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Coronavirus-Related Whistleblower Claims: What Employers Need to Know

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Coronavirus-Related Whistleblower Claims: What Employers Need to Know Coronavirus-Related Whistleblower Claims: What Employers Need to Know May 6, 2020 Presenters Steven J. Pearlman Lloyd B. Chinn Harris M. Mufson Pinchos (Pinny) Goldberg Partner (Chicago) Partner (New York) Partner (New York) Associate (New York) T: +1.312.962.3545 T:+1.212.969.3341 T: +1.212.969.3794 T: +1.212.969.3074 [email protected] [email protected] [email protected] [email protected] 2 Coronavirus-Related Whistleblower Claims May 6, 2020 COVID-19 Wrongful Death Suit: Evans v. Walmart • First known COVID-19 wrongful death suit - filed in Illinois • Decedent contracted COVID-19 while working at a Walmart store ‒ Another employee who worked at the store died of COVID-19 shortly after the decedent • Complaint alleges: ‒ Walmart failed to implement safety measures recommended by CDC/OSHA ‒ Management did not clean and sterilize the store, provide employees with PPE, or implement social distancing ‒ Walmart did not bar employees with symptoms of COVID-19 ‒ Walmart did not warn employees that other workers had COVID-19 3 Coronavirus-Related Whistleblower Claims May 6, 2020 Whistleblower/Retaliation Claims on the Rise • Reports of employees alleging retaliation for reporting lack of safety measures and personal protective equipment (“PPE”) ‒ Health care workers ‒ Warehouse employees • 1,000+ OSHA complaints regarding lack of COVID-19 protections • OSHA Press Release “reminding employers that it is illegal to retaliate against workers because they report unsafe and unhealthful working conditions during the coronavirus” 4 Coronavirus-Related Whistleblower Claims May 6, 2020 Amazon Under Scrutiny for Firing Warehouse Employee • Workers at 50+ Amazon warehouses have contracted COVID-19 • Amazon allegedly fired an employee who worked at its Staten Island warehouse for protesting company’s response to COVID-19 ‒ Company put employee in quarantine after he was in contact with another worker who contracted COVID-19 ‒ Employee then led protest calling for Amazon to close the warehouse temporarily and provide additional protections ‒ Amazon fired employee after the protest, citing his failure to quarantine 5 Coronavirus-Related Whistleblower Claims May 6, 2020 Amazon Under Scrutiny for Firing Warehouse Employee (cont’d) • New York Attorney General April 22 letter to Amazon: ‒ Concerned that safety measures in Amazon warehouse were inadequate and might have violated OSHA regulations ‒ Investigating whether employee was discharged “to silence his complaints and send a threatening message to other employees” – thereby potentially violating whistleblower laws. ‒ Urged Amazon to reinstate employee 6 Coronavirus-Related Whistleblower Claims May 6, 2020 NYAG Investigates to Ensure Shutdown of Non-Essential Businesses • NY Attorney General’s Office has contacted thousands of employers related to shutdown of non-essential businesses • Focus on employer compliance with Executive Order 202.8 – ‒ requires 100% reduction of in-person workforce for non-essential businesses and that essential businesses maximize telecommuting/remote work ‒ Fines – up to $2,000 for first violation, $5,000 for subsequent • NYAG threatening injunctive relief actions in addition to fines • Also referencing OHSA and New York Labor Law § 200(1), which codifies employers’ duty “to protect the health and safety of employees” 7 Coronavirus-Related Whistleblower Claims May 6, 2020 Topics To Cover • Workplace Safety Issues • Federal Anti-Retaliation Provisions • State Whistleblower Laws • New Legislation on the Horizon 8 Coronavirus-Related Whistleblower Claims May 6, 2020 Workplace Safety 9 Coronavirus-Related Whistleblower Claims May 6, 2020 Relevant OSH Act Provisions and Regulations • General Duty Clause: employers must furnish “a place of employment . free from recognized hazards that are causing or are likely to cause death or serious physical harm.” • States can adopt OSHA-approved plans • Instead of issuing virus-specific regulations, OSHA has relied upon existing rules, including: ‒ 29 C.F.R. § 1910, Subpart I: requires personal protective equipment (PPE) • Recording and Reporting Requirements 10 Coronavirus-Related Whistleblower Claims May 6, 2020 OSHA Investigation Process • OSHA will not reveal the name of the complainant • OSHA will only conduct an on-site inspection where certain criteria is met • Off-site investigations are generally conducted via phone/fax ‒ OSHA calls the employer, describes the alleged hazards, and follows up with a fax or letter ‒ Employer must respond within five days, identifying in writing any problems found and noting corrective actions taken or planned ‒ If response is adequate, OSHA will generally not conduct on-site inspection ‒ OSHA will send letter to employee who filed the complaint, informing the employee of findings and any citations and proposed penalties 11 Coronavirus-Related Whistleblower Claims May 6, 2020 OSHA Investigations During COVID-19 • Interim Enforcement Response Plan for Coronavirus Disease 2019 ‒ Complaints from non-healthcare and non-emergency response establishments to be processed via phone/fax ‒ COVID-related fatalities and imminent danger exposures are prioritized for inspection “with particular attention given to healthcare organizations and first responders” ‒ If an on-site inspection is warranted, compliance officers are directed to (among other things) examine whether employer has a written pandemic plan as recommended by the CDC. 12 Coronavirus-Related Whistleblower Claims May 6, 2020 OSHA’s COVID-19 Guidance • OSHA has released approximately 15 directives and guides related to COVID-19, including: ‒ “Guidance on Preparing Workplaces for COVID-19” ‒ Interim guidance for specific worker groups and their employers ‒ Safety tips for restaurant, and food and beverage businesses 13 Coronavirus-Related Whistleblower Claims May 6, 2020 OSHA Overwhelmed • According to the National Employment Law Project, OSHA is operating with the lowest number of inspectors in more than 40 years ‒ 1,469 inspectors in 1980 ‒ Currently, 862 ‒ At current staffing level, it would take the agency 165 years to inspect each workplace under its jurisdiction • Since the outset of the pandemic, OSHA has received close to 3,000 coronavirus-related related complaints ‒ As of April 30, the agency has closed 1,831 of these complaints 14 Coronavirus-Related Whistleblower Claims May 6, 2020 Calls for OSHA to Enact Emergency Safety Regulations • OSH Act gives DOL authority to issue an emergency temporary standard if employees are exposed to grave dangers from new hazards • Criticism has emerged regarding OSHA’s refusal to issue emergency standards: ‒ AFL-CIO ‒ Senators Murray, Baldwin and Heinrich ‒ David Michaels 15 Coronavirus-Related Whistleblower Claims May 6, 2020 Secretary Scalia and OSHA Stand By Existing Regulations • Secretary Scalia responded to the AFL-CIO’s letter, stating: ‒ “OSHA’s website contains extensive guidance on the virus for the benefit of workers and employer and, in fact, the cop is on the beat” ‒ A temporary emergency standard is unnecessary because “employers are implementing measures to protect workers” and “employer who fail to take steps are likely violating existing OSHA obligations” ‒ OSHA considers industry-specific guidance to be “more valuable” than a temporary emergency standard 16 Coronavirus-Related Whistleblower Claims May 6, 2020 Legislation to Compel Creation of Emergency Safety Standard • Democratic lawmakers have introduced a number of bills that would require OSHA to issue a temporary emergency standard, including: ‒ COVID-19 Health Care Worker Protection Act ‒ COVID-19 Every Worker Protection Act 17 Coronavirus-Related Whistleblower Claims May 6, 2020 Federal Anti-Retaliation Protections 18 Coronavirus-Related Whistleblower Claims May 6, 2020 Section 11(c) of the OSH Act • Section 11(c): “[N]o person shall discharge or in any manner discriminate against any employee because the employee has . [f]iled any complaint under or related to the [OSH Act].” • Protects employees who make reasonable, good faith complaints • Relief may include reinstatement, back pay with interest, compensatory damages, and punitive damages • Secretary of Labor has filed at least 10 lawsuits under Section 11(c) during the Trump era 19 Coronavirus-Related Whistleblower Claims May 6, 2020 Section 11(c) of the OSH Act (cont’d) • Johnson v. Interstate Mgmt. Co., LLC, 849 F.3d 1093 (D.C. Cir. 2017) ‒ Held: Section 11(c) does not provide for a private cause of action ‒ Employees may submit complaint to Secretary of Labor ‒ Secretary of Labor may sue in federal court on behalf of employee 20 Coronavirus-Related Whistleblower Claims May 6, 2020 Section 11(c) of the OSH Act (cont’d) • Acosta v. Champagne Demolition, LLC, (N.D.N.Y. 2017) ‒ Held: There is a right to a jury trial on a Section 11(c) claim • Perez v. Lloyd Indus., Inc. (E.D. Pa. 2019) ‒ Whistleblowers awarded over $900,000 ($400,000 in back/front pay and $500,000 in punitive damages) after March 2019 jury trial 21 Coronavirus-Related Whistleblower Claims May 6, 2020 National Labor Relations Act (“NRLA”) • Section 8(a)(1) and 8(a)(3): Employers prohibited from retaliating against an employee for participating in “concerted activity” • Maine Coast Regional Health Facilities, NLRB, 01-CA-209105, 01-CA- 212276 (March 30, 2020) ‒ Hospital employee terminated for “discussing staffing shortages” and “expressing support for . [local] nurses union” in violation of media policy ‒ Policy restricted right to publicly complaint about workplace issues of common concern
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