Whistleblowing, Employment Retaliation and COVID-19 Safety

The Department of Labor (“DOL”) filed a lawsuit on behalf of two former employees against a Texas small business owner, a dental office, for failing to reinstate furloughed employees who inquired about any COVID-19 safety protocols put in place upon returning to work; one employee specifically cited guidance from the Centers for Disease Control (“CDC”) while the second employee merely asked about COVID-19 related safety measures. The employees first filed complaints with the Occupational Safety & Health Administration (“OSHA”), OSHA then substantiated the complaints, and the DOL later pursued them in Court, in the matter of Walsh v. Bohannan et al., 21 CIV 00857, Northern District of Texas. 

This federal whistleblower lawsuit alleges the dental office discriminated against the employees for exercising their rights to engage in a protected activity of making good faith health and safety complaints. The Complaint was brought under OSHA act 11(c), which states in relevant part: “No person shall discharge or otherwise discriminate against any employee because such employee has filed a complaint . . . or has testified or is about to testify … or because of the exercise by that employee … of ANY right afforded by this act.” 

While any employer may file a whistleblower complaint with OSHA based on health and safety, statistically very few of those complaints result in actual lawsuits in federal Court, especially complaints against small businesses. This recent filing marks a new and potentially more aggressive prosecutorial trend for the DOL and should be a warning for all Texas employers both large and small.   

Texas employers commonly believe that only Texas law or even local law applies to health and safety concerns, like COVID-19, and hold onto the mistaken belief that as long as you comply with Texas and local laws on health and safety, you cannot be sued; this is NOT the case. While federal whistleblower protection has been around for a long time, it has been infrequently used by employees and even less frequently used in Court by the DOL. It is NOW clear that the DOL can and will sue Texas employers for allegedly terminating Texas employees who raise health and safety concerns or who, in any way, assert rights under OSHA, whether it be COVID-19 related or not.   

There were nearly 10,000 COVID-19 related complaints in 2020, and, according to OSHA, every single one of them was investigated. The number of health and safety complaints for issues not related to COVID-19 is significantly higher at over 20,000. Texas is in Region 6 for OSHA and the DOL works with OSHA on investigating and enforcing complaints. In doing so, the DOL can issue Orders directing a business to do or stop doing something related to health and safety. Or, as they the DOL did with the dental office in Walsh, the DOL can file a lawsuit seeking injunctive and monetary relief. In 2021 in Region 6 (Texas), the DOL commenced proceedings against a transportation company, a construction company, a tortilla manufacturer, multiple contractors, roofing and building companies, and many other employers and businesses.

These types of whistleblower lawsuits seek to protect the health and safety of employees and the public at large, as well as to redress the harm done by the retaliatory termination of the employee. For that purpose, employees will seek lost wages, costs, expenses, as well as any compensatory and punitive damages determined at trial. Making whistleblowers whole can have significant economic consequences for employers, especially small businesses with limited resources. Texas employers must be weary because lawsuits are increasing and economic distress is not a defense to a whistleblower claim. 

As an employee or former employee, if you believe you have been discriminated because you raised health and safety concerns in the workplace, please contact an employment attorney. And, as a Texas business owner, it is always advisable to consult an employment attorney if you have questions about health and safety compliance. 

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