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Retaliation against whistleblower who reported “soft spots” leads DOL to sue

U.S. Department of LaborThe U.S. Department of Labor (“DOL”) has sued a Niagara Falls contractor, alleging retaliation against a demolition worker that reported health and safety concerns to the company about a Buffalo, New York, demolition site.  The suit, filed in the Western District of New York, claims that Regional Environmental Demolition Inc. and its officials, Charles Van Epps and Enrico Liberale, fired a demolition worker who reported health and safety concerns to the Occupational Health and Safety Administration (“OSHA”).

Demolition Worker Fired for Reporting “Soft Spots” to OSHA

The fired worker had been working on an asbestos abatement project in Buffalo, where the worker noticed “soft spots” or deteriorated sections in the floor.  During the time the fired worker was at the job site (from April to June 2014), he reported several times to his employer regarding the soft spots in the floor.  However, instead of addressing the worker’s concerns, Regional Environmental Demolition Inc. fired the worker in June 2014 after being contacted by OSHA.

In response to the retaliation from his employer, the fired worker filed a whistleblower complaint with OSHA.  Ultimately, OSHA found that the fired worker’s whistleblower retaliation complaint had merit.  “The Occupational Safety and Health Act gives us the authority to sue employers who retaliate against employees in safety and health matters. We will do so when the case warrants, as it does here,” said Jeffrey Rogoff, the regional solicitor of labor in New York.

DOL Retaliation Lawsuit Seeks Lost Wages and Compensatory and Punitive Damages, Among Other Things

In its lawsuit, the DOL is seeking payment of lost wages and compensatory damages, interest, front pay, emotional and financial distress damages, and punitive damages on the worker’s behalf.  Robert Kulick, OSHA’s regional administrator in New York, has said:

Regional Environmental Demolition had no reason and no right to fire this worker for repeatedly reporting a safety hazard that could have seriously harmed him and his fellow workers.  Firing or retaliating against workers who raise safety concerns is intimidation, plain and simple.  If employees fear losing their jobs, hazards can go unreported and injuries can result.

The DOL’s lawsuit also asks the court to expunge any reference to the matter from the fired worker’s personnel records, while at the same time asking the court to make Regional Environmental Demolition Inc. post a notice to employees announcing that workers who report health and safety concerns will not face retaliation.

Lawsuit Will Cost Company Regardless of Outcome

In an interview, Mr. Van Epps disagreed with the fired worker’s version of the story, instead contending that fired worker actually quit his job, and was not fired as retaliation.  Mr. Van Epps said the lawsuit will be difficult for his company regardless of the outcome, due to the legal expenses involved.  “I think it’s hard enough to do work in New York State, trying to survive,” he said. “It’s just a financial battle, and we’re a little company.”

Employers are prohibited from retaliating against employees who raise various protected concerns or provide protected information to the employer or to the government.  Employees who believe that they have been the victim of workplace retaliation for engaging in protected conduct may file a complaint to request an investigation by OSHA’s Whistleblower Protection Program.  If you or someone you know has been the victim of workplace retaliation for reporting suspected wrongdoing, please contact C&J’s whistleblower team of attorneys for a consultation.

Photo Cred.: wagehourblog.com

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