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OSHA Sues Contractor over Fired Worker

Tuesday, December 18, 2012

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Federal regulators are suing an Alabama structural relocation company for allegedly firing an employee who refused to work in a collapsing trench.

The U.S. Department of Labor has sued DKS Structural Services, doing business as Don Kennedy and Sons House Moving Co., and owner Jeffrey Kennedy for allegedly terminating an employee who refused to enter a trench that was not adequately protected to prevent cave-ins.

Photos: Don Kennedy and Sons House Moving Co.

DKS specializes in structural relocation, foundation repair, and leveling. The Department of Labor is suing the company for alleged wrongful termination.

The lawsuit followed a complaint filed by the employee and subsequent investigation by the Occupational Safety and Health Administration.

DKS Structural Services declined to respond to a request for comment. The company moves bridges, foundations, houses and other structures.

Unprotected Trench, Additional Citations

On Jan. 16, according to OSHA, the employee was directed to work in six- to 15-foot-deep trenches at the company's job site in Huntsville, AL. The walls of one trench, about 15 feet deep, began to slide and cave in,  OSHA reported.

The ladder that was used to get in and out of the trench then broke from the mud and dirt caving in, and the employee was directed to enter the trench by being lowered in the bucket of a backhoe.

The employee said he did not want to go back into such a deep trench without protection from further cave-ins. The employer allegedly told him to "get in the hole or go home." The employee refused to enter the unprotected excavation and was immediately fired, OSHA stated.

"When an employer fails to correct a hazardous condition, workers have the right to refuse to enter an unsafe area without fearing retaliation," said Cindy Coe, OSHA's regional administrator in Atlanta. "Employers violating this basic right will be prosecuted to the fullest extent of the law."

OSHA found that the company terminated the worker for engaging in activity protected by Section 11(c) of the Occupational Safety and Health Act, which prohibits retaliation against employees who report or refuse to work in unsafe conditions.

A former employee claims that he was fired immediately after refusing to go into a 15-foot-deep trench that was not protected against cave-ins.

In addition to investigating the employee's complaint, OSHA conducted an inspection of the work site. On July 9, OSHA issued citations for two willful and two serious violations related to excavation and personal protective equipment standards.

Willful citations are OSHA's highest level of infraction, reserved for violations committed with "intentional knowledge or voluntary disregard for the law's requirements, or with plain indifference to worker safety and health."

The proposed penalties totaled $122,400. The case is still pending.

The department's lawsuit seeks back wages, interest, and compensatory and punitive damages for the employee. Additionally, it requests that the employee's personnel records be expunged with respect to the matters at issue in this case, the employer be barred against future violations of the OSH Act by a permanent injunction, and any other appropriate relief.

The employee's name was not released. OSHA does not identify whistleblowers.



Tagged categories: Bridges; Health and safety; Labor; Lawsuits; OSHA

Comment from Tom Schwerdt, (12/18/2012, 8:15 AM)

Sure, that's a safe workplace. C'mon - the trench is only in the process of collapsing - get on in there!

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