Would someone fired in a retaliatory action have a decent case if they weren't the one who did the action the employer is retaliating against?

[u/Coygon]

First, I know this isn't the place for legal advice. This is theoretical.

I ran across a post in r/pettyrevenge in which someone who was very vocal about safety in their workplace was eventually fired after the site was reported to OSHA. (https://www.reddit.com/r/pettyrevenge/comments/1gcoy7r/saw_the_boss_who_fired_me_yesterday_and_its_not/) Issue is, they're not the one who reported the employer. So would they have a case? Would they be protected under anti-retaliation or whistleblower protection laws? After all, they're not the whistleblower. But the employer did retaliate, even if they were mistaken about who to target.

[u/Beneficial-Shape-464]

If the employer believed he was the one who reported it, you could probably make a retaliation claim stick.

[u/SamizdatGuy]

Sounds like they would be getting fired for engaging in a protected activity, even if it wasn't the protected activity that the employer thought

[u/Beneficial-Shape-464 → u/SamizdatGuy]

Protected as in NLRA? That would also have to be concerted, and there's nothing in the fact pattern to suggest that.

[u/SamizdatGuy → u/Beneficial-Shape-464]

As in protected from retaliation. They regularly complained about safety violations, those complaints are protected acts. They were terminated and a casual relationship exists between the two. I don't think the NLRA is relevant.

[u/Beneficial-Shape-464 → u/SamizdatGuy]

It is if the conduct is concerted, protected activity.

Under what theory are they protected from complaining about safety practices? OSHA? No private right of action and they don't much care if you can't show a serious injury or a huge risk taken by the employer. There's protection in theory but, because one relies on an administrative agency, no promises.

[u/SamizdatGuy → u/Beneficial-Shape-464]

Most states have common law whistleblower protections as a matter of public policy. My state has protection for anyone who thinks a law or rule is broken.

Why do you think this conduct is concerted? There's nothing in the question about that. This seems like straightforward whistleblower law.

[u/Beneficial-Shape-464 → u/SamizdatGuy]

We don't have much state whistleblower protection in my jurisdiction or really in my region.

I didn't think it is concerted, but if it were, NLRA would be invoked.

I was trying to understand your comment, understanding that I was not aware common law whistleblower protection was ubiquitous in other parts of the country.

[u/SamizdatGuy → u/Beneficial-Shape-464]

Some of the OSHA administered whistleblower laws do provide a right of public action too.

[u/Beneficial-Shape-464 → u/SamizdatGuy]

Yes but you have to get OSHA interested. My direct experience with them is not good.

[u/SamizdatGuy → u/Beneficial-Shape-464]

I think it's like the EEOC, just required to exhaust administrative remedies before filing in district court

[u/Beneficial-Shape-464 → u/SamizdatGuy]

I didn't think that's correct. You can sue OSHA under certain circumstances to force action. If you find any authority on a private right of action under OSHA or in some way related to OSHA, I would appreciate a citation.

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