OSHA Whistleblower
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- čas přidán 25. 10. 2018
- In this month's podcast, Stuart J. Oberman, Esq. of Oberman Law Firm provides a review of the OSHA Whistleblower Statute. Mr. Oberman discusses retaliatory employment practices that violate federal law and reviews the grounds that an employee may have for wrongful termination. During the podcast, Mr. Oberman explains some of the penalties and sanctions that affect a practice owner if they violate OSHA's Whistleblower Statute.
protect your employees. period. stop painting them as disgruntled and be responsible.
I can't believe there are no other comments in 2 years. As an OSHA whistleblower I have a different perspective. Sometimes employers cut serious safety corners and something needs to be said. You are spot on, on documentation. I disagree that you can't fire an employee who has filed an OSHA complaint, but you darned well better do it right. Follow your procedures, document document document document document. If you need to terminate employment, don't make things up. Be conservative with your reasons and don't "enhance" things. In my case, I was both perplexed and relieved that my former employer chose to list demonstrably false reasons for adverse action. I'm wondering at what point a former employee might be successful in a 1983 action, despite the fact there is no private right of action in OSHA retaliation complaints, the right to not be retaliated against is a federal right. 1983 is a catch all remedy, and the Supreme court, I believe, has stated that for every violation of law there is a remedy. There are punitive damages available under 1983 and no damage caps. Another thing many people don't know is that individuals are prohibited from retaliation, and I can see OSHA starting to take action against persons in their individual capacities, not just their companies or organizations. Particularly with public employers, there simply isn't a mechanism to discourage vengeful employers from retaliating unlawfully, spending a virtually unlimited amount of money dragging out frivolous defenses for years or even decades at an overwhelming expense, and then walk away scot free while someone else pays the bill. There was an OSHA case in Idaho where a school fired an employee for reporting concerns about asbestos and the retaliated against another employee who participated i the resultant investigation. Recently, I was in a focus group that was a jury in a mock trial. Obviously I cannot discuss the details. There were two general takeaways, though. First is to reiterate the importance of documentation. If an employee does something improper, document it contemporaneously. Make a good faith effort to be sure that there was actual misconduct. The second takeaway is that attorneys are people, and people sometimes believe their own baloney. I saw defense attorneys so utterly dumbfounded that both test juries returned multi million dollar verdicts in cases they apparently thought were slam dunk wins. At least they had the foresight to do the focus group (I assume it was the defense). They were questioning specifics as to why the juries made the decisions they did and so on. I think it really all came back to two things: lack of documentation, and not following procedure. If you take a case to a jury, and your clients did not thoroughly document things, and they did not follow their own procedures, you will get your proverbial head handed to you on a platter. Another thing counsel should understand is that your clients are problematic. Perhaps you already do. You say do nothing and they open an investigation. If an employer fires an employee, under conditions sufficient to constitute a blacklisting, and then they spend tens or even hundreds of thousands of dollars defending their actions instead of just parting as amicably as possible, then that alone is pretty strong evidence of animus. Why would you spend years and thousands of dollars harming or even impeding someone that you don't have animus towards? Clients, espeicially those working with somone else's money, tend to deny, avoid, obfuscate, double down, and so on, and in my opinion counsel needs to be the voice of reason to mitigate damages. In every case that results in big verdicts, there was a moment in time where cooler heads could have prevailed, when damages were at or near zero. I wonder how many attorneys fan the flames as they are the only parties who benefit from protracted litigation.
Great insight! But im confused on this, “clients did not thoroughly document things and they did not follow their own procedures, you will get your proverbial head handed to you on a platter.” What does that mean? Client as in whistleblower?
@@roberte362 Not my best writing. Clients as in the employer. Employers are expected bu juries to document employee misconduct. They can't say the employee did a bunch of stuff later, there be no evidence of it, and convince anyone. It doesn't even matter if the employee was a lousy employee, and sometimes they are. Employers also have to show they followed policy consistently. If they have 10 lousy employees all committing overtime fraud, say, and they only fire the one who called OSHA, it's probably going to be determined that they fired that one because they blew the whistle. Suppose they claim an employee was bad and was ripping the compny off as far back as 5 years ago, the question still becomes "why now?" A well documented chain of progressive discipline is a defense. Essentially, it is illegal to fire someone because they called OSHA, and "because" is the operative word. If a reasonable person thinks that it is more likely than not that the protected activity was the reason, then the employee wins. There should be two schools of thought. First, most private employers except very very large companies, don't wnat to spend money on lawyers, even if they prevail, what's the point of spending $50,000- $200,000 to fire an employee? Public employers, such as schools, just don't care. They get paid, win or lose, and so do their attorneys. Still, I scratch my head some times. There's a case in Alaska inolving Bald Mountain Aviation. A pilot reported that they were skimping on safety, in 2012, and was fired and filed a complaint with OSHA. The investigation took 4 years, (in my best guess) because attorneys for the company assured thier client they could win. OSHA ordered $500,000 in back pay and restitution in 2016. Once again (my opinion) attorneys for the aviation company were well paid to dig their clients' graves and convinced them that they would win on appeal and they appealed. In 2018 the former employee prevailed again, and this time the amount was $750,000 with interest and other considerations. What did the newspaper article say? Despite the aviation company losing $125,000 per year plus legal expenses during the appeal, and ($125,000 per year during the previous 4 years, on average), they announced they found hope in the judge's decision and were debating appealing it. I haven't been able to find out more on the case.
So, my employer let a propane gas leak go in the back stockroom for 2 whole days. I told safety. She did nothing. The back end of the store could have blown up. Now, tell me good sir, am I wrong for reported a safety complaint to OSHA and wishing not to be retaliated against? This was a major box store we're talking about here. The person in charge of safety makes plenty and should have known better. Protocol is to evacuate. That never happened. No evacuation order was given. I absolutely contacted OSHA. Our HR and store safety team operate like it's high school. I absolutely contacted OSHA as well as the District Manager. If I were to only contact the District Manager, I would have been blown off and told the sun wasn't shining in broad daylight. With OSHA CC'd in the email, he took the matter seriously. He admitted there was a propane leak. Best Practices were not followed. All of this is on the record and I recorded the entire thing. I saw them carrying the propane bottles out of the back of the store this morning. It had no business inside the store in the first place. You are absolutely 100% correct I called OSHA. Quit blaming the workers. I am so fed up with these corporate types BLAMING THE EMPLOYEES.
So it's presumed that the employer knew that the complaint was filed.
I called an OSHA about my employer telling employees it was safe to stare into the sun, work outside in lightning storms, and racism...all on audio recording... and they wouldnt even take the evidence.
A recording without permission by the party being recorded is an illegal breach of that person's rights and as evidence it is inadmissable in court or any other legal proceeding.
Did you file or attempt to file a whistleblower complaint with OSHA with in the 30 day statute of limitations. Were you able to file a Safety and Health complaint online with OSHA at www.osha.gov within the 180 days statute of limitations. If you filed either they should be a record of your complaint with OSHA and you can use the freedom of information act to request a copy of the files if they have already closed your case.
Was this at a construction site with an employer with more than 20 employees?
Your post says it is 9 months old.
I hope you are doing well.
So OSHA whistleblower complaint is a federal investigation.
Lol imagine defending employers.
I knew that I had a right to file a valid complaint against Polo Ralph Lauren and provide supported evidence; but on 3 occasions, Daniel Nance prohibited 🚫 me.
I called osha on my ex job due to lots of violations poor housekeeping containers not properly labeled even spray bottles not label and the employee shower was extremely filthy and thats when osha came out and give them fines and lied under their oath by email claiming that they clean the shop every 2 weeks which was not true
They also go to workers comp attorney
Its a layer of protection 😂
Are you still in practice???
Have fun dancing
Lol I’m this guys worst nightmare
What are some laws you think are mainly used to safe guard whistleblower??
Conscientious Employee Protection Act, this is what happens when they don't follow the laws