Nuclear Employer Alert


OSHA Says TVA, Kinder Morgan Retaliated Against Whistleblowers

By Donn C. Meindertsma

Claiming that its actions demonstrate a "commitment to protect workers who exercise their right to raise safety concerns without the fear of retaliation," OSHA this week cited two companies for retaliating against whistleblowers. The two separate cases involve TVA and the Houston-based pipeline giant Kinder Morgan. These are the first OSHA whistleblower retaliation determinations publicly announced on OSHA's website in 2019.

The employee in the Kinder Morgan case was allegedly fired after telling a company contractor that Kinder Morgan wasn't complying with spill reporting requirements under pipeline safety rules.  Supposedly, Kinder Morgan directed the employee to retract the statement and, when the employee refused, discharged the worker. After conducting an investigation, OSHA determined that the employee's concern constituted protected activity and the discharge was because of that concern, in violation of the whistleblower protection provisions of the Pipeline Safety Improvement Act (49 U.S.C. 60129).

OSHA ordered Kinder Morgan to pay the employee about $143,000 in back pay and damages, plus an additional $20,000 in attorney fees. This determination marks the conclusion of the OSHA investigation phase of the case, and Kinder Morgan has the opportunity to request a hearing on the employee's claim.

According to OSHA, the employee in the TVA case allegedly reported violations of surveillance requirements and also participated in an investigation that the TVA General Counsel's office conducted regarding a potential chilled work environment. Both events qualified as protected activities under Section 211 of the Energy Reorganization Act (42 U.S.C. 5851). OSHA also determined that TVA ultimately discharged the worker after she engaged in the protected activity.

OSHA ordered TVA to pay her $123,460 in back wages and interest, $33,835 in compensatory damages, and attorney fees. In addition, OSHA ordered TVA to reinstate the worker to her job. As in the Kinder Morgan case, the OSHA determination is the Department of Labor's initial conclusion in the case, and TVA may request a hearing.

It is unclear at this stage how the TVA employee's participation in an investigation into a potentially chilled work environment qualified as a protected activity. Presumably, the purpose of the investigation was to determine whether the potential for retaliation existed and to deter and prevent any such retaliation. Even if, as part of the investigation, the employee stated that she thought the workplace was chilled, that is no more than an opinion, not a report of a violation of any regulatory requirements. Further, common sense suggests that an employer would not have a motive to retaliate against a worker for providing input in that context.

Please let us know if you have any questions about these developments.

This summary is provided as an informational tool. It is not intended to be and should not be considered legal advice, and receipt of this information does not establish an attorney-client relationship.