Your rights under OSHA 11(c)

There are a few points I'd like to make. This thread will have a tendency to get heated, and I can respect differences of opinions.

1) No, I'm not a lawyer. However, I've been a member of three separate Teamsters locals. I know this aspect of employment law. You can fact check me by Avvo.

2) You usually won't pay a retainer fee instead of feeding your family , in these situations. An employment attorney who takes your case, will take it on a 25%, 33% or 40% contingency fee agreement. The lawyer fronts litigation costs. If you file in court, the lawyer goes after his attorney fees and you can usually get the entire judgement or settlement amount.

3) I actually don't have to post a disclaimer indicating I am not a lawyer. The disclaimer would usually be, "this is not an attorney-client relationship," when you contact a lawyer and they don't agree to represent you

4) Government agencies are horrible to deal with. It takes 30 days to process the complaint and another 6 months to investigate it. A little legwork will get you the email addresses of OSHA investigators directly, and that will speed up the process.

5) If a company trashes your DAC report for any of the protected activities I have described, you're sitting on a gold mine. That's a smoking gun for retaliation, and called blacklisting. Anyone who pursues a legal action against their employer should hope to be so lucky, to have such evidence.

6)My intention was to simply illustrate the facts. The Company, are just a group of people. Citizens like you and me. They're not our gods or rulers. While they might be more powerful because they have more money than we do as individuals, we can always level the playing field by exercising our legal rights.

7) Anybody who has actually litigated a case will tell you how much the process sucks. Any lawyer who is worth his license will tell you, "You'd rather have a job than a lawsuit." So pick your battles.

I'm going to write another section on this eventually. While I'm not an attorney, I am advocating for all of your legal rights. I want to empower all of you, in putting your employer on notice when they cross the line.

 

I think a more realistic idea is, your employer wants to avoid bad publicity. The cost of litigation is enough to force a settlement with the employer, on most cases that would have at least a 50/50 shot of winning at trial. Any claim that has merit will generally result in settlement. I think I read about 90 percent of all cases settle before trial. I think even a lot of times, a case settles before a lawsuit is even filed. Once it's filed, it's public record.

We see these appeals in ridiculously high verdicts where the company is seriously in financial distress if they had to pay that judgement. But if a claim has merit, you can figure taking it all the way to trial will cost your employer $100k in legal fees to litigate. Juries will tend to side with an employee, and the law usually presumes the employer is in violation once a prima facie case is established. While your attorney is working on a contingency fee--that is, they won't charge you unless you win--the "other side" will be spending time, resources, and a lot of money to litigate the issue. You figure a trial will cost $50-$100k to litigate in legal fees, and if they lose, they pay all court costs, the judgement itself, and then your attorney fees which are tens of thousands of dollars at the end of litigation. It's far more easier, and predictable, for the employer to offer a settlement.

But I think, it's only okay to force a settlement when a valid claim exists. We see these frivolous cases filed all the time, with some greedy lawyer sticking his hands deep into the pockets of employers who probably even tried to do the right thing, but who weren't smart enough to exercise due diligence and learn the law fully.

 

Hey , thanks for that. Do you ever force a pre-dispute arbitration agreement as part of the new hire paperwork? A lot of employers, especially small businesses--they think this pre-dispute arbitration agreement is a cure-all for employee lawsuits. That's just not the case. In fact, to be enforceable, the employer has to pay all costs for arbitration. That's tens of thousands of dollars, and there's no appeals process.

 

That's not entirely accurate. At-Will employment states you can be fired for any reason, or for no reason, so long as it is not an illegal reason.

Being sick is actually protected under ADA. How does one define a disability? Usually it is a long-term condition. But in theory, any short-term medical issue that interferes in your ability to do the job to the full extent, is considered a disability. So calling in sick because you're impaired to drive, is protected as a disability accommodation under ADA. Having dispatch shorten your shift because you feel impaired to drive, is legally-protected, both under OSHA laws and under Americans with Disabilities Act. There is case law to back this up.

An employee was fired for exceeding his company-permitted sick time. The employee told his boss, he was taking a codeine-based cough syrup for an illness and was unfit to drive. He stated the codeine in the syrup would cause him to test positive for opiates in a DOT drug test. The employer fired him for violating their absenteeism policy. He was actually wrongfully terminated because the employer's absenteeism policy was not legally applicable to this situation.

The necessity to safely drive free of impairment, was protected by law. While the employer enforced an arbitrary policy to terminate based on absenteeism, the root cause is that it would have been illegal for the employee to have driven with that drug in his system. The employee acted in the interest of safety, and the employer retaliated by terminating him.