DOL: Childcare Worker Fired for Reporting Safety Concerns

The U.S. Department of Labor (DOL) has ordered a daycare facility to reinstate a fired childcare worker and pay $43,295 in back wages and damages.

The employer was also required to pay $5,500 in attorney’s fees.

Childcare Worker Shares Concerns With Supervisor, HR  

An OSHA investigation determined that LSP Operations LLC, operating as Little Sunshine Playhouse Operations, retaliated against an employee who worked at its Southlake, Texas, location. 

In May 2023, the childcare worker notified their direct supervisor that the facility’s kitchen was not being cleaned overnight. The individual reported finding spilled and spoiled food out when they reported for the morning shifts.

Two months later, the childcare worker notified HR about excessive heat in the kitchen, which the person believed was causing food to spoil quickly.

OSHA noted that HR followed up with the employee on Aug. 7 “regarding the newly installed portable air conditioner and provided instructions on how to use the unit.” At that time, the employee reiterated concerns and doubted that one portable unit would be sufficient to stop the food from spoiling.

Employee Notifies State, Participates in Unannounced Inspection

On Aug. 29, the childcare worker filed a complaint with the Texas Department of Health and Human Services (HHS) concerning “moldy food and unsanitary conditions at the jobsite.”

The next day, an inspector from the Texas HHS conducted an unannounced inspection of the facility and found violations during the inspection.

Approximately 30 minutes after the inspector completed the inspection, the childcare worker was fired.

Was It Retaliation?

In OSHA’s view, terminating the worker’s employment amounted to retaliating against the employee for engaging in actions protected by the Food Safety Modernization Act.  

Relevant here, OSHA’s Whistleblower Protection Program enforces whistleblower provisions of the Food Safety Modernization Act. 

OSHA didn’t buy the employer’s claim that the worker was let go due to “poor performance.” The agency gave weight to the time frame, as the worker was fired about 30 minutes after the surprise inspection.

Given the “temporal proximity between the inspection and [the employee’s] termination of employment,” OSHA determined the timing warranted “a strong inference of a causal connection between the protected activity and the adverse employment action.”

That was enough to reasonably believe the worker was fired for making the report, OSHA concluded.

“Our investigation found Little Sunshine Playhouse Operations punished an employee who reported unsafe and unsanitary conditions in the facility’s kitchen out of concerns for the health of infants, young children and staff,” OSHA’s Dallas Regional Administrator Eric S. Harbin said in a press release. “Every employee has the legally protected right to warn others about safety concerns and the right to do so without fear of an employer’s retaliation.”

Little Sunshine’s Enterprises Inc. operates 35 early learning centers for children ages six weeks through pre-kindergarten in Arkansas, California, Colorado, Georgia, Illinois, Kansas, Missouri, Tennessee and Texas.