Pipe Manufacturer Hit with Labor Department Whistleblower Suit

The U.S. Department of Labor (“DOL”) filed a federal whistleblower lawsuit against Tyler Pipe Co., a Texas-based foundry company, over allegations that it fired a worker who had requested personal protective equipment to mitigate workplace smoke and fumes.  The employee requested a respirator during the hiring process and experienced respiratory problems while working near an iron-producing furnace.  After acquiring a respirator on his own initiative, management allegedly told the employee he could not wear the respirator, reassigned him to a different job within the plant, and then terminated the employee. DOL claims that the job reassignment and termination violated federal whistleblower protections under OSHA.

Notable takeaways from the recent DOL action against Tyler Pipe include, but are not limited to:

• Federal law not only mandates a safe and healthy workplace but also regulates how employers may respond to employees that raise purported concerns about workplace safety and health.  In this specific instance, the DOL is alleging that the employer’s adverse employment actions were taken in response to the employee’s request for a respirator in violation of the anti-retaliation provisions of Section 11(c) of the Occupational Safety and Health Act of 1970, codified at 29 U.S.C. §660(c).  Additionally, employers should also be aware that there are other federal anti-retaliation/whistleblower protections for employees with respect to issues such as discrimination (g., race, gender, religion, etc.), wage and hour requirements, family leave, and collective action/labor (among others).
• The DOL action against Tyler Pipe may be the result of contemporary federal policy initiatives.  Federal data shows that citations for alleged violations of OSHA requirements for respiratory protection (29 C.F.R. § 1910.134) as well as eye and face protection/PPE (29 C.F.R. § 1926.503) were, respectively, the third and ninth most common citations issued in OSHA’s 2022 fiscal year.  In other words, it may not be a coincidence that the DOL brought an action against Tyler Pipe for alleged improper retaliation regarding an employee’s respirator request given OSHA’s recent focus on respiratory protection and PPE generally.  Indeed, the federal government has various means to impose its current policy objectives upon employers.
• In addition to more common workplace programs and practices intended to minimize the potential for employee claims of discrimination and harassment, employers should also consider working with counsel to develop programs and best practices to guard against the potential for claims arising from alleged unlawful retaliation against employees that have made requests for an accommodation. 
• If an employer has any question regarding whether an employee is making a legally protected request for an accommodation with respect to health and safety and/or other matters, management should speak with counsel before taking an adverse employment action.

Employers with related questions may contact Marjorie Obod and Erik Coccia of Dilworth Paxson LLP’s employment law practice.