OSHA Targets Facilitating Arrest of Injured Worker as Potential Retaliation

Last week, a company and its CEO moved to dismiss a unique complaint brought against them by OSHA in the U.S. District Court for the District of Massachusetts. OSHA alleges that the Company and its CEO unlawfully retaliated against an injured worker by initiating a law enforcement investigation into the worker’s identity that led to his arrest. OSHA alleges that the worker “would not have been arrested … if he had not reported his injury to [the company] and caused the OSHA inquiry to be initiated.

The complaint alleges that while the injured worker was hospitalized, the company’s workers’ compensation insurer denied coverage of the injury because the company’s policy had been canceled for non-payment of a premium. The CEO allegedly contacted the Boston Police Department a couple of weeks later and asked a detective to look into the worker’s true identity. When the injured worker came back to the company’s office to pick up a check, the CEO allegedly had warned the detective that he would be present and the police, along with immigration officials, picked him up just after he left the site.  OSHA’s complaint emphasized, “The foregoing actions by [the CEO] would dissuade a reasonable worker from reporting an injury or causing an OSHA proceeding to be instituted.”

Defendants’ motion to dismiss argues that OSHA failed to allege that the injured worker actually engaged in protected activity. Defendants assert that “the Complaint is explicit that the Boston Fire Department, not [the injured worker], caused an OSHA inquiry to commence on the day that [the worker] fell from a ladder on a [company] worksite, and that because of this OSHA inquiry, [the company and the CEO] retaliated against [the worker]. In this alleged causal sequence, [the worker’s] only action was to fall from a ladder.” The Defendants also argue that because the worker in fact did recover his workers’ compensation benefits with money fully funded by the company, the OSHA action purports to seek a prohibited double recovery.

We will monitor the case, which is case number 1:19-cv-10369 pending in the U.S. District Court for the District of Massachusetts.