In an unexpected policy shift that should encourage whistleblowers and those concerned about workplace safety, the U.S. Department of Labor (DOL) has begun aggressively pursuing lawsuits under a whistleblower protection statute that had lain largely dormant for years.
Section 11(c) of the Occupational Safety and Health Act (“OSH Act”) protects workers from retaliation for, among other things, reporting an injury or raising a safety or health complaint with their employer. The OSH Act empowers the Occupational Safety and Health Administration (OSHA) to file lawsuits against employers who retaliate against employees in violation of the Act.
The DOL filed only five such whistleblower suits in 2015—more often, such complaints are resolved in the DOL’s alternative dispute resolution procedures or through mediation or negotiated settlements. But, signaling more aggressive enforcement of whistleblower protections, the DOL has filed four OSH Act retaliation suits on behalf of employees in the past month alone.
The Story of Kim King: An OSHA Whistleblower Case Study
One of those whistleblower retaliation lawsuits involved an employee named Kim King, who worked for Lear Corporation-owned Renosol Seating in Selma, Ala. for 10 years making foam car seats for Hyundai. She became concerned that one of the chemicals used in the production process was making workers at the plant sick. Ms. King attempted to deliver a letter outlining these concerns to Hyundai Motor Manufacturing Alabama in Montgomery and also filed a complaint with OSHA.
In retribution, Lear Corporation fired Ms. King and then sued her for defamation. As part of its ongoing efforts to protect Ms. King and other Lear workers from retaliation for complaining about health concerns, the DOL has filed a whistleblower suit against Lear Corporation.
Part of the government’s motivation for filing this suit may have been a belief that it needed to take strong action because Lear Corporation has insisted that there are no safety problems in the plant and that Ms. King’s and other workers’ complaints are merely a tactic of the United Auto Workers’ campaign to force the company to accept a union at the plant. Notably, the National Labor Relations Board charged Lear Corporation in January with illegally threatening to close the Selma facility in an effort to intimidate workers who are seeking to organize and with threatening workers with job loss, blacklisting and loss of benefits over their support for union organizing.
The DOL filed the whistleblower suit in the U.S. District Court for the Southern District of Alabama on March 7 against Lear Corporation and three managers in their personal capacities. The suit alleges that Lear Corporation retaliated against King and other employees by harassing them, reducing their overtime, segregating them from coworkers, suspending them and terminating King—all because they were worried that working with toluene diisocyanate was causing them health problems. The government’s suit seeks Ms. King’s reinstatement and remedies for all affected employees, including back wages with interest, compensatory and punitive damages, and an order directing Lear Corporation to remove all references to the conflict from the employees’ personnel records, and ensuring that Lear does not commit future OSHA violations.
Ms. King has said, “I’m feeling more confident than ever that we will win the good, safe jobs that we have been fighting for and that the Selma Community deserves.” She is hopeful that the government’s suit will “send a signal not just to Lear but to companies across the country that they have to respect the rights of workers to fight for a safe workplace.”
The DOL has been trying to protect Ms. King from Lear Corporation’s retaliatory actions since March 2015. When Lear Corporation sued her for defamation in state court, the DOL went into federal court and asked the judge to stop Lear Corporation’s suit against Ms. King. The federal judge issued an order saying Lear Corporation could not sue its current or former employees because of complaints about health or safety conditions. However, the state court judge handling Lear Corporation’s defamation case ruled in September 2015 that the defamation suit could go forward because Ms. King’s action in delivering a letter to Hyundai was not protected activity covered by the federal judge’s order. It is not clear whether the retaliatory nature of this lawsuit will be determined by the federal court in the DOL’s whistleblower suit against Lear Corporation or in the state court action Lear Corporation brought against Ms. King.
Reasonable Belief and Whistleblowers
OSHA’s whistleblower protections extend to workers who file complaints about health and safety conditions so long as they reasonably believe their employers are violating federal safety standards. Even if it turns out that the employer has not violated the safety standard, employers must not take retaliatory actions against an employee who complains. The DOL’s lawsuit illustrates that workers like Kim King will enjoy the full protection of federal law and the backing of the federal government when they raise questions about hazardous chemicals in their workplaces.