Discriminate At Your Peril

INTRODUCTION Most supervisors are not aware that a court can find them to be personally liable for money damages to a whistleblower under the Occupational Safety and Health Act. The typical assumption is that only employers can be held accountable to OSHA whistleblowers, but a recent court opinion from a federal court in Colorado debunks this notion and clarifies that liability extends to all “persons.”

STATUTE It is important to be aware that the Occupational Safety and Health Act contains specific provisions prohibiting retaliation against employees for engaging in “protected activity,” as follows:

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 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 this Act. 20 U.S.C. § 660(c)(1) (emphasis added).

Some examples of protected activity include filing a complaint with OSHA, participating in an OSHA inspection, and testifying against an employer. What many employers do not understand, however, is that protected activity can extend to complaints made by an employee at the workplace relating to safety and health concerns. It is also important to note that the employee does not have to use any “magic” language in order to fall within the category of protected activity. As the following analysis of case law indicates, the whistleblower provisions are an area of potential expanded liability for employers and supervisors.

CASE In Secretary of Labor v. Brighton Medical Clinic et al., No. 1:11-cv-02786 (D. Co., Sept. 25, 2012)the employee claimed she was unlawfully terminated after she complained to OSHA about her unsafe work environment. The Secretary of Labor sued the employer Brighton Medical Clinic as well as the doctor who owned the clinic and supervised the employee. The doctor attempted to dismiss himself from the lawsuit on the basis that he was not the employer. The Judge declined to dismiss the doctor because the whistleblower provisions of the Occupational Safety and Health Act state that “no person shall discharge or in any manner discriminate against any employee because such employee [has exercised her rights under the Act].” 20 U.S.C. § 660(c)(1) (emphasis added). The Judge further held that if Congress had intended that this provision of the Act only apply to employers, Congress would have said so. 

There are only two other published cases that interpret Section 660(c)(1) of the Occupational Safety and Health Act, both of which come to the same conclusion as the Brighton Medical Clinic case. In Donovan v. Diplomat Envelope Corp., 587 F.Supp. 1417 (1984), the Judge refused to dismiss the employer’s vice president from the case after a former employee claimed he was terminated by the vice president for complaining to his union about OSHA violations at the company. The Judge stated that the decision to keep the vice president in the case was easy because Section 660(c)(1) uses the term “person” not “employer.”

There are only two other published cases that interpret Section 660(c)(1) of the Occupational Safety and Health Act, both of which come to the same conclusion as the Brighton Medical Clinic case. In Donovan v. Diplomat Envelope Corp., 587 F.Supp. 1417 (1984), the Judge refused to dismiss the employer’s vice president from the case after a former employee claimed he was terminated by the vice president for complaining to his union about OSHA violations at the company. The Judge stated that the decision to keep the vice president in the case was easy because Section 660(c)(1) uses the term “person” not “employer.”

Reich v. State Credit, Inc., 897 F.Supp. 1014 (1995), a case involving somewhat bizarre circumstances, illustrates how attenuated this liability can become. A woman made a comment at a family event about health and safety issues at her workplace. Unbeknownst to the woman, her daughter related her comment to the city building department. After learning that a complaint had been made to the city building department, the manager of day-to-day operations at the mother’s workplace held a staff meeting and described the unknown complainant as a “low down person” or a “lowlife.” Incredibly, the manager somehow erroneously concluded that the mother complained to the city building department and confronted her. When the mother denied making the complaint, the manager called her a “dirty double-crossing liar” and told her to clear out her desk, leave the office, and find another job. Despite the fact that the mother never made a safety complaint, the Secretary of Labor sued the mother’s employer as well as the manager. When the manager attempted to get dismissed from the suit, the Judge held that he was not excused from liability simply because he was not the employer.

POTENTIAL DAMAGES The question many supervisors may have is what kind of damages they can be liable for. The Judge inDonovan v. Diplomat Envelope Corp pointed out that not all of the damages available to whistleblowers would be applicable to supervisors, for example reinstatement and back pay because supervisors cannot reinstate employees to employment nor are supervisors responsible for paying wages. However, OSHA frequently takes the position that if a supervisor is also the owner of the employing business, such as the doctor in the Brighton Medical Clinic case, then he or she should liable for all available damages including back pay and reinstatement. Other potential damages such as monetary damages for emotional harm and even punitive damages can be assessed against all supervisors. Although the full scope of individual liability for discriminating against OSHA whistleblowers has not been decided by the courts, it is clear that supervisors can be ordered to pay money to successful whistleblower plaintiffs.

RECOMMENDATIONS In order to avoid these potential liabilities, it is recommended that the employer take the following actions:

• Develop a program that prohibits retaliation against any employee who makes safety-related or other complaints.
• Ensure that all supervisors are properly trained in this policy and understand that retaliation is prohibited.
• Ensure that all safety related complaints are fully investigated by the employer before any adverse or negative action is taken against any employee.
• Before terminating or otherwise disciplining an employee, determine whether the employee has engaged in any protected act, and if so, make sure that the discipline that is imposed is based upon a reason having nothing whatsoever to do with protected activity, i.e. the employee would have been terminated or disciplined irrespective of whether he or she engaged in any protected activity.

CONCLUSION If employers implement the foregoing recommendations, they can significantly reduce the risk of their supervisory-level employees being found liability for monetary damages to OSHA whistleblowers. The authors have represented numerous employers in OSHA whistleblower litigation and look forward to assisting employers with developing anti-retaliation policies and responding to any allegations of whistleblower retaliation.