Worker Terminated after Reporting Injury, Employeer Ordered to Pay $225K


Oct. 15, 2014

Burlington Northern Santa Fe LLC ordered to pay more than $225K to worker terminated after reporting injury at Kansas City, Kansas, rail yard

KANSAS CITY, Kan. – Burlington Northern Santa Fe LLC wrongfully terminated an employee in Kansas City after he reported an injury to his left shoulder, according to the U.S. Department of Labor’s Occupational Safety and Health Administration. The company has been found in violation of the Federal Railroad Safety Act*, and OSHA ordered the company to pay the apprentice electrician $225,385 in back wages and damages, remove disciplinary information from the employee’s personnel record and provide whistleblower rights information to all its employees.

“The resolution of this case will restore the employee’s dignity and ability to support his family,” said Marcia P. Drumm, OSHA’s acting regional administrator in Kansas City, Missouri. “It is illegal to discipline an employee for reporting workplace injuries and illnesses. Whistleblower protections play an important role in keeping workplaces safe because they protect people from choosing between their health and disciplinary action.”

OSHA’s investigation upheld the allegation that the railroad company terminated the employee following an injury that required the employee to be transported to an emergency room and medically restricted from returning to work. The company’s investigation into the injury, reported on Aug. 27, 2013, concluded that the employee had been dishonest on his employment record about former, minor workplace injuries unrelated to the left shoulder. These conclusions led the company to terminate the employee on Nov. 18, 2013.

OSHA found this termination to be retaliation for reporting the injury and in direct violation of the FRSA. BNSF has been ordered to pay $50,000 in compensatory damages, $150,000 in punitive damages, more than $22,305 in back wages and interest and reasonable attorney’s fees.
Any of the parties in this case can file an appeal with the department’s Office of Administrative Law Judges.

OSHA enforces the whistleblower provisions of the FRSA and 21 other statutes protecting employees who report violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health care reform, nuclear, pipeline, worker safety, public transportation agency, railroad, maritime and securities laws.

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 retaliated against for engaging in protected conduct may file a complaint with the secretary of labor to request an investigation by OSHA’s Whistleblower Protection Program. Detailed information on employee whistleblower rights, including fact sheets, is available at http://www.whistleblowers.gov.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.

Whistleblower Case: First Federal Supreme Court Broad Reaching

Robert MacLean, a former air marshal, was fired because of his federal whistleblower actions. (Courtesy of House Committee on Oversight and Government Reform)

Robert MacLean didn’t realize that by trying to protect America’s flying public, his employer — his government — would treat him almost like a traitor.

Soon, the Supreme Court will have a chance to decide if MacLean, a whistleblower and former air marshal, was treated justly, or at least legally. It is the first case the high court will hear directly concerning a federal whistleblower.

The implications of the case go well beyond MacLean. If he loses, Uncle Sam will have greater power to bully whistleblowers. Fewer federal employees might be willing to disclose waste, fraud, abuse and dumb decisions.

Oral arguments are scheduled for Nov. 4. The Obama administration is appealing a lower court decision that MacLean’s disclosures were covered by the Whistleblower Protection Act. If the justices rule against MacLean, federal agencies could have broad power to weaken that law by using the government’s power to make secret more information than Congress intended.

Here is MacLean’s story:
In July 2003, air marshals, including MacLean, were summoned for mandatory training to prevent suicidal airline hijacking plots by al-Qaeda. Days later, the Transportation Security Administration sent an unsecured, unclassified text message to air marshals informing them that all long-distance assignments requiring an overnight stay would be canceled.

Knowing that could hamper efforts to thwart hijackers, MacLean said he complained about this shortsighted, money-saving plan to an agency supervisor and to the Department of Homeland Security’s inspector general’s office. MacLean also leaked information to MSNBC, which he admitted to during a leak investigation two years later. He was placed on administrative leave in September 2005 and fired in April 2006.

This is the incredible part: It wasn’t until August 2006 that the government retroactively labeled as sensitive the information MacLean was fired for leaking — three years after the text message was sent.

The question before the court: Was MacLean’s disclosure “specifically prohibited by law?”

DHS and the Justice Department say it was
.
But noteworthy to MacLean’s defense is thata key bipartisan group of members of Congress say his disclosures are, or at least should have been, protected from agency reprisal by the whistleblower law.

They should know
.
The administration argues that “by law” includes statutes and “substantive regulations that have the force and effect of law.”

The lower court’s decision “is wrong, dangerous, and warrants reversal,” say the government’s lawyers. The earlier ruling “imperils public safety,” they added, “by dramatically reducing the effectiveness of Congress’s scheme for keeping sensitive security information from falling into the wrong hands.”

But members of Congress who were instrumental in passing the legislation say that’s not so. In fact, “Congress deliberately crafted” legislation “to exclude agency rules and regulations,” says a brief filed by Sens. Charles E. Grassley (R-Iowa), Ron Wyden (D-Ore.), Reps. Darrell Issa (R-Calif.), Elijah E. Cummings (D-Md.), Blake Farenthold (R-Tex.) and Stephen F. Lynch (D-Mass).

“If agencies could decide which disclosures receive whistleblower protections, they would inevitably abuse that power,” the members said. “The result would be to deter whistleblowers and restrict the flow of information to Congress.”

Sadly, the message here is that agency officials can’t always be trusted to do the right thing. When employees expose bad policies, too often the reaction of their bosses is to cover managerial behinds. Whistleblowers should be congratulated, praised for serving the public. Instead, many are harassed, punished and pushed from government service.

“After all,” said a brief filed by the U.S. Office of Special Counsel, “whistleblower protection laws exist because government officials do not always act in the nation’s best interests.”

Agencies can be creative in their reprisals, even belatedly declaring information sensitive, as TSA did, in order to better take revenge against whistleblowers.

“[I]n fear that such retroactive designations are possible, whistleblowers may refrain from alerting the public to dangers that could have been averted or mitigated,” said the brief by OSC, which works to protect whistleblowers. This is the first Supreme Court friend-of-the-court brief filed by OSC.

This wariness of the way agency managers treat whistleblowers is shared by the Republicans and Democrats who filed the congressional brief.

“Time and time again,” they said, “agencies have found ways to suppress inconvenient information.” An administration victory over MacLean, the elected officials warned, “will deter untold numbers of whistleblowers.”

If that happens, it’s not only MacLean who will lose. The American people will, too.

By Joe Davidson October 9, 2014

Sexual Harassment Investigations

The most important anti-harassment policy is always prevention.  One of the best ways of handling sexual harassment is having a clearly written policy stating that sexual harassment is not tolerated.  This policy should clearly assure complainants would not be treated negatively for making a claim of harassment. An anti-harassment policy is not effective without such assurance.  A good practice is to have a telephone number that employees can call anonymously with questions and concerns about sexual harassment. Once an allegation is made and it is evident that an investigation is necessary the fact-finding investigation should be launched immediately.  

According to The Equal Employment Opportunity Commission (EEOC) and as the Supreme Court stated, “Title VII is designed to encourage the creation of anti-harassment policies and effective grievance mechanisms.”  While the Court noted that this “is not necessary in every instance as a matter of law,” failure to do so will make it difficult for an employer to prove that it exercised reasonable care to prevent and correct harassment.  Anti-harassment policies and procedures should be provided to each employee, preferably during the initial training and post the written anti-harassment policy in central locations such as break rooms and locker rooms and redistribute it regularly.  The policy should contain a clear explanation of unacceptable conduct, assurance that complaints will not be followed by retaliation and a suggested means of filing a complaint.  It should include a statement of confidentiality and assurance of an impartial investigation and immediate corrective action along with time frames for filing charges of unlawful harassment with the EEOC or state fair employment agency.  Anti-harassment policies should include all forms of harassment: whether based on age, sex, race, religion, national origin, disability and include harassment by anyone including supervisors, co-workers and non-employees. 

Harassment complaint procedures should be designed to encourage victims opposed to discouraging victims of harassment with invasive reporting procedures.  A procedure that appears too complicated and full of obstacles can discourage reports. Employees should be encouraged to report harassment early, before it becomes severe and disruptive to their work environment.  Effective complaint processes establish accessible contacts outside the chain of command for the initial complaint. Employees should understand that while the employer will make every attempt to protect confidentiality, certain information must be shared to conduct a proper investigation.  Even if the employee requests no action, an employer has a responsibility to investigate allegations or be held liable. 

While each case will vary tailor complainant interview questions accordingly, very basics questions should include: who, what, where, when and how:

  • Who committed the alleged harassment?  What happened exactly?  When and how often did it occur?  Where did the harassment take place?  How did it affect the complainant?
  • Did the alleged harassment affect your job in anyway?
  • Are there witnesses?  Is there anyone with relevant information?  Did you tell anyone that you were harassed?  Did anyone see you immediately following the alleged harassment?
  • Do you know of anyone else harassed by the same person?  If so, did they report the incident?
  • Is there any physical evidence, notes, or documentation regarding the incident or incidents?
  • How would you like the situation resolved?

     
Once the complainant is interviewed, the EEOC offers a guideline of questions to ask the alleged harasser:

  • What is your response to the allegations?
  • If the harasser denies the allegations, ask why the complainant might lie and if there is anyone that may have relevant information?
  • Is there any physical evidence, notes, or documentation regarding the incident or incidents?

You should also interview any third parties that may have relevant information.  The following questions are useful as a guideline for interviewing witnesses or third parties:

  • What did you see or hear?  When did this occur?  Describe the alleged harasser?s behavior toward the complainant and toward others in the workplace.
  • What did the complainant tell you and when did he/she tell you?
  • Do you have other relevant information or do you know of anyone else that would have relevant information.

 Once an allegation is made, and all parties have been interviewed the interviewer will need to weigh each parties credibility to reach a determination.  During this process measures should be taken to prevent all contact between the harasser and complainant.  The complainant however should not be transferred involuntarily.  Upon reaching a decision the parties should be informed of the determination.  For more information visit the Helmer Friedman LLP sexual harassment, employment violation leaders at http://www.helmerfriedman.com.

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Wrongful Termination Lawsuit Filed Against Owner of Popular Los Angeles Restaurants Sushi Roku Katana and Boa

Former employee of Los Angeles based Innovative Dining Group, Inc. (“IDG”) filed a wrongful termination lawsuit.

Laura Holycross the Company’s former Director of Catering and Special Events; alleges that she was wrongfully terminated after she complained that IDG was engaged in illegal and fraudulent conduct including: (1) charging several of its clients for non-existent services and products; (2) hiring undocumented workers so that it could pay them less than it would have to pay individuals authorized to work in the United States and that it paid its workers “under the table” so that it did not have to pay federal, state, and local taxes; (3) refusing to allow its workers to take the meal and rest periods to which they were entitled under California law; (4) instructing its employees, including Ms. Holycross, to falsify and forge legal documents and information that was to be provided to its clients, their lawyers, their security companies, and various police departments; and (5) instructing its employees not to book events that would include African-American and Persian guests.

Commenting about her lawsuit, Ms. Holycross’ attorney, Andrew H. Friedman of Venice-based Helmer Friedman, LLP said “California law clearly prohibits employers, and certainly their highest level officials, from firing an employee for complaining about illegal conduct. We look forward to vigorously representing our client and obtaining the remedies to which she is entitled under the law.”

For additional information contact:
Gregory D. Helmer
Andrew H. Friedman
Helmer Friedman LLP (310) 396-7714 www.helmerfriedman.com

Workplace Violations

The law firm of Helmer • Friedman LLP represents plaintiffs in a potential class action lawsuit against U.S. Remodelers, Inc. and its parent corporation, U.S. Home Systems, Inc. The lawsuit seeks to recover: (1) deductions that were unlawfully taken from the commissions earned by California Sales Associates from July 3, 2003, to the present time; and (2) reimbursements for expenses incurred by California Sales Associates during the same time period.

The lawsuit alleges that U.S. Remodelers unlawfully required that its California Sales Associates “insure” the company against business losses and alleged “overhead” expenses by deducting two types of losses and expenses from the employees’ earned commissions. First, the lawsuit alleges that U.S. Remodelers deducted a co-called “administration” or “permit” fee (typically in the amount of $250.00) from salespersons’ commissions. Second, the lawsuit alleges that U.S. Remodelers deducted amounts from each California Sales Associate’s commission when they under-measured the customer’s kitchen or other area to be re-faced or made other mistakes.

The lawsuit also alleges that U.S. Remodelers failed to reimburse its California Sales Associates for the expenses they incurred in the course of performing their job duties and responsibilities including, among other expenses.