Region 4 News Release: 12-1848-ATL (396)
Dec. 10, 2012
Contact: Michael D'Aquino
Phone: 404-562-2076
Email: d'aquino.michael@dol.gov

US Department of Labor sues DKS Structural Services in Huntsville, Ala.,
for firing employee who refused to enter unprotected 15-foot-deep trench
OSHA finds employer in violation of OSH Act's Section 11(c)

HUNTSVILLE, Ala. – The U.S. Department of Labor has sued DKS Structural Services, doing business as Don Kennedy and Sons House Moving Co., and owner Jeffrey Kennedy for allegedly terminating an employee who refused to enter a 15-foot-deep trench that did not have adequate protection to prevent cave-ins.

The lawsuit follows a timely complaint filed by the employee and subsequent investigation by the department's Occupational Safety and Health Administration. OSHA found that the company unlawfully and intentionally terminated the worker for engaging in activity protected by Section 11(c) of the Occupational Safety and Health Act, which prohibits retaliation against employees who report or refuse to work in unsafe conditions.

The department's lawsuit seeks back wages, interest, and compensatory and punitive damages for the employee. Additionally, it requests that the employee's personnel records be expunged with respect to the matters at issue in this case, the employer be barred against future violations of the OSH Act by a permanent injunction and any other appropriate relief.

"When an employer fails to correct a hazardous condition, workers have the right to refuse to enter an unsafe area without fearing retaliation," said Cindy Coe, OSHA's regional administrator in Atlanta. "Employers violating this basic right will be prosecuted to the fullest extent of the law."

On Jan. 16, the employee was directed to work in trenches between 6 and 15 feet deep at the company's job site in Huntsville. The walls of one trench, measured at approximately 15 feet deep, began to slide and cave in. The ladder that was used to get into and out of the trench broke from the dirt and mud caving in. After the ladder broke, the employee was directed to access the inside of the same trench by being lowered in the bucket of a backhoe. The employee complained that he did not want to go back into such a deep trench without protection from further cave-ins. The employer allegedly told him "to get in the hole or go home." The employee refused to get back into the unprotected excavation and immediately was fired.

In addition to investigating the employee's complaint, OSHA conducted an inspection of the work site. On July 9, the agency issued citations to the employer carrying $122,400 in penalties for two willful and two serious violations related to excavation and personal protective equipment standards.

DKS Structural Services Inc. is based in Huntsville and specializes in structural relocation, foundation repair and leveling. The Labor Department is represented in court by its Regional Office of the Solicitor in Nashville, Tenn. The suit was filed in the U.S. District Court for the Northern District of Alabama, Huntsville Division.

OSHA enforces the whistleblower provisions of the OSH Act and 21 other statutes protecting employees who report violations of various commercial motor vehicle, airline, nuclear, pipeline, environmental, railroad, public transportation, maritime, consumer product, health care reform, securities, food safety and consumer financial reform regulations.

Employees who believe that they have been retaliated against for engaging in protected conduct may file a complaint with the secretary of labor for an investigation by OSHA's Whistleblower Protection Program. Detailed information on employee whistleblower rights is available online at http://www.whistleblowers.gov.

To ask questions, obtain compliance assistance, file a complaint or report workplace hospitalizations, fatalities or situations posing imminent danger to workers, the public should call OSHA's toll-free hotline at 800-321-OSHA (6742) or the agency's Birmingham Area Office at 205-731-1534.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA's role is to ensure these conditions for America's working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.

Editor's note: The U.S. Department of Labor does not release the names of employees involved in whistleblower complaints.

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U.S. Department of Labor news materials are accessible at http://www.dol.gov. The information above is available in large print, Braille or CD from the COAST office upon request by calling 216-893-7828 or TTY 216-893-7755.