A Second Front in Litigating with Alleged Whistleblowers

In Secretary of the U.S. Dept. of Labor v. Lear Corp., Case No. 15-12060 (decided May 13, 2016), the United States Court of Appeals for the Eleventh Circuit addressed when the Secretary of the U.S. Department of Labor could seek an injunction to prevent a business from suing a former employee who claimed the status of whistleblower under the Occupational Safety and Health Act (OSHA).

Lear had sued a former employee in state court for defamation and intentional interference with business relations. The Secretary filed a case in federal court seeking injunctive relief under the whistleblower protection provisions of OSHA. Those provisions allow the Secretary to seek injunctive relief to protect a person that the Secretary determines has been retaliated against on the grounds he is acting as a whistleblower within the terms of OSHA. 29 U.S.C. § 660(c). In the Lear case, the district court granted a preliminary injunction preventing Lear from filing litigation against current and former employees. The Eleventh Circuit reversed.

As a threshold matter, the Eleventh Circuit held that the Secretary had the authority to file a lawsuit seeking injunctive relief to protect a whistleblower from litigation brought by a current or former employer and could do so after the Secretary made a determination that the lawsuit against the employee amounted to retaliation. However, to obtain an injunction, the Secretary had the burden of establishing that the original litigation against the whistleblower was either (1) baseless and retaliatory or (2) preempted by federal law. Because in the case at issue the district court had made no finding that the underlying state court case was baseless or preempted, the injunction was due to be set aside.

This case recognizes that a business litigating with the current or former employee may have to litigate on a second front with the Secretary if the employee claims the status as a whistleblower under OSHA. However, the Lear case recognizes a fairly high standard for the Secretary’s succeeding in such litigation.

The decision is available at


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