] seeks employment elsewhere, defendant shall provide prospective employers or other persons making inquiry into his employment by the defendant, only the dates of his employment, and job title position he held.”

The “defendant shall post at the place of employment and comply with the terms of OSHA Poster 3165 (English) and Poster 3167 (Spanish).”

“The defendant [Second Housing Co Inc] shall not, contrary to Section 11(c)(1) of the OSH Act, discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to the Act or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by the Act.”

In conjunction with or as a result of the employee’s complaint, OSHA conducted a partial inspection of the Second Housing Co. Inc. workplace and identified seven violations of workplace health and safety standards.  The violations included failure to comply rules related to personal protective equipment, eye washing capabilities, warning labels for presence of asbestos-containing materials, and hazard training.  The employer was assessed a penalty of $4,500.  This tells me there were some obvious safety and health hazards at this workplace and the employee had the right to voice his concerns. 

Is there a legitimate reason that a case like this should take two years to resolve?

Comments

  1. #1 decrepitoldfool
    February 23, 2008

    Is there a legitimate reason that a case like this should take two years to resolve?

    Yes. If they could be resolved promptly then companies would be deterred from discriminating against employees who insist on safe working conditions. Since the laws and rules are no doubt written with “input” from industry, they are fine-tuned to make it nearly impossible for poor people to survive a challenge.

    Oh wait…

  2. #2 Celeste Monforton
    February 23, 2008

    Despite your name, I think you’re very wise. You’ve obviously been around a while to see how the system “works.”

  3. #3 bobby duncan
    March 28, 2008

    maybe osha should outsource complaints and pay a percentage to the outsource if the case is settled etc. This would surely help the whistleblower and the dol would not have to do anything.

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