OSHA Suit Linked to Bullying

osha-logoThe U.S. Occupational Health and Safety Administration (OSHA) has initiated what appears to be one of its first – if not its first – lawsuit involving  workplace bullying.

The U.S. Department of Labor (DOL) filed the lawsuit earlier this month against a Fort Lauderdale business owner who fired a worker after the worker complained to OSHA that the worker was subjected to discrimination because he complained about hostile workplace conditions at the company.

According to an OSHA press release, Duane Thomas Marine Construction LLC and its owner, Duane Thomas, are charged with terminating the worker in violation of Section 11(c) of the Occupational Safety and Health Act (OSH Act).  Section 11 (c)  prohibits discriminating against any employee because the employee has filed a complaint related to the OSH Act or has exercised a right  afforded by the Act.  The employee was not identified by OSHA.

The case  involves what appears to be essentially a campaign of workplace bullying.

The OSHA press release states the employee complained that Thomas on numerous occasions between Dec. 9, 2009 and Feb. 25, 2011 “committed workplace violence and created hostile working conditions. He allegedly behaved abusively, made inappropriate sexual comments and advances, yelled, screamed and made physically threatening gestures, in addition to withholding the employee’s paycheck.”   The employee worked directly for Thomas at the company’s custom marine dock installation services site on Marco Island.

The case is significant because the General Duty Clause of the OSH Act requires employers to provide safe and healthful workplaces for their employees.  However, OSHA has not shown any leadership with respect to workplace bullying, even  though overwhelming research shows that workplace bullying causes potentially serious short and long-term health consequences.  OSHA typically enforces safety standards that relate to traditional industrial hazards, such as high noise levels, chemical exposure, electrical or fall hazards, etc.

Shortly after Thomas was notified of the OSHA complaint, OSHA states that Thomas  had the company’s computer passwords changed to deny the employee remote access to files and then terminated the employee.

The lawsuit seeks back wages, interest, and compensatory and punitive damages, as well as front pay in lieu of reinstatement. Additionally, it seeks to have the employee’s personnel records expunged with respect to the matters at issue in the case and to bar the employer from committing  future violations of the OSH Act.

Teresa Harrison, OSHA’s acting regional administrator in Atlanta, said, “Employees have the right to raise workplace violence concerns without fear of retaliation.”

The lawsuit, Solis v. Duane Thomas Marine Construction LLC and Duane Thomas, was filed in the U.S. District Court for the Middle District of Florida, Fort Myers Division.

Employees who believe that they have been retaliated against for engaging in protected conduct may file a complaint with the Secretary of Labor requesting  an investigation by OSHA’s Whistleblower Protection Program.   The  program enforces the whistleblower provisions of more than 20 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.

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