OSHA orders reinstatement for lead-safety whistleblower | Kalijarvi, Chuzi, Newman & Fitch, P.C.
The Occupational Safety and Health Administration (OSHA) last Wednesday ordered a Bedford Heights, Ohio, restoration company to reinstate a former employee and awarded him $161,000 in a whistleblower protection case over a lead-paint abatement renovation.
Vernon Frye was a Project Supervisor for Coit Services of Cleveland, Ohio. He has US EPA certification to perform and supervise lead-safe renovations. In December 2011, Frye was supervising the restoration of a flood-damaged home in Shaker Heights, Ohio. The property was older than 1978 when lead-based paint was banned. Therefore, it required the use of lead abatement practices such as HEPA machines to collect airborne paint particles, waste collection in sealed bags, verified cleaning procedures and compliance record-keeping.
Frye reported to his supervisor, Mr. Mark Iwanycki, that the staff had refused to follow his directions to comply with these EPA rules for lead abatement. Coit sent Frye home the day after he raised these concerns, and then fired him a few days later. Coitʼs president, Harvey Seigel, falsely claimed that Frye had resigned.
Frye filed a whistleblower retaliation complaint with OSHA. OSHA investigates lead paint whistleblower claims under the Toxic Substances Control Act (TSCA), 15 U.S.C. § 2622, and the Clear Air Act (CAA), 42 U.S.C. § 7622. These laws prohibit employers from retaliating against employees for any protected activities that try to further the purposes of these laws.
OSHA concluded that Frye, ʻʻengaged in protected activity under TSCA when he raised concerns to [Coit] that they were not properly following EPA required practices regarding lead abatement.ʼʼ OSHA ordered Coit to ʻʻreinstate Complainant to his former position with all the seniority, pay, benefits, and rights he had prior to discharge.ʼʼ OSHA also awarded Frye $161,000 in back pay, attorneysʼ fees and compensatory damages.
ʻʻOSHAʼs order to reinstate Vernon Frye protects the right of every employee to stand up for public safety,ʼʼ said Fryeʼs attorney, Neil Klingshirn of the Akron firm of Klingshirn & Fortney. ʻʻThe federal environmental laws are outdated and need to be modernized,ʼʼ said Fryeʼs attorney, Richard Renner of the Washington, DC, firm of Kalijarvi, Chuzi, Newman & Fitch. ʻʻFor example, these laws require whistleblowers to file their complaints within thirty (30) days while modern laws allow 180 days to file a complaint,ʼʼ Renner added. ʻʻFrye was fortunate to find where and when to file a complaint.ʼʼ Airborne dust of lead paint can cause nervous system damage, stunted growth, kidney damage, and delayed development. It is dangerous to children because it tastes sweet. Once children to put lead dust in their mouths, they are likely to continue consuming more. Lead paint is also dangerous to adults and can cause reproductive problems in men and women. The USEPA’s America’s Children and the Environment, p. 19, reports that 15% of America’s children under six years old lived in a home with lead paint dust.1 ʻʻI am so pleased for this decision,ʼʼ Frye says. ʻʻI hope other workers can find the courage to stand up for whatʼs right without the fear of retaliation.ʼʼ As a matter of policy, OSHA will not release the names of whistleblowers. Frye, through his attorneys, chose to release the OSHA determination in his case.