Attorneys say they’re seeing a surge in workplace safety-related complaints, including allegations of retaliation under Colorado’s new Public Health Emergency Whistleblower Act.
“We’ve had a tremendous uptick in workers calling us with complaints about their employer, often workplace health and safety complaints,” said David Seligman, executive director of nonprofit firm Towards Justice. “But I think very often when there’s a workplace health and safety issue, there’s also a whistleblower issue.”
The PHEW Act, which went into effect in July, prohibits employers, contractors and local and state government entities from retaliating against a worker for raising a “reasonable concern” about workplace violations of government health or safety rules or threats to health or safety related to a public health emergency.
While the law is still new and complaints have yet to make their way to the courts, attorneys say the PHEW Act offers several new tools to whistleblowers, including a private right of action and qui tam enforcement.
Iris Halpern, a partner at Rathod Mohamedbhai, said that in March and April, her firm was getting a lot of calls from workers at health care facilities and nursing homes. Now as COVID cases spike again, Halpern said she’s seeing an influx of claims from a more diverse set of industries.
Seligman said that following a bit of a lull in workplace safety complaints over the summer, “now we are seeing them come back stronger and scarier than what we heard in the spring.” He added that his organization has gotten calls about retaliation from workers in a wide range of industries, including shipping, agriculture, manufacturing and health care.
On Nov. 23, Towards Justice filed a PHEW whistleblower complaint on behalf of Denver Health Workers United against Denver Health. The qui tam complaint alleges the medical center retaliated against employees who spoke out about the effects of COVID and racism in the workplace, noting that “COVID-19 and systemic racism have both been recognized as public health emergencies or crises” by the state and city.
Workers who file a complaint must first exhaust administrative remedies through the Division of Labor Standards and Statistics before bringing an action to court, and attorneys say they’re not aware of any claims that have made it past the administrative step yet.
Ogletree Deakins shareholder David Zwisler said he hasn’t seen any PHEW Act complaints yet, but he has seen an uptick in whistleblower complaints under the Occupational Safety and Health Act. Employees are more familiar with OSHA processes than the PHEW Act, and there’s no need to hire an attorney to file an OSHA whistleblower complaint, Zwisler said. But he added there may be an incentive for employees to file more civil lawsuits under the PHEW Act because it allows for back pay damages of $10,000 or the amount of lost wages, whichever is greater.
Halpern said another advantage of the PHEW Act for workers is it allows them to sue while the OSH Act does not. “I personally think it’s very important that we passed the PHEW Act because it has a private right of action that’s enforceable and doesn’t leave it up to the whims of the federal government, which has just not been doing very much now,” she said.
“OSHA has been incredibly ineffective,” Seligman said, adding the agency has been an “utter failure” when it comes to enforcing safety standards in general as well as in dealing with whistleblower complaints.
Seligman said the PHEW Act’s qui tam provision is a “really powerful” aspect of the law because the state doesn’t have a lot of resources to enforce labor and employment laws. At the same time, he added, workers are increasingly afraid or unable to sue on their own due to obstacles such as arbitration agreements. “So the qui tam enforcement model, which involves this private-public enforcement tool, is really important and it’s really timely.”
Another notable feature of the PHEW Act, according to Ogborn Mihm partner Clayton Wire, is that it protects private employees who report their concerns to the media, which isn’t considered protected activity under some other laws with whistleblower protections, such as the Sarbanes-Oxley Act. One of the allegations in the Denver Health complaint is that an employee was reprimanded for participating in a radio interview about the difficulties of working as a paramedic during the pandemic.
SEEING IT IN WRITING
The Colorado Department of Labor and Employment last month finalized its Whistleblower, Anti-Retaliation, Non-Interference and Notice-Giving Rules, which clarify aspects of the PHEW Act.
The WARNING rules adopt a motivating factor standard for retaliation under the PHEW Act. According to Wire, who represents plaintiffs in whistleblower claims, the CDLE’s decision to apply the motivating factor standard to the new law didn’t come as a surprise to PHEW Act proponents, but “it’s good to see it in writing.” “It’s what we expected, but it’s also a standard that is a bit more protective of whistleblowers under the statute than a ‘but-for’ causation standard,” he said.
Recent CDLE guidelines on the PHEW Act also reiterate that non-disclosure and confidentiality agreements restricting protected activity are unlawful and unenforceable. While the statute itself is “pretty clear on this,” Wire said, the interpretive guidelines make it even clearer that such agreements or attempts to impose them are in violation of the PHEW Act. He added that employers who try to impose unlawful confidentiality agreements could be subject to damages of at least $10,000.
Zwisler said he doesn’t expect many existing NDAs or confidentiality clauses to fall afoul of the PHEW Act unless they explicitly mention health or safety concerns. “If we’re looking at an employment agreement or an independent contractor agreement, I see more generic trade secret or confidential information provisions,” Zwisler said. “But I don’t see those generally getting into the details of their safety concerns.”
One of the biggest changes for employers to be aware of under the PHEW Act, Zwisler said, is that they must allow workers to use their own personal protective equipment. There are some limits: the worker’s preferred PPE must be of a type that provides higher levels of protection than employer-provided equipment and must be recommended by federal, state or local health authorities. Additionally, the worker’s choice of PPE must not prevent them from performing their job duties.