Back to Basics is a weekly feature that highlights important but possibly overlooked information that any EHS professional should know. This week, we examine how the Department of Labor handles safety litigation.
When the Occupational Safety and Health Administration (OSHA) cites an employer for safety and health violations, the employer may simply document steps taken to abate the workplace hazards and arrange to pay the OSHA penalties. However, an employer may contest OSHA’s citations before the Occupational Safety and Health Review Commission.
When that happens, OSHA is represented before the review commission and its administrative law judges (ALJ) by the Department of Labor’s (DOL) Office of the Solicitor. The solicitor’s office also represents OSHA in cases before ALJs within the DOL.
Depending on the commission or ALJ’s decision, a workplace health and safety or whistleblower retaliation case can end up in litigation in federal court. The solicitor’s office provides legal services in federal court for OSHA, the secretary of labor, and other DOL agencies, including the Mine Safety and Health Administration (MSHA) and Wage and Hour Division (WHD).
The solicitor’s office also provides “pre-referral” legal assistance to the agencies of the DOL, as well as support for rulemaking.
Annual enforcement report
The Solicitor of Labor’s office recently released its annual enforcement report for fiscal year (FY) 2023. Most of the solicitor’s office enforcement work involves addressing employer retaliation and worker misclassification.
Employer retaliation undermines DOL agencies’ ability to conduct investigations. The antiretaliation, or “whistleblower,” protections of the Occupational Safety and Health (OSH) Act of 1970 allow workers to file complaints and cooperate with agency investigators. OSHA’s whistleblower protection authority, first established in the OSH Act, now extends to more than 20 federal statutes, ranging from aviation, commercial motor carrier, consumer product, food, motor vehicle, nuclear, and pipeline safety to anti-money laundering, criminal antitrust, environmental, financial reform, health insurance reform, maritime, public transportation, railroad, securities, and tax laws.
During FY 2023, the solicitor’s office obtained temporary restraining orders (TROs) or preliminary injunctions related to 19 retaliation cases, filing cases to reinstate workers who were terminated for protected activities like raising safety concerns or refusing to do unsafe work. Those efforts have continued into 2024.
This February, a federal court ordered a Milford, Connecticut, sports bar to pay a total of $359,485 in back pay, emotional distress damages, withheld compensation, and punitive damages to employees who were fired after participating in an OSHA inspection.
Attorneys in the solicitor’s office filed suit in the U.S. District Court for the District of Connecticut against Milford Sports Bars LLC, doing business as Champions Grill, and its owner. DOL attorneys alleged that, after employees were fired, the employer sought to further discourage employees from engaging in activities protected under the OSH Act, such as cooperating with federal investigators, by sending a message to employees that they shouldn’t talk to OSHA inspectors.
The solicitor’s office also has litigated several whistleblower cases in which workers filed complaints or voiced concerns over COVID-19 hazards and were met with retaliation, including termination. Much of the retaliation occurred in 2020, but the cases were finally resolved in 2023.
Last spring, DOL attorneys obtained a consent judgment in the U.S. District Court for the Western District of Texas, Austin Division, compelling an Austin, Texas, Porsche dealership to pay $15,000 in compensatory damages to a whistleblower who was terminated after informing coworkers of their COVID-19 exposure risk.
An employee of the luxury auto dealership learned in December 2020 that a coworker had tested positive for COVID-19. The employee alerted the company’s management, requesting that the dealership immediately notify other employees of their exposure risk.
After the dealership chose not to notify workers, the employee e-mailed all company employees about the potential hazard. Less than an hour later, the car dealer terminated the employee.
In another DOL whistleblower suit resolved last year, a dental hygienist and dental assistant won $15,706 in back wages from North Texas dentists who fired them for raising concerns about COVID-19 safety measures in spring 2020. The North Richland Hills, Texas, dentists’ office furloughed the two employees when the state banned specific dental procedures in March and April 2020 at the height of the pandemic.
During the furloughs, the dental hygienist and dental assistant asked what safety measures would be in place when employees and patients returned. The practice said it wouldn’t reinstate the hygienist, citing health and safety guidance from OSHA and the Centers for Disease Control and Prevention (CDC).
After the dental assistant inquired about coronavirus safety measures, the practice rescinded a rehire offer. Both employees were terminated by the practice.
OSHA investigators determined the employer had retaliated against the workers for raising health and safety concerns, and the solicitor’s office filed suit in July 2021 in the U.S. District Court for the Northern District of Texas, Fort Worth Division.
The DOL filed a similar suit against an Amsterdam, New York, ophthalmologist for firing an employee who raised concerns about the practice’s failure to implement state-mandated protocols protecting employees from COVID-19 and later filed complaints with state health officials.
The solicitor obtained a consent judgment in federal district court in Idaho in September 2023 providing for $50,000 in damages to two Idaho dog daycare workers who were fired for expressing COVID-19 workplace safety concerns. The employer fired the two employees after they expressed concerns about working with a coworker awaiting COVID-19 test results. The House of Hounds LLC and its former owner also challenged the employees’ unemployment claims, telling the State of Idaho DOL that the workers “quit.”
The solicitor’s office obtained a public apology, an injunction against future violations of the OSH Act’s antiretaliation protections, and training and notices to prevent future retaliation.
The solicitor’s office obtained a decision in May 2023 in the U.S. District Court for the Western District of Washington granting the department’s motion for summary judgment against the U.S. Postal Service (USPS). The ruling held that the USPS unlawfully terminated a worker for filing an injury report. The USPS had stopped conducting performance evaluations for a probationary employee after he filed his injury report and then terminated him before the end of his new hire probation period.
In addition to its antiretaliation litigation, much of the solicitor’s office enforcement work is focused on workers’ misclassification as independent contractors. The worker protections and employer duties under the OSH Act arise from the employer-employee relationship. Many of the DOL’s other protections (wages, overtime pay) also rely on establishing an employment relationship.
Safety and health enforcement cases
The solicitor’s office also pursues litigation to resolve OSHA citations of safety and health violations before the review commission, before a DOL ALJ, or in federal court.
Last summer, the solicitor’s office obtained a favorable decision for OSHA from an ALJ holding a Maine roofer personally responsible for failing to ensure the use of required fall protection that led to an employee’s fall and death on the job. A worker at a Portland, Maine, worksite was in the process of climbing off a roof onto a ladder jack scaffold when he lost his footing on the roof and fell. Injuries sustained in the fall led to his death. The worker wasn’t wearing any personal fall arrest system. OSHA had repeatedly cited the employer for violations of the fall protection standard since September 2006.
The judge affirmed 14 willful, 2 repeat, and 4 serious OSHA citations. The ALJ held the roofer individually liable for more than $1.5 million in penalties.
Employers sometimes agree to pay OSHA penalties as part of settlement agreements and establish more robust safety and health protections in their workplaces.
The solicitor’s office negotiated a settlement agreement last December between OSHA and Cambria, Wisconsin, corn milling company Didion Milling Inc. for $1.8 million in OSHA penalties related to a May 31, 2017, dust explosion that killed five workers and injured more than a dozen others. The settlement agreement before the review commission resolved OSHA citations resulting from the explosion and fires.
As part of the settlement agreement, the employer agreed to make extensive safety improvements, including:
- Developing a corporatewide safety and health management system within 6 months with input from management and workers and creating a safety committee;
- Meeting with OSHA at least yearly to discuss safety and health issues;
- Working with third-party experts to ensure mechanical integrity of key pieces of equipment;
- Conducting hazard analyses on grain dust and the need for flame-resistant personal protective garments;
- Providing time, equipment, staff, and training related to combustible dust housekeeping and performing mechanical integrity equipment inspections, tests, and preventive maintenance;
- Developing a management-of-change program and procedure overseen by a qualified person knowledgeable in the fire and deflagration hazards of agricultural or food dust;
- Reviewing changes to grain-processing equipment, including mills, dryers, dust collector filters, and bucket elevators, for safety compliance;
- Creating an incident reporting and investigation system to identify incidents that include severe near misses, severe injuries, combustible dust fire, deflagration and explosion events, and material releases;
- Conducting emergency planning and response training with the local fire department annually, if practical;
- Training employees on the updated safety and health management system within 30 days of implementation; and
- Conducting training in languages employees understand.
Company executives and supervisors were convicted in a related criminal case for falsifying documents and obstructing OSHA’s investigation. Other company officials pleaded guilty earlier in federal court to charges related to the incident. The company itself pleaded guilty to charges related to falsifying the mill’s cleaning and baghouse logs and agreed to pay restitution of more than $10 million to the explosion’s victims and a $1 million criminal fine.
The solicitor’s office also worked with OSHA in reaching its corporatewide settlement agreement with Dollar Tree, Inc., operator of 16,000 Dollar Tree and Family Dollar stores.
Supreme Court loss
Of course, the DOL doesn’t win all its cases. In January 2022, the U.S. Supreme Court issued a stay of OSHA’s November 5, 2021, COVID-19 “vaccinate-or-test” emergency temporary standard (ETS). The justices concluded that OSHA exceeded the authority granted by the OSH Act when it issued the ETS. The statute didn’t authorize the agency to issue a broad public health measure with vast economic significance, the majority wrote.
The solicitor’s office works with OSHA and other DOL agencies before litigation, as well as in the full range of legal venues.