Court orders dentist to pay $85K to employee fired for safety complaint

Assistant raised dangers of used needles as Dr. N. Terry Fayad allegedly sought cost savings

BOSTON, Mass. — It began when Massachusetts dentist Dr. N. Terry Fayad changed his practice's procedure for disposing of contaminated needles. He told those in his Beverly-based office to first remove the protective caps before dropping them into sharps disposal containers, allegedly to fill the containers with more used needles and reduce the frequency and cost of their disposal.

Concerned that she and her co-workers could be exposed to needle stick injuries and the risk of infection from bloodborne pathogens such as hepatitis and HIV, a dental assistant raised the issue with Fayad. When he dismissed her concern, she filed a complaint with the U.S. Department of Labor's Occupational Safety and Health Administration. After an OSHA inspector visited on Nov. 23, 2010, Dr. Fayad fired her later that day.

A whistleblower investigation followed and, in September 2011, the Department of Labor sued Fayad in the U.S. District Court for the District of Massachusetts. In its complaint, the department charged that the dentist violated the anti-retaliation provisions of the Occupational Safety and Health Act. The suit eventually went to trial before U.S. District Judge George A. O'Toole.

Judge O'Toole has ruled in favor of the department and ordered Fayad's practice, N. Terry Fayad, D.M.D., P.C., to pay the worker $51,644.80 in back wages and ordered both Fayad and the practice to pay her $33,450.26 in compensatory damages. The judge found that the employee's firing by Fayad shortly after OSHA began its inspection was retaliatory and a violation of section 11(c) of the OSH Act.

"This worker suffered needless financial and emotional distress because Dr. Fayad chose to disregard a clear and important principle: Employees have the right to contact OSHA and raise workplace health and safety concerns with their employer without fear of termination or retaliation," said Greg Baxter, OSHA's acting regional administrator for New England. "Employers must pay attention to this verdict. It makes it clear that there will be legal and financial consequences if you retaliate against your employees in this manner."

"The OSH Act gives employees both a right to a safe and healthy workplace, and a right to voice concerns about workplace conditions, without fear of adverse consequences," said Michael Felsen, the department's New England regional solicitor of labor. "This case demonstrates the Labor Department will pursue legal remedies aggressively when employers fire workers or try to intimidate them into silence when they assert those rights."

The court also entered an injunction against Fayad, his P.C., and their agents and employees, preventing them from violating the anti-retaliation provisions of the OSH Act, and directing the defendants to post a notice to their employees stating that they will not in any way discriminate against employees for activities protected by the Act.

The case was tried on the Secretary's behalf by Senior Trial Attorney Kelly Lawson and Trial Attorney Nathan Goldstein of the department's regional Office of the Solicitor in Boston.

OSHA's health inspection resulted in the Fayad practice being cited for violations of OSHA's bloodborne pathogen and hazard communication standards. The violations were corrected and he paid a fine of $11,000 in 2012.

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

Employers are prohibited from retaliating against employees who raise various protected concerns or provide protected information to the employer or to the government. Employees who believe that they suffered retaliation for engaging in protected conduct may file a complaint with the secretary of labor to request an investigation by OSHA's Whistleblower Protection Program. Detailed information on employee whistleblower rights, including fact sheets, is available at http://www.whistleblowers.gov.

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 names of employees involved in whistleblower cases.

Perez v. N. Terry Fayad, D.M.D., P.C. and N. Terry Fayad, D.M.D., individually. Civil Action Number: 1:11-cv-11611-GAO