Reprinted from the June 1, 2007 issue of MANAGER'S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through real-life dialogue and concrete examples. Click here to view a sample issue, get more information or sign up for a risk-free subscription.

Anonymous Whistleblower Gets The Boot

State and federal laws prohibit managers from firing employees for reporting occupational health hazards. What if there is no clear evidence that a manager knows who blew the whistle? An employee can still file a claim that he was fired for blowing the whistle — and win.

EMPLOYEE GROUSES AND GRUMBLES

Charlie Pratt worked on the first shift for a manufacturing plant in a division where materials were treated with spray paint finishes. Concerned that high levels of heat, smoke, and paint dust in his work environment posed health hazards, Pratt complained several times to his manager, Owen Wexler, and to the plant's safety manager.

"Owen, I'm telling you that the masks we wear don't prevent dust from entering the body," Pratt complained. "When I clean up at home after work, I have paint residue in my nose."

On another occasion, Pratt reported to Wexler, "There's smoke, powder, paint, and dust in the lunchroom. It's contaminating the food."

When Pratt didn't see Wexler or the safety manager make any improvements in light of his complaints, the employee decided to take matters into his own hands. He filed an anonymous complaint with the Occupational Safety and Health Administration (OSHA).

The next day, Wexler came out of a meeting with the safety manager and other company officials and showed Pratt a letter from OSHA.

"Apparently, OSHA received an anonymous call from one of our employees complaining about unsafe working conditions," an angry Wexler informed the employee. "Any idea who called the agency?"

"No…I have no idea," Pratt lied.

"Find out!" Wexler ordered, although he had his suspicions about the outspoken Pratt.

Neither Pratt nor Wexler followed up on the demand.

The following week, Wexler gave Pratt a safety manual.

"OSHA wants us to give a safety manual to all employees who work on the plant floor," the manager explained. "Look it over and sign the statement in the front indicating that you read it."

After taking a closer look at the manual, Pratt refused to sign it.

"Why won't you sign it, Charlie?" the manager asked.

"The conditions in the plant aren't on par with those described in the safety manual," Pratt objected.

"What more do you want?" said Wexler. "The plant cooperated with OSHA's inspectors."

"Hardly!" Pratt scoffed. "While the inspectors were here you reduced production rates to lower temperatures and reduce fumes. And after they left, you told me to start running the line at the usual rate. All I want is to work under safe conditions."

MANAGER FIRES AND FLIP-FLOPS

About a month after Pratt complained to OSHA, Wexler fired him. During the termination meeting, Wexler told Pratt that he was being fired for performance reasons. Two days later, however, the manager sent a memo to the plant president that indicated that the employee's termination was part of a cost-containment plan. Nothing was ever said about the OSHA complaint, and Pratt never admitted to it.

Pratt filed a retaliatory discharge lawsuit and won $112,000 in lost wages, emotional pain and suffering, and punitive damages. An appeals court upheld the jury award. Reasons: The employee was fired without warning shortly after OSHA contacted the company. The inconsistencies in Wexler's reasons for terminating Pratt, as well as a lack of documentation to support a performance-related termination, could have undermined the manager's credibility with the jury and added weight to Pratt's allegation that the excuses for his termination were a pretext for discrimination, said the court.

PLAY IT SAFE

Even without clear-cut evidence that you knew who blew the whistle, a jury could perceive that you did. Firing an employee shortly after he/she has filed a safety complaint (either with you or OSHA) is not illegal in and of itself. But a jury will look at inconsistencies in your reasons for the termination as proof of retaliatory discharge. Be sure that you have the documentation necessary to support all your discharge decisions and that all your discharge documents are consistent with your verbal explanations.

It should go without saying that when OSHA comes knocking on your door, the last thing you should do is try to determine who made the call and punish him/her. Do not try to find out by directly asking employees or by indirectly asking someone else to find out. And never assume that you know who it is. It may be logical that the employee who has been complaining to you would be the one to complain to OSHA, but sometimes an employee may bypass management and go straight to OSHA.

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