Not only is the Occupational Safety and Health Administration (OSHA) continuing to crack down on employers suspected of retaliating against employees who blow the whistle and will not hesitate to pursue litigation on behalf of employees, OSHA considers lawsuits against whistleblowers to constitute adverse action for purposes of finding unlawful retaliation.

In a case brought by OSHA on behalf of a whistleblower who reported improper asbestos removal practices at a school worksite and was fired for reporting these practices, the jury awarded the whistleblower approximately $174,000 ($103,000 in back wages, $20,000 in compensatory damages, and $50,000 in punitive damages).

The complaint alleged Champagne Demolition, LLC fired the whistleblower one day after he blew the whistle. The employee claimed he was subjected to verbal threats and legal action. In fact, a few weeks after Champagne Demolition fired the whistleblower, the company sued him for defamation. OSHA claimed that both the termination of the whistleblower’s employment and the filing of the defamation suit were retaliatory acts against the employee in violation of Section 11(c) of the Occupational Safety and Health Act.

A footnote in OSHA’s motion for summary judgment is telling of the Administration’s position on lawsuits against whistleblowers:

Lawsuits filed with the intent to punish or dissuade employees from exercising their statutory rights are a well-established form of adverse action. See BE & K Constr. Co. v. NLRB, 536 U.S. 516, 531 (2002) (Finding that a lawsuit that was both objectively baseless and subjectively motivated by an unlawful purpose could violate the National Labor Relations Act’s prohibition on retaliation); Torres v. Gristede’s Operating Corp., 628 F. Supp. 2d 447, 472 (S.D.N.Y. 2008) (“Courts have held that baseless claims or lawsuits designed to deter claimants from seeking legal redress constitute impermissibly adverse retaliatory actions.”); Spencer v. Int’l Shoppes, Inc., 902 F. Supp. 2d 287, 299 (E.D.N.Y. 2012) (Under Title VII, the filing of a lawsuit with a retaliatory motive constitutes adverse action).

While OSHA’s position initially may appear at odds with how courts typically define an adverse action, OSHA focused on the fact that there was no merit to the company’s defamation suit, because the whistleblower spoke the truth when he accused it of illegal asbestos removal. Generally, courts have concluded that frivolous employer revenge suits are retaliatory.

Employers should exercise caution in pursuing litigation against a whistleblower if there is any doubt as to the merit of the suit, especially when OSHA is involved. Please contact Jackson Lewis with any questions.