Hostile Work Environment Definition
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The Whistleblower Wins Money. Big Money.

Man blowing a whistleA male flight crew employee working for “Southern Air Inc”, which is a cargo airline, complained twice to managment about safety concerns. First he complained about inadequate rest breaks. Then he complained about being forced to work extra hours, beyond what the FAA allows by law. So what happened next?

Southern Air retaliated against the employee, of course! First he received less work. Then the company “discovered” problems with his job performance. Then, in April of 2008, he was terminated.

After being terminated the employee filed a complaint with a regional office of OSHA.  OSHA investigated, and found that the employee’s complaint had merit.  OSHA issued a prelimiary opinion, ordering Southern Air to pay the terminated employee:

$300,000 for loss of career wages, $135,240 in compensatory damages, $7,394.65 in attorney’s fees and back pay of $1,485 per week, plus interest, from April 7, 2008, through the date of payment.”

That comes to a total of $505,004.65 before interest.  To break down how OSHA reached that figure, let me explain that “career wages” means how much money the flight crew member would have made between now until the end of his career at Southern Air — if Southern Air had not illegally terminated him for being a whistleblower.

“Compensatory Damages” of $135,240 includes out of pocket costs that this employee suffered because he was illegally terminated.  A portion could be the cost he had to pay for COBRA health care coverage every month, that would have regularly been paid by the company.  Another portion of that figure could be medical bills that he incurred for stress and anxiety caused by management illegally terminating him. 

His attorney fee award of $7,394.65 is shocking.  Shocking because it’s so LOW.  The usual total cost to take an employment lawsuit to trial if you were paying your attorney on an hourly basis would be $50,000 to $100,000 (not if you were paying the attorney a 33% contingency fee). 

Why is the cost so low?  Because most of the work was done by OSHA, the administrative agency that the employee complained to.  This is part of why I advocate filing an administrative complaint early in the process; it saves you tons of money, and still provides you with legal protection.

Now, this story may not be over.  Both sides can file an appeal with Labor Department.  If they don’t like that result they can appeal to federal district court.  But interest will be accumulating the entire time, and the legal interest right for unpaid judgments is much higher than what banks pay.  It’s 9% here.  That’s a big incentive to pay the employee now and forego all the appeals.

If you would like to learn more about protecting your own rights and learning how to pursue a whistleblower or administrative claim you get can my book on the topic, which has helped thousands of people already.

Or, if you would like to learn more about the employer in this case you can read about Souther Air on the company’s own website: Southern Air Website (with photos); there’s also a short Wikipedia article about the company you might enjoy checking out HERE.

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Comments

  1. On this guy, you dont know the half of it. You should see what this company is doing to him and 12-15 others. Contact me webmaster.

  2. In Florida, attorneys may not be as well-protected as everyone else when it comes to acting as whistleblowers. In fact, you can be fired for following the rules.

    In this case, Snow v. Ruden, 896. So.2d 787 (Fla. 2d DCA 2005), an attorney who worked for a large firm was fired after she complained that her supervisor was misappropriating client funds. She first reported the conduct to the firm’s managing partner, the office manager, and the head human resource officer. They told her she was causing trouble & to leave it alone.

    She then reported the misconduct to the State Attorney. When the firm found out, they fired her (she was employed under an at-will contract). She filed a lawsuit under Florida’s Private Sector Whistleblower Act, claiming that her termination was in retaliation for her refusal to join in the firm’s after-the-fact cover-up of illegal and unethical conduct.

    Specifically, the diversion of client funds was an act of theft and she was ethically bound to report the illegal conduct under Rule 4-8.3 of the Florida Rules of Professional Conduct. Once her superiors were informed, they too had an obligation to report it up the chain-of-command. In other words, Bar rules obligated her and her firm to report any serious misconduct which might affect the integrity of the profession and Florida’s Whistleblower statute should have protected her for doing so.

    Wrong.

    An appellate court upheld the dismissal of her case as a matter of statutory interpretation. It found that the rules governing members of the Florida Bar were not included under the Florida Whistleblower Act because they didn’t originate from a legislatively enacted statute, ordinance, or administrative rule as 2009->Ch0448->Section%20101″>defined by the Act itself.

    The court’s reasoning is straightforward and their decision is based on the plain language of the laws as written. The court emphasized that its role regarding statutes is to interpret them, not extend them. It left it to the legislature to amend the statute.

    That ruling was in January of 2005. To date, no bill has been introduced in either the House or the Senate on this topic. And while the Florida Bar has made minor amendments to Rule 4-8.3, none of them address this problem.

    What makes this so incredibly outrageous is that the attorney she reported was later suspended from practicing law for the very misconduct she complained about. In fact, the Bar investigation uncovered even more violations (see the Florida Supreme Court’s disciplinary ruling at this link). He was later reinstated in April of 2006.

    Presumably, if she had reported criminal misconduct to the police she would have been protected. But if the misconduct doesn’t rise to the level of a crime, the lesson for attorneys is either keep your mouth shut or you risk losing your job for being a trouble-maker. Violations of the rules of ethics aren’t considered serious enough to warrant Whistleblower protection, even though the rules themselves obligate an attorney to report violations.

    Because the Florida legislature hasn’t seen fit to close this insidious loophole in the Whistleblower statute, it effectively allows internal office politics to trump both state law and the ethical duties of a profession whose reputation is already badly tarnished in the public eye. We ought to encourage and reward those lawyers who try to maintain the integrity of the practice.

    But sadly, no good deed goes unpunished.

  3. Internal link fixed from the paragraph above:

    An appellate court upheld the dismissal of her case as a matter of statutory interpretation. It found that the rules governing members of the Florida Bar were not included under the Florida Whistleblower Act because they didn’t originate from a legislatively enacted statute, ordinance, or administrative rule as 2009->Ch0448->Section%20101#0448.101″>defined by the Act itself.

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