* The Manufacturing Law Blog provides timely commentary on issues of importance to manufacturers and distributors. Contributors from the law firm of Robinson & Cole LLP are corporate compliance and litigation attorney, Jeff White; environmental, health and safety attorney, Pam Elkow; and labor and employment attorney, Nicole Bernabo.
One of the goals of the Manufacturing Log Blog is to provide analysis of legal issues from different vantage points. Nicole, Jeff and I focus on different substantive areas for our clients that manufacturer or distribute products, and thus, we effectively offer a holistic approach to issues that arise. This is the second of periodic blog posts where each of us will comment on one issue with our individual areas of focus in mind. This post will focus on retaliation and whistleblower claims.
OSHA’s Whistleblower Protection Program enforces the whistleblower provisions of more than twenty whistleblower statutes protecting employees who report violations of various workplace safety, airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health insurance reform, motor vehicle safety, nuclear, pipeline, public transportation agency, railroad, maritime, and securities laws. Rights afforded by these whistleblower acts include, but are not limited to, worker participation in safety and health activities, reporting a work related injury, illness or fatality, or reporting a violation of the statutes.
As reported in EHS Today, President Obama has proposed a slight increase to OSHA’s FY 2014 budget, for a total of $570.5 million, with a proposed $5.9 million increase for whistleblower protections. In contrast, the President has proposed a $2 million decrease in compliance assistance. Clearly, the administration sees whistleblower protection as a priority, and it not putting as much faith in voluntary programs.
It is important to remember that OSHA is the agency that is tasked with protecting whistleblowers under a wide variety of laws, not just the OSH Act and OSHA standards. These include various environmental statutes, the Food Safety Modernization Act, the Consumer Financial Protection Act, found in Dodd-Frank, the Affordable Care Act, the Railway Safety Act, among others. And it’s serious about retaliation against those who raise complaints.
In the first three months of 2013, OSHA has proposed penalties ranging as high as $1.1 million for terminating workers who reported injuries, and has proposed penalties of more than $350,000 and $309,000, all railway companies and for violations of the Federal Railroad Safety Act. OSHA has also gone after other companies for retaliation, suing a construction in company and its individual owner for retaliating against an employee for reporting injuries.
In addition to the stiffer penalties that Pam has pointed out, OSHA also has a revised job site poster — required of all employers — which now prominently advises employees of their rights to file safety complaints, request OSHA inspections, and make whistleblower claims.
To put it succinctly, good faith, internal complaints should not be viewed as a headache. Rather, such a complaint could actually save a company millions of dollars as well as the company’s reputation. Whistleblower and retaliation complaints are slowly becoming manufacturing companies’ biggest worries. Although many companies claim that they are aware of the citations and civil fines meted out by OSHA, many have not been faced with a full blown OSHA investigation involving a disgruntled employee with a safety complaint.
In light of recent OSHA decisions favoring employees, as well as a recent increase in the number of reported retaliation claims, employers may wish to consider additional employee and supervisory training to ensure that the work environments are open to internal reporting of unlawful practices. Uniform handling of any internal complaints, including reporting outcomes to the complaining employees should be considered. Regardless of what specific measures employers decide to take regarding this issue, the company’s internal policies, procedures and education training should send a clear message to all employees that retaliation against whistleblowers will not be tolerated.
From a litigation perspective, whistleblower and retaliation complaints are often a precursor to full-blown litigation. As opposed to when a manufacturer or distributor is sued by a third-party, litigation brought by a former employee is almost always of the “high stakes” variety. Former employees that have involved the federal government may be looking to prove a point with a company. In that respect, many of the company’s internal secrets may be exposed during that litigation. As I often say to clients, the danger with this type of litigation is expansive because anything reported by that former employee in a deposition or court proceeding often becomes public, or at a minimum, becomes fodder for all future plaintiff’s lawyers who bring any kind of lawsuit. For that reason, as Nicole points out, it is important to create an environment where retaliation against whistleblowers will not be tolerated.