The Department of Labor (DOL) recently posted a news release outlining a suit they filed on a case relating to non-reinstatement of two employees by their employer. In this case the DOL cited retaliation against the two in violation of the non-retaliation provisions of the Occupational Safety and Health Act (OSHA).

Specifically, two employees in the dental field had been furloughed during the pandemic. Both employees were initially called back by the employer but asked what safety measures would be in place once clients and employees returned. The employer subsequently reinstated all employees but the two employees who asked about the safety measures. The OSHA investigation found that “the employer discriminated against the employees for exercising their rights under section 11 (c) of OSHA and for engaging in the protected activity of making a good faith health and safety complaint.”

From a monetary perspective, the suit requests damages, plus interest, for past and future wages and benefits lost due to the discharge, reimbursement of costs/expenses, compensatory damages, including emotional pain and distress, and exemplary or punitive damages. The article also refers to 24 other statutes protecting employees who report violations dependent on industry.

If you are a private employer and think your employees are not covered under whistleblower/non-retaliation protections because you are not covered under the federal law or the State of New Mexico Whistleblower Protection Act for public employees, think again.

Before taking action on an employee who has made a complaint or requested something from you as an employer which is an employee right under the law, contact your Human Resources Department. If you do not have a dedicated full-time HR Department, consider contacting us at Southwestern HR Consulting.

Magdalena Vigil-Tullar

Written by | Magdalena Vigil-Tullar


Phone: 505-270-7494 | Email:

PO Box 14274 | Albuquerque, NM 87191

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