Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.
I am regularly surprised in my job.
I recently met with a client who worked in a psychically demanding industrial job who told me that his employer required a supervisor to accompany the employer to the company infirmary. Many supervisors refused to accompany employees to the nurse, so many employees would forgo going to the infirmary.
My jaw dropped when my client told me this.
Last year, OSHA cited a Pilgrim’s Pride Poultry plant in Florida for citation for failure to provide proper medical treatment for their employees. This was the first time such a sanction had been made. In a post last August, I pointed out that Pilgrim’s Pride was sanctioned for not making proper referrals to orthopedist for overuse injury. In the scenario my client described to me, many injured workers were unable to even get first aid for potential work injuries.
Inability to receive basic medical treatment on the jobsite forces employees to seek medical treatment outside work hours. But employees can risk termination if they seek medical treatment outside the plant without notifying their employer. Inability to obtain basic medical care on the job site makes it less likely that employers will log injuries and more likely they can defend workers’ compensation claims for lack of notice.
A year ago, OSHA would have probably been interested in such a scenario. But the Trump Department of Labor is rolling back many workplace safety rules implemented by the Obama administration. Workers may have to look elsewhere besides OSHA for vigorous enforcement of workplace safety laws.
Employees can report potentially unlawful practices like requiring a supervisor to accompany an employee to a nurse’s station to OSHA on their own. At least in Nebraska, this would allow them to pursue a whistleblower claim. But in many instances employees risk termination even a court finds that their employer engaged in unlawful retaliation.
Employees might also be able to pursue wrongful discharge claims based on violations of public policy. The potential problem with these types of claims is often times courts will find that federal law doesn’t create public policy for the purpose of a state law claim. Courts could also find that laws do not create a clear public policy sufficient to create a claim for wrongful discharge.
I am a firm believer in employees working together to address issues in the workplace. So-called protected concerted activity doesn’t involve litigation and is often effective in resolving workplace issues quickly. But again employees take some risks of retaliation. These retaliation claims are sometimes heard by the independent National Labor Relations Board. While the Department of Labor has signaled it will be less responsive to employee interests, the independent NLRB seems to be a more friendly forum for employee grievances against their employers.