Safety Basics VII: Whistleblower Protections

Announcer: Welcome to the Ogletree Deakins podcast, where we provide listeners with brief discussions about important workplace legal issues. Our podcasts are for informational purposes only and should not be construed as legal advice. You can subscribe through your favorite podcast service. Please consider rating this podcast so we can get your feedback and improve our programs. Please enjoy the podcast.

Frank: Good morning, everybody, and welcome back to another in our podcast series. This is our seventh in the series, and today we’re going to be talking about whistleblower cases. OSHA, as some of you know, and maybe as many of you know, certainly enforces whistleblower laws as it relates to the OSH Act. However, OSHA also enforces whistleblower laws and about 25 other statutes. With me today, I have my law partner from Houston, John Surma, who is going to talk to us about all 25 of those standards. John, why don’t you list them off for us?

John Surma: Good morning, Frank. That is a long list, and I’ll give you kind of a highlight. There’s the ACA, Obamacare. There’s AHERA, which relates to asbestos. There’s AIR21, there’s AMLA, CARA, CFPA, CPSIA-

Frank: Let me interrupt you. I was kidding, John. It is a grocery list, but there’s only a few that we regularly see, right?

John Surma: Well, there are. Actually, let me, because I was actually going to get to this. We did the webinar on whistleblowing and the right to refuse work. I did some research in that webinar that we shared. One of the things is fiscal year 2023, there were 3,649 whistleblower cases that OSHA administered. 2,700 of them come out of OSHA.

Frank: 11(c)

John Surma: 11(c). So the vast, vast majority of whistleblower cases comes out of 11(c). The next big ones are STAA, Surface Transportation Assistance Act, which we see a fair number of those; SOX, Sarbanes-Oxley; and then FRSA. Those are the biggies. The others are literally dribs and drabs, and we don’t have time in this podcast. We talked about it in the webinar.

But the amount of cases that are filed versus the number that are found to have merit is absolutely stunning, on the order of tenths of a percent. The other one is that the number of cases that are either found to have merit or settled by some form or fashion is 25-ish percent of cases versus 75% are either withdrawn or dismissed. The statistics are not in the favor of the whistleblower. The statistics are in the favor of the employer, though a lot of employers don’t appreciate that.

Frank: Well, it tells me that you’ve got some competent investigators at OSHA, and that’s good news.

John Surma: Agreed. I think it also goes to, and it’s something we talked about at some length before, in the webinar, but a lot of times the whistleblowers are folks who were discipline problems or performance problems who, when the employer decided to either separate or take some sort of discipline against them, suddenly they raise their hand and say, “Oh, I’ve got a complaint of one sort or another.” And a lot of times it’s just a continuation of a bad employer-employee relationship.

Frank: It’s interesting because we’re talking retaliation here. We’re talking about a lot of different laws, but the retaliation analysis still remains very similar. And it’s not altogether different from a retaliation charge that more people are familiar with, the ones investigated by the Equal Employment Opportunity Commission. But maybe that’s the right place to start today, John. What is, the way we say it in legal terms, what is the prima facie case? Or what is the initial showing that a whistleblower must make in order to establish a basic claim against his or her employer?

John Surma: Well, the section 11(c), first of all, prohibits discharge or discriminating against an employee because they filed a complaint, instituted an OSHA “proceeding”, they testified or were about to testify in an OSHA matter, or they exercised some right on behalf of themselves or others afforded by the act.

Frank: So what you just described, John, is protected activity. That’s step one. An employee, the first element they have to prove in a whistleblower case is that they engaged in protected activity, that’s protected under the statute. You gave the 11(c) example, but there’s the same step in every type of retaliation. What is step two?

John Surma: The step two is that there was some sort of, and I’m using the word from the OSH Act, discrimination against the employee. So that can be any sort of discipline or any sort of degradation of position. OSHA is actually now considering in some cases, promotion to be a form of discipline because you essentially take that person out of a position where they were protected and move them into a management position. But anything that’s an adverse employment action. To use your example, it’s very much like an EEOC case.

Frank: Yeah. Step one, they engaged in protected activity. Step two, they experienced an adverse employment action, even if that adverse employment action was promotion. How very subjective of them. The third step is there must be a relationship between step one and step two. In other words, the adverse employment action must be because of the prohibited activity. Interestingly, courts have recently ruled that it is a “but for” analysis under 11(c). The significance does vary by statute. What do I mean by “but for”? Under an 11(c) case, the employee, to establish a prima facie case, has to show that they received the adverse employment action because of the protected activity and only because of the protected activity.

Some of the other statutes have a lesser analysis, where they say that it was a contributing cause, not the only cause, in other words, that they engaged in protected activity, and the employer engaged in an adverse employment action because of the protected activity and because of another reason. It’s enough, under some of the other statutes, that the protected activity just was supportive of the decision. It doesn’t have to be the “but for” cause as it is in 11(c) case.

John Surma: Yeah, although this is really going to focus on a lot of the other… Like Sarbanes-Oxley, it’s not a “but for” causation test. But it’s not just that it’s some sort of passing event. It has to be a significant contributing factor to the termination or the employment decision, the adverse employment decision. It’s one of those things, where regardless of what the standard is, even if it’s not a “but for” causation standard, it’s very, very much one where there has to be a connection between the alleged discrimination and the alleged retaliatory action. Otherwise, the claim doesn’t survive, regardless of which of the various federal statutes we’re talking about.

Frank: That’s a great clarification, John. Let’s focus on 11(c) cases for the presentation today, unless we need to give another example. We’ll focus on 11(c) because, like you said, the statistics show that most of these cases are 11(c). Under 11(c), what is an employer, who is the employer?

John Surma: Under 11(c), the employer is functionally anybody who has the responsibility for that place of employment. If it’s a temporary employee, and they have a staffing service who their actual employer is, but then they also have a host employer or the place where they’re stationed or assigned, both of those employers are the employer. It’s basically anybody who has that sort of relationship with the employee, such that, for lack of a better term, they supervise, manage, oversee, what have you, the employee.

Frank: Is there any liability for an employer directing, let’s say, a temporary agency to not send somebody back?

John Surma: As a matter of fact, there is. As a matter of fact, I’ve got one of those this week. So yes. Well, there’s an allegation in the one I received this week. But yeah, and what I refer to as host employer or the employer where the staffing person is assigned, those people do have responsibility as well, and they do have liability as well.

Frank: What type of conduct is considered to be a complaint? You listed off under 11(c) the different types of actions that are protected. What is a complaint? Whenever a complaint is mentioned, is that just a complaint to OSHA?

John Surma: No, it’s kind of the same as I would describe some of the old Supreme Court verbiage relative to obscenity, where the Court essentially said, “I have a hard time defining what obscenity is, but I know it when I see it.” The definition is extraordinarily broad. It can be complaints that the employee is making in the workplace about whatever the issue is. It can be a complaint to OSHA. It can be complaints raised on social media. It can be any form, shape, or fashion of an actual, what we would recognize, as a complaint. But it can also be things like refusing to do certain work. It could be things like somebody is expressing a need for additional PPE because they think something is unsafe, and the employer is confident that that respirator isn’t necessary. It can be an employee insisting on walking around an object at work because they’re concerned about that object and their safety. I had a case up in your neck of the woods 8, 10 years ago, where a commercial real estate agent, who was a leasing agent, had to deal with homeless people. She would write emails to her boss every once in a while about, “There were four homeless people out there, and the Dallas PD took a long time to get out there.” OSHA viewed that as a complaint that could launch an 11(c) complaint.

Frank: I can understand that, worried about being assaulted or exposed to some type of workplace violence, which is a nice, probably one topic for another podcast one day down the road. There’s a lot of different ways for them to invoke the statute in terms of protected activity. What about, have you ever had the issue come up, where let’s say a health and safety manager makes a complaint about health and safety to the company?

John Surma: Oh, yeah. That happens on a fairly regular… And I’m sure you’ve seen the exact same thing. Those complaints are a little bit more difficult for and don’t necessarily receive the same level of scrutiny from OSHA. At least in my experience, the haven’t. When the issues relate to the employee’s performance of their job, there’s a weird intermingling of those cases where you have a safety manager, who’s responsible for health and safety in the workplace, who is charged with that responsibility by their employer, and then raises issues. For whatever reason, those issues don’t get addressed. Is it really the employer doing anything to discipline an employee for raising the issues? Or is it the employer disciplining somebody for not performing? That can be a challenging question to unravel. I’m sure it’s challenged you in the cases you’ve dealt with that.

Frank: Yeah, no, but I think your description’s right. I think that that’s certainly a defense to make. Look, they’re the ones that complained, but they’re the ones that were expected to correct the problem. So whenever it comes to a workplace complaint about a safety issue, I think that’s a viable defense. And like I said, I think these days OSHA really understands that type of argument now. Once you get past the prima facie case, if OSHA determines that the employee has satisfied their prima facie case, what is the next step, in terms of an employer’s response?

John Surma: The employer, and it’s just like any EEOC case, the employer has to show that there was a non-discriminatory reason for the employment action that was taken. Typically, at least in my experience, the non-discriminatory reason for the discipline that’s taken is there was some sort of either discipline or performance problem that ultimately led to whatever the discipline was. If the employer can show that there is a legitimate, non-discriminatory reason for the discipline that was taken, most of these investigators pretty much bring a screeching halt to the investigation. They don’t even engage in the next step of the process, which is what, Frank?

Frank: Yeah, that’s where I was going. If the employer comes up with a legitimate, non-discriminatory reason, then the person bringing the complaint has the ability to come back and say, “Well, that’s just pretext for, a pretextual excuse to cover up discrimination.” I was going to go over a couple of examples with that. For instance, an employee complains to their supervisor that the floors are slick. And separate from that complaint, they also attack another employee because of some type of romantic relationship or romantic spout going on, and then the employer discharges that employee for the fight. How would you characterize that discharge? Does that satisfy the prima facie case, from the employee’s perspective?

John Surma: The prima facie case, or it’s a pretext?

Frank: Well, I’d start with the prima facie case. Have they established a prima facie case of discrimination if the employer’s reason for discharge is they got in a fight, not the complaint about a slick floor?

John Surma: Yeah, I think that from the standpoint of the employee, the employee’s prima facie case is, “I was discharged because of the slick floor.” The employer comes back with, “No, they weren’t discharged as a result of the slick floor. They were discharged because they were engaged in a fight.” And then it’s up to the employee to come back with some sort of explanation as to why the fight is just a pretext and that what the actual reason for discharge was the complaint about the slick floors.

Frank: Right, yeah. So it’s a “but four” analysis. But that’s a pretty strong case because that’s a specific misconduct event. What if, instead of the fight that I described, what if the employer decided to discharge the employee for non-specific performance reasons, just not meeting performance expectations over the course of four months, assuming no previous write-ups and no progressive discipline plan? How would you analyze that case?

John Surma: Well, and it’s not just how I analyze it, it’s also how OSHA analyzes it. One of the things that OSHA frequently asks for is, “Can you show us essentially similar situations, comparable situations, so that we can compare what you did with other employees to what you did with the employee who filed the complaint?” If you have a whole host of other employees who received, basically, the same type of adverse employment action, whether it’s discharge, termination, suspension, PIP, whatever, that’s going to be one situation. The other situation is Joe Smith is the only person in the history of the facility that, for sort of vague performance reasons, you took employment action against, and he also happened to raise a complaint about safety in the workplace. It probably isn’t looking real good for the employer in that case because it looks like the only person that you’re looking at are people who file safety complaints.

Frank: Yeah. As a general rule, I find that the performance discharges in the shadow of some type of protected complaint tend to be the hardest to defend against. It’s too bad we don’t have more specific data about that 75% of the 0.01% that actually make it through. But feel strongly that a lot of those are performance because those are always the most difficult ones to defend. “Well, why did you wait until right after the complaint to issue discipline or discharge an employee for performance reasons, when those performance reasons have been going on undocumented for a number of months?” It’s a hard question to answer, and it’s a hard one to be believed on, in my experience.

John Surma: Oh, very hard. You used an important word there, where it’s undocumented performance issues. It’s a completely different story if you document when you’re having problems with folks, and then something happens. “Okay, enough’s enough. This person, it’s time for them to move on.” Or it’s time to take discipline against them. Then you’ve got a history. Then you can paint the picture of, “Look, this had nothing to do with safety. It had everything to do with employee performance.”

But if just out of the blue, you don’t have any way to document that there’s performance issues, especially the vague ones. It’s one thing if the person smashes a forklift into a machine, does half a million dollars worth of damage. They were a bad forklift driver before this, but now there’s a big event, and there’s no ambiguity about was this really a performance issue? Was this not? But where it’s their attitude was bad, their production was lower than everybody else, whatever, those can be a whole lot tougher. And I think you’re right. I think a lot of those linger a lot longer and may be the ones that are found to have merit.

Frank: Last question I have for you, John. How many times have you been in a situation like this with an employer, where they said, “Yeah, we should have discharged them a long time ago. They’ve been a problem for months, and now they’ve filed this complaint. It’s time to let them go.” How many times have you faced that and had to counsel the employer off the wall?

John Surma: Frank, how many stars are in the sky? How many grains of sand are on the beach? How many drops of water are in the ocean? I can’t even begin to guess. And honestly, those are the cases, and that’s the scenario that we hope to avoid, but unfortunately we don’t. Sometimes employers are fortunate inasmuch as there’s emails, there’s other documentation showing the behavior. We closed one out recently where we had an employee who was having some behavioral problems in the workplace, and they ultimately were terminated because they’re screaming at the security cameras and flipping them off and being aggressive with other people. Finally, it was like, “Okay, look, this person’s a danger to themselves and to others. We need to get them out of the facility.” There wasn’t a lot of discipline, documented discipline, before. But there was a lot of email traffic about, I had conversations, I did this, I did that. While the employee didn’t necessarily see that he had been disciplined, there was in fact a documentation trail, and that really saved the day because it showed that, contemporaneous with when the problems were happening, people are documenting things happened. As a result, even though there was no progressive discipline here, it saved the day.

Frank: Well, we often talk about that. If you don’t have time to sit down to do a formal write-up, at minimum, send the email to yourself or to HR or to your supervisor, to ensure, or to the employee’s supervisor, just to keep a record of what type of action you’re taking. It helps in OSHA. Inspections helps with OSHA whistleblower complaint as well. John, we are out of time today. Do you have any parting words for our audience?

John Surma: No. Other than, Frank, I appreciate you spending some time with me. Audience, we appreciate you spending some time with us, and we hope everybody’s good and takes care of themselves.

Frank: Thanks, John. And thanks everybody out there. Look forward to talking to you and the audience next.

Announcer: Thank you for joining us on the Ogletree Deakins podcast. You can subscribe to our podcasts on Apple Podcasts or through your favorite podcast service. Please consider rating and reviewing so that we may continue to provide the content that covers your needs. And remember, the information in this podcast is for informational purposes only and is not to be construed as legal advice.