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Workplace Whistleblower Protections Inch Forward Amid Pandemic

Aug. 27, 2020, 4:31 PM

Workplace safety concerns sparked by the Covid-19 pandemic have inspired a handful of state and local laws that nudged forward protections for whistleblowing employees, but not as far forward as advocates say is needed.

It’s an area of law that management-side attorneys say poses a significant litigation risk and already represents a major source of coronavirus-related lawsuits. Whistleblower advocates, on the other hand, say stronger federal protections are needed to prevent retaliation better than a patchwork of state laws can.

An inspector general report Aug. 18 from the U.S. Labor Department highlighted one of the challenges for workplace whistleblowers looking to protect their rights—a delayed response by the Occupational Safety and Health Administration to the influx of whistleblower complaints this year spurred by Covid-19.

“There were issues with whistleblowing and whistleblower protections that already existed and have been exacerbated in the pandemic because the public health stakes are so high,” said Samantha Feinstein, a staff attorney and deputy director at the nonprofit Government Accountability Project, which advocates for and provides legal services to whistleblowers.

Since March, workers across the country have been reported as getting fired or facing other retaliation for raising safety concerns—an Amazon warehouse worker in New York, a McDonald’s restaurant employee in California, and doctors and nurses in Washington, D.C., Chicago, and Washington state, to name a few.

Colorado and Virginia recently created new whistleblower protections to specifically bar employers from punishing employees who raise concerns about coronavirus-related health and safety risks at work, as did Philadelphia through a city ordinance.

Counting these, 24 states have some level of whistleblower protection that applies to private-sector employment, according to Bloomberg Law data. They generally protect workers who report legal violations at their workplace, as do a variety of federal whistleblower laws. A few of them specifically protect workers who raise safety concerns even if they’re not legal violations.

Leading Litigation Category

Businesses have been bracing for a potential onslaught of litigation over Covid-19. Thus far, cases involving whistleblower or retaliation claims represent one of the largest categories, accounting for 100 of the 537 employment-related lawsuits counted in a Covid-19 litigation tracker run by Fisher Phillips LLP. Retaliation claims aren’t all necessarily related to workplace safety or whistleblowers, as employees also can claim retaliation if they’re fired after making discrimination or wage-and-hour complaints, for example.

For employers, the pandemic puts a twist on a long-time concern, said Jessica Causgrove, an employment lawyer at Fisher Phillips in Chicago.

“Retaliation isn’t anything new. It’s always been kind of the leading basis for claims of discrimination in lawsuits,” she said.

Employers’ risks of litigation and regulatory enforcement related to retaliation can vary substantially by state and even city, Causgrove said.

Chicago, for example, attached potentially stiff penalties of up to three times lost wages for employers who violate a new anti-retaliation provision that took effect this summer, she said. The ordinance specifically barred employers from firing workers who take time off work to follow quarantine or other health-related orders during the pandemic, but there’s also an implied bar on retaliating against workers who raise safety concerns related to the virus, Causgrove added.

“The city put these strict penalties in place to make sure employers are complying” with various city and state orders to operate their businesses in a safe way during the pandemic, she said.

The state showing the most virus-related workplace retaliation lawsuits in the case tracker—New Jersey—has a strong whistleblower protection law that both employer-side and plaintiff-side law firms say applies to employees who raise workplace safety complaints, the Conscientious Employee Protection Act.

The case tracker shows 19 whistleblower or retaliation lawsuits related to Covid-19 filed in New Jersey, as of Aug. 26. Among them, a pair of workers sued nursing home operator Alaris Health alleging it fired them for raising safety concerns, and a former Walmart employee sued the retailer accusing it of firing her for voicing concerns about unenforced social distancing rules and customer limits in the store.

California and Florida have seen 18 and 12 employment lawsuits, respectively, related to retaliation during the pandemic. These states also have their own whistleblower protection laws that cover private-sector employers.

Virus-Specific Protections

Federal laws broadly bar retaliation against whistleblowers, but coverage is limited for private-sector workers who raise workplace safety concerns, the Government Accountability Project’s Feinstein said. The most relevant statute for those workers, the Occupational Safety and Health Act, provides only a 30-day window after an act of workplace retaliation to file a complaint with the Occupational Safety and Health Administration, which has the final say on whether to penalize the employer and order relief for the employee.

Feinstein’s organization has urged Congress to strengthen federal protections for workplace whistleblowers, including through a pair of proposals related to Covid-19, H.R. 7227 and S.3855. Thus far, it has been unsuccessful, leaving workers to often rely on the patchwork of state whistleblower laws to contest retaliation by employers, she said.

Lawmakers in Colorado and regulators in Virginia last month removed the ambiguity over whistleblower protections for workers in their states with coronavirus-specific concerns.

In Colorado, Gov. Jared Polis (D) signed legislation on July 11 to bar employers from firing workers who raise safety concerns related to a public health emergency or who choose to wear their own personal protective equipment.

In Virginia, the state’s Department of Labor and Industry issued the nation’s first state workplace safety regulation specific to Covid-19 on July 15. The rule included a ban on employer retaliation against workers who exercise their rights under the regulation or raise safety concerns, whether they speak to the employer, a government agency, or the public via social media or the news media.

Philadelphia took a similar step in June, approving the Essential Worker Protection Act, which included a ban on retaliation against employees who raise workplace safety concerns.

Other states have taken measures to protect workers from workplace retaliation that didn’t specifically address but might imply protections for workplace safety complaints, such as a Michigan executive order and New Jersey legislation.

Philadelphia Councilmember Helen Gym, who sponsored the city’s measure, said local workers needed protection during the pandemic partly because of gaps in federal protections and lax enforcement by OSHA.

“It is of utmost importance to us that we prioritize the health and safety of workers and the general public,” she said. “I don’t think there are many federal protections being provided by this administration.”

To contact the reporter on this story: Chris Marr in Atlanta at cmarr@bloomberglaw.com

To contact the editors responsible for this story: Karl Hardy at khardy@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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