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Whistleblower Attorneys Are Looking Beyond Safety Law Boundaries

May 12, 2022, 4:10 PM

Complaints about what appear to be OSHA health and safety rule violations could morph into violations of an entirely different nature, such as civil rights, environmental, or financial regulations, say attorneys representing employees in workplace retaliation cases.

And workers who fear they’ll be fired for raising safety or health complaints with their bosses shouldn’t wait for the ax to fall before taking actions to protect themselves, such as keeping a paper trail, the attorneys said—meaning employers could more often be confronted by privately-hired attorneys instead of US Department of Labor lawyers focused on Occupational Safety and Health Administration litigation.

The search for alternatives to OSHA enforcement gained more traction during the Covid-19 pandemic as worker advocates and unions grew frustrated with what they considered the agency’s apparent reluctance to cite employers for failing to protecting workers, especially those working in food processing, distribution, and health care.

The debate over what legal avenues to follow, and how, prompted a recent American Bar Association session.

“When someone comes to us and they’ve clearly complained about something that is, for example a safety issue, we have to step back and look at it creatively,” perhaps thinking beyond the constraints of OSHA’s whistleblower law, said attorney Michael Filoromo, a partner with Katz, Marshall & Banks LLP in Philadelphia.

The Occupational Safety and Health Act’s whistleblower provision is “great in theory, but really unhelpful in practice” because it doesn’t allow for private attorneys to represent workers or to take complaints to federal court, Filoromo said. Instead, the cases are handled by OSHA investigators, Department of Labor attorneys, and administrative law judges.

‘Testing the Limits’

Nicholas Woodfield, a principal with The Employment Law Group P.C. in Washington, prefers not to call what he does “creative litigation.”

“I would call it testing the limits of the law,” Woodfield said. “If the law says something and I can use it for an unanticipated result, but it’s clearly within the law, then I’ve just expanded the law.”

The difficulty with the OSH Act whistleblower claims is that they must be filed within 30 days of the employer’s retaliatory action and OSHA retains control of the investigation and decisions on whether the worker has a valid claim, the attorneys said.

Filoromo and Woodfield said safety cases may cross into other whistleblower laws such as clean air and clean water and a financial regulation—the Sarbanes Oxley Act—that allow more time for developing and filing a complaint, the option of going to federal court, and being represented by private counsel.

Beyond whistleblower laws, safety and health issues also could be framed as a civil right, said Karla Gilbride, a senior attorney with Public Justice in Washington and co-director of the group’s Access to Justice Project.

Public Justice, for example, is often concerned with whether the lack of restroom breaks for female production line workers, especially for pregnant or menstruating employees, could be brought to the Equal Employment Opportunity Commission as a Title VII civil rights violation, Gilbride said.

Employer View

Attorneys who defend employers against retaliation allegations said they expect plaintiffs’ lawyers to seek alternatives to OSH Act actions.

“It’s much better for them to find a private right of action,” said Robert Nichols, a partner at Bracewell LLP in Houston.

Rachel Conn, a partner at Nixon Peabody LLP in San Francisco, said supervisors need to be wary of a worker who is suddenly knowledgeable about standards outside their normal duties or is trying to back them into taking actions that could turn up in whistleblower complaint.

“When you’re up against somebody who is, for lack of a better word, baiting you into taking some sort of adverse action, it is going to be difficult for employers to navigate that in every situation,” Conn said.

An employer’s best defense is to have a program that encourages workers to raise concerns, even anonymously, and corrects problems, said Brian Hendrix, a partner at Husch Blackwell LLP in Washington.

One tactic good for workers is also good for employers.

“I tell my clients good note taking will help every time,” Hendrix said.

Clear About Concerns

Workers often don’t see their dismissal coming when they’ve warned employers about safety or health issues in the workplace, said Woodfield of The Employment Law Group.

When a worker comes to him with retaliation fears, Woodfield said he advises the worker to make it clear to supervisors the concerns being raised and to start documenting with notes and records the actions taken that are protected by whistleblower laws.

“We have them engage in a protected activity,” Woodfield said. The worker needs to raise concerns with supervisors, not stay silent about problems.

Filoromo had similar advice.

“Just document everything. Be very clear about what your concerns are because getting past that step of showing you engaged in protected activity is really what it comes down to before you can talk about anything else,” he said.

“If you haven’t documented it in writing it becomes a ‘he-said versus what a whole-bunch-of-them-said situation,’” Filoromo added.

This also could involve using company documents. But, Filoromo cautioned, workers should take from their worksites only documents relevant to their claim and aren’t considered by the employer to be trade secrets or privileged.

Taking the wrong or too many documents could put the claim in jeopardy if the employer successfully alleges the worker violated company rules.

“If you take the kitchen sink with you, you end up on the defensive,” Filoromo said.

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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