By Pamela Wolf, J.D.

Purportedly, after the CEO learned that the employee broke his leg falling from a ladder, he arranged to meet the employee and for ICE to detain him afterward.

On March 1, OSHA announced that the DOL has filed a lawsuit against Boston, Massachusetts-based contractor Tara Construction Inc. and its chief executive officer, alleging that they retaliated against an injured employee by facilitating his arrest by immigration law enforcement officers.

Employee reports injury. The employee sustained a broken leg when he fell from a ladder while taping drywall on March 29, 2017, according to the complaint. The employee was taken to the hospital by ambulance. The CEO allegedly visited the employee in the hospital the day he was injured and received information about his injuries from hospital staff.

OSHA made an inquiry into the employer after the accident was referred to the agency by an employee of the Boston Fire Department.

Reporting an injury to an employer and causing an OSHA proceeding to be instituted are protected activities under Section 11(c) of the Occupational Safety and Health Act (OSH Act), which prohibits retaliation against employees because they engage in such activities.

ICE alerted, employee detained. Shortly after the employee engaged in protected activities, the company and the CEO initiated a law enforcement investigation and facilitated the employee’s detainment by U.S. Immigration and Customs Enforcement (ICE), the complaint alleges. The CEO purportedly arranged for the employee to meet him at the Tara Construction office; the employee was arrested immediately after leaving the building.

Although the CEO testified to OSHA that he had no idea how law enforcement knew where the employee would be when he was detained, a law enforcement account indicates that the CEO told an officer present at the arrest when the employee would be at Tara Construction’s office, according to the DOL. The CEO also allegedly advised the officer that he had no objection to the employee’s arrest there.

This account is purportedly supported by text messages and records of about 14 telephone calls between the CEO and law enforcement in the days surrounding the arrest.

An OSHA Whistleblower Protection Program investigation concluded that the defendants’ actions constituted retaliation against the employee for protected activity under the OSH Act and would dissuade a reasonable worker from reporting an injury.

Relief sought. The complaint asks the court to order the defendants to comply with the OSH Act’s anti-retaliation provisions and pay the employee back wages, interest, and compensatory and punitive damages. It also seeks an order requiring that Tara Construction provide a neutral letter of reference, expunge from their files any information regarding the adverse action against the employee in this case, and notify employees of their whistleblower rights under the OSH Act.

“Employees must be able to report injuries and unsafe workplaces without fear that their employers will retaliate,” OSHA Regional Administrator Galen Blanton said in a statement. “OSHA enforces the law to protect all employees and level the playing field for law-abiding employers.”

By Pamela Wolf, J.D.

A wage and hour case with a storied history that included sanctions against Littler Mendelson defense attorneys and spoliation of videotape evidence has reached a resolution under which 800-plus employees at 12 Southern California car washes will receive a share of $4.2 million in recovery obtained by the Department of Labor. Under a consent judgment, car wash operator Vahid David Delrahim and his related businesses will pay $3.8 million in back wages and liquidated damages for FLSA violations and $400,000 in civil money penalties, the DOL announced.

Off-the-clock work. The DOL’s lawsuit and investigation found that Delrahim required employees at his company’s car washes to work off the clock at the beginning of each shift and to clock out, but to remain at the car washes, when business was slow. The violations resulted in unpaid wages amounting to, on average, several hours of pay each day. As a result of the judgment, some employees will receive more than $10,000 in back wages.

Discovery sanctions. Earlier this year, on March 28, a federal district court in California sided with a Special Master who had determined that the owners of the car washes and their managing agents should be sanctioned for spoliation of evidence by precluding them from using videotapes of workers’ activities that they had destroyed and imposing a presumption that the videotapes would have been unfavorable to the defendants. Since the carwashes allegedly have not maintained accurate records of the hours that employees worked, the surveillance tapes would have been the best evidence of the actual hours worked, according to the DOJ.

The court also agreed that the defendants should be required to pay $19,487 in attorneys’ fees for various discovery abuses.

Temporary restraining order. The ethics of Littler Mendelson attorneys were called into question by the contrary declarations of employees whom the DOL had already determined to have been shorted of their wages. The court considered meetings between employees and defense counsel, which were aimed at obtaining employee declarations that they had not worked “off the clock,” to be “inherently coercive.”

The court entered a temporary restraining order in the case, among other things, enjoining the defendants, their agents, and their counsel from taking any further steps to retaliate or discriminate against any current or former employee of the 12 car washes at issue in the litigation, or any potential witness, “including communicating with any non-managerial worker regarding any underpayment or nonpayment of wages due or other violation of the FLSA outside the presence of counsel for the Secretary.”

Other relief. In addition to the $4.2 million in unpaid back wages and penalties, the consent judgment contains several provisions to ensure the defendants’ future compliance with the law, including one year of oversight by a court-appointed independent monitor and issuance of notices by the defendants to workers and managers on employees’ FLSA rights.

Among other things, the defendants, their officers, agents, and employees are prohibited from taking any action to deter employees from asserting their rights under the FLSA or interfering with any U.S. Department of Labor investigation of wage or other violations, including coercing, intimidating, or disciplining employees whom they believe have reported complaints or provided information to the U.S. Department of Labor or the Independent Monitor, or attempting to deter or influence complaints made to the U.S. Department of Labor or the Independent Monitor.

“This is a major win for hundreds of employees systematically abused by one of Southern California’s largest car wash operators,” said Wage and Hour Division Acting Regional Administrator Juan Coria. “This landmark case sends a powerful message that the Department of Labor will use strong law enforcement and litigation tools to protect employees and level the playing field for law-abiding employers.”

“The court’s decisions make clear that our laws protect workers, and neither an employer nor their attorneys may interfere with their rights,” said DOL Regional Solicitor Janet Herold. “The integrity of our justice system depends on employers’ and their attorneys ensuring that a true and accurate record free of any undue influence is presented to the court.”

The Labor Department filed its lawsuit in the Central District of California; the case is No. 2:16-cv-04547-FMO-AGR.

Humana Inc. will pay $2.5 million in back wages and interest under a conciliation agreement with the Department of Labor to resolve allegations of pay discrimination against 753 women at the health insurance company’s headquarters in Louisville, Kentucky. The move followed a routine compliance evaluation by the DOL’s Office of Federal Contract Compliance Programs. Humana is a federal contractor with the Department of Defense.

In 2011-2012, Humana paid women in consulting, project manager, and manager positions less than similarly situated men, according to the OFCCP. The federal agency determined that Humana’s actions violated Executive Order 11246, which prohibits federal contractors from discriminating based on sex. While Humana does not admit liability, it will also make pay adjustments and take steps to ensure that its pay practices meet legal requirements.

“We are pleased that Humana has a commitment to equal employment opportunity and has worked cooperatively with the Department of Labor to resolve this matter,” said OFCCP Regional Director Samuel Maiden.