Safety News Alert

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2 Fired Whistleblowers Get Their Jobs Back — Plus $453K

A national employer is the latest to find itself on the wrong end of an OSHA whistleblower investigation. 

Here’s what happened that led to a six-figure mistake.

Terminations Prompt Whistleblower Investigation

CSX Transportation is a freight railroad company that operates in the Eastern U.S.

In November 2018, two employees reported a “blue flag” on the tracks at a Waycross, Georgia, railyard to signal that their train could not be moved safely.

The company responded by removing the workers from the assignment and later fired them. 

An OSHA investigation found the company’s response violated federal protections for employees who raise workplace safety issues. 

“The Federal Railroad Safety Act protects workers’ rights to report safety concerns without fear of retaliation. When employers like CSX Transportation retaliate against workers for raising safety concerns, they create an environment of fear that can lead to dangerous and sometimes deadly situations,” Kurt Petermeyer, OSHA’s Regional Administrator in Atlanta, said in a statement. “The workers did what they were supposed to – they saw that the tracks were deemed unsafe, they communicated the issue, and waited for further instructions. Despite following protocol, they were fired for the delay. This retaliatory behavior is unacceptable.”

“Employers who punish workers for speaking out against unsafe or unfair working conditions are breaking the law, and OSHA will hold them accountable,” Petermeyer added.

What a six-figure whistleblower mistake looks like

An administrative law judge ordered CSX to pay a total of $453,510 to two employees, which includes: 

  • $248,856 in back wages
  • $100,000 for emotional distress, and 
  • $100,000 for punitive damages.

The company was also ordered to pay $4,654 to one of the workers for the health insurance premiums paid after his employment ended.

In addition to the financial payout, CSX must also: 

  • Reinstate the employees to their previous positions and seniority had they not suffered the wrongful termination, and 
  • Pay their reasonable attorneys’ fees.

Feds Crack Down on Whistleblower Violations

This is the latest of several instances where employers were found to have violated federal whistleblower regulations by retaliating against workers who reported safety concerns. For example, in recent months: 

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Employer Ignores OSHA Citations, Faces $328K Penalty

Word to the wise: When OSHA comes knocking, take the visit seriously the first time around.

Otherwise, the penalties can really pile up, as a boat manufacturer in Florida recently learned the hard way. Here’s what happened.

Workplace Safety and Health Violations

In July 2023, an OSHA investigation determined Blacktip Boatworks LLC jeopardized the safety and health of its workers by exposing them to 15 safety and health hazards. 

As a result, OSHA investigators issued citations for the violations – and Blacktip Boatworks was supposed to submit the required proof of abatement to OSHA. But the company never complied.

When Blacktip Boatworks failed to show proof that the corrections had been made, OSHA investigators made another trip out to the worksite in March 2024 and discovered that Blacktip hadn’t corrected the hazardous conditions. Among other things, the company:

  • Failed to institute a workplace respiratory protection program and procedures for workers required to wear tight-fitting respirators, and
  • Failed to develop and maintain a written hazard communication program and safety data sheets for workers handling hazardous chemicals. 

During the second visit, OSHA inspectors identified repeat and serious safety and health violations, including:

  • Failing to provide training to workers voluntarily using respirators
  • Failing to conduct periodic inspections on equipment used to lift boats and remove damaged equipment from service
  • Failing to electrically interconnect containers used to transfer flammable liquids, and
  • Failing to provide medical evaluations and fit testing to workers required to wear tight-fitting respirators.

“Our follow-up inspection found Blacktip Boatworks continuing to expose its employees to potentially disabling and deadly injuries,” Tampa’s OSHA Area Director Danelle Jindra said in a statement. “The citations we issue are not recommendations. They are violations of federal law that must be addressed immediately.”

Lesson Learned: OSHA Penalties Multiply

All told, OSHA cited Blacktip Boatworks with:

  • Four failure-to-abate violations
  • Two serious violations
  • Three repeat violations, and
  • One other-than-serious violation because of the inspection. 

Now, the company faces a total of $328,287 in penalties. You can click here to read the full citation, but here’s a quick breakdown of the numbers. 

The penalties for the workplace safety and health violations came to $33,187. But those failure to abate penalties are the hard hitters. They tacked on an additional $295,100.

Now, Blacktip Boatworks has 15 business days from receipt of the citations and penalties to comply, request an informal conference with OSHA’s area director, or contest the findings before the independent Occupational Safety and Health Review Commission.

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OSHA Reveals Top Cited Safety Violation in FY 2024

The Occupational Safety and Health Administration (OSHA) announced its Top 10 frequently cited workplace safety violations in FY 2024, according to a National Safety Council press release.

For the 14th straight year, Fall Protection-General Requirements tops the list of OSHA’s most frequently cited workplace safety violations. 

And the associated costs don’t stop at OSHA fines. A recent study found that falls are among the costliest workplace injuries. In fact, they’re in the top three workplace injuries with the highest compensation payouts.

OSHA’s Top 10 Most Frequently Cited Violations

Scott Ketcham, director of the directorate of enforcement programs, and Safety+Health magazine, presented the preliminary data during the 2024 NSC Safety Congress & Expo in Orlando.

The Top 10 most frequently cited workplace safety standards for FY 2024 are:

  1. Fall Protection – General Requirements (1926.501): 6,307 violations
  2. Hazard Communication (1910.1200): 2,888
  3. Ladders (1926.1053): 2,573
  4. Respiratory Protection (1910.134): 2,470
  5. Lockout/Tagout (1910.147): 2,443
  6. Powered Industrial Trucks (1910.178): 2,248
  7. Fall Protection – Training Requirements (1926.503): 2,050
  8. Scaffolding (1926.451): 1,873
  9. Personal Protective and Lifesaving Equipment – Eye and Face Protection (1926.102): 1,814
  10. Machine Guarding (1910.212): 1,541

How does this stack up against OSHA’s list of most frequently cited workplace safety standards for FY 2023?  

The top three spots remain the same – signaling that these areas present an ongoing problem.
Safety supervisors may want to consider focusing on these areas as we head into Q4.

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New State Law Orders Workplace Safety Measures in Retail

Addressing workplace safety concerns, Gov. Kathy Hochul has signed the “Retail Worker Safety Act,” which requires retail employers in New York to develop and implement training programs and policies to help prevent workplace violence.

The new legislation applies to employers with at least 10 employees working in a retail store that “sells consumer commodities.” Importantly, the law does not apply to retailers that primarily sell “food for consumption on the premises.”

“Coming from a union family, I know how critical organized labor is to building a strong middle class,” Gov. Hochul said in a statement. “As we celebrate today’s Labor Day Parade in New York City, we are strengthening our commitment to working families and letting them know we have their backs every step of the way.”

3 Mandates to Boost Workplace Safety

Under the new law, covered employers must take the following steps to improve workplace safety in retail establishments:  

  1. Develop a workplace violence prevention policy 
  2. Implement a workplace violence prevention training program, and 
  3. Install panic buttons in certain situations. 

The law is expected to take effect on or about March 2, 2025.

1. Workplace Violence Prevention Policy

Covered employers must develop and implement a workplace violence prevention policy that includes:

  • A list of workplace safety risk factors – including working late night or early morning hours and exchanging money with the public – present in the workplace.
  • The methods the employer will use to address instances of workplace violence and boost workplace safety, such as installing high-quality external lighting or using drop safes or other means to limit the amount of cash on hand.
  • Info about federal and state statutory provisions concerning violence against retail workers and remedies available to victims of violence in the workplace.
  • Clearly state protections against retaliation for employees who complain about workplace violence or the presence of factors or situations that affect workplace safety and might place retail employees at risk of workplace violence, or who testify or assist in any proceeding under the law.

Moreover, employers must provide a copy of the policy to new employees at the time of hire and must also be made available to all employees on an annual basis. Further, the policy should be available in English and Spanish. It should also be made available to employees in any language they request within 30 days of the request.

2. Workplace Violence Training Program

The new law requires the New York State Department of Labor to develop a model workplace violence training program and make it available on the agency’s website. 

Employers can use the model once it is made available, or they must develop and implement a workplace violence training program that, at minimum:

  • Covers the information in the workplace violence prevention policy
  • Includes examples of measures that retail employees can use to protect themselves when faced with violence from a co-worker or a customer
  • Discusses de-escalation tactics
  • Includes active shooter drills
  • Covers emergency procedures
  • Provides instruction on the use of security alarms, panic buttons and other related emergency devices, and
  • Includes a site-specific list of emergency exits and meeting places in case of an emergency.

The workplace safety training must be conducted in English and in the primary language spoken by employees in the workplace. 

3. The Provision for Panic Buttons

A provision of the law requires covered retail employers with 500 or more retail employees statewide to provide access to panic buttons at the workplace, allowing them to connect with 911 immediately in the event of an emergency.

Employers can choose to provide stationary panic buttons at easily accessible locations throughout the workplace or may provide all retail employees with a wearable panic button or access to a mobile app that serves as a panic button. 

This provision requires covered retail employers with 500 or more retail employees statewide to provide access to panic buttons at the workplace, allowing them to connect with 911 immediately in the event of an emergency.

Employers can choose to provide stationary panic buttons at easily accessible locations throughout the workplace or may provide all retail employees with a wearable panic button or access to a mobile app that serves as a panic button. 

This provision of the law takes effect on Jan. 1, 2027.

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OSHA Backs Driver Who Reported Safety Issues

A truck driver was illegally fired for reporting legitimate safety issues, the Department of Labor (DOL) has determined.

OSHA has ordered the employer to pay back wages with interest as well as compensatory and punitive damages.

The agency’s federal whistleblower investigation targeted W-L Construction & Paving Inc., which is a subsidiary of CRH — which in turn is a global provider of building materials solutions.

Safety Issues and a Broken Tooth

The DOL said that on July 12, 2023, while driving to work, the unnamed driver broke his tooth while biting into a sandwich. Though he made it to work, he told his supervisor when he got there that he needed to leave due to his dental emergency.

The next day, the driver told his supervisor that he would not be able to work due to pain from the dental emergency. He said he did not feel safe operating a commercial motor vehicle because his face was swollen and he was having problems with his vision.

Eight days later, the driver left work after finishing an eight-hour shift. About an hour later, his supervisor asked him to return so that he could haul another load. The driver said no, citing safety issues and explaining that he had been drinking and was not able to drive.

More Health Issues

At the end of August of 2023, the driver called in to work to say he could not work because he was coughing up blood, further highlighting safety issues.

Near the end of September, W-L’s general manager terminated the driver’s employment.

The driver contacted HR and said he had been terminated for his complaints relating to hours of service. HR initially changed the termination to a suspension, but it terminated the driver in early October of 2023 based on its finding that he was terminated based on poor attendance.

More specifically, the employer said the driver accumulated 10 attendance infractions between July and September of 2023.

Policy? What Policy?

OSHA said three of those 10 infractions were related to safety issues and the driver’s protected refusals to drive. It also said that though the employer supposedly has a policy calling for termination after three consecutive absences or no-shows without proper notification, it does not consistently enforce the policy.

Moreover, OSHA said, the driver never had three consecutive absences or no-shows without proper notification. He told his supervisor when he would late or absent, OSHA said.

The agency said the driver engaged in protected activity when he complained about hours of service near the end of April of 2023 and when he told his employer on two separate occasions that he was too sick to drive. These were legitimate safety issues.

OSHA determined that the driver’s engagement in those protected activities were a contributing factor in the decision to terminate his employment.

OSHA Faults Employer for Safety Issues

The employer did not provide enough evidence to show it would have terminated the driver’s employment if he did not engage in the protected activity, the agency determined.

It said the driver and his family have “suffered tremendously” due to the employer’s illegal conduct and that it was appropriate to award both compensatory and punitive damages.

The agency ordered the employer to pay $56,558.95 as of September 11, 2024, with that amount growing each week until reinstatement is offered.

It also ordered payments of $1,759.30 in interest, $115,694.19 in compensatory damages and $10,000 in punitive damages.

It further ordered the employer to pay the driver’s reasonable attorneys’ fees.

The agency also banned the employer from retaliating against the driver and ordered it to post a notice about the case for employees.

Employers Are Accountable

“W-L Construction & Paving Inc. illegally retaliated against an employee who raised legitimate concerns about their ability to meet the company’s demands without jeopardizing their safety or that of others,” said OSHA Regional Administrator Michael J. Rivera in Philadelphia. “Our nation’s supply chain and economy depend on commercial drivers operating their rigs safely to deliver their cargo. OSHA will hold employers accountable when they ignore workers’ concerns about their safety and that of others. Workers should know speaking freely without fear of retaliation when safety is compromised is protected right under federal law.”

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OSHA: Wisconsin Animal Food Plant Faces $166K Fine for 24 Violations

OSHA inspectors have determined an animal food producer in Wisconsin exposed employees to combustible dust hazards and cited the employer for a total of two dozen health and safety violations.

Here’s what prompted OSHA to propose more than $160,000 in penalties.

Combustible Dust Hazards Found, OSHA Says

A family-owned business for six generations, Strauss Feeds LLC makes milk replacer for calves and other young animals.

After receiving complaints of unsafe working conditions, federal investigators visited the Strauss Feeds facility in Watertown in February 2024. 

After an investigation, OSHA found the company failed to adequately control dust levels, which created “serious combustible and airborne dust hazards.” 

Among other things, the investigators said employees were allowed to use “compressed air to perform blowdown methods of cleaning to remove accumulated combustible dried milk powder dust from [various] surfaces,” including the floor, equipment, ducts, pipes, and conduits.

Doing so had the potential to generate combustible dust clouds of dried milk powder, as no controls for nearby machinery and other electrical equipment were in place, the feds noted. 

OSHA blamed the hazards on the company’s “poor housekeeping, its failure to evaluate spaces for dust hazards, and an absence of engineering controls to reduce dust.”

The agency also said Strauss Feeds failed to develop a written respiratory protection program. 

“Unsafe levels of airborne dust can ignite suddenly, causing explosions and fires that jeopardize the safety of workers. Left unchecked, these same dust hazards can cause workers long-term health issues,” OSHA’s Area Director in Madison, Wisconsin, Chad Greenwood said in a press release. “Companies that manufacture products that create excessive dust particles must use engineering systems and highly effective respiratory protection programs to protect employees from harm.”

OSHA also said employees were exposed to hazards from “walking and working surfaces, falls, confined space and the operation of industrial trucks and forklifts when combustible dust hazards were present, increasing the risks of fire and explosion.”

All told, OSHA cited Strauss Feeds for 19 serious and five other-than-serious health and safety violations and issued proposed fines of $161,322.

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Employee Fired Over Safety Concerns — and Court Is Not Happy

A federal court in New York decided that an employer illegally fired an employee for reporting safety concerns relating to the COVID-19 virus.

The employer in this case was an ophthalmologist who fired an employee after she complained about a lack of workplace protocols relating to the virus.

Dr. David Kwiat, who operates Kwiat Eye and Laser Surgery PLLC, allegedly retaliated against employee Jenna Coolman, who raised the safety-related issues. Kwiat is the sole owner and the president of the medical practice.

Coolman began working for Kwiat as an ophthalmology technician in July of 2017.

The Department of Labor (DOL) said in its complaint against Kwiat and his practice that he chose not to implement appropriate safety protocols, such as mask-wearing and social distancing, as the pandemic raged between March and December of 2000.

Employee Reports Safety Concerns

It said Coolman repeatedly complained to her supervisor about the lack of proper protocols, to no avail.

In December of 2020 and again in January of 2021, Coolman reported her safety concerns to the New York State Department of Health.

That led to a late February 2021 phone call from the department to the practice. Kwiat confronted Coolman and fired her on the same morning that the call was received, the DOL said. Kwiat admitted to Coolman that he fired her because she reported her safety concerns to authorities, the agency added.

Coolman filed an OSHA whistleblower complaint the day after she was fired. She had never been disciplined before the date of her termination.

OSHA Says Employer Did Not Cooperate

Instead of complying with requests for more information about the safety concerns, the DOL said, Kwiat refused to provide information and admitted to OSHA that he fired Coolman because she complained to the state department.

The DOL’s March 2022 court complaint accused Kwiat and his practice of violating the OSH Act. Among other things, it sought damages and reinstatement.

In the court case, both sides asked the court to grant summary judgment in their favor. In early August of 2024, the court issued a memorandum decision and order. In the ruling, the court denied the defense motion and granted the plaintiff’s motion in part. It ruled that the defendants broke the law by firing the employee for reporting safety concerns.

How to Show Retaliation

The court explained that to win its claim of unlawful retaliation, the DOL had to show three things:

  • Coolman participated in a protected activity.
  • Coolman was subjected to an adverse job action after she participated in the activity.
  • There is a causal connection between the protected activity and the adverse action.

The court decided that the required elements were all met. It rejected the defense argument that Coolman was terminated because she made a false report with the state department of health. It said there was evidence that the complaints were made based on a good-faith belief that the practice was not complying with safety mandates.

Therefore, the court found that the practice illegally retaliated against Coolman when it terminated her employment.

Stop Doing That, Court Says

The court enjoined the defendants from further violating the statutory provision under which the case was brought. It also required them to post a notice stating that going forward it will not retaliate against employees who similarly engage in protected activities by reporting safety concerns.

The DOL further sought an award of $773,931.77 in damages, including $100,000 in emotional distress damages and $500,000 in punitive damages.

The court said a further hearing is needed as to that request. It ordered the parties to confer and provide it with a joint status letter within 30 days.

 “The court’s decision reinforces the Occupational Safety and Health Act‘s guarantee that workers have the right to raise safety and health concerns to their employers and file complaints with OSHA and other regulatory agencies without fear of termination and retaliation and the chilling effect such actions have on workers’ coming forward with concerns about health and safety hazards in their workplaces,” said OSHA Regional Administrator Richard Mendelson in New York.

Su v. Kwiat Eye and Laser Surgery, PLLC, No. 1:22-cv-00264 (N.D.N.Y. 8/6/24).

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New Tool Shares Info on Workplace Injuries: 8 Data Points

If you haven’t heard, the feds just released a new online tool that allows users to search its database and view trends on workplace injuries occurring in states covered by federal OSHA.

What Is the SIR Database?

The new tool – OSHA’s Severe Injury Report (SIR) database – includes info on all severe workplace injuries reported by employers covered under federal OSHA since 2015.

Under an OSHA reg, employers must report workplace fatalities and all severe workplace injuries. The agency defines a severe work-related injury as “an amputation, in-patient hospitalization, or loss of an eye.” 

Workplace fatalities and severe workplace injuries must be reported within eight hours and 24 hours, respectively. These reporting requirements began on Jan. 1, 2015. 

After receiving a report, OSHA may conduct a formal investigation or ask for more info, depending on the circumstances.

Since 2015, the feds have been collecting all this data on workplace injuries. But it wasn’t put together in an organized format and made available to the public in a meaningful format — until now.

The Data on Workplace Injuries

Fast-forward nine years. In our data-driven world, any collection of organized information can be very valuable — and this SIR database is no exception.

So what exactly can users learn about severe workplace injuries?

They can search, filter and download the data in the SIR database by eight specific data points: 

  1. Year
  2. Industry
  3. State 
  4. Employer name
  5. Event or exposure
  6. Source of the injury
  7. Nature of the injury, and 
  8. Body part that was injured.

OSHA has even created a how-to video to show users all the bells and whistles and provide advice on navigating the various features to find the info they’re interested in.

Currently, data included in the SIR database is from the beginning of 2015 through the end of 2023. But OSHA says the data will be updated periodically. 

Importantly, the data represents incidents under federal OSHA jurisdiction only and does not include incidents under state plan jurisdictions.

OSHA said it hopes “providing this dashboard will encourage workers and employers to explore these data, learn about how severe injuries happen in their industry and use OSHA’s resources” to help prevent workplace injuries at their company.

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OSHA Seeks $1M in Penalties for Air Safety Violations

OSHA has proposed more than $1 million in penalties against a Chicago countertop manufacturer that allegedly did not do enough to protect its workers from the danger presented by silica dust.

The agency zeroed in on Florenza Marble & Granite for an inspection after learning that a 31-year-old employee there was in need of a double lung transplant because he has accelerated silicosis, which is an incurable lung disease.

The agency said that when it arrived at Florenza to conduct air sampling in February of 2024, workers were “laboring in a haze of dust” as they cut engineered and stone countertops for residential and commercial projects.

OSHA Finds Violations

Workers were not using respirators properly, the agency added, and there were not enough controls in place to reduce silica exposure.

The workers were exposed to silica levels that were up to six times greater than allowable limits, according to the agency.

During the course of its investigation, OSHA discovered that the father of the 31-year-old, who also worked at the facility, is also in need of a silicosis-related lung transplant. The father and son have limited English proficiency and were not told about the dangers of silica exposure.

The agency’s investigation also revealed that a third worker has an unresolved work-related lung disease.

Safety Program Was Lacking

OSHA said the company’s owner declined to develop a safety program for his workers even after two workers’ compensation insurance carriers turned him down because he did not provide them with air sampling showing he adequately protected his employees.

The agency determined that the employer:

  • Did not set a baseline of employee health so that it could monitor silica exposure
  • Did not perform medical surveillance to monitor exposure.
  • Lacked engineering and administrative controls to reduce silica dust levels.
  • Exposed its workers to unsafe silica dust levels.
  • Did not implement a respiratory protection program.

OSHA said it found eight egregious willful violations and four willful violations. It also cited the employer for 20 serious violations. Among other things, the latter violations related to respirator deficiencies and lack of proper safety training.

A willful violation occurs when an employer either knows it is breaking the law or acts with plain indifference to employee safety, while a violation is classified as serious when there is a workplace hazard that is likely to cause death or serious physical harm. There is no serious violation when the employer did not know or could not have known of the violation, OSHA has advised.

OSHA Seeks $1 Million in Penalties

The agency has proposed more than $1 million in penalties. The employer has the right to request an informal conference or contest the agency’s findings.

“Our compliance officers found silica dust levels nearly six times higher than permissible levels and the owner made little or no effort to protect his employees from exposure,” said OSHA Chicago Regional Administrator Bill Donovan. “To make matters worse, [the owner] was indifferent to his employees’ suffering and refused to accept any responsibility for protecting them, even after two insurance carriers dropped the company for its egregious defiance of workplace safety standards.”

OSHA has produced a hazard alert that specifically addresses worker exposure to silica during countertop production and installation.

The alert explains that stone countertops include high amounts of silica, which is a natural mineral. In fact, it says some stone countertops may contain up to 90% of the mineral.

Inhaling the small crystalline silica particles that are produced during the manufacturing process can lead to silicosis, which is an incurable and sometimes fatal lung disease.

Employers are responsible for creating safe production processes, such as pre-washing stones before cutting them and using filters to control dust.

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Cal/OSHA Targets Silica Safety Violations, Cites 9 Employers

California’s Division of Occupational Safety and Health (Cal/OSHA) has cited nine employers for silica health and safety violations in the greater Los Angeles area.

Cal/OSHA has ramped up enforcement efforts to address the growing number of silicosis cases among stone workers, according to an agency press release.

What is Silica and Why Is It Harmful?

First things first: Crystalline silica is a common mineral found in stone, brick, rock, concrete, block, mortar, asphalt and sand. When workers cut or grind these materials, silica particles are released into the air. 

Workers who inhale silica dust are at increased risk for developing silica-related diseases, including:

  • Silicosis, an incurable lung disease that can lead to disability or death
  • Lung cancer
  • Chronic obstructive pulmonary disease (COPD), and
  • Kidney disease. 

How to Help Protect Employees

Reducing or eliminating silica hazards in the workplace means controlling exposure to silica dust. Employees can protect themselves by:

  • Wearing personal protective equipment (PPE) such as coveralls and respirators
  • Wetting the dust and preventing it from getting into the air, and
  • Vacuuming to immediately remove the dust at the point where it is made.

Fines Exceed $168K 

Cal/OSHA cited nine employers in Sun Valley in the greater Los Angeles area for multiple violations:  

Emergency Standard

At the end of last year, Cal/OSHA put into place an emergency standard in an effort to protect workers in the stone fabrication industry from the deadly effects of silica dust.

The measure took effect on Dec. 29, 2023.

If employers have questions or need assistance with workplace health and safety programs, they can call Cal/OSHA’s Consultation Services Branch at 800-963-9424.