Every once in a while, the feds get a taste of their own medicine.
We’ve seen it happen to the Equal Employment Opportunity Commission. And now, the Department of Labor (DOL) is on the wrong side of an expensive settlement.
Here are the details of the case:
Robert Whitmore worked for the DOL for 37 years, first as an economist and then for the Occupational Safety & Health Administration (OSHA) in its recordkeeping department.
In 2005, Whitmore began talking to the press, claiming that OSHA was failing to enforce its recordkeeping requirements and acquiescing in industry reports of impossibly low numbers of injuries and illnesses, which allegedly hampered OSHA’s ability to target inspections and undertake enforcement actions to prevent such injuries and illnesses.
Around the same time, Whitmore provided an affidavit supporting a co-worker in her bias and retaliation complaint against her managers.
Was it retaliation?
After his comments to the press, Whitmore’s performance review was changed from “highly effective” to “meets expectations” by his direct supervisor. It was Whitmore’s first performance review in 35 years in which he was not rated as “outstanding” or “exceeds expectations.”
Over the next two years, Whitmore continued to speak to the press about what he saw as OSHA’s under-reporting of injuries. He was eventually put on administrative leave, during which time he testified before Congress about the issues he saw going on at OSHA. Whitmore was eventually fired for “disruptive and intimidating behavior, conduct unbecoming a supervisor and inappropriate conduct in the workplace.”
Whitmore turned around and sued, claiming his discharge was in retaliation for his whistleblowing. A court ruled in the DOL’s favor, but the ruling was reversed on appeal and remanded to a lower court.
The case was settled for a whopping $820,000 before the rehearing.
This sizable settlement may signal the beginning of rigorous recordkeeping review by the DOL. Thus, employers should be sure to carefully scrutinize record-keeping policies and procedures to ensure accurate reporting, not only of on-the-job injuries and illnesses, but of disability, veteran, discrimination, and all other DOL recordkeeping requirements. Plus, the fact that the DOL was subject to suit in this action vividly illustrates that whistleblower actions know no boundaries.
The case is Whitmore v. Department of Labor.