You can discipline for not reporting hazards

January 6, 2022

A few years ago, a federal appeals court held that an employee’s failure to report a safety concern could be a factor in his termination. The employee knew he was facing termination for other reasons, so he kept some photos he’d taken of a safety issue, thinking the photos provided him “job security.” Unfortunately, his delay in reporting the issue worked against him.

The employee had been counseled numerous times over the years for inappropriate behavior. One day, after he repeatedly interrupted a safety meeting, he received a disciplinary warning.

The plant manager explained that the problem was not with the employee’s concerns about safety, but rather the inappropriate way he confronted his colleagues. The manager warned the employee that he would be terminated if he had another confrontation with a coworker.

Job security failure

That evening, the employee texted his supervisor to report a potentially lethal safety risk created by another coworker, and provided photos of the incident. He apparently believed that reporting the safety issue would protect him from termination.

He’d actually taken those photos a month previously, but never reported the issue. In fact, after taking the pictures, he allegedly boasted to a coworker that he was holding on to them for “job security.”

When he got fired less than two weeks later, his month-long delay in reporting a serious safety issue was one of the factors cited, along with his behavior problems.

In addition, the employee he’d told about the photos was admonished for not relaying the concern sooner, because he was also aware of the safety issue, but never reported it. And of course, the employee who caused the safety issue was counseled on avoiding future risks (the court documents did not describe the nature of the safety issue).

This situation went to court because the fired employee sued for wrongful termination, but in the words of the court, he was fired “for failure to reform his behavior and to report the safety concern timely.”

Whistleblower

Supervisors should know that employees can be protected from termination or retaliation for reporting a safety concern. In this situation, however, the employee intentionally withheld knowledge of a safety concern, knowing that he was facing disciplinary action, thinking he could play that card in the future to protect his job.

Ironically, rather than providing the “job security” he expected, the reporting delay actually contributed to the company’s decision to fire him — and the court agreed that it was a justifiable reason to fire someone.

The case was Tatum v. Southern Company Services, Inc., in the Fifth Circuit Court of Appeals (No. 18-40775), with the ruling made July 22, 2019.

Publish Date

January 6, 2022

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Industry News

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