OSHA Whistleblower Retaliation Cases Continue to Rise

Based on the most recent statistics published by OSHA, the number of whistleblower retaliation cases being filed by employees has continued to rise.  In FY-2015, there were 3,288 cases filed, an increase of over 6% from the 3,098 cases filed in FY-2014.  This continued a long upward trend.  In fact, the number of whistleblower claims filed with OSHA has increased by over 70% since 2005, when only 1,934 cases were filed.  Along the same lines, more and more cases are being resolved in a way that is favorable to the complaining employee, either through a settlement or a finding that the whistleblower claim had merit.  In FY-2015, there were 835 cases that resulted in such a positive outcome for the complaining employee, which is more than double the 397 such cases in FY-2005.

Two recent OSHA Whistleblower cases underscore the need for Employers to be aware of these types of claims and to take precautionary measures.

  • On November 15th, OSHA announced that it had found that a Denver company, TruBlue, LLC, had unlawfully terminated an employee after the employee suggested to the company’s CEO that more safety research needed to be conducted on zip-line equipment. TruBlue develops and manufactures products used for climbing, zip-line, free-fall and other recreational activities.  OSHA has ordered TruBlue to pay the former employee $125,000 in back wages and to take other corrective actions.
  • On October 11th, OSHA announced the settlement of its lawsuit against Lear Corp. (dba Renosol Seating LLC. Lear manufactures foam seating for the automotive industry.  The lawsuit had been filed on March 4, 2016, following OSHA’s investigation had determined that employees who reported hazards from chemical exposure at the company’s Selma, AL plant suffered multiple forms of retaliation in violation of the OSH Act’s whistleblower provisions.  The settlement requires Lear to dismiss its lawsuit filed against one of the employees and to reinstate that employee to her former position.  In addition, the disciplinary records of the employees who had complained of the hazards will be purged from their personnel files, and those employees will be compensated for the work time lost due to the suspensions.  Lear also agreed to permit OSHA to provide annual training regarding protected rights under the OSH Act to all workers for a period of 3 years.

For assistance dealing with OSHA’s Whistleblower provisions or other OSHA-related issues please contact Doug E. Solomon, Esq., Chair of the Firm’s OSHA Practice Group and Partner in the Labor Law Practice Group.  Mr. Solomon can be reached at dsolomon@nullgenovaburns.com or (973) 535-7128.

OSHA Issues Controversial Opinion Letter Concerning Union Presence During Inspections

Employers should be aware of a recent opinion letter issued by OSHA, the branch of the United States Department of Labor charged with enforcing federal law governing workplace safety and health. The opinion letter raises new challenges for employers, especially those seeking to remain non-union.

OSHA inspections, which generally occur unannounced, can arise for any of a number of reasons such as in response to a workplace accident or injury or because the employer’s industry is being targeted by OSHA. Federal law provides that an employer representative and a representative on behalf of employees may accompany the investigator during an OSHA inspection. If an OSHA inspector finds good cause is shown why a non-employee third party is “reasonably necessary” to help facilitate the inspection, a third party may also accompany the investigator. Until now, a third party has usually been interpreted to mean someone such as an industrial hygienist or safety engineer who can make a positive contribution to a thorough and effective investigation.

Now, for the first time, OSHA has interpreted the statute as permitting third party participation in an inspection by a union representative even in a non-unionized workplace. While OSHA explains in the opinion letter how it believes a union representative may make a “positive contribution” to an investigation in a non-unionized setting, OSHA’s justifications are largely unavailing.

By interpreting the statute in such a broad manner, OSHA has provided unions with unprecedented access to non-unionized workplaces. This should raise many concerns for employers. For example, union representatives may use the opportunity for organizing purposes where they are otherwise prohibited from accessing businesses for such purposes. Union representatives may also gain the ability to custom-tailor an organizing campaign based on observations made or using information obtained during the inspection. OSHA also appears to have ignored other threats to employers by allowing union participation in safety inspections such as exposing outsiders to confidential and proprietary information.

We will continue to monitor developments on OSHA’s interpretation. For more information on OSHA’s opinion letter and managing OSHA investigations, please contact Douglas E. Solomon, Esq. or Douglas J. Klein, Esq. in the Labor Law Practice Group.