OSHA’s Whistleblower Protection Program investigators concluded that actions of Bouchard Transportation Company constituted retaliation against the seaman for protected activity under the SPA and would dissuade a reasonable seaman from reporting safety issues.
On October 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 Transportation Company employee, claimed he was fired for collaborating 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 regarding 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 Transportation Company and Kevin Donohue fired him just over three months later. 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 January 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 for Bouchard Transportation Company Inc., and Kevin Donohue’s reckless disregard for the law and callous indifference for seamen’s rights under the SPA and egregious conduct.
OSHA also ordered the employer to not make any adverse statements with respect to the seaman’s termination and/or any of the facts at issue in this case. It also ordered them 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.
According to the Occupational Safety and Health Act, employers are responsible for providing safe and healthful workplaces for their employees.
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. 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
stated OSHA Regional Administrator Richard Mendelson.