By State, Massachusetts

Massachusetts Employer Held Liable for Actions of Ex-rep

Employers! Watch your associates – past and present – because they may determine your future.

The following is an article published today by Michael Felsen – the Labor Department’s regional solicitor of labor in Boston.

test this change We often rely on the testimony of workers, who observed or were affected by safety and health violations, when a company contests OSHA citations before an administrative law judge of the Occupational Safety and Health Review Commission.  Employee cooperation and candor are crucial to these efforts.  Just as important, employees who give testimony are protected by the Occupational Safety and Health Act from retaliation or discrimination of any kind on account of their cooperation.

76800459Thus, we were deeply concerned when we heard from a worker following his testimony in Massachusetts.  He told us that he had received a number of hostile, highly offensive and intimidating text messages from the individual representing his employer at trail.  The case had settled favorably for the department and the proposed settlement agreement had already been sent to the employer.  Once these hostile texts came to light though, we had to tell the employer that the settlement was no longer on the table.

The employer claimed that it had nothing to do with these actions and that its trial representative wasn’t employed by the company when he sent the offensive texts.  We made clear — because the offender had been the company’s representative and had committed these acts right after the trial –- that the employer needed to take some responsibility for what had happened.  Also, we needed to make sure that this employer would not allow something like this to ever happen again.

Ultimately, the employer agreed to a revised settlement agreement, in which it condemned the actions of its trial representative.  It also agreed not to object to a Court of Appeals “summary enforcement order” which would provide for contempt sanctions if the employer violated express anti-retaliation terms we had inserted into the agreement.

This kind of attack — on a cooperating employee who had testified honestly about his work conditions — was the first of its kind that we had ever seen, after many years of trying OSHA cases in the Boston Regional Solicitor’s Office.  It demanded a strong and immediate response.  Our agreement makes clear that this kind of behavior, by an employer or its representatives, violates the law, limits an employees’ right to speak out, and simply won’t be tolerated here in Massachusetts or anywhere in the United States.

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