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Employee Fired Because Her Brother Filed an OSHA complaint


Most employees are at least marginally familiar with the concept of whistleblower protection. If you report wrongdoing at the hands of your employer and then you are terminated for doing so, you can file a lawsuit for retaliation. But what if it wasn't you who reported the misconduct to the regulatory agency, but instead a relative or associate? In a recent case in Kansas, the court dealt with this very situation.

Retaliation for Whistleblowing Sibling

An employee was recently terminated on account of a sibling who reported safety violations in the workplace. Based on a similar decision in a Title VII discrimination case—that firing a close family member will almost always be sufficient to state a case for retaliation—a federal district court in Kansas allowed the employee to state a claim for retaliation.

The employee was an office manager at a trucking company. Her brother was a mechanic and shop manager for the same company. The brother filed a complaint with OSHA alleging safety violations. Amazingly, the office manager was terminated shortly after the employee received the complaint, and was told that was the reason she was being fired.

Does Whistleblower Protection Extend to Siblings?

Of course, the employer's defense asserted that whistleblower protections do not apply to siblings. This was a novel issue in Kansas state court. The state court did not agree with the employer, however, noting the public policy exceptions to at-will employment, which include an employee's termination for a "good faith report or threat to report a serious infraction of rules, regulations, or law pertaining to the public health, safety and the general welfare by a coworker or employer, i.e. whistleblowing."

There are cases in other jurisdictions that have held an employee can maintain a claim for retaliation after being terminated for a spouse's whistleblower complaints. For example, in Marinhagen v. Boster, Inc., the employee was terminated after his wife exercised her rights under the Worker's Compensation laws.

Federal Discrimination Law Protects Siblings in Retaliation Cases

The court in Marinhagen relied on federal case law applying Title VII to determine that a spouse had a claim for retaliatory discharge. Furthermore, the U.S. Supreme court held in Thompson v. N. Am. Stainless, LP, that it would not identify a "fixed class of relationships for which third-party reprisals are unlawful," but held that "firing a close family member will almost always meet the Burlington standard."

Retaliation, in the employment context, occurs when an employer takes an "adverse employment action" against an employee for "engaging in legally protected activity." An adverse employment action refers to a negative job action, such as demotion, discipline, termination, reduction in salary, or changes in assignments or shifts.

"Legally protected activity" refers to an employee's conduct and typically consists of either participation or opposition in some type of employment related activity that is protected by statute. Protected activity obviously covers whistleblowing, as well as reports or complaints of discrimination in the workplace.

If you feel you have been the victim of retaliation or any other form of discrimination, or if you have more questions concerning your employment rights, please contact Michel | King Michel & Kingvia a case evaluation form or by calling (205) 265-1880.

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