More than $1 Million in Back Wages and Damages to be Paid

OSHA has ordered AirTran Airways, a subsidiary of Dallas, Texas-based Southwest Airlines Co., to reinstate a former pilot who was fired after reporting numerous mechanical concerns. The agency also has ordered that the pilot be paid more than $1 million in back wages plus interest and compensatory damages. An investigation by OSHA’s Whistleblower Protection Program found reasonable cause to believe that the termination was an act of retaliation in violation of the whistleblower provision of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, known as AIR21.

“Airline workers must be free to raise safety and security concerns, and companies that diminish those rights through intimidation or retaliation must be held accountable,” said OSHA Assistant Secretary Dr. David Michaels. “Airline safety is of vital importance, not only to the workers, but to the millions of Americans who use our airways.”

The pilot’s complaint alleged that the airline removed him from flight status on Aug. 23, 2007, pending an investigative hearing regarding a sudden spike in the pilot’s mechanical malfunction reports, or PIREPS. The airline held an internal investigative hearing on Sept. 6, 2007, that lasted 17 minutes. Seven days later, the airline terminated the pilot’s employment, claiming that he did not satisfactorily answer a question regarding the spike in reports. OSHA found that the pilot did not refuse to answer any questions during the hearing, answers to questions were appropriate, and the action taken by the airline was retaliatory.

“Retaliating against a pilot for reporting mechanical malfunctions is not consistent with a company that values the safety of its workers and customers,” added Michaels. “Whistleblower laws are designed to protect workers’ rights to speak out when they have safety concerns, and the Labor Department will vigilantly protect and defend those fundamental rights.”

Either party to the case can file an appeal with the Labor Department’s Office of Administrative Law Judges, but such an appeal does not stay the preliminary reinstatement order.

AirTran Airways is a subsidiary of AirTran Holdings Inc. with headquarters in Orlando. On May 2, 2011, Southwest Airlines completed the acquisition of AirTran Holdings Inc. and now operates AirTran Airways as a wholly-owned subsidiary.

OSHA enforces the whistleblower provision of AIR21, as well as 20 other statutes protecting employees who report violations of various securities, trucking, workplace health and safety, nuclear, pipeline, environmental, rail, maritime, health care, consumer product and food safety laws.

Employees who believe that they have been retaliated against for engaging in protected conduct may file a complaint with the secretary of labor for an investigation by OSHA’s Whistleblower Protection Program.

Detailed information on employee whistleblower rights is available online at http://www.whistleblowers.gov.  The U.S. Department of Labor does not release names of employees involved in whistleblower complaints.

Piping Technology and Products Misled OSHA about Amputation Hazard

Following a complaint from an employee, OSHA cited Piping Technology and Products Inc. for 13 willful and 17 serious violations for exposing workers to the risk of amputations and other serious injuries from dangerous machinery, as well as other hazards, at the company’s Houston facility. Proposed penalties total $1,013,000.

“Repeatedly ignoring the law while risking workers’ lives and providing misleading information to federal investigators will not be tolerated,” said Secretary of Labor Hilda L. Solis. “Employers who endanger the lives and limbs of their employees must be held accountable.”

A worker at Piping Technology contacted OSHA earlier this year, alleging a lack of brakes on overhead cranes and unguarded presses at the company’s facility on Holmes Road. This complaint triggered an investigation by OSHA’s Houston South Area Office. In addition to substantiating the complaint items, the inspection found that employees were permitted to cut metal I-beams and pipes without the proper machine guarding, which exposed them to possible severe injuries. Additionally, OSHA inspectors found that during machine maintenance, workers were exposed to the unexpected release of stored energy because of improper safeguards.

“Piping Technology deliberately exposed its workers who operate band saws and other dangerous machinery to amputation hazards while misleading OSHA investigators about the use of these machines,” said Assistant Secretary of Labor for OSHA Dr. David Michaels.

The willful violations involve the failure to guard seven band saws and to lock out all of the sources of hazardous energy to six pieces of equipment before service and maintenance. Each of the 13 citations carries a penalty of $70,000, for a total of $910,000. A willful violation is one committed with intentional knowing or voluntary disregard for the law’s requirements, or with plain indifference to employee safety and health.

The 17 serious violations, with penalties totaling $103,000, involve the failure to guard other machines and grinders properly, ensure that openings on electrical equipment were securely closed, provide fall protection training and ensure that employees wore hard hats when exposed to overhead hazards. A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known.

Piping Technology had knowledge of OSHA requirements due to citations issued in 1986, 1994, 2004 and 2005 that specifically addressed the need to guard the band saws used in production processes. In 2004 and 2005, OSHA cited the company with penalties totaling $82,500 and $33,000, respectively, for a variety of workplace hazards that included lockout/tagout violations.

OSHA has placed Piping Technology in its Severe Violator Enforcement Program, which mandates targeted follow-up inspections to ensure compliance with the law. Initiated in June 2010, the program focuses on recalcitrant employers that endanger workers by committing willful, repeat or failure-to-abate violations. For more information on SVEP, visit http://s.dol.gov/J3.

The citations can be viewed at http://www.osha.gov/ooc/citations/Piping-tech-prod-312928344-1228-11.pdf*.

Whistleblower Employee to be Rehired

OSHA ordered Omaha based Union Pacific Railroad Co. to immediately reinstate an employee in Idaho who was terminated after reporting a work-related injury. OSHA also has ordered the company to pay the employee more than $300,000 in back wages, compensatory damages, attorney’s fees, and punitive damages.

The employee filed a whistleblower complaint with OSHA, alleging suspension without pay and then termination 23 days after notifying the company of an on-the-job injury. OSHA’s investigation found reasonable cause to believe that the disciplinary charges and termination were not based on the complainant breaking a work rule but on the complainant reporting an injury to the railroad, in violation of the Federal Railroad Safety Act’s whistleblower protection provisions. Union Pacific Railroad Co. was found to have similarly violated the FRSA in four other cases elsewhere in the U.S. since 2009.

“This case sends a clear message that OSHA will not tolerate retaliation against workers for reporting a work-related injury. An unreported injury is an uninvestigated injury. Nothing is learned that can help prevent the next injury,” said Assistant Secretary of Labor for OSHA Dr. David Michaels. “The safety of all workers is endangered when employers intimidate injured workers so that they do not report injuries.”

In addition to reinstatement and monetary compensation, OSHA has ordered the railroad to refrain from retaliating against the employee for exercising rights guaranteed under the FRSA.

Read OSHA news release.

Employee of Miami Beach Store Allegedly Fired for Complaining about Raw Sewage Spill

OSHA has sued Whole Foods Market Group Inc. to reinstate a former employee with full back wages and benefits after the company allegedly fired the worker for voicing and reporting workplace health concerns regarding a raw sewage spillage at its store in Miami Beach.

The lawsuit, filed in the US District Court for the Southern District of Florida, Miami Division, resulted from an investigation by OSHA that found the company violated the whistleblower protection provisions of Section 11(c) of the Occupational Safety and Health Act by unlawfully and intentionally terminating the individual’s employment at the store, which is located at 1020 Alton Road.

“OSHA takes allegations of workplace discrimination very seriously,” said Teresa Harrison, OSHA’s acting regional administrator in Atlanta, GA. “These types of allegations are thoroughly investigated, and employers violating the whistleblower protection provisions of the OSH Act are held accountable and prosecuted to the fullest extent of the law.”

OSHA is asking the federal court to remedy the situation by issuing an order that includes a permanent injunction against Whole Foods to prevent future violations of this law; reinstating the former employee with full benefits; paying back wages, punitive damages and compensatory damages to the employee; expunging the employee’s personnel file with respect to the matters at issue in this case; and granting any other appropriate relief.

On Nov. 2, 2009, the employee voiced concerns to a supervisor alerting him that a sewer line, which had ruptured on Nov. 1, was still spilling into the workplace including, but not limited to, the specialty cheese department and the restrooms. The employee then called the company’s anonymous tip line, since no corrective actions had been conducted by store management. On Nov. 5, the worker contacted another manager expressing concern that the problem had not been corrected. Whole Foods then fired the worker on Nov. 5 for allegedly making false and malicious statements to the effect that management had not taken any steps to redress the sewage contamination at the workplace.

Whole Foods Market is a retail food store chain with its main office in Austin, TX. OSHA is represented in court by the Labor Department’s Regional Office of the Solicitor in Atlanta.

OSHA enforces the whistleblower provisions of Section 11(c) of the OSH Act and 20 other statutes protecting employees who report violations of various securities, trucking, airline, nuclear, pipeline, environmental, rail, maritime, health care, workplace safety and health, consumer product and food safety laws.

Under the various whistleblower provisions enacted by Congress, employers are prohibited from retaliating against employees who raise various protected concerns or provide protected information to the employer or to the government. Employees who believe they have been retaliated against for engaging in protected conduct may file a complaint with the secretary of labor for an investigation by OSHA’s Whistleblower Protection Program. Detailed information on employee whistleblower rights, including fact sheets, is available online at http://www.whistleblowers.gov.

US Labor Department’s OSHA orders Burlington Northern Santa Fe Railway in Seattle to pay more than $300,000 to suspended whistleblower employee.

Federal OSHA has ordered Burlington Northern Santa Fe Railway Co. to pay an employee more than $300,000 representing back wages, compensatory damages, attorney’s fees and punitive damages.

The employee filed a complaint with OSHA, alleging that she was suspended without pay for 30 days after notifying the company of a work-related injury. OSHA’s investigation substantiated the allegation and found reasonable cause to believe that the railroad had retaliated against the worker in violation of the Federal Railroad Safety Act’s whistleblower protection provisions.

“The Federal Railroad Safety Act forbids railroad companies from disciplining employees for reporting work-related injuries and illnesses,” said Dean Ikeda, OSHA’s regional administrator in Seattle. “This case sends a clear message that OSHA will not tolerate retaliation against whistleblowers. Employees need to be able to report on-the-job injuries without fear of reprisal.”

The employee reported a work-related injury and was taken to an emergency room for treatment. BNSF managers followed the employee to the hospital and received an injury report, but BNSF later accused the employee of failing to furnish adequate information about the injury. The employee was suspended and also assessed 40 points under the company’s personal performance index. OSHA’s investigation determined that the assignment of 40 points was not based on the complainant violating a safety regulation or rule, but instead on the complainant having a reportable injury.

OSHA enforces the whistleblower provisions of 21 laws protecting employees who report violations of various securities, trucking, airline, nuclear, pipeline, environmental, railroad, public transportation, workplace safety and health, consumer product safety, health care reform and financial reform laws. Under these laws enacted by Congress, employers are prohibited from retaliating against employees who raise various protected concerns or provide protected information to the employer or to the government. Employees who believe that they have been retaliated against for engaging in protected conduct may file a complaint with the secretary of labor for an investigation by OSHA’s Whistleblower Protection Program. Detailed information on employee whistleblower rights, including fact sheets, is available online at http://www.whistleblowers.gov.

US Labor Department orders Union Pacific Railroad to reinstate and compensate employee disciplined for reporting work-related injury

KANSAS CITY, Mo. – The U.S. Department of Labor’s Occupational Safety and Health Administration has ordered the Union Pacific Railroad Co., headquartered in Omaha, Neb., to immediately reinstate an employee to his former position with the same pay and benefits, and to pay the employee more than $200,000, representing back wages, compensatory damages, attorney’s fees and punitive damages.

An OSHA investigation upheld the employee’s allegation that the railroad terminated his employment in retaliation for reporting a work-related injury. The railroad charged the injured employee with the most severe form of discipline under its progressive discipline policy even though the investigation found that he was not at fault. The employee was subsequently dismissed from service on a pretext.

“An employer does not have the right to retaliate against employees who report work-related injuries,” said Charles E. Adkins, OSHA’s regional administrator in Kansas City. “While OSHA is best known for ensuring the safety and health of employees, it is also a whistleblower protection agency.”

The railroad carrier was further ordered to provide whistleblower rights information to its employees. Either party in the case can file an appeal with the Labor Department’s Office of Administrative Law Judges.

OSHA conducted the investigation under the whistleblower provisions of the Federal Railroad Safety Act, as amended by the 9/11 Commission Act of 2007. Railroad carriers are subject to the provisions of the FRSA, which protects employees who report violations of any federal law, rule or regulation relating to railroad safety or security, or who engage in other activities protected by the act.

December 29th 2009

Freehold, NJ, company fails to comply with federal court order in OSHA whistleblower case; US marshals seize vehicle

U.S. marshals accompanied by special agents from the U.S. Department of Labor’s Office of the Inspector General today seized a vehicle at the residence of Richard Kohler, president of Brocon Petroleum Inc., after Brocon Petroleum and Kohler failed to pay $7,500 in back wages to a former employee. The back wages were the result of a consent judgment filed in the U.S. District Court for the District of New Jersey to resolve a lawsuit filed by the Labor Department in March 2008.  

The suit was filed after OSHA found the company had violated the whistleblower provisions of the Occupational Safety and Health (OSH) Act. An investigation by OSHA’s Whistleblower Protection Program found the defendants had terminated the employee in retaliation because they suspected he had called OSHA and caused an inspection. The defendants fired the complainant following the inspection of the employer’s worksite conducted by OSHA in response to an anonymous complaint about safety practices at the worksite. Under the consent judgment, Brocon Petroleum had agreed to pay the former employee’s back wages in addition to removing all reference to suspension or discharge from the employee’s personnel file and posting a notice notifying current employees of their whistleblower rights. However, the company failed to comply with the monetary terms of the consent judgment.

“This action should send a clear message that there will be consequences for retaliating against employees who engage in activities protected by law,” says Robert Kulick, OSHA’s regional administrator in New York. “While OSHA is best known for ensuring the safety and health of employees, it is also a whistleblower protection agency.”




Top Stories

OSHA has ordered Southern Air Inc., a Norwalk, Conn.-based air cargo carrier, to withdraw a lawsuit it filed against nine former employees and pay them more than $7.9 million in wages, damages and legal fees.

Southern Air filed a defamation lawsuit against the former employees in Connecticut Superior Court in May 2008 after some of the workers raised air carrier safety concerns with Southern Air, OSHA and the Federal Aviation Administration (FAA). The workers, all former flight crew members, subsequently filed a whistleblower complaint with OSHA.

OSHA’s investigation found that the company’s lawsuit was filed in retaliation for the workers’ protected activities under the whistleblower provisions of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21).

“This order sends a strong and clear message that these and other workers have the right to raise safety issues with their employers and regulatory agencies without fear of retaliation and intimidation,” said U.S. Secretary of Labor Hilda L. Solis. “The Labor Department will vigorously investigate such allegations and, where merited, order appropriate remedies for workers.”  As a result of its investigation, OSHA issued a notice of findings and order to Southern Air directing the airline to do the following: