Whistleblower Implications of Titanic Proportions

While the world held its collective breath last month as search teams desperately looked for a missing submersible carrying five Titanic tourists, news reports began circulating of a former OceanGate director of marine operations who was allegedly fired for raising safety concerns years earlier regarding that same vessel. Sadly, the rescue mission soon turned into a recovery mission. The details of this tragedy and discussions about how it could have been avoided will likely continue for many years to come, particularly amid allegations that the company ignored serious safety concerns. 

In June 2018, OceanGate filed a lawsuit in the state of Washington alleging various claims against the former OceanGate employee and his wife. The complaint alleged the defendants shared highly confidential information concerning the company’s development of the Titan submersible with the Occupational Safety and Health Administration (OSHA) and others. The complaint stated that the director’s employment was terminated after he rejected OceanGate’s assertions that the Titan was safe and stated he wouldn’t authorize any manned tests of the submersible without a scan of the hull to detect potential flaws. OceanGate accused the director of breach of contract, fraud, unjust enrichment, conversion, and misappropriation of trade secrets.

The director and his wife responded to the complaint in August 2018 and raised counterclaims against OceanGate for wrongful termination in violation of public policy. In short, defendants alleged that the director repeatedly alerted OceanGate to “serious quality control and safety concerns regarding the experimental Titan, including but not limited to, his concerns regarding the lack of non-destructive testing on the design of the hull that is critical to passenger safety.” Defendants further alleged that OceanGate “summarily terminated [the director’s] employment in efforts to silence [him] and to avoid addressing the safety and quality control issues.” News coverage quickly petered out, possibly because the case was settled in November 2018 and any settlement agreement likely included a stringent confidentiality clause.

Still, the case got my employment attorney mind spinning about employers’ obligations when employees raise safety concerns and the implications when such employees are later disciplined or terminated. Those implications require even more careful consideration when the discipline or termination is somehow related to the complaint and/or it occurs relatively close in time to the employee’s complaint (even if for completely unrelated reasons, which the employer would need to clearly articulate). Whenever employees raise safety concerns, employers must tread very carefully to ensure compliance with federal and state law—not only to ensure legitimate safety issues are promptly addressed but also to ensure employees are protected against unlawful retaliation.

OSHA is the federal agency responsible for ensuring safe and healthful conditions for workers and enforcing standards and providing training, outreach, education, and compliance assistance. There are currently more than 20 whistleblower statutes protecting employees from retaliation for reporting violations of workplace safety and health, airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, and other requirements. Claims of retaliation generally allege that the employer took adverse action (e.g., firing, laying off, demoting, denying overtime/promotion, disciplining, etc.) against an employee for engaging in protected activity. Earlier this year, OSHA rolled out a national, 12-month Whistleblower Protection Programs (WPP) pilot aimed at streamlining the complaint intake triaging process. 

In addition to federal laws protecting whistleblowers who engage in protected activity, employers must also be aware of potential state law causes of action, as well. The relevant laws may vary depending on how and to whom the safety concern was raised (e.g., internally, to an outside agency, etc.). Once employees raise a safety concern, employers should take prompt action to investigate the complaint and take any necessary remedial steps if the complaint is substantiated. Furthermore, any employer considering disciplinary action for an employee who has raised safety concerns (or engaged in other potentially protected activity) would be well advised to seek legal counsel before proceeding. 

In the meantime, my heart goes out to the families and loved ones of those lost in this tragedy. I remain hopeful there will be some important lessons learned from this incident in order to prevent a future disaster.   

Kristin Starnes Gray is an attorney at FordHarrison.

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