A whistleblower investigation by the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has found that Bouchard Transportation Co. Inc., Melville, N.Y., and its officers violated the whistleblower protection provisions of the Seaman’s Protection Act (SPA) when it retaliated against a seaman who cooperated with the U.S. Coast Guard (USCG).
OSHA’s Whistleblower Protection Program investigators concluded that the company’s actions constituted retaliation against the seaman for protected activity under the SPA and would dissuade a reasonable seaman from reporting safety issues.
On Oct. 20, 2017, the barge Buster Bouchard/B. No. 255 exploded off Port Aransas, Texas, killing two Bouchard Transportation employees. One of the victims’ brother, who was also a Bouchard employee, claimed he was fired for cooperating with investigators and reporting other safety concerns to the USCG. Under the SPA, reporting alleged violations of maritime safety laws and regulations, cooperating with USCG safety investigations and furnishing information to the USCG about facts related to any marine casualty resulting in death, are protected activities.
The seaman engaged in protected activity beginning several days after his brother’s death, and Bouchard fired him just over three months later, OSHA said. In early January 2018, the seaman inquired about when he could return to work and received no response. They then gave him no reason for his Jan. 31, 2018, termination.
OSHA has preliminarily ordered the employer to pay the seaman:
- Back pay with interest plus compensatory damages for losses to his 401(k);
- an additional two years of lost wages in lieu of reinstatement;
- no less than $50,000 for emotional distress, pain and suffering, loss of reputation, and mental anguish resulting from Bouchard’s adverse employment action; and
- no less than $200,000 in punitive damages.
OSHA also ordered the employer to refrain from making any adverse statements with respect to the seaman’s termination and/or any of the facts at issue in this case; and to train — within 60 days from receipt of OSHA’s Preliminary Order — its managers and employees about seamen’s rights under the SPA without fear of retaliation and provide proof of such training to OSHA.
“This case revealed troubling safety violations in the wake of a seaman’s death and it exemplifies how a culture of intimidation can have disastrous results for seamen,” said OSHA regional administrator Richard Mendelson. “Employers and vessel owners must know and respect that the Seaman’s Protection Act safeguards seamen’s cooperation with USCG and other safety investigations and the reporting of safety concerns.”
OSHA enforces the whistleblower provisions of SPA and 22 other statutes protecting employees who report violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, motor vehicle safety, healthcare reform, nuclear, pipeline, public transportation agency, railroad, maritime, and securities laws.
Under the Occupational Safety and Health Act, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to help ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance.
