Tag Archives: OSHA

Whistleblower Protection for Reporting Fraud? Must File OSHA Complaint within 30 Days

AARP reports that Dr. Farid Fata in Michigan has been accused of prescribing unnecessary chemotherapy treatments to his patients, including some who didn’t even have cancer. Dr. Fata’s nurse, Angela Swantek, noticed that medications were being administered improperly and patients were in the chair longer than necessary, which created more money for the doctor. Dr. Fata allegedly bilked Medicare for $91 million. Ms. Swantek was afraid of retaliation because Fata “oversees my license.”

The Occupational Safety and Health Act of 1970 (OSHA) has a Whistleblower Protection Program that protects workers from adverse action by employers (such as firing or laying off, blacklisting, demotion, denial of benefits, intimidation, threats, and/or reduction of pay or hours) for exercising their rights under OSHA. An employee has the right to file an OSHA complaint, participate in an inspection, talk to an inspector, seek access to employer exposure and injury records and raise a safety or health complaint with the employer. If your employer does discriminate or retaliate against you, you have the right to file a retaliation complaint with OSHA.

No specific form is required to file a complaint but you can: (1) send a letter to OSHA (to find the contact information for your nearest OSHA office go to www.osha.gov/html/RAmap.html); (2) call the OSHA area office located nearest to you; (3) download and send a completed Notice of Whistleblower Complaint Form to your OSHA area office (www.whistleblowers.gov/whistleblower_complaint.pdf); or (4) file an online complaint (https://www.osha.gov/whistleblower/WBComplaint.html). However, your discrimination complaint must be filed with OSHA within 30 days of the alleged retaliation.

Filing a Safety and Health Complaint with OSHA

One of our clients worked as an auto body repairman and he was exposed to toxic chemicals in the workplace. This exposure resulted in the development of pancreatic cancer and his subsequent death, yet he never knew he could have called in OSHA to inspect his worksite.

Employees have a right to working conditions that do not pose a risk of serious harm. The Occupational Safety and Health Act of 1970 (OSHA) provides workers and their representatives the right to file a complaint and request an OSHA inspection of their workplace if they believe there is a serious risk or if their employer is not following OSHA standards. The Act allows complainants the right to request that their names be kept confidential from their employers. Although OSHA recommends that employees attempt to resolve safety and health issues by first reporting them to their work superiors, a worker can file a complaint at any time. You can get a form at www.osha.gov/oshforms/osha7.pdf.

OSHA provides the following options for filing a complaint:

 (1)    Download and fax or mail the complaint form to your local OSHA office;

 (2)    File an online complaint (www.osha.gov/pls/osha7/eComplaintForm.html);

 (3)    Telephone your local OSHA area or regional office.

Written complaints that are signed by workers and submitted to their closest OSHA area office are more likely to result in an onsite OSHA inspection than complaints submitted online. North Carolina’s Raleigh office can be contacted at 4407 Bland Road, Somerset Park, Suite 210, Raleigh, North Carolina 27609 (telephone 919-790-8096; fax 919-790-8224). Contact North Carolina’s regional office at 61 Forsyth Street, SW, Room 6T50, Atlanta, Georgia 30303 (telephone 678-237-0400; fax 678-237-0447). To find other OSHA offices call 800-321-6742 or go to www.osha.gov/html/RAmap.html.

 

 

 

 

Truckers Fired Over Workers’ Comp Claim: What to Do Next

Today’s post comes from guest author Rod Rehm, from Rehm, Bennett & Moore.

Truck drivers have a remedy if fired for making a workers’ compensation claim.

A recent award of over $100,000 to a truck driver who was fired for making a workers’ compensation claim illustrated the protection drivers have under the Surface Transportation Assistance Act (STAA). New Prime of Springfield, Mo., had to pay the former employee lost wages, compensatory and punitive damages. “The company must also expunge the complainant’s employment and DAC Report records of any reference to his unlawful termination,” according to the article above. 

The Occupational Safety and Health Administration (OSHA), which is often criticized for a variety of reasons, enforced anti-retaliation laws that protect truck drivers who are unfairly punished for taking steps to protect their health and financial welfare. These laws can also be enforced through lawsuits as an alternative to the OSHA administrative process. 

Truck drivers need to be aware of this protection. Truck drivers also need to know that OSHA and the Federal Motor Carrier Safety Administration (FMCSA) have just announced an agreement to strengthen protections for transportation workers from coercion and retaliation.   

The industry publication FleetOwner gives more details about how OSHA and the FMCSA interact with the STAA in this article.   

Here is one helpful quote from the FleetOwner article:

“If OSHA finds that a complaint is valid, it can order the employer to reinstate the worker; pay back pay, interest and compensatory damages; pay punitive damages up to $250,000 where warranted; and/or take other remedial actions.”

In addition, “action by one agency didn’t preclude action by another in the same situation” when it comes to the STAA.

“OSHA’s mandate is protecting workers, while FMCSA’s mandate is safety, (an FMCSA document) said. And FMCSA can take action against a carrier or other entity but, unlike OSHA, it can’t compensate a driver. So a driver filing a complaint with FMCSA about coercion might be able to file a whistleblower protection complaint with OSHA and vice versa, FMCSA said.”

The recent award and very recent press release from OSHA are great news for truckers and their families. The laws that protect you work. There is an apparently serious effort to make them work better. It will now be easier to protect your health and welfare if you are injured on the job.

What’s the Connection Between Worker Safety, Employer Profit, and Voting?

Today’s post comes from guest author Rod Rehm, from Rehm, Bennett & Moore.

A recent newspaper article about a Nebraska lawyer fighting against imposing OSHA regulations on small businesses and farms that handle grain illustrates an age-old conflict between Worker (human) safety and Business (corporate) profit. The lawyer argued OSHA compliance is too expensive for small businesses and farms.

I couldn’t disagree more. From my point of view, worker safety is immeasurably more valuable to society than business profit. Human beings are the most important component of any activity, including business. Viewing safety as a cost ignores the cost to the human beings who are burned and maimed by grain explosions, whether they happen at a small business/farm or a huge corporate grain facility.

Farms in Nebraska and Iowa are not required to provide workers’ compensation for their employees. This is justified on the grounds that farms can’t survive such government intervention. I find this an interesting argument from businesses that have long received subsidies from the government. It seems that farm profits are more important than the human beings who do the work to earn those profits.

Our society needs more laws to protect human beings from injury and to compensate them if injured for the profit of others. Candidates for public office need to be asked what matters more to them: Is it human beings or profits that matter more?

Justice Louis Brandeis of the U.S. Supreme Court wrote long ago: “We must make our choice. We may have democracy, or we may have wealth concentrated in the hands of a few, but we can’t have both.”  

If we keep electing representatives who favor the concentrated wealth, then human beings will likely be protected less. These are scary times as the divide between the “haves” and “have nots” continues to grow. Ballots are the only way to tell our representatives that the health and welfare of human beings is paramount. Voting is essential, or we will see more and more concern for profit and less and less concern for human beings.

Are Forklifts Dangerous?

 The Occupational Safety and Health Administration (OSHA) covers forklifts under the section called Powered Industrial Trucks, and you have to be certified to operate these lifts. The smaller ones you see weigh up to 7,000 pounds and they are so dangerous some experts consider them “inherently dangerous.”

It is in violation of federal law to operate a forklift if under the age of 18, and OSHA requires that you be specifically trained. See 29 CFR 1910.178. If operated properly, a forklift is no more dangerous than any other piece of heavy machinery. However, if the operator is not properly trained and certified bad things can happen. We now represent a young man who was allowed to operate a forklift without any certification and the forklift turned over on him and crushed him, damaging several internal organs and his spine. He survived, but he is partially paralyzed from the waist down. He will have a lifetime of pain. He has lost the use of both feet.

Other examples are workers being crushed when a forklift accidentally runs into them. The human body cannot withstand a crush impact from a 7,000 pound machine. If the lifts on the forklift are elevated with a heavy load, the potential for a tip-over is greatly increased, even if the operator is moving slowly. Never underestimate the power of a forklift.

For more information go to osha.gov and review Powered Industrial Trucks.

What Football Can Teach White-collar Employees About Layoffs, Severance

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

With football season upon us, I would like to use football to explain some common situations that employees face.

I get a lot of calls from white-collar professionals who have long careers with a company but then are laid off a few months after a new boss is hired. This happens a lot in football when a general manager/athletic director replaces a head coach and the head coach fires the previous coach’s assistant coaches. White-collar employees in middle-management positions are essentially the equivalents of assistant coaches in football. In the world of football, it is assumed that a new head coach can bring in his new assistants. The same assumption holds true in the business world.

Assistant coaches are oftentimes “bought out” of their employment contracts. Sometimes white-collar professionals have employment contracts, but more often than not they do not. Sometimes professionals are offered severance agreements, but unless there is an employment contract, that severance is not a buyout. Employers are also under no obligation to offer severance. If severance is offered, that doesn’t necessarily mean that an employer wrongfully terminated the employee.

Of course, no employee can be terminated because of age, disability, sex, race, nationality, or in retaliation for engaging in a protected activity like filing for workers’ compensation or filing with OSHA. But even if there is some appearance of wrongful motivation on behalf of the employer, the employer can still defeat a potential lawsuit if they have a legitimate business reason for terminating the employee. Going back to a football analogy, if the new head coach wants to switch an offensive or defensive scheme, they have the right to hire the person they choose. The fact the new hire might be less effective than the old hire is not a decision that a court will second guess in a wrongful termination. Sure, if there is something else wrongful going on, it is something a court or a jury could consider, but in a case where there is a recent change in management, employees will have difficult time overcoming the assumption that the new boss just wants to “put in their team.”

Safety Violations Matter: Wisconsin Court Reaffirms Basis for Employer Safety Penalties

Today’s post comes from guest author Charlie Domer, from The Domer Law Firm.

In most instances, an injured worker cannot sue her employer for a workplace injury. However, if an injury results from an employer’s reckless, intentional, or illegal action, an injured worker can bring a separate claim against the employer directly. An employer’s violation of the Wisconsin state safety statute  or of any Department of Workforce Development (DWD) safety administrative rule which causes a worker’s injury can trigger a 15% increased penalty for the employer (Section 102.57 of the Worker’s Compensation Act). This increased compensation is based on the amount of compenstion paid by the insurance carrier and is capped at $15,000. The big deal is that the safety violation penalty is not paid by the insurance company–it is paid directly from the employer’s pocket (which also makes for increased litigation of these claims!).;

In a win for injured workers, a recent Court of Appeals case (Sohn Manufacturing v. LIRC), decided on August 7, 2013, reaffirmed the ability of the Worker’s Compensation Department to hold employers responsible for unsafe behavior. In the Sohn case, the worker operated a die cutter machine, and the employer instructed her to clean it while the anvil rollers were running. The worker suffered a severe hand injury when her hand was pulled into the machine. A state investigator found an OSHA violation as well as a violation of the state safety statute (Section 101.11). An administrative law judge and the Labor and Industry Review Commission affirmed an award of a safety violation under 102.57 of the worker’s compensation act.

The employer challenged this ruling in court, arguing that the federal OSHA law preempted Wisconsin’s ability to enforce safety procedures under Section 102.57 and that an OSHA investigation cannot form the basis for a state safety violation claim injured workers should be thankful that the Court of Appeals rejected both of these arguments. First, the Court explicitly stated that OSHA does not preempt Wisconsin’s ability to award penalties under Section 102.57, as the safety violation statute is not an enforcement mechanism and OSHA was not intended to impact state worker’s compensation rules. More importantly, the Court indicated that an OSHA violation of a federal workplace safety regulation can be used as basis to demonstrate an employer’s violation of Wisconsin’s state safety statute (Section 101.11).

While the decision was not surprising, it reaffirms the state’s commitment to holding employer’s accountable for safety violation rules under the worker’s compensation system. Workers and practitioners also should remain aware of any OSHA violation found post-injury. A document demonstrating a federal OSHA violation can form the immediate basis for a safety violation under Section 102.57.

Why Do Roofers Fall From Roofs? Is it just because of gravity?

Today’s post comes from guest author Jon Gelman from Jon Gelman, LLC – Attorney at Law.

Today I received an urgent call from attorney representing a client in New Jersey who fell from a roof. Before she told me the job description of the injured worker, now in a coma, I correctly anticipated that it was probably a roofer who had fallen from a roof, yet again.

This scenario has played out in workers’ compensation claims for decades. How the accident happened is usually an argument with the employer. The employer claims that the employee was either intoxicated or not following safety precautions. My instinct always tell me that this is probably incorrect, since roofers tend to lose their balance and fall for many other reasons, including “gravity.”  Some reason a deprivation of oxygen and/or exposure to toxic neurological irritants contained in the roofing materials, and weather related events that make roofs slippery.

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