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Whistleblower says Nevada failed her, denied protections

Critics claim OSHA system is structured with conflict of interest
Posted at 6:19 PM, Jun 23, 2020
and last updated 2020-06-23 21:33:29-04

LAS VEGAS (KTNV) — Helen Armstrong is pretty direct in summing up her experience with Nevada's Occupational Safety and Health Administration.

“My message to them would be shame on you. Shame on you," Armstrong said.

Her battle to protect her job, her co-workers, patients, and even the general public’s been raging for six years and counting, as 13 Investigates uncovered in our first report about the system that is supposed to protect Nevada workers.

“Mentally, it messes with your mind,” Armstrong said. “It’s been a long road for me. I have, again, lost everything. My health has declined. It’s taken a real toll on me.”

Armstrong says OSHA offered no protection. And after alleged retaliation by her employer, she says she was also denied the whistle-blower protection she's entitled to under state and federal law as listed on Nevada OSHA’s website.

In the wake of her complaints to OSHA, she was demoted and eventually fired.

“I submitted that report and I walked off the job,” says Rick, a former NV OSHA investigator. He says the doctors Armstrong worked for refused to provide basic documents and when he tried to get them by subpoena, the frustration multiplied.

“I don't think it was botched. I think it was blocked,” says Armstrong's attorney Joel Hanson. “That's a better word for it.”

Hanson argues leadership from above OSHA got involved and stymied the case.

And Seth Isaacs, the advocate working for Armstrong, says Jess Lankford, the head of Nevada OSHA, told him that his hands were tied, there was interference from above and that the Department of Business and Industry had taken over Armstrong’s case.

“And he ended that by saying, ‘once the employer reached out to [the department of] business and industry, this stopped being a Nevada OSHA controlled matter,'" Isaacs said.

In those recordings 13 Investigates obtained of Lankford talking to Isaacs, Lankford can be heard saying, “…you know like I said too many hands in the pot. We should've been allowed to do what we wanted to do.”

OSHA closed Armstrong's case, claiming the agency ran out of time.

“And I've heard that argument,” Lucas said. “It had absolutely nothing to do with timing out. I mean there's just not a good argument. It's pathetic.”

The interference from above was the last straw for Lucas, cementing his disgust and distrust of the agency that's supposed to protect workers.

“To say she didn't get her due process is pretty much a gross understatement,” Lucas said.

Armstrong filed a lawsuit against Nevada OSHA and the Nevada Department of Business and Industry in federal court in 2017.

“It was hard to believe that OSHA would completely reverse its role and instead of being a protector of the employee, it completely turned around and protected the employer," Hanson said.

Hanson also says the state has a legal obligation to make things right for Armstrong.

“I saw the numerous denials of Helen's right of due process of law under the OSHA laws and regulations that we have,” Hanson said. “It was a travesty of justice.”

He sums up his view of OSHA's conduct in one word, “Corrupt.”

The lawsuit claims leadership from Nevada's Division of Industrial Relations and Department of Business and Industry intervened, denying OSHA investigators the ability to do their job by blocking subpoenas and directly, unfairly communicating with Armstrong's employers.

The complaint calls the denial of due process "An illegal act" and says "…it appears completely obvious that the actions of Department of Industrial Relations Chief Administrative Officer Steve George, in blocking and delaying the investigation, were because he considered it his duty to protect Nevada businesses from whistle-blower investigations."

Armstrong found no help in federal court where the Nevada Attorney General's office argued she did not have any protection from the get-go.

Part 1 -- Whistleblower claims Nevada OSHA turned the tables on the employee

In court documents, the state claims that by law, directors from Nevada Business and Industry “…regulate Nevada OSHA" and have the discretion to determine if an OSHA investigation is appropriate.

Armstrong says that's the fox watching the hen house.

“I always thought [Dept. of] business and industry was to take care of the problem of the businesses, nothing related to OSHA on serious infractions that happen,” Armstrong said. “But, in fact, they're the higher power. They're the ones that rule NV OSHA. They tell them what to do.”

Perhaps more frightening is the state's argument that Nevada is an "at-will" work state and employees can still be fired for "Unrelated reasons… or even no reason as long as the dismissal is not due to an employee's whistle-blowing activities."

Armstrong says she's living proof employers can find their way around that, which should sound an alarm for all Nevada workers.

Helen lost her case against OSHA in federal court but is appealing to the 9th Circuit Court of Appeals.

Meanwhile, 13 Investigates is digging deeper into a serious conflict of interest claims that involve several cases where Nevada workers were killed on the job.

The Nevada Department of Business and Industry provided the following statement:

"Business and Industry is a diverse department encompassing worker protection, occupational regulation and licensing, consumer protection, small business advocacy and economic development, and affordable housing. All of these things can and do exist under the umbrella of one department without conflict. It is our view that successful business operation necessitates a business to be in compliance with all existing local, county, state, and federal requirements and regulations."

"A state workplace safety program is required to be “at least as effective” as the federal OSHA program. Federal OSHA performs oversight of state programs to ensure that this standard is being met and can require changes or modifications where the state program is not in compliance. In addition, while Nevada’s state plan closely monitors and mirrors the federal program in most aspects, Nevada OSHA does exceed federal requirements in a number of areas and has established those additional standards through the state’s regulatory process. The administration of state programs also provides greater flexibility and speed in responding to workplace safety and health concerns that may arise. That flexibility and speed allowed Nevada OSHA to work closely with the Governor’s office to respond quickly to the COVID-19 public health crisis by developing and enforcing industry- and phase-specific guidance and directives."

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