Recent Pandemic Decisions Embolden NLRB, OSHA Collab

The COVID-19 pandemic wreaked havoc on employers’ balancing of in-person policy with potential health risks, and recent court decisions have highlighted the National Labor Relations Board’s (NLRB) and Occupational Safety and Health Administration’s (OSHA) concerted collaborative efforts in protecting whistleblowing employees speaking out about on-the-job safety.

NLRB, OSHA Doubling Down on Workplace Protections

Top officials from the NLRB and OSHA announced in late 2023 that their agencies will be working more closely to improve on-the-job safety at U.S. workplaces, committing to enforcing antiretaliation laws to protect workers who speak out about safety issues.

OSHA Assistant Secretary of Labor Douglas Parker said the agency partnership should strengthen everyone’s ability to exercise their legal rights in the workplace without fear of losing their job or other forms of punishment.

Outspoken Nurse Comes Out on Top

The U.S. 5th Circuit Court of Appeals (whose rulings apply to all Texas employers) recently upheld an NLRB ruling on March 7, finding that Texas health company Renew Home Health unlawfully fired Ann Bornschlegl, a nurse who had raised issues about how the company handled the pandemic. Renew fired her after she relayed a group of employees’ safety concerns regarding protective equipment shortages and other pandemic-based issues in a signed letter to management. She was considered a hardworking employee but was outspokenly critical of the company’s leadership and pandemic working conditions.

The letter sent to management inadvertently included a worker’s name who hadn’t explicitly agreed to sign the draft. Renew leaned in on this factor, stating it had fired Bornschlegl for falsifying a document against company policy. The court didn’t buy this argument, lending deference to the fact that her actions complaining about working conditions were behind the decision to fire her and that the company’s provided reasoning was an excuse to cover its true motive.

The 5th Circuit considered that other employees who had been fired for falsifying documents had falsified time cards or visit logs rather than merely signing another employee’s name to an email. As such, the court affirmed that Bornschlegl had been unlawfully fired for engaging in the protected act of “engag[ing] in other concerted activities for the purpose of . . . mutual aid or protection,” referencing Section 7 of the National Labor Relations Act (NLRA).

Renew was ultimately ordered to make Bornschlegl whole for any loss of earnings and benefits suffered from her discriminatory discharge, as well as for her reasonable search for work interim employment expenses.

Employee Awarded $195,000 in Back Pay

In March 2020, at the start of the pandemic, an employee at a Staten Island community health center asked for a regularly scheduled meeting to be held by teleconference rather than in person in a windowless conference room. The CEO insisted the meeting be in person, so the employee didn’t attend because of concerns of exposure to the virus.

The employee was suspended two days later for unspecified insubordination before being fired a few weeks later without explanation. The employee promptly filed a whistleblower complaint with OSHA.

In 2021, OSHA filed suit, alleging a violation of antiretaliation provisions for reporting a hazardous work condition. Litigation and mediation concluded in January 2024, and the health center agreed to pay $195,000 in back wages and compensatory damages, among other concessions. Regional Solicitor Jeffrey Rogoff in New York said, “The outcome of this case sends a clear and strong message to employers that the U.S. [Department of Labor] DOL will investigate and pursue appropriate legal action when employers disregard or discourage their employees’ efforts to address legitimate health and safety concerns.”

Ever-Evolving Landscape

You should take note of the growing collaboration between OSHA and the NLRB because the necessity of workplace safety continues to evolve with current global events. The collaboration between the agencies will not only facilitate interagency cooperation and information-sharing but also bolster protections for workers to speak out about unsafe working conditions.

Times have changed for employees who have been fearful of blowing the whistle on workplace conditions and will likely only continue to grow in strength as trends continue.

Jacob M. Monty is a partner with Monty & Ramirez, LLP, in Houston. You can reach him at jmonty@montyramirezlaw.com.

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